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Court Case

Respect Maine PAC. v. Walter McKee

Representing eight state legislative candidates and the Maine Citizens for Clean Elections, the Brennan Center filed a brief opposing an eleventh-hour motion to enjoin numerous parts of Maine's campaign finance system before the November elections.

Published: October 22, 2010

Representing eight state legislative candidates and the Maine Citizens for Clean Elections, the Brennan Center filed a brief opposing an eleventh-hour motion to enjoin numerous parts of Maine's campaign finance system before the November elections. Plaintiffs' request to enjoin trigger provisions, disclosure provisions, and gubernatorial contribution limits has been denied three times: by Justice Stephen Breyer, by a unanimous panel of the First Circuit Court of Appeals, and by the Maine District Court. It was only then that plaintiffs made a renewed application for emergency writ of injunction to Supreme Court Justice Kennedy, a highly unusual move that has not been granted for the past twenty years. On October 21, 2010 the Brennan Center filed its Opposition to Plaintiffs' Application for a Writ of Injunction.

In Brief: Led by James Bopp, the attorney behind the Citizens United case, the plaintiffs are challenging Maine's public funding program, key parts of the state's disclosure regime, and the $750 limits on individual contributions to gubernatorial candidates.

Background: On August 5, 2010 plaintiffs filed a motion in the Maine District Court challenging aspects of the state's campaign finance scheme. On September 20, 2010 plaintiffs filed an appeal to the First Circuit. On October 5th, 2010 the First Circuit issued an order denying the plaintiffs' motion for a preliminary injunction, keeping public funding up and running through the election. The Court's order adopted many of the Brennan Center's arguments, including that any burden posed by trigger provisions is a fact-intensive inquiry that must be resolved on a case by case basis. The Court also found that there was no evidence of imminent injury, the argument that was the main focus of the Center's amicus brief.

Summary of Argument: On October 21st, 2010, the Brennan Center, along with Demos and former State Representative John Brautigam, submitted an amicus curiae brief in opposition to plaintiffs' application for a writ of injunction. The Center’s amicus brief may be found here. The Brennan Center's brief opposes this eleventh-hour motion to enjoin numerous parts of Maine's campaign finance system before the November elections. The Center argues that in order for this writ of injunction to be granted, Applicants must demonstrate both that their legal rights are “indisputably clear” and that a writ of injunction is “necessary or appropriate in aid of this Court’s jurisdiction.”

First, a legal right cannot be “indisputably clear” where it is “novel or uncertain” – as is certainly true of Applicant’s effort to import the rationale of Davis v. FEC. Second, Applicants entirely ignore the requirement that the writ of injunction must be “necessary or appropriate in aid of this Court’s jurisdiction,” likely because they cannot demonstrate that the present circumstance presents any risk to the ultimate resolution of the merits of this case. Furthermore, this Court should not exercise its equitable jurisdiction to grant a writ of injunction where the balance of hardships tilts so one-sidedly against Applicants. Even without the benefit of extensive discovery, the most cursory investigation has already revealed Applicants’ claims of injury to be completely baseless. Applicants’ manufactured and highly disputable claims of injury stand in stark contrast to the drastic and far-reaching consequences that would result were this Court to interfere directly in Maine’s ongoing election. 

Absentee voting in Maine has already started, and thousands of voters have cast their votes for their chosen candidates. For this Court to enjoin major portions of the campaign finance system less than two weeks before statewide elections would lead to judicially-created chaos, disrupting long-settled expectations and potentially altering electoral outcomes in races affecting 297 publicly financed candidates across the state.  Such a result would be particularly unjust given that this disruption would be amplified by Applicants’ own delay in filing suit. Equitable considerations should prevent this Court from allowing Applicants to derive strategic electoral advantage from their own delay.


Arguments Presented

Download PDF of Amicus Brief

Applicants Andre E. Cushing III, Respect Maine PAC, and Harold A. Clough ask this Court to exercise its power under the All Writs Act, 28 U.S.C. § 1651(a), to issue an extraordinary writ of injunction – a remedy so drastic that this Court does not appear to have granted such a request in over twenty years.[1]  Unlike the grant of a stay, which preserves the state of affairs as it existed prior to a court’s intervention, a writ of injunction in the Supreme Court represents this Court’s direct intrusion into the status quo.  See Turner Broadcasting Systems, Inc. v. FCC, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers). To grant such relief on this renewed application would require this Court to override the decisions of Justice Stephen Breyer, of a unanimous panel of the First Circuit Court of Appeals, and of the Maine District Court, and to do so based on no more than Applicants’ untested and highly dubious factual allegations of injury stemming from a novel theory of First Amendment harm. 

