Richard Kennedy v. Wm.Gardner, et a l . CV-96-574-B 06/05/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard E . Kennedy

v. C-96-574-B

William M. Gardner, et a l .

MEMORANDUM AND ORDER

A candidate for state or federal office who is unwilling to

abide by New Hampshire's self-described "voluntary" campaign

expenditure laws must file a specified number of primary

petitions and pay a filing fee when declaring his or her

candidacy.

, 655:20, & 655:22

(1996). The primary petitions must include language informing

signatories that the candidate may not have agreed to abide by

the state's campaign spending cap.

(11). Candidates who agree to limit their expenditures are

not subject to these reguirements.

-b (1996) .1

Richard Kennedy, a candidate for the New Hampshire House of

Representatives who will not agree to limit his expenditures, has

1 I refer to these laws collectively as the "spending cap laws." sued the officials responsible for administering the state's

spending cap laws, contending that those laws violate his rights

under the First and Fourteenth Amendments to the United States

Constitution. Kennedy filed a motion on May 21, 1998, seeking to

preliminarily enjoin the defendants from enforcing the spending

cap laws against him.2 Such relief is necessary now, he claims,

because the filing deadline for candidates who wish to appear on

the primary ballot is June 12, 1998.3 For the reasons discussed

below, I grant Kennedy's motion.

I. THE PRELIMINARY INJUNCTION STANDARD

I ordinarily must consider four factors in determining

whether to grant a reguest for a preliminary injunction: "(1)

2 Kennedy originally sought only a temporary restraining order. He later orally amended his motion, however, to also seek preliminary injunctive relief.

3 Defendants have informed the court that the New Hampshire Legislature repealed the petition and filing fee reguirements on June 4, 1998, insofar as they apply to candidates for state office. Although defendants have informed the court that the Governor intends to sign the repeal legislation, she apparently has not yet done so. The repeal of an unconstitutional statute does not necessarily moot a challenge to the statute's validity. See City of Mesquite v. Aladdin's Castle, Inc.,

(1982). Declaring the issue potentially moot is inappropriate here because the filing period has already begun and Kennedy should not have to further delay the declaration of his candidacy while he awaits the enactment of the repeal legislation.

2 the likelihood of the movant's success on the merits; (2) the

potential for irreparable harm to the movant; (3) a balancing of

the relevant equities, i.e., the hardship to the nonmovant if the

injunction issues as contrasted with the hardship to the movant

if the interim relief is withheld; and (4) the effect on the

public interest of a grant or denial of the injunction."

DeNovellis v. Shalala,

(1st Cir. 1998). In this

case, however, I need only consider Kennedy's likelihood of

success on the merits of his claim as defendants concede that he

has satisfied the other requirements for preliminary injunctive

relief.

II. ANALYSIS

Kennedy argues that the state's spending cap laws

impermissibly burden his First Amendment right to promote his

candidacy. In effect, he claims that these laws impose an

unconstitutional condition on his unfettered right to access the

ballot by penalizing him unless he agrees to limit his right to

spend on behalf of his campaign. Defendants respond by

contending that the spending cap laws do not impair Kennedy's

right to spend because the cap is voluntary. As I explain below,

Kennedy's right to relief depends upon whether the spending cap

3 laws are unduly coercive and whether the condition they seek to

impose -- an agreement to limit campaign spending -- bears some

reasonable relationship to Kennedy's right to have access to the

ballot.

In Buckley v. Valeo,

(1976), the Supreme Court

ruled that the government cannot impose a ceiling on the amount

that a candidate may spend on his or her campaign.

, 58-59 & n.67 (1976). In the words of the Court's per curiam

opinion:

The First Amendment denies government the power to determine that spending . . . [on a political campaign] is wasteful, excessive, or unwise. In the free society ordained by our Constitution[,] it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the guantity and range of debate on public issues in a political campaign.

. At the same time, the Court recognized that "Congress

may engage in public financing of election campaigns and may

condition acceptance of public funds on an agreement by the

candidate to abide by specified expenditure limitations."

at

57 n.65. The Court's opinion thus recognizes that in some

circumstances the government may condition access to a benefit on

the relinguishment of a constitutional right. Other cases

support this view. See, e.g.. Rust v. Sullivan,

,

4 192-94 (1991) (government may deny public health funding to

organizations that engage in abortion counseling even though such

counseling is protected by the First Amendment); Lynq v.

