ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
James Bopp, Jr. Jeffrey A. Modisett
John K. Abegg Attorney General of Indiana
Terre Haute, Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
BROWNSBURG AREA PATRONS AFFECTING )
CHANGE and JOHN PATTEN, )
v. ) Cause No. 94S00-9803-CQ-144
PATRICIA BALDWIN, Prosecuting )
Attorney for Hendricks County, )
Indiana, et al., )
CERTIFIED QUESTION FROM THE U.S. COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
June 23, 1999
SHEPARD, Chief Justice.
Brownsburg Area Patrons Affecting Change (BAPAC), and its
founder John Patten sought a preliminary injunction from the United
States District Court for the Southern District of Indiana. The
court denied the request, and BAPAC filed an interlocutory appeal
in the Court of Appeals for the Seventh Circuit.
Before resolving BAPAC's claims, the Seventh Circuit certified
a question of state law for this Court's consideration, pursuant to
Seventh Circuit Rule 52 and Indiana Appellate Rule 15(O). The
Does the Indiana Code's definition of a "political action
committee," i.e., any organization which "accepts
contributions or makes expenditures . . . to influence
the election of a candidate . . . or the outcome of a
public question . . . that in aggregate exceed one
hundred dollars ($100)," include only those organizations
which make contributions or expenditures for
communications that in express terms advocate the
election or defeat of a clearly identified candidate for
office or the victory or defeat of a public question?
Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503,
510 (7th Cir. 1998). We answer this question in the affirmative.
BAPAC is a small, voluntary, non-partisan association of
citizens in Hendricks County, Indiana, founded by John Patten.
The organization has no membership requirements, nor any officers
or directors. BAPAC's mission is "to educate the citizens of
Brownsburg and its environs on political, economic, and social
issues and to serve as an organ for members of the community to
advise public officials of citizens' views on issues."
(Appellant's Br. at 4.) To accomplish its goals, BAPAC
disseminates information on a telephone hotline recording and
distributes flyers. BAPAC, 137 F.3d at 504. The telephone
recordings state candidates' positions on issues and sometimes
indicate whether these views accord with those of BAPAC. Id.
On June 6, 1996, following a primary election in May, William
Daily, chairman of the Hendricks County Election Board, sent Patten
a letter suggesting that BAPAC might be subject to the rules
governing political action committees, including some registration
and reporting requirements. Id.; (App. to Appellant's Br. at 27-
28). Two months later, BAPAC responded to the Board's inquiry with
a letter explaining that it could not be considered a political
action committee "because BAPAC's major purpose is not to expressly
advocate the election or defeat of any candidate." (App. to
Appellant's Br. at 31.)
On August 28th, Daily sent BAPAC another letter explaining
that while the Board had not reached a final decision about whether
BAPAC was a political action committee under Indiana law, it
appeared as though their activities fell under the statute. (App.
to Appellant's Br. at 33.) According to Daily, the statute covers
organizations that spend more than $100 to influence the outcome of
an election, and BAPAC's hotline message appeared to be an attempt
to influence an election. (Id.) As such, Daily asserted that if
BAPAC spent over $100 on the hotline message, it would be required
to follow the rules for political action committees.
BAPAC did not respond to the second letter from Daily.
Instead, in September 1996, it filed a complaint in District Court
and moved for a preliminary injunction against the Attorney
General of Indiana, four members of the Indiana Election
Commission, the Hendricks County Prosecuting Attorney, and three
members of the Hendricks County Election Board. The complaint
alleged that the Indiana Code's definition of "political action
committee" is unconstitutionally overbroad because it impermissibly
regulates "issue advocacy" in violation of Buckley v. Valeo, 424
U.S. 1 (1976) (per curiam). BAPAC, 137 F.3d at 505. Issue
advocacy involves discussion of issues as opposed to express
advocacy for or against certain candidates or electoral outcomes.