In urging this extreme course of action, Applicants rely almost exclusively on this Court’s stay of the Ninth Circuit’s decision in McComish v. Brewer, 611 F.3d 510, 513 (9th Cir. 2010), stayed by 130 S. Ct. 3408 (U.S. June 8, 2010) (No. 09-A1163).  Like the present case, McComish included a challenge to triggered supplemental grant provisions (“trigger provisions”) [2] in a state public financing system, but the application to this Court arose in a markedly different procedural posture and did not include the broad challenges to campaign finance disclosure laws and contribution limits that are at issue here.  Applicants appear to assume that this Court’s grant of a stay in McComish gives them a free pass to invoke this Court’s extraordinary injunctive power to avoid supposed “inconsistency.”  Appl. Writ Inj. 1.  This request is patently improper – Applicants cannot so easily evade the rigorous standards that govern their application for a writ of injunction, nor can Applicants dispense with their burden to prove their alleged injury.  In their application, Applicants misstate both the applicable legal precedent and factual allegations regarding their own actions.  This Court should not countenance Applicants’ attempt to railroad their extremely questionable allegations past any and all requirements of jurisdiction, precedent, or proof.

This Court’s grant of a stay in McComish cannot justify the relief sought here.  First, the standard applicable in McComish – the four-prong standard governing a stay application[3] – is far more lenient than the requirements for the extraordinary writ sought here, as this Court has reiterated on numerous occasions. See Lux v. Rodrigues, No. 3:10CV482-HEH, 2010 WL 3818310, at *1 (August 26, 2010) (Roberts, C.J., in chambers); Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers). In order for their writ of injunction to be granted, Applicants must demonstrate both that their legal rights are “indisputably clear” and that a writ of injunction is “necessary or appropriate in aid of this Court’s jurisdiction.”  Ohio Citizens, 479 U.S. at 1313.  Applicants cannot come close to making either showing. 

First, a legal right cannot be “indisputably clear” where it is “novel or uncertain” – as is certainly true of Applicant’s effort to import the rationale of Davis v. FEC, 128 S. Ct. 2759 (2010), into the body of public financing case law governed by Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny.   Fishman v. Schaffer, 429 U.S. 1325, 1330 (1976) (Marshall, J., in chambers).  Moreover, as Chief Justice Roberts ruled just a few weeks ago, a legal right cannot be deemed “indisputably clear” where, as here, multiple federal circuit courts of appeal have reached “divergent results” in considering the issue.  See Lux, 2010 WL 3818310, at *1.  Finally, this Court’s precedent utterly forecloses Applicants’ claims with regard to the disclosure laws and the gubernatorial contribution limits. 

Second, Applicants entirely ignore the requirement that the writ of injunction must be “necessary or appropriate in aid of this Court’s jurisdiction,” likely because they cannot demonstrate that the present circumstance presents any risk to the ultimate resolution of the merits of this case.  In McComish, this Court granted a stay only after both the district court and the circuit court had had the opportunity to consider a fully developed factual record on a motion for summary judgment, following two years of intensive litigation.  By contrast, the instant renewed application here amounts to no more than the Applicants’ effort to take multiple bites at the apple – appealing a denial of emergency relief while retaining their ability to continue litigating in the district court and to seek appellate review at a later date.  Such “piecemeal” appeals are exactly what the final judgment rule instructs this Court to avoid.  Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009).           

