Lead Opinion
NORRIS, J., delivered the opinion of the court, in which WELLFORD, J., joined. DAUGHTREY, J. (pp. 1253-56), delivered a separate dissenting opinion.
In this consolidated appeal, the Michigan secretary of state challenges the district court’s order preliminarily enjoining enforcement of Mich. Comp. Laws Ann. § 169.255(6) (West 1996), a section of the Michigan Campaign Finance Act requiring labor unions to obtain affirmative consent at least once per year from members utilizing an automatic payroll deduction to make contributions to their union for political purposes. The Michigan Chamber of Commerce appeals the district court’s denial of its motion to intervene, either permissively or as of right, as a defendant in order to argue for the constitutionality of § 169.255(6) and of the other statutory provisions contested by plaintiffs. We reverse on both grounds.
I. FACTS.
Throughout the latter half of the 1980s, the Michigan Chamber of Commerce (the “Chamber”), a non-profit Michigan corporation whose membership comprises more than six thousand Michigan corporations, litigated the question of whether the Michigan Campaign Finance Act then in effect unfairly discriminated against corporations in favor of labor organizations. The Chamber contended that allowing labor unions, their traditional political adversaries, to make political contributions directly from their treasuries, while at the same time restricting corporate contributions to monies earmarked for statutorily mandated “separate segregated funds,” substantially weakened the political influence of corporations vis-a-vis labor unions. In 1990, the Supreme Court ruled that prohibiting corporations, but not labor unions, from
The Chamber then shifted its focus from litigation to legislation, seeking to have the statutory restrictions on corporate political expenditures applied to unions as well. With the Chamber’s support, Michigan’s legislature in May of 1994 enacted Public Act 117, amending its Campaign Finance Act, Mich. Comp. Laws Ann. §§ 169.201-.282 (West 1996). See 1994 Mich. Pub. Acts 117.
On February 14, 1995, plaintiffs, four labor unions and two union presidents, filed a complaint seeking declaratory and injunctive relief as to four provisions of the 1994 amendments. Plaintiffs contested sections establishing that (1) contributions by all branches, subsidiaries, and local units of a corporation or labor union would be aggregated for purposes of the contribution limit, see § 169.252(9); (2) labor unions would be subject to the proscription, already applicable to corporations, on making contributions from general funds, see § 169.254(1); (3) labor unions would be permitted to solicit donations to their separate segregated fund from only those individuals and entities listed in the statute, see § 169.255(4); and (4) corporations and labor unions would be required to obtain affirmative consent at least once per year from members making contributions to a separate segregated fund by means of an automatic payroll deduction, see § 169.255(6). On February 28, 1995, two weeks after the filing of the complaint and prior to any hearings in the case, the Chamber filed a motion to intervene. Defendants did not oppose intervention.
On March 10, 1995, the district court issued a short order denying the Chamber intervenor status. After quoting the language of Fed.R.Civ.P. 24(a), the order continued as follows: “It is the Court’s opinion that the Michigan Chamber of Commerce does not fulfill the necessary requirements for intervention as of right. As to permissive intervention, the court chooses not to exercise its discretion and allow the applicant to intervene pursuant to Federal Rule of Civil Procedure 24(b).” The district court then indicated that it would permit the Chamber to participate as an amicus curiae. The Chamber filed’a timely notice of appeal from this order, and we have jurisdiction under 28 U.S.C. § 1291 (1994) and the collateral order doctrine. Stringfellow v. Concerned Neighbors in Action,
Also on March 10, 1995, the district court held a hearing, on plaintiffs’ motion for a preliminary injunction. The Chamber was allowed to present oral argument as an amicus curiae. On March 31, 1995, the day before the 1994 amendments were to become effective, the district court issued an opinion purporting to deny injunctive relief as to § 169.254(1) and to enjoin preliminarily §§ 169.252(9), 169.255(4), and 169.255(6). The district court entered an order on July 19, 1995, formally granting in part and denying in part the preliminary injunction in accordance with its earlier opinion.
The Michigan Secretary of State filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) (1994). The Secretary of State’s notice of appeal, as well as the subsequent briefs and oral argument to this court, are limited to challenging the district court’s preliminary injunction with respect to § 169.255(6). The Michigan Attorney General has not appealed any aspect of the proceedings before the district court.