Id. BAPAC also challenged the statute on the ground that it
regulates groups which do not have the "major purpose" of engaging
in express advocacy, a limitation it maintains is also required by
Buckley. Id. BAPAC sought the injunction to prohibit enforcement
of the allegedly unconstitutional election provisions.
The District Court denied the motion, concluding that BAPAC
did not demonstrate a likelihood of success on the merits. BAPAC,
943 F.Supp. at 993. More specifically, the court found that
Indiana's statute did not regulate issue advocacy, based on the
Buckley Court's interpretation of similar language contained within
the Federal Election Campaign Act of 1971. Id. at 986-89. Because
the court concluded that BAPAC engaged only in issue advocacy,See footnote
held that BAPAC was not a PAC under Indiana law. Thus, the statute
did not apply to BAPAC, and a preliminary injunction was
unnecessary. Id. at 989.See footnote
On appeal, BAPAC contended that the District Court erred in
holding that the Indiana definition of a PAC applied only to
express advocacy groups. BAPAC, 137 F.3d at 505. Rather than
speculate about how we would interpret a state statute, and given
that our answer would be outcome determinative, see id. at 509, the
Court of Appeals certified a question to us.
As the Seventh Circuit points out, this case possesses an odd
procedural posture. Id. at 505. BAPAC brought the case to escape
the application of Ind. Code § 3-5-2-37. The District Court held
that the statute did not apply to organizations that engaged only
in issue advocacy. Because BAPAC, by its own contentions, engaged
only in issue advocacy, it successfully avoided the statute.
Undeterred by winning, BAPAC pushes on.
Indiana Code § 3-5-2-37(a), provides in pertinent part:
"[P]olitical action committee" means an organization
located within or outside Indiana that satisfies all of
(1) The organization is not:
(A) affiliated with a political party; or
(B) a candidate's committee.
(2) The organization proposes to influence:
(A) the election of a candidate for state,
legislative, local, or school board office; or
(B) the outcome of a public question.
(3) The organization accepts contributions or makes
expenditures during a calendar year to influence the
election of a candidate for state, legislative, local, or
school board office or the outcome of a public question
that will appear on the ballot in Indiana that in the
aggregate exceed one hundred dollars ($100).
(emphasis added).See footnote
BAPAC maintains that the District Court's
narrow construction of "influence" as covering only express
advocacy was untenable, and that a proper construction of the
language would cover BAPAC's activities. BAPAC argues that the
legislature's decision to regulate groups that seek "to influence"
elections impermissibly regulates issue advocacy in violation of
Buckley. We disagree.
I. Buckley's Express Advocacy Test
In Buckley, the Supreme Court addressed constitutional
challenges to the Federal Election Campaign Act of 1971 (FECA)
similar to those we face here. The Court noted that the Act
touched an area of paramount importance:
Discussion of public issues and debate on the
qualifications of candidates are integral to the system
of government established by our Constitution. The First
Amendment affords the broadest protection to such
political expression in order to "assure [the] unfettered
interchange of ideas for the bringing about of political
and social changes desired by the people."
Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S.
476, 484 (1957)). On the other hand, "[t]he constitutional power
of Congress to regulate federal elections is well-established . .
. ." Buckley, 424 U.S. at 13. Thus, "the critical constitutional
questions presented here go not to the basic power . . . to
legislate in this area, but to whether the specific legislation .
. . enacted interferes with First Amendment freedoms . . . ." Id.
Assessing these competing interests, the Court divided
political speech into two parts. "Express advocacy" is that speech
which "in express terms advocate[s] the election or defeat of a
clearly identified candidate . . . ." Id. at 44.See footnote
does not expressly advocate the election or defeat of a clearly
identified candidate, but does involve political ideas or social
commentary, is now generally called "issue advocacy." See, e.g.,
BAPAC, 943 F.Supp. at 977. As phrased by the District Court:
"[T]he government may impose certain organizational and reporting
requirements and expenditure and contribution limits on express
advocacy, but any power to regulate the broader category of issue
advocacy is far more limited." BAPAC, 943 F.Supp. at 977.See footnote
The question before us is whether the "influence" language in
the Indiana statute violates Buckley's express advocacy test.
