IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION. Plaintiff, ) ) Defendant. ) )

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1 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION RICHARD L. SCOTT, Plaintiff, v. DAWN K. ROBERTS, in her official capacity as Interim Secretary of State of the State of Florida, Defendant. Civil Action No.4:10 CV COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Richard L. Scott brings this action for declaratory and injunctive relief, alleging as follows: INTRODUCTION 1. This is an action challenging a portion of section of the Florida Election Campaign Financing Act as violating the United States Constitution. The provision in question, hereinafter termed the Excess Subsidy provision, awards government funds to candidates for statewide office who have agreed to participate in the State s campaign financing system when a non-participating candidate s campaign expenditures exceed a certain threshold. In so doing, the Excess Subsidy provision of section impermissibly curtails Plaintiff Richard L. Scott s constitutional rights. 2. For over thirty years, the Supreme Court of the United States has recognized that candidates for elected office have a First Amendment right to spend their

2 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 2 of 14 own money for campaign speech and that campaigns have a First Amendment right to spend money on behalf of their candidates. This is so, the Court has observed, because a candidate, no less than any other person, has a right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election. Buckley v. Valeo, 424 U.S. 1, 52 (1976 (per curiam. The Court has explained that it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates personal qualities and their positions on vital public issues. Id. at To that end, the Supreme Court has consistently concluded that capping expenditures constitutes a direct, clear, and substantial limitation on those First Amendment rights. Such limitations necessarily reduc[e] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached, since virtually every means of communicating ideas in today s mass society requires the expenditure of money. Buckley, 424 U.S. at 19. The effect of expenditure limits, the Court has noted, falls particularly hard on those candidates who lacked substantial name recognition or exposure of his views before the start of the campaign. Id. at The Supreme Court has also consistently concluded that restrictions on a candidate s ability to spend his own funds, or funds raised from others, cannot be justified either by the government s interest in reducing corruption or the appearance of corruption or by the government s interest in equalizing the relative financial resources of candidates. Buckley, 424 U.S. at 53-54,

3 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 3 of Likewise, the Supreme Court has concluded that a legislature cannot enact laws that provide benefits to a candidate s opponents triggered by the candidate s exercise of the right to use funds for campaign speech. Such laws, the Court has concluded, impose a substantial burden on First Amendment protections that is not justified by a government interest in reducing corruption or the appearance of corruption or in equalizing financial resources for all candidates. See Davis v. FEC, 128 S. Ct ( The Excess Subsidy provision of section of the Florida Election Campaign Financing Act constitutes precisely such a law. That section provides that, where a candidate for statewide office who chooses not to participate in the State s campaign financing system spends over a certain amount of funds to advocate for his or her election (in this case, $24.9 million, any opponents participating in the system receive public subsidies to use against that candidate in a dollar-for-dollar match of the amount by which the non-participating candidate exceeds the cap. For example, if a nonparticipating candidate spends $30 million, his or her opponents would receive $5.1 million each from the State beyond the public funding already received. Section thus penalizes individuals who exercise their well-established First Amendment right to spend funds for campaign speech by directly providing opponents with state money to counteract and diminish that speech. The resulting substantial burden on First Amendment protections is not sufficiently justified by a government interest. 7. The Excess Subsidy provision of section accordingly violates Mr. Scott s constitutional rights. Mr. Scott, a political newcomer, has expended substantial - 3 -

4 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 4 of 14 amounts of his personal resources to introduce himself to voters, articulate his policy positions, and engage in other voter education efforts. These efforts have thus far proven successful as Florida voters have responded positively to Mr. Scott s message of change. Because of the Excess Subsidy provision, however, Mr. Scott s exercise of his First Amendment rights will imminently result in the State s providing additional money to his campaign opponents, in turn allowing them to counteract and diminish Mr. Scott s own campaign speech. The Excess Subsidy provision, moreover, has already significantly chilled Mr. Scott s exercise of his own First Amendment rights. 8. Less than a month ago, the Supreme Court reinstated a lower court s decision declaring a substantially similar excess subsidy provision in Arizona unconstitutional under the clear reasoning of the cases described above. See McComish v. Bennett, No. 09A1163, 2010 WL (U.S. June 8, Consistent with well-established precedent, Mr. Scott seeks a declaration that the Excess Subsidy provision is unconstitutional and an injunction preventing its implementation. BACKGROUND 10. The Excess Subsidy provision of section is a component of the Florida Election Campaign Financing Act, Fla. Stat. Ann (the Act. 11. The Act creates a system of public financing for statewide electoral candidates, including gubernatorial candidates. Participating candidates receive matching funds from the State for every qualifying contribution. The State matches on a two-toone basis for all qualifying contributions up to $150,000, and on a one-to-one basis for all - 4 -