After the decisions below and the filing of appellate briefs, Michigan again amended its Campaign Finance Act. See 1995 Mich. Pub. Acts 264. Public Act 264, which went into effect on March 28, 1996, did not materially change any of the statutory language relevant to this case, although it did renumber two of the four provisions at issue. For the sake of clarity, any citations or quotations of the Campaign Finance Act in this opinion refer to the current version, which incorporates the amendments from Public Act 264.
We first address the district court’s denial of intervenor status to the Chamber. “[A] lawsuit often is not merely a private fight and will have implications on those not named as parties.” '7C Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1901 (1986). At stake is more than just the opportunity to present argument to the district court, an interest that can be accommodated by amicus participation. What the Chamber also desires is the ability to seek appellate review in the event that the district court ultimately determines that one or more of the 1994 amendments are unconstitutional and the original defendants fail to appeal that ruling.
A Intervention of Right
Under the Federal Rules of Civil Procedure, an outsider may intervene as “of right”:
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a). This court has interpreted Rule 24(a) as establishing four elements, each of which must be satisfied before intervention as of right will be granted: (1) timeliness of the application to intervene, (2) the applicant’s substantial legal interest in the case, (3) impairment of the applicant’s ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest by parties already before the court. Cuyahoga Valley Ry. Co. v. Tracy,
1. Timeliness
While the district court made no finding concerning the timeliness of the. Chamber’s application to intervene, it appears that timeliness is not a problem here. The intervention motion was filed just two weeks after the complaint, and the case was obviously in its initial stage. Plaintiffs themselves do not argue that the motion was late. We consider the Chamber’s motion timely as a matter of law. ■ .
2. Substantial Legal Interest
The focus of the parties’ arguments concerning intervention was, appropriately, on the question of whether the Chamber has a legal interest in this case that is substantial enough to warrant intervention as of right. Plaintiffs characterize the Chamber’s interest as remote, consisting of nothing more than a desire to see a law enforced against someone else. The Chamber responds that its involvement in the political process that culminated in adoption of the 1994 amendments and its status as an entity similarly regulated by the challenged statutes deserve legal protection.
This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right. See Purnell,
While none of our cases have addressed the significance to be accorded a proposed intervenor’s interest in the validity of legislation, the Ninth Circuit has adopted a broader rule that a public interest group that is involved in the process leading to adoption of legislation has a cognizable interest in defending that legislation. See Idaho Farm Bureau Fed’n v. Babbitt,
In Meek v. Metropolitan Dade County,
Plaintiffs rely principally upon Athens Lumber Co. v. Federal Election Comm’n,
We acknowledge that our holding is not without limit, and do not disagree with Athens Lumber on its facts. However, based upon the particularly compelling facts presfented in the case before us, we1 find it to be clearly distinguishable. The evidence shows
3. Impairment
To satisfy this element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. Purnell,
Moreover, this court has recognized that the time-sensitive nature of a case may be a factor in our intervention analysis.' An analogous situation was presented in Americans United for Separation of Church and State v. City of Grand Rapids,
The same concern exists in this case, as elections will come and go. If the Chamber is not permitted to intervene and the case does not move quickly to final judgment, then the labor unions in Michigan might not be subject to one or more of the 1994 amendments in forthcoming elections. The Chamber may lose the opportunity to ensure that one or more electoral campaigns in Michigan are conducted under legislatively approved terms that the Chamber believes to be fair and constitutional. The Chamber has demonstrated impairment of its interest.
4. Inadequate Representation
Although a would-be intervenor is said to shoulder the burden with respect to establishing that its interest is not adequately protected by the existing parties to the action, this burden “is minimal because it is sufficient that the movant[ ] prove that representation may be inadequate.” Linton,
Under the circumstances of this case, then, we conclude that the Chamber has satisfied the four elements found in Fed. R. Civ. R. 24(a) and is entitled to intervention as of right.