II. Dueling Canons of Construction
Both sides point to canons of construction they maintain
control the outcome of this question. As we have noted, "[t]he
rules or maxims of construction are flexible aids to the search for
meaning." A Woman's Choice--East Side Women's Clinic v. Newman,
671 N.E.2d 104, 107 (Ind. 1996) (plurality opinion).
A. Clear on Its Face?
If a statute is unambiguous, then "courts must apply the plain
language . . . despite perhaps strong policy or constitutional
reasons to construe the statute in some other way." BAPAC, 943
F.Supp. at 986 (citing Indiana Dep't. of State Revenue v. Horizon
Bancorp, 644 N.E.2d 870, 872 (Ind. 1994)); Grody v. State, 257 Ind.
651, 659, 278 N.E.2d 280, 285 (1972). Moreover, when a statute is
unambiguous, a court must apply the plain and obvious meaning and
not resort to other rules of construction. Grissom v. Grissom, 587
N.E.2d 114, 116 (Ind. 1992). A statute is ambiguous when "it is
susceptible to more than one interpretation." In re Lehman, 690
N.E.2d 696, 702 (Ind. 1997).
BAPAC argues that our statute is not ambiguous, and that
"influence" plainly and obviously covers more than express
advocacy. To support its argument, BAPAC points to the definition
of "influence" in Black's Law Dictionary 779 (6th ed. 1990): "To
affect, modify or act upon by physical, mental or moral power,
especially in some gentle, subtle, and gradual way." As the
District Court said, "[I]ssue advocacy, such as publicizing,
praising, or criticizing candidates' views on particular issues, is
often intended to influence an election, at least in some subtle
way . . . ." BAPAC, 943 F.Supp. 985-86. We admit that, at first
blush, "influence" does appear to touch issue advocacy. In the
words of the District Court, "if this case had come to this court
on a clean slate, [BAPAC's] arguments might have had considerable
force. . . . In this case, however, the slate is far from clean."
Id. at 986.
B. Does Federal Language Import Federal Construction?
The Attorney General urges the statutory principle that when
a legislature adopts language from another jurisdiction, it
presumably also adopts the judicial interpretation of that
language. (Appellee's Br. at 8-9.)See footnote
Both sides acknowledge that the statute should be considered
in light of FECA and Buckley. (See Appellant's Br. at 9,
Appellee's Br. at 8.) First, the language of the Indiana statute
virtually mirrors that of FECA. What the Indiana Code calls a
"political action committee," FECA terms a "political committee."
Ind. Code Ann. § 3-5-2-37(a) (West Supp. 1998); Federal Election
Campaign Act of 1971, 2 U.S.C.A. § 431 (West 1997). Both are
defined as a group of persons that receives "contributions" or
makes "expenditures" in excess of a set dollar amount in a calendar
year. Ind. Code Ann. § 3-5-2-37(a) (West Supp. 1998) ($100); 2
U.S.C.A. § 431 ($1000). The definitions of "contributions" and
"expenditures" focus on the use of money or other objects of value
to "influence" the nomination or election of candidates. Ind. Code
§ 3-5-2-37(a); 2 U.S.C.A. § 431.
Second, the Indiana statute was introduced in the legislature
shortly after the passage of FECA, and the General Assembly passed
it shortly after Buckley was handed down. BAPAC, 943 F.Supp. at
987. We think the District Court was correct that the parallels
between FECA and the Indiana statute are "strong and obvious."
Id. According to the District Court, "[T]hese factors make this a
strong case for presuming that the Indiana legislature intended to
adopt the federal construction in Buckley v. Valeo." Id. at 988.See footnote
C. Clues of Intent in Other Statutes
BAPAC counters with its own indicators of legislative intent.