5 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 5 of 14 qualifying contributions thereafter. Fla. Stat. Ann In exchange, participating candidates agree to limit personal campaign expenditures to $25,000 and to limit total campaign expenditures to $2.00 per registered voter or, for the 2010 election cycle, approximately $24.9 million. Id A candidate for statewide office may choose not to participate in the public financing system. If, however, such a non-participating candidate exceeds $24.9 million in total campaign expenditures, two consequences result. First, all opposing candidates participating in the public financing system are released from the $24.9 million expenditure limit to which they earlier agreed, though they are still eligible to receive matching funds for qualifying contributions. Fla. Stat. Ann Second, under the Excess Subsidy provision, all opposing candidates participating in the public financing system are entitled to a State subsidy equal to the amount by which the non-participating candidate has exceeded $24.9 million. Fla. Stat. Ann Each opposing candidate is entitled to receive this public money within seven days of requesting it from the Department of State. Id. The maximum subsidy each opposing candidate may receive is twice the expenditure limit, or $49.8 million. Id. 14. The express purpose of the system described above, as articulated by the Florida Legislature, is to dispel the misperception that government officials are unduly influenced by... special interests and to protect the effective competition of a candidate who uses public funding. Fla. Stat. Ann On July 23, 2010, all candidates for Florida office are required to report their campaign spending through July 16, Candidates are required to update these - 5 -

6 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 6 of 14 spending reports every week thereafter (except for the week immediately following the primary election, scheduled for August 24, Fla. Stat. Ann (1(b. JURISDICTION AND VENUE 16. Mr. Scott brings this action pursuant to 42 U.S.C and 1988 to vindicate constitutional rights violated under color of state law. He seeks relief under 28 U.S.C and 2202 and 42 U.S.C This Court has jurisdiction pursuant to 28 U.S.C and 1343(a(3 and (4. Venue properly lies in this Court under 28 U.S.C. 1391(b(1 because Defendant performs her official duties in Tallahassee and is thus deemed to reside there. PARTIES 18. Plaintiff Richard L. Scott is a citizen of the United States, a resident of the State of Florida, and a current candidate for Governor of the State of Florida. 19. Defendant Dawn K. Roberts is Interim Secretary of State of the State of Florida and is sued in her official capacity. Defendant s office is the repository for all campaign finance reports filed pursuant to the Act and is responsible for providing public funds to participating candidates as set forth in the Act. GENERAL ALLEGATIONS 20. Richard Scott is a candidate for Governor of Florida. He is seeking the Republican Party s nomination and is therefore running in the Republican primary. He is a member of the Republican Party of Florida, and he intends to vote for the Republican nominee for Governor, regardless of whether he wins the Republican primary

7 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 7 of Mr. Scott has chosen not to participate in the State s public financing system for statewide candidates. He has elected to spend his own funds to promote his candidacy, and his campaign is substantially funded in that manner. 22. Mr. Scott s opponent in the Republican primary (aside from a nominal candidate is William ( Bill McCollum, the current Attorney General of Florida and a former United States Congressman. Mr. McCollum has elected to participate in the public financing system and accordingly receives matching contributions from the State. Upon information and belief, six additional gubernatorial candidates are participating in the public financing system, including the front-runner for the Democratic nomination, who also currently holds statewide office. 23. Unlike his opposition, Mr. Scott has never held or even run for office. To promote his candidacy, articulate his political views, and advocate his own election for governor across the State of Florida and within its many large media markets, Mr. Scott s campaign has needed to expend, and has in fact expended, considerable sums of money. Since April 9, 2010, Mr. Scott s campaign has incurred approximately $21 million in expenditures. Given Mr. Scott s continuing need to communicate his positions to Florida voters via television and radio advertising, in-person campaigning, and other voter education efforts, Mr. Scott has come to the realization that he will have no choice but to exceed, and is likely imminently to exceed, the Act s $24.9 million limit. When that occurs, Mr. Scott s opposition will be released from the $24.9 million limit and, under the Excess Subsidy provision of section , will be eligible to receive subsidies equal to - 7 -