B. Permissive Intervention
Rule 24 also provides the standard for permissive intervention, stating that:
Upon timely application anyone may be permitted to intervene in an action: .... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common____ In exercising its discretion the court shall consider whether the .intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed.R.Civ.P. '24(b). So long as the motion for intervention is timely and there is at least one common question of law or fact, the balancing of undue delay, prejudice to the original parties, and any other relevant factors is reviewed for an abuse of discretion. Purnell,
Unfortunately, the district court did not provide us with its reasoning for denying permissive intervention. All that we are told is that “the court chooses not to exercise its discretion and allow the applicant' to intervene pursuant to Federal Rule of Civil Procedure 24(b).” If we are to review a district court’s exercise of discretion, the court must, except where the basis for the decision is obvious in light of the record, provide enough of an explanation for its decision to enable this court to conduct meaningful review. It is insufficient merely to quote the rule and to state the result. See United States v. Woods,
The existence of a zone of discretion does, not mean that the whim of the district court governs. Under Rule 24(b), the district court “shall consider” whether intervention would result in undue delay or excessive prejudice to the original parties. In light of the district court’s decision permitting the Chamber to participate in briefing and oral argument as an amicus curiae, it is difficult to see how granting intervention .would have materially increased either delay or prejudice. If the district court denied permissive intervention for some other reason, then it should have explained its decision on the record. Had we not concluded that the district court should have granted the Chamber intervention as of right, we would be compelled to remand for further development of the record as to the appropriateness of permissive intervention.
III. THE FIRST AMENDMENT AND' § 169.255(6)
Section § 169.255(6) provides in pertinent part:
A corporation organized on a for profit or nonprofit basis, a joint stock company, a domestic dependent sovereign, or a labor organization may solicit or obtain contributions for a separate segregated fund estab*1249 lished under this section from an individual described in subsection (2), (3), (4), or (5) on an automatic basis, including but not limited to a payroll deduction plan, only if the individual who is contributing to the fund affirmatively consents to the contribution at least once in every calendar year.
Mich. Comp. Laws Ann. § 169.255(6) (West 1966). Applying strict scrutiny, the district court concluded that this section violates the First Amendment and issued a preliminary injunction. Michigan State AFL-CIO v. Miller,
We review the grant of preliminary injunctive relief for an abuse of discretion, reversing where the district court has committed legal error or relied upon clearly erroneous factual findings. Dayton Area Visually Impaired Persons, Inc. v. Fisher,
While, as a general matter, none of these four factors are given controlling weight, a preliminary injunction issued where there is simply no likelihood of success on the merits must be reversed. In Sandison v. Michigan High School Athletic Association,
A. Precedential Force of KEPAC
The district court relied upon Kentucky Educators Public Affairs Council v. Kentucky Registry of Election Finance,
In KEPAC, this court reviewed a district court’s holding that the denial to a union of the right to collect funds by “reverse checkoff,” whereby funds for political activities would be deducted from union members’ pay checks automatically unless the members affirmatively requested that no such deduction be made, was inconsistent with both the Kentucky statutory prohibition on coercion in collecting funds for political activity and the First Amendment. This court’s opinion focused nearly all of its analysis on affirming the statutory holding — that “reverse checkoff’ could not be deemed to violate the Kentucky statute-absent evidence of coercion of union members. The court in KEPAC made a cryptic reference to the constitutional issue:
The district court did not err in finding that there was no substantial evidence to support the findings of fact, conclusions of law, and order of the Kentucky Registry of Election Finance, and in finding that the Registry had applied KRS 121.320 in a manner that violated KEPAC’s First Amendment rights to collect money for political purposes by use of a reverse check-off system.
Id. at 1133 (emphasis added).
The opinion includes no analysis of the constitutional question, and no rule of law is stated. In discussing and attempting to explain what this court did in KEPAC, one court has commented as follows:
Kentucky law permitted employee organizations to participate in payroll deductions, and, since the evidence indicated the reverse check-off system was not coercive,*1250 the Kentucky Corrupt Practices Act was not deemed violated. The First and Fourteenth Amendment issues raised by Plaintiffs here were not clearly addressed by the Sixth Circuit.
____ [T]he issue before that Court was not constitutionality of removal of the right to cheek off; the issue there was whether reverse check-off was “coercive” under Kentucky law and therefore illegal. The Sixth Circuit held it was not coercive and, therefore, was legal.
Toledo Area AFL-CIO Council v. Pizza,
Although the district court relied upon the single brief statement in KEPAC that purports to decide the First Amendment issue, a fair reading of that opinion reveals that the resolution of the appeal there under consideration rested entirely on statutory grounds. That conclusion is buttressed by the fact that the opinion undertook no analysis of a First Amendment issue. Accordingly, KEPAC cannot be said to amount to binding precedent on the First Amendment issue in this appeal. We do not take issue with the dissent’s view that the First Amendment allows organizations to express their political views.