It argues that even as to ambiguous statutes, we must "give effect
to the intent of the legislature." Lehman, 690, N.E.2d at 702. As
noted above, the General Assembly substantively amended Indiana
Code § 3-5-2-37 in 1997,See footnote
but did not change the "influence"
language. At the same time, the legislature added a section to the
Code in which it included express advocacy language.See footnote
to BAPAC, the addition of the express advocacy language in § 3-9-3-
2.5 illustrates the legislature was aware of the difference between
"influence" and "expressly advocate." BAPAC argues:
[I]ts decision not to include this test in Ind. Code § 3-
9-2-37(a) when it was amending the statute--while at the
same time adding this test to Ind. Code § 3-9-3-2.5--
shows that the General Assembly did not intend for
Indiana's definition of PAC to be restricted to express
advocacy groups. . . . If it had meant to define PAC as
an organization that expended funds for express advocacy
only, it would have said so explicitly, just as it did in
Ind. Code § 3-9-3-2.5, rather than use the term
(Appellant's Br. at 16.)
This argument's flaw is that it asks us to assume the
legislature intended that "influence" in Ind. Code § 3-5-2-37 mean
something broader than express advocacy, and did so after Buckley
was handed down. This requires us to assume an unconstitutional
intent. As a general rule, "Unconstitutional intention will not be
attributed to the legislature if reasonably avoidable." Price v.
State, 622 N.E.2d 954, 963 (Ind. 1993) (citing Conter v. Commercial
Bank of Crown Point, 209 Ind. 510, 513-14, 199 N.E. 567, 569
(1936)). This brings us to the canon that seems weightiest for
D. Saving Construction
We have regularly said that courts have an "overriding
obligation to construe our statutes in such a way as to render them
constitutional if reasonably possible . . . ." A Woman's Choice,
671 N.E.2d at 111 (Dickson, J., concurring). "[A] statute is
accorded every reasonable presumption supporting its validity."
Burris v. State, 642 N.E.2d 961, 968 (Ind. 1994), cert. denied, 516
U.S. 922 (1995) (citing Brady v. State, 575 N.E.2d 981 (Ind.
1991)). "If a statute can be construed to support its
constitutionality, such construction must be adopted." Burris, 642
N.E.2d at 968 (citing Miller v. State, 517 N.E.2d 64 (Ind. 1987)).
The question thus becomes whether Ind. Code § 3-5-2-37 is amenable
to a reasonable constitutional construction.
BAPAC urges us to find that "influence" may not reasonably be
read to encompass only express advocacy. (See Appellant's Br. at
13.) If so, however, the Supreme Court was wrong when it construed
that term in Buckley. As the State points out, "Buckley
constitutes the U.S. Supreme Court's authoritative construction of
federal statutory language." (Appellee's Br. at 10.) Although
this case involves the interpretation of state law, the approach of
the Buckley Court seems a suitable way of addressing whether the
language in our statute may reasonably bear a narrowing
In Buckley, the Supreme Court noted that the "influence"
language of FECA, on its face, had "potential for encompassing both
issue discussion and advocacy of a political result," and "could be
interpreted to reach groups engaged purely in issue discussion."
424 U.S. at 79. The Court then acknowledged that, as lower courts
had demonstrated,See footnote
the purpose of the Act could be fulfilled and
constitutional problems avoided by construing the language more
narrowly. Id. The Court stated:
To insure that the reach of [the statute] is not
impermissibly broad, we construe "expenditure" for
purposes of that section . . . to reach only funds used
for communications that expressly advocate the election
or defeat of a clearly identified candidate.
Id. at 80 (footnote omitted). Examining language virtually
identical to that contained in the Indiana statute, the Supreme
Court concluded that the statute should be narrowly construed.
"[T]he Supreme Court of the United States has not only held that
the material language at issue . . . can bear the constitutional
interpretation but has given that language the definitive
interpretation as a matter of federal law." BAPAC, 943 F.Supp. at
989. We believe that Ind. Code § 3-5-2-37, like FECA, can
reasonably bear a narrowing construction.