8 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 8 of 14 the amount by which Mr. Scott s campaign spending exceeds that threshold, in turn enabling Mr. Scott s opposition to counteract his own speech. 24. Notwithstanding Mr. Scott s need and desire to engage in campaign speech in order to promote his candidacy, the imminent impact of the Excess Subsidy provision of section has also directly caused, and will continue to cause, Mr. Scott to curtail the exercise of his political speech in order to minimize the substantial resources his opposition will soon receive because of that speech. For example, recently, Mr. Scott has significantly reduced television and radio advertising, decreased travel for personal appearances, and scaled back voter education efforts, among other campaign activities. The result is that the quantity and effectiveness of Mr. Scott s campaign speech is diminished from what it would be in the absence of the Excess Subsidy provision. 25. Because all opposing candidates participating in the public financing system are eligible to receive subsidies once a non-participating candidate exceeds the $24.9 million threshold, Mr. Scott will be further harmed even if he does not win the Republican primary, if the six non-republican gubernatorial candidates (five of whom are running as independents also receive subsidies that they can use to diminish the speech of the Republican nominee during the general election, whom Mr. Scott would support

9 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 9 of 14 COUNT I (Violation of Right to Free Speech Guaranteed by the First and Fourteenth Amendments 26. Mr. Scott realleges and incorporates by reference all of the allegations contained in all of the preceding paragraphs. 27. In Buckley v. Valeo, 424 U.S. 1 (1976 (per curiam, the Supreme Court held that individuals have a First Amendment right to spend unlimited amounts on their campaigns and that campaigns have a First Amendment right to spend unlimited amounts on behalf of a candidate. Id. at In Davis v. FEC, 128 S. Ct (2008, the Court reaffirmed these fundamental principles in holding unconstitutional a federal statute that provided increased contribution limits to opponents of candidates who contributed more than $350,000 to finance their own campaigns, while leaving the contribution limits for the self-financing candidates the same. The Court held that providing such an asymmetric benefit to a self-financing candidate s opponent impermissibly imposes a penalty on any candidate who robustly exercises th[e] First Amendment right to spend personal funds for campaign speech. Id. at Under such a law, the Court held, the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics. Id. at The resulting drag on First Amendment rights, the Court concluded, constituted a substantial burden that could not be justified by the government s interest in either preventing corruption or the appearance of corruption or in creating a more level playing field for candidates. Id. at

10 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 10 of More recently, in McComish v. Bennett, No. 09A1163, 2010 WL at *1 (U.S. June 8, 2010, the Supreme Court stayed the mandate of the United States Court of Appeals for the Ninth Circuit, which had reversed an injunction entered by the United States District Court for the District of Arizona enjoining implementation of the matching funds provision of Arizona s Citizens Clean Elections Act. Applying the reasoning of Buckley and Davis, the district court had held unconstitutional under the First and Fourteenth Amendments an Arizona statute that, like the Excess Subsidy provision of section here, provides subsidies to candidates accepting public financing when a non-participating candidate surpasses a certain spending threshold. The Supreme Court stayed the Ninth Circuit s mandate pending the filing and disposition of a petition for certiorari. The Court typically only enters such a stay where there is a reasonable probability that certiorari will be granted, a significant possibility that the judgment below will be reversed, and a likelihood that irreparable harm will result if the decision below is not stayed. Curry v. Baker, 479 U.S. 1301, 1302 (1986 (Powell, J., in chambers. 30. The Excess Subsidy provision of section unconstitutionally chills free speech by imposing a substantial burden on Mr. Scott s well-established right to spend his own funds in support of his own candidacy. By providing that Mr. Scott s opponents will receive taxpayer-funded subsidies when Mr. Scott s campaign expenditures surpass $24.9 million subsidies that will counteract and diminish Mr. Scott s own political speech the Excess Subsidy provision produces fundraising advantages for opponents in the competitive context of electoral politics solely because