B. First Amendment Scrutiny
The First Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, see, e.g., 44 Liquormart, Inc. v. Rhode Island, — U.S. -,-n. 1,
It is well-settled that a law restricting speech on the basis of content is subject to strict scrutiny, which requires that the law be necessary to serve a compelling state interest and narrowly tailored to achieve that end. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
Plaintiffs contend that § 169.255(6) is content-based, pointing to Buckley v. Valeo,
Plaintiffs also argue that the content-basis of the statute is established by the fact that it applies only to automatic payroll deductions that involve political contributions and not to all automatic payroll deductions. Relying upon Carey v. Brown,
The Secretary of State responds that the annual consent provision is merely a reasonable regulation of the time, place, and manner of speech subject to the less-exacting intermediate scrutiny standard. See United States v. O’Brien,
We are aided in our decision by the Supreme Court’s recent clarification of the applicable tiers of review:
[T]he First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most eases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.
As a general rule, -laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based. By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content-neutral.
Turner Broadcasting Sys., Inc. v. Federal Communications Comm’n,
The question, then, is whether the Michigan legislature adopted the annual consent requirement because of agreement or disagreement with the message inherent in political contributions made via the automatic payroll deduction system, or based .upon some other concern unrelated to the message conveyed. The language of § 169.255(6) gives rise to no inference of legislative hostility toward any particular speaker. The statute applies evenhandedly to the Chamber and to plaintiffs alike. By its terms, the section covers “[a] corporation organized on a for profit or nonprofit basis, a joint stock company, a domestic dependent sovereign, or a labor organization.” We discern no invidious attempt to limit contributions made to separate, segregated funds or to favor one class of voters over another. The Secretary of State asserts that the annual consent requirement is necessary to preserve the right of individuals not to contribute to the advocacy of a political message, a right accorded the same constitutional status as plaintiffs’ right to solicit political funds. See Abood v. Detroit Bd. of Educ.,
As Turner Broadcasting makes clear, the real issue is whether the law is aimed at the communicative impact of speech.
While the subject matter of § 169.255(6) is confined to political speech, there is no basis for concern that the state is trying to suppress that speech. Nothing in the statute evinces a hostility to political speech, whether in the form of contributions or solicitations. Where there is no reason to believe that a legislature has singled out a class of speech in order to give it favored or disfavored status, the policies meriting strict scrutiny are not implicated. That Michigan has evidenced concern about political contributions rather than all contributions of individuals as groups involved does not subject this statute to strict scrutiny.
We conclude that the annual affirmative consent provision is content-neutral and that intermediate scrutiny is the appropriate standard of review.
C. Intermediate Scrutiny and § 169.255(6)
The Turner Court noted that a eon-tent-neutral law will satisfy intermediate scrutiny if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Turner,
The first prong of this test is that the statute “furthers an important or substantial governmental interest.” As noted earlier, the right not to contribute to political causes that they do not favor is as central a First Amendment right as is the right to solicit funds. See Abood,
The second element is that “the governmental interest is unrelated to the suppression of free speech.” In stark contrast to Buckley, Austin, and McIntyre, the Michigan statute does not impose any direct limits on speech. It does not determine who can speak, how much they can speak, or what they may say. Plaintiffs may continue to raise just as much money now as they could before the annual consent requirement was made applicable to them. The only qualification is that they may lose the contributions of individuals who decide that they no longer wish to continue the automatic deductions. That risk was one that existed before the enactment of § 169.255(6), and there is no reason to think that the level of contributions will drop significantly now. Even if contributions were to decline, however, the cause would be the exercise of informed choice by individuals, not the governmental suppression of political advocacy. The governmental interest at stake here is striking a balance between the right to solicit political contributions and the co-equal right not to contribute, an interest wholly unrelated to the suppression of free speech.
The third and final criterion is that the law not “burden substantially more speech than is necessary.” While plaintiffs and amicus curiae, the Michigan Education Association, suggest that the administrative burden of the annual consent provision will be crushing, they offer no support for that claim. An annual mailing to a union’s contributing members, asking them to check a box and to return the notice to the union, would seem to suffice under the statute. Labor unions surely maintain some sort of records on their members already, and requiring the unions to make space in their files or databases for the inclusion of one more piece of information seems minimal, certainly a burden insufficient .to rise to the level of a constitutional violation. Similarly, the suggestion that asking people to check a box once a year unduly interferes with the speech rights of those contributors borders on the frivolous.
