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By Marilyn Odendahl

The Indiana Citizen

October 31, 2023

After the Indiana Supreme Court found state election laws do limit contributions to super PACs, the Indiana Right to Life Victory Fund and Sarkes Tarzian Inc. are asking the 7th U.S. Circuit Court of Appeals to prohibit enforcement of the statutes and allow their case to proceed in federal district court.

However, state election officials counter that the 7th Circuit should dismiss the lawsuit because there is no “credible threat” of the state imposing fines or penalties on companies or organizations that contribute to super PACs.

Despite losing in the state Supreme Court, Indiana Secretary of State Diego Morales, Indiana Attorney General Todd Rokita, the members of the Indiana Election Commission and the prosecutors from Marion and Monroe counties are continuing to fight a lawsuit brought by the IRTLVF and Sarkes Tarzian, over whether state law prohibits corporate contributions to independent-expenditure political action committees, also known as super PACs.

The question arose from a federal lawsuit filed by Sarkes Tarzian, a broadcasting company from Bloomington, and the IRTLVF, which has a super PAC, that challenged the state’s political contribution statutes.

Indiana law allows corporate contributions of up to $5,000 to regular PACs, which funnel money to candidates and political parties. Sarkes Tarzian seeks a ruling from the courts, because it does not want to break state law by making a $10,000 donation to the IRTL Victory Fund, which, as a super PAC, can accept independent-expenditure donations for political causes, instead of candidates or parties.

In this latest round, the plaintiffs filed their brief with the 7th Circuit on Oct. 13. The brief from state officials was filed on Oct. 16.

The IRTLVF and Sarkes Tarzian want the federal appellate court to provide a “clear, controlling authority” that Indiana may not limit corporate contributions to super PACs. They assert the assurances from election officials that the law will not be enforced against independent-expenditure contributions are unconvincing.

“The Indiana Supreme Court made no indication that the challenged provisions are not currently enforceable law,” the plaintiffs contend. “Had it thought they were moribund it doubtless would not have expanded judicial resources in accepting and answering the certified question.”

State officials are arguing that – even with the ruling from the state Supreme Court – the case should still be dismissed since the plaintiffs have not been threatened with prosecution if Sarkes Tarzian makes the $10,000 donation.

The defendants point to the 7th Circuit’s ruling which noted the plaintiffs are making a “preenforcement challenge,” so they must show a “credible threat” that the law will be enforced against them. The state asserts the plaintiffs have failed to “allege a credible threat of enforcement.”

“In light of this well-established federal precedent that clearly makes any potential limitation of contributions to SuperPACs unconstitutional, there can be no credible threat of enforcement,” the state officials assert in their brief, citing to legal precedent, including the U.S. Supreme Court’s decision in Citizens United. “In addition, here there is no history of unconstitutional enforcement, no threat of such enforcement, and no reason for Plaintiffs to believe that Indiana’s election officials would enforce the statutes in an unconstitutional manner.”

The plaintiffs filed their challenge to the Indiana election code in November 2021 in the U.S. District Court for the Southern District of Indiana. When the district court dismissed the lawsuit, finding the plaintiffs did not have standing to argue their case, they appealed to the 7th Circuit.

However, the 7th Circuit demurred on a ruling, saying it had to first determine the meaning of Indiana’s election code regarding super PAC contributions. Since Indiana courts had not ruled on the issue, the federal appellate court decided to ask the Indiana Supreme Court for help.

Consequently, the 7th Circuit sent a certified question, asking the Indiana justices whether the state’s election code prohibited or limited corporate contributions to PACs or other entities that engage in independent, campaign-related expenditures.

After oral arguments, a split Indiana Supreme Court ruled 4-1 on Sept. 25 that the statute does limit the amount of money that can be given to a super PAC.

The case has now returned to the 7th Circuit but the appellate court has not indicated when it will issue a ruling.

First appellate review

In its initial review of the case, the 7th Circuit noted state law does not contain any language about independent expenditures or prohibitions on contributions to super PACs.

State officials argued the code’s silence indicates independent expenditures are not regulated and Sarkes Tarzian can contribute as much as it wants to the IRTLVF without fear of a fine or penalty. Also, they contended even if state law did prohibit donations to super PACS, statute would be unconstitutional under two key federal court rulings – Citizens United and the 7th Circuit’s Wisconsin Right to Life State Political Action Committee v. Barland – which found that the First Amendment protected corporate speech related to political campaigns.

However, the plaintiffs countered the election code’s silence does restrict corporate contributions to super PACs. They said the state statute says political contributions from corporations are limited to those authorized in the code and, since the code does not include any provisions about independent expenditures, unlimited donations to super PACs are not allowed.

In returning to the 7th Circuit, state officials are asserting the plaintiffs’ lawsuit is imposing obligations on the state and taxpayers that are improper because the statute cannot be enforced in the way IRTLVF and Sarkes Tarzian perceive that it will be.

“Indiana’s election officials should not face an injunction to prevent enforcement of statutes that are clearly unconstitutional as applied to Plaintiffs under controlling federal precedent and that those officials have given no indication they will enforce,” state officials argue in their brief. “And Indiana’s citizens should not have to pay Plaintiffs’ attorney fees when Plaintiffs and their attorneys knew or should have known that the statutory interpretation they proposed (and the Indiana Supreme Court adopted) was clearly unconstitutional under Citizens United and Barland. State legislatures have no obligation ‘to conform their statute books to authoritative judicial interpretations.’ Yet Plaintiffs’ lawsuit seeks to improperly impose that obligation.”

The case is Indiana Right to Life Victor Fund et al. v. Diego Morales, et al., 22-1562.

 Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.

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