We hold that the definition of "political action committee" in
Ind. Code § 3-5-2-37 should be narrowly construed to encompass
"only those organizations which make contributions or expenditures
for communications that in express terms advocate the election or
defeat of a clearly identified candidate for office or the victory
or defeat of a public question." BAPAC, 137 F.3d at 510.See footnote
a ruling accommodates a permissible level of election regulation
while protecting important First Amendment activities. "This is
consistent with the firmly established principle that the right to
speak out at election time is one of the most zealously protected
under the Constitution." Central Long Island Tax Reform, 616 F.2d
at 53 (citing Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72
(1971)). Accordingly, we answer the certified question in the
Dickson, Sullivan, Selby, and Boehm, JJ.,concur.
1 The factual background and procedural history are set forth in the
opinions of both the District Court and Court of Appeals. See Brownsburg Area
Patrons Affecting Change v. Baldwin, 943 F.Supp. 975, 977-78 (S.D. Ind. 1996);
BAPAC, 137 F.3d at 504-05. We repeat some of the background here to provide
context for our discussion of the certified question.
2 "The record here shows that plaintiffs BAPAC and Patten have not
engaged in express advocacy and that they do not wish or intend to do so."
BAPAC, 943 F.Supp. at 992. BAPAC continues to maintain that it intends only
to engage in issue advocacy. (See Appellant's Br. at 4-5.)
3 The court also found that because BAPAC engaged only in issue
advocacy, it lacked standing to challenge the statute for failing to
incorporate the "major purpose" language mentioned in Buckley. BAPAC, 943
F.Supp. at 990-93. The certified question does not require us to address any
claims involving the major purpose language.
4 Since this controversy first arose in 1996, Ind. Code § 3-5-2-37 has
been amended twice. By design, the 1998 amendment concerned technical
corrections only and did not affect the substance of the law. See Pub. L. No.
2-1998, sec. 2, 1998 Ind. Acts 535-36 (codified as amended at Ind. Code § 3-5-
2-37 (1998)); Pub. L. No. 2-1998, sec. 92, 1998 Ind. Acts 618 (uncodified).
While the 1997 amendment did change some of the statute's language, see Pub.
L. No. 3-1997, sec. 13, 1997 Ind. Acts 659-60 (codified as amended at Ind.
Code § 3-5-2-37 (1997)), it did not change the language at issue in this case,
nor does it require us to alter our consideration of the certified question.
We therefore refer to the current statute throughout this opinion.
5 In a footnote, the Supreme Court illustrated types of speech that
would constitute express advocacy:
This construction would restrict the application of [administrative
regulations] to communications containing the express words of
advocacy of election or defeat, such as "vote for," "elect,"
support," "cast your ballot for," "Smith for Congress," "vote
against," "defeat," "reject."
Buckley, 424 U.S. at 44 n.52 (emphasis added). The Court's use of "such as"
suggests that it did not intend for this to be an exhaustive list. A group
could engage in express advocacy even if it did not use any of these
buzzwords. As one court observed:
"[E]xpress advocacy" is not strictly limited to communications
using certain key phrases. The short list of words included in
the Supreme Court's opinion in Buckley does not exhaust the
capacity of the English language to expressly advocate the
election or defeat of a candidate. A test requiring the magic
words "elect," "support," etc., or their nearly perfect synonyms
for a finding of express advocacy would preserve the First
Amendment right of unfettered expression only at the expense of
eviscerating the Federal Election Campaign Act. "Independent"
campaign spenders working on behalf of candidates could remain
just beyond the reach of the Act by avoiding certain key words
while conveying a message that is unmistakably directed to the
election or defeat of a named candidate.
Federal Election Comm'n v. Furgatch, 807 F.2d 857, 862-63 (9th Cir. 1987).
6 The express advocacy test of Buckley continues to be applied, with
courts sometimes striking down statutes and other times upholding them.