The annual consent requirement withstands intermediate scrutiny. Because the statute is constitutional, plaintiffs have no likelihood of succeeding with their claim as it relates to § 169.255(6). Accordingly, the-grant of preliminary injunctive relief as to that section cannot stand.
IV. CONCLUSION
We hold that the Chamber is entitled to intervenor status under Fed.R.Civ.P. 24(a). We further hold that Michigan’s annual consent provision, § 169.255(6), is a content-neutral law that satisfies the requirements of intermediate scrutiny. Accordingly, we reverse the district court’s orders denying intervention to the Chamber and holding § 169.255(6) unconstitutional, we vacate the district court’s preliminary injunction insofar as it applies to § 169.255(6), and we remand for further proceedings.
Dissenting Opinion
dissenting.
While I agree with the majority’s reiteration of the four elements necessary to justify intervention of right, I cannot agree that the Chamber of Commerce has shown a “substantial legal interest” justifying intervention. In Grubbs v. Norris,
The Chamber of Commerce, by contrast, has no “direct” or “substantial” interest in the litigation in this case. As a political adversary of the unions, the Chamber of Commerce acknowledgedly has a general interest in restricting unions’ political expenditures. This broad interest, however, is not the same type of direct interest described in Grubbs and Jansen. The Eleventh Circuit made this distinction in Athens Lumber Co., Inc. v. Fed. Election Comm’n,
The Seventh Circuit has also found an organization’s general lobbying interest in a statute insufficient to justify intervention. In Keith v. Daley,
The majority, however, seeks to adopt Ninth Circuit case law holding that a public interest group has a sufficient interest in litigation concerning legislation if the group was involved in the process leading to adoption of the legislation. See, e.g., State of Idaho v. Freeman,
I must also disagree with the majority’s conclusion that Mich. Comp. Laws § 169.255(6) is a content-neutral statute requiring only intermediate scrutiny. The majority accurately describes the difference between content-based and content-neutral regulations by citing Turner Broadcasting Sys., Inc. v. Federal Communications Comm’n,
[o]ur precedents ... apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content .... In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, ... because in most eases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.
Id. As the majority points out, Turner added that “the principal inquiry in determining content-neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.” Id. (citing Ward v. Rock Against Racism,
Although the majority half-heartedly acknowledges this point, it then concludes that “[n]othing in the statute evinces a hostility to political speech____” However, by requiring annual affirmative consent for political contributions only, the statute disfavors organizational efforts to gather political contributions. The statute displays a unique concern for the voluntariness of political contributions, but does not similarly concern itself with the voluntariness of other contributions. Although we may well agree that the assurance of the voluntariness of contributions is a worthwhile effort, and while the voluntariness of political contributions in particular may drive the quest for reform, our approval or disapproval of legislative intent should not color our determination of whether a statute is content-based or content-neutral. The Michigan legislature’s decision to protect only the voluntariness of political contributions, rather than all types of contributions, makes this statute clearly content-based, and consequently, subject to “the most exacting scrutiny.”
I also find troubling the majority’s ready dismissal of our constitutional analysis in Kentucky Educators Pub. Affairs Council v. Ky. Registry of Election Fin.,
The KEPAC court held that:
The district court did not err in finding that there was no substantial evidence to support the findings of fact, conclusions of law, and order of the Kentucky Registry of Election Finance [finding the reverse check-off system violative of Kentucky law], and in finding that the Registry had applied [the Kentucky statute] in a manner that violated KEPAC’s First Amendment rights to collect money for political purposes by use of a reverse check-off system.
In light of the fact that strict scrutiny is the appropriate standard for reviewing the constitutionality of the Michigan statute, we should ask whether the state had a compelling state interest. Although the Secretary claims that the legislation is justified by Michigan’s desire to ensure the voluntariness of political contributions, it has presented no evidence that contributions are currently involuntary. KEPAC requires some evidence in order to impair a union’s First Amendment rights. At this stage of the litigation, the Secretary’s failure to present evidence sufficient to warrant the ban on the union’s reverse check-off procedure suggests that the unions have a strong likelihood of success on the merits. The other considerations in our review of preliminary injunctions also weigh in favor of upholding the injunction. The unions will suffer irreparable harm without an injunction; no evidence exists that the injunction will harm others; and finally, the injunction serves the public interest in protecting political speech.
Based on this reasoning, I must dissent both from the majority’s conclusion that the Chamber of Commerce is entitled to intervene in this suit, and from its decision to reverse the preliminary injunction.