Furthermore, this Court should not exercise its equitable jurisdiction to grant a writ of injunction where the balance of hardships tilts so one-sidedly against Applicants.  Even without the benefit of extensive discovery, the most cursory investigation has already revealed Applicants’ claims of injury to be completely baseless.  Most astonishingly, Applicants continue to repeat the fiction that the trigger provisions have caused Applicant Cushing to “curtail” his campaign spending, even after publicly filed campaign records have debunked this claim. In fact, Applicant Cushing has now raised and spent campaign funds well in excess of the triggering threshold, triggering over $2,800 in supplemental grants to his opponent.  Affidavit of Jonathan Wayne, October 21, 2010, (“Wayne Aff.”) ¶¶ 4-7.[4]  Applicant Respect Maine PAC (“RMPAC”) has similarly offered no evidence of “chill” or other injury.  Indeed, directly contrary to its allegations, it has used its funds for direct contributions to candidates, and some of those contributions have triggered supplemental funds.  Id. at ¶¶ 9-10.  Furthermore, Applicant Clough’s alleged desire to contribute money in excess of the gubernatorial contribution limits simply does not rise to the level of a constitutional injury, as this Court’s long-established precedents make clear.

Applicants’ manufactured and highly disputable claims of injury stand in stark contrast to the drastic and far-reaching consequences that would result were this Court to interfere directly in Maine’s ongoing election.  Absentee voting in Maine has already started, and thousands of voters have cast their votes for their chosen candidates.  See 21-A M.R.S.A. §751.  For this Court to enjoin major portions of the campaign finance system less than two weeks before statewide elections would lead to judicially-created chaos, disrupting long-settled expectations and potentially altering electoral outcomes in races affecting 297 publicly financed candidates across the state.  Such a result would be particularly unjust given that this disruption would be amplified by Applicants’ own delay in filing suit. Equitable considerations should prevent this Court from allowing Applicants to derive strategic electoral advantage from their own delay.


[1] According to our research, the most recent case in which the Supreme Court granted a writ of injunction under the All Writs Act is American Trucking Associations, Inc. v. Gray, 483 U.S. 1306 (1987) (Blackmun, J., in chambers).  In that case, the applicant sought an injunction to require Arkansas state officials to establish an escrow fund in which payments of the Arkansas Highway Use Equalization Tax would be placed, pending further proceedings on the constitutionality of the tax in the Arkansas courts.  The Arkansas courts were in recess and would not be able to consider the merits of the applicant’s claims for several months.  Id. at 1307. 

Indeed, our research uncovered only seven reported cases in which such an application had been granted.  American Trucking Associations, 483 U.S. at 1306; McCarthy v. Briscoe, 429 U.S. 1317 (1976) (Powell, J., in chambers); National League of Cities v. Brennan, 419 U.S. 1321 (1974) (Burger, C.J., in chambers); Fowler v. Adams, 400 U.S. 1205 (1970) (Black, J., in chambers); Matthews v. Little, 396 U.S. 1223 (1969) (Black, J., in chambers); Williams v. Rhodes, 89 S. Ct. 1 (1968) (Stewart, J., in chambers); Organized Village of Kake v. Egan, 80 S. Ct. 33 (1959) (Brennan, J., in chambers).  Additionally, in Atiyeh v. Capps, 449 U.S. 1312 (1981) (Rehnquist, J., in chambers), Chief Justice Rehnquist invoked the authority of the All Writs Act to stay an injunction issued by the District of Oregon pending either the decision of the Court of Appeals for the Ninth Circuit or the decision of the Supreme Court in Rhodes v. Champan, 452 U.S. 337 (1981).

[2] Although Applicants refer to these provisions as “trigger funds,” Amici prefer to avoid this term, since it has been known to cause confusion between public financing systems such as the presidential primary system, that “match” small contributions to publicly financed candidates and systems like the Maine Clean Election Act (“MCEA”), in which supplemental grant amounts may be “triggered” by hostile spending from an opponent or outside groups.  Maine Rev. Stat. Ann. tit. 21A § 1125(9).

[3] In assessing a stay request, the Circuit Justice considers whether there is (1) a “reasonable probability’ that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction;” (2) “a fair prospect that a majority of the Court will conclude that the decision below was erroneous;’ (3) a “demonstration that irreparable harm is likely to result from the denial of a stay,” and (4) “in a close case it may be appropriate to ‘balance the equities’ to explore the relative harms to applicant and respondent, as well as the interests of the public at large.” Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers) (citations omitted).

[4] Moreover, given previous distributions and expenditures, even if Applicant Cushing were to continue spending every penny of the $6,000 of funds he has amassed as of October 15th, no additional supplemental grants would be triggered for his opponentId. at ¶8.


Brenda Wright and Lisa Danetz of Demos, and former State Representative John Brautigam are co-counsel on the brief.