Compare McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (striking down
an Ohio statute prohibiting anonymous issue advocacy because it
unconstitutionally regulated free speech), and North Carolina Right to Life,
Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) (striking down a North Carolina
statute regulating groups whose "incidental" purpose was to influence
elections because it unconstitutionally regulated issue advocacy), with
Virginia Soc. for Human Life, Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998)
(upholding state statute after Virginia Supreme Court narrowly construed
"influence" language in response to certified question).
7 This principle is well-established in both federal and state law. See
Carolene Prods. Co. v. United States, 323 U.S. 18, 26 (1944) (cited in BAPAC
II, 137 F.3d at 507); A Woman's Choice, 671 N.E.2d at 110 n.11; Pittsburgh,
Cincinnati, Chicago & St. Louis R.R. v. Parker, 191 Ind. 686, 132 N.E. 372,
375 (1921); Moses v. Cober, 641 N.E.2d 668, 670 (Ind. Ct. App. 1994); Habig v.
Bruning, 613 N.E.2d 61, 64 (Ind. Ct. App. 1993); In Re Marriage of Hudson, 434
N.E.2d 107, 113 (Ind. Ct. App. 1982), cert. denied, 459 U.S. 1202 (1983).
8 In response to this argument, BAPAC points out that the Supreme Court
criticized the "influence" language of FECA as highly problematic. According
It is unlikely that upon reading Buckley, [the General Assembly]
commented: "The Supreme Court of the United States has held that
the phrase 'for the purpose of influencing an election' poses
significant problems of vagueness and overbreadth. Let's use this
language in our law, as opposed to using language that we know
will not be unconstitutional!"
(Appellant's Br. at 19.) We think it just as likely the General Assembly
could have concluded after Buckley: "The Supreme Court of the United States
didn't seem to like the 'influence' language, but at least we know how they'll
interpret it. Let's use this language in our law, as opposed to language we
don't know how they'll interpret!"
9 Pub. L. No. 3-1997, sec. 13, 1997 Ind. Acts 659-60.
10 Ind. Code § 3-9-3-2.5, Pub . L. No. 3-1997, sec. 183, 1997 Ind. Acts
740-41. As BAPAC points out, (Appellant's Br. at 15 n.11), the General
Assembly likely enacted § 3-9-3-2.5 in response to Stewart v. Taylor, 953
F.Supp. 1047 (S.D. Ind. 1997). Stewart held that Indiana's disclaimer statute
for campaign literature, Ind. Code § 3-9-3-2 (repealed in 1997), was overbroad
for encroaching upon legitimate political expression. See Stewart, 953
F.Supp. at 1054-55 (holding that statute was not narrowly tailored to prohibit
misleading and fraudulent information).
11 The Court cited United States v. National Comm. for Impeachment, 469
F.2d 1135, 1139-42 (2d Cir. 1972); American Civil Liberties Union v. Jennings,
366 F.Supp. 1041, 1055-57 (D.C. Cir. 1973), vacated as moot sub nom, Staats v.
American Civil Liberties Union, 422 U.S. 1030 (1975).
12 Our holding is not meant to indicate whether we believe BAPAC's
activities fall within the statute's reach. Both parties agree that BAPAC
engages only in issue advocacy, and the certified question does not encompass
this issue. We believe, however, the legislature did not intend for every
potentially "influential" organization to qualify as a PAC, and thus be
subjected to reporting and registration requirements. For example, the
legislature surely did not intend for the average bass fishing club that holds
open meetings to register as a PAC, or a neighborhood crime watch group, or
the Elks club that builds a float for the annual Fourth of July parade. These
groups all have the potential to influence elections "in some gentle, subtle,
and gradual way," Black's Law Dictionary 779 (6th ed.), but so long as they
do not expressly "advocate the election or defeat of a clearly identified
candidate," Buckley, 424 U.S. at 44, or expressly advocate for or against a
public question, they are not required to register as PACs.
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