International Union, UAW,

(1988)

(government may deny food stamps to otherwise eligible families

because a family member has gone on strike); Wyman v. James,

(1971) (government may condition receipt of AFDC

benefits on a recipient's agreement to consent to a warrantless

search).

The government's power to impose conditions on the receipt

of government benefits, however, is not without limitation. The

Supreme Court has held, for example, that the government may not

condition a tax exemption for veterans on an agreement to take a

loyalty oath, Speiser v. Randall,

(1958);

terminate a government employee for exercising First Amendment

rights. Perry v. Sindermann,

(1972); or

condition the provision of public broadcasting funds on the

relinguishment of the right to editorialize, FCC v. League of

Women Voters,

(1984). What distinguishes these

decisions from Buckley and other cases upholding conditions on

the receipt of government benefits is the coercive means used by

the government in these cases to induce the plaintiffs to abandon

5 their constitutional rights. See Kathleen M. Sullivan,

Unconstitutional Conditions,

, 1433-42

(1989) (discussing cases).

The Supreme Court also tests the legitimacy of conditions

placed on the receipt of government benefits by asking whether a

condition is germane to the benefit being conferred. See

. Perhaps the clearest example is presented by the

Court's opinion in Nollan v. California Coastal Comm'n,

(1987). There, the Court considered a state agency decision

that conditioned the approval of a beach-house construction

permit on the plaintiff granting an easement allowing the public

to walk along his beach.

. The agency conceded that

its only legitimate interest in regulating the construction of

beach houses was to preserve open views of the ocean from the

road.

. Even though the Court acknowledged that

the state had the greater power to prevent the plaintiff from

building the beach house, it invalidated the agency's arguably

less-intrusive beach-access condition because the condition --

allowing the public to walk along the plaintiff's beach -- was

not reasonably related to the state's interest in preserving

6 ocean views from the road.4

; see also Dolan v.

City of Tigard,

(1994) (invalidating as

unconstitutional a development condition that landowner dedicate

portion of property lying in floodway for public bicycle path

because condition lacked reasonable relationship to the state's

interest in regulating the proposed development); Maher v. Roe,

, 475 n.8 (1977) (although government may deny

funding for abortions, a regulation denying general welfare

benefits to women who had had abortions and would otherwise be

entitled to benefits would be subject to strict scrutiny). Thus,

as Nollan recognizes, a condition on the receipt of a government

benefit will be deemed unconstitutional unless some reasonable

relationship exists between the condition and the benefit being

conferred.

The First Circuit Court of Appeals addressed the doctrine of

4 In invalidating the agency decision, the Court analogized the situation to one wherein the state banned shouting "fire" in a crowded theater but granted dispensation to those willing to contribute $100 to the state treasury. Nollan,

. "[A] ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet our stringent standards for regulation of speech . . . ."

" [A]dding the unrelated condition," however, alters the purpose of the ban to one aimed at raising tax revenue, "which [even if] legitimate, is inadeguate[ly related to the condition] to sustain the ban."

That the state has a legitimate interest is of no avail where the condition serves an entirely different, unrelated purpose.

7 unconstitutional conditions in the context of a campaign spending

cap law in Vote Choice, Inc. v. DiStefano,

(1st Cir.

1993) . At issue was a Rhode Island law that in exchange for a

gubernatorial candidate's agreement to abide by an overall

spending cap, offered the candidate public financing, free

television time, and the ability to solicit larger individual

campaign contributions than could candidates who did not agree to

the spending cap.

. In upholding the law against a

First Amendment challenge, the court concluded that the Rhode

Island law was not coercive, but instead offered candidates a

true choice "among differing packages of benefits and regulatory

reguirements."

. In other words, the court determined

that the Rhode Island law did not violate the First Amendment

because it gave candidates a choice between retaining the right

to raise and spend an unlimited amount of money subject only to

valid contribution limitations, and limiting that right in

exchange for a package of benefits to which the candidate would

not otherwise be entitled.5

5 The court did not consider whether the spending limitation condition was germane to the benefits being conferred. The germaneness reguirement would easily have been satisfied in Vote Choice, however, as the package of benefits Rhode Island offered to candidates who agreed to limit spending were all directly related to the issue of campaign spending.

8 New Hampshire's spending cap laws differ from the statutory

schemes at issue in Buckley and Vote Choice both because the

state has chosen a coercive means to achieve adherence to its

spending cap and because the condition those laws impose on

gaining access to the ballot -- limiting the constitutional right

to make campaign expenditures -- bears no reasonable relationship

to any legitimate reason for controlling ballot access.