11 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 11 of 14 of the vigorous exercise of Mr. Scott s right to use personal funds to finance campaign speech, Davis, 128 S. Ct. at 2772, irreparably harming Mr. Scott. Indeed, if a mere increase in contribution limits triggered by a candidate s exceeding a threshold level of spending produces fundraising advantages for opponents, a fortiori so too does Florida s direct disbursement of funds to opponents in direct response to Mr. Scott s spending. 31. The Excess Subsidy provision of section also creates a drag on Mr. Scott s First Amendment rights by causing him to reduce or delay spending on protected political speech, such as advertisements, personal appearances, and voter education efforts, in order to minimize or delay the amount of subsidies that will be available to his opposition. By causing Mr. Scott to undertake these reasonable actions, the Excess Subsidy provision further works harm upon Mr. Scott. 32. By penalizing Mr. Scott for the vigorous exercise of his rights to free speech, the Excess Subsidy provision of section has inflicted and will continue to inflict a substantial burden on Mr. Scott s First Amendment rights. 33. The Florida legislature s stated intent in establishing the Act does not constitute a sufficient state interest to justify the substantial burden that the Excess Subsidy provision imposes upon Mr. Scott. The legislature s intent was to dispel the misperception that government officials are unduly influenced by... special interests and to protect the effective competition of a candidate who uses public funding. Fla. Stat. Ann The Supreme Court, however, has never held that the specter of undue influence is sufficient justification for restricting the right to make expenditures

12 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 12 of 14 of personal funds for campaign speech; to the contrary, it has held that even the prevention of actual (much less perceived corruption constitutes an insufficient basis to restrict expenditures. See Davis, 128 S. Ct. at 2771, 2773; Buckley, 424 U.S. at 53, The Supreme Court, moreover, has consistently rejected the equalization of financial resources for candidates as a sufficient basis for restricting the right to expend personal funds for campaign speech. See Davis, 128 S. Ct. at 2771, 2773; Buckley, 424 U.S. at 54, There is no compelling, substantial, or even legitimate state interest that justifies the substantial burden on First Amendment rights that the Excess Subsidy provision of section inflicts. 34. The Excess Subsidy provision of section of the Act, facially and as applied, violates Mr. Scott s right to free speech under the First and Fourteenth Amendments and 42 U.S.C COUNT II (Violation of Right to Equal Protection of the Laws Guaranteed by the Fourteenth Amendment 35. Mr. Scott realleges and incorporates by reference all of the allegations contained in paragraphs 1 through 25 hereof, inclusive. 36. Under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983, Mr. Scott has the right to enjoy the equal protection of laws, especially where, as here, unequal treatment under the law substantially burdens the exercise of the fundamental right to free speech under the First Amendment. 37. The Excess Subsidy provision of section is discriminatory on its face and as applied to Mr. Scott because it requires the State to subsidize the campaigns

13 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 13 of 14 of candidates who choose to participate in the public financing system when a nonparticipating candidate exceeds the $24.9 million limit, but it provides no additional funds to non-participating candidates. 38. This discrimination is even more salient given that once the nonparticipating candidate exceeds the $24.9 million limit, participating candidates not only receive a subsidy equal to the amount by which the threshold is exceeded, but are no longer held to the $24.9 spending limit the very condition to which participating candidates agree in order to opt into the public financing system (and receive matching contributions in the first place. 39. The Excess Subsidy provision of section thus treats candidates differently with respect to campaign expenditures based solely on whether the candidate has elected to participate in the public financing system. There is no compelling, substantial, or even legitimate interest that justifies this differential treatment, because, once the Excess Subsidy provision is triggered, participating candidates are no longer held to the very condition placed upon them as the price for receiving public money. PRAYER FOR RELIEF Wherefore, Plaintiff Richard L. Scott prays for the following relief: 1. an order and judgment declaring the Excess Subsidy provision of section unconstitutional; 2. an order and judgment enjoining Defendant from enforcing the Excess Subsidy provision of section ;

14 Case 4:10-cv RH-WCS Document 1 Filed 07/07/10 Page 14 of 14 and 3. costs and attorneys fees pursuant to any applicable statute or authority; 4. any other relief as this Court in its discretion deems just and appropriate. Respectfully submitted, Enu A. Mainigi (DC Bar # Carl R. Metz (DC Bar # George W. Hicks, Jr. (DC Bar # WILLIAMS & CONNOLLY LLP 725 Twelfth St., N.W. Washington, DC ( (telephone ( (fax emainigi@wc.com cmetz@wc.com ghicks@wc.com s/charles M. Trippe Charles M. Trippe (Florida Bar #69760 MOSELEY, PRICHARD, PARRISH, KNIGHT AND JONES 501 West Bay Street Jacksonville, FL ( (telephone ( (fax cmtrippe@mppkj.com Attorneys for Plaintiff Richard L. Scott