Rather than choosing to encourage compliance with a spending

cap by providing incentives such as public financing or free

television time. New Hampshire has opted to penalize non­

complying candidates by making it more difficult for them to gain

access to the ballot. The state's choice of methods is important

to Kennedy's constitutional claim because unlike benefits such as

public financing, to which no candidate has a constitutional

entitlement, both candidates and the voters they seek to serve

have a constitutionally-protected interest in ensuring that

candidates are not unreasonably denied access to the ballot.

Anderson v. Celebrezze,

(1983); Buckley,42 4

U.S. at 94. Accordingly, as the Court recognized in Buckley,

laws that restrict ballot access are inherently more coercive

than laws conditioning access to other benefits such as public

financing.

& n.128, 95.

9 Defendants argue that the spending cap laws cannot be

considered coercive because candidates for the office of state

representative who are unwilling to abide by the cap need only

file ten nominating petitions and pay a $25.00 filing fee in

order to gain access to the ballot. See

(1)(e) & 655:22. I disagree. Although it is unlikely that

any serious candidate would be deterred by these reguirements,

the petition and filing fee reguirements undeniably are targeted

only at those candidates who are unwilling to limit their

constitutional right to spend in support of their campaigns.

Under these circumstances, it is not the magnitude of the

penalty, but rather the fact that the state has attempted to

punish candidates who will not abandon their constitutional

rights that makes the spending cap reguirements coercive. See,

e.g.. Shrink Missouri Government PAG v. Maupin,

,

1426 (8th Cir. 1995) (law preventing candidates who will not

agree to limit expenditures from accepting contributions from

political action committees and reguiring such candidates to file

daily disclosure reports is impermissibly coercive).6

6 To illustrate the point, assume that New Hampshire attempted to impose a one cent tax on every one hundred dollars a candidate chose to spend above a designated cap. Although the penalty imposed would not be severe, such a tax, without guestion, would be coercive and in violation of the candidate's

10 New Hampshire's spending cap laws are also improper because

the condition the laws seek to impose bears no reasonable

relationship to the advantage they give to candidates who agree

to limit their spending. States have a legitimate interest in

regulating access to the ballot to reduce voter confusion and

eliminate frivolous candidates. See, e.g. American Party of

Texas v. White,

(1974); Storer v. Brown,

(1974). Defendants do not allege, however, that

New Hampshire's ballot access restrictions serve either purpose.

Further, while the declaration of purpose that accompanied the

spending cap legislation suggests that the legislation's

restrictions are justifiable because they will somehow broaden

access to the ballot, see

:1, it is difficult

to see how this could be so. Certainly, the spending cap laws

might entice some people to run for office who would not

otherwise become candidates. At the same time, however, the laws

might drive away potential candidates who are unwilling to cede

their constitutional right to spend on behalf of their campaigns.

In any event, the imposition of ballot access restrictions on

First Amendment right to promote his candidacy. Accordingly, it is not the magnitude of the penalty but the fact that it is imposed to burden the exercise of a constitutional right that renders a condition impermissibly coercive.

11 noncomplying candidates do not make it easier for complying

candidates to gain access to the ballot. Accordingly, the

spending cap laws are unlikely to survive Kennedy's First

Amendment claim because they do not bear a reasonable

relationship to any legitimate reason for regulating ballot

access.

III. CONCLUSION

In summary, the state remains free to offer candidates a

"choice among different packages of benefits and regulatory

reguirements" in order to encourage compliance with the state's

spending cap. Vote Choice,

. The state may not,

however, coerce compliance by attempting to penalize candidates

who will not comply voluntarily. Nor may it impose conditions on

gaining access to the ballot that bear no reasonable relationship

to any legitimate reason for regulating ballot access. As it

appears that New Hampshire's spending cap laws fail to meet these

standards, I find Kennedy is likely to succeed on the merits of

his claim that the laws are unconstitutional. As the other

prereguisites to the issuance of a preliminary injunction are not

in dispute, I grant Kennedy's motion. Accordingly, defendants

are preliminarily enjoined from reguiring Kennedy to file the

12 primary petitions required by

(11)

and 655:22 and pay the filing fee required by N.H. Rev. Stat.

A n n . § 655:19(1) (e).

SO ORDERED.

Paul Barbadoro Chief Judge

June 5, 1998

cc: Philip T. Cobbin, Esq. William C. Knowles, Esq. Wynn E. Arnold, Esq.

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