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In a case where both sides seemingly have the same position — that limiting corporate contributions to certain political action committees would be unconstitutional — the Indiana Supreme Court is weighing how to interpret state law.
Counsel for Indiana Right to Life Victory Fund argued before the justices Thursday that the state’s election laws won’t allow it to accept donations from corporations, or that there would be a cap on how much those corporations could donate.
The fund wants to operate as an independent-expenditure PAC, commonly called a super PAC. The fund and a private company, Sarkes Tarzian Inc., went to federal court seeking to prevent Indiana from enforcing its campaign finance laws to limit or ban corporate contributions to super PACs.
The Indiana Southern District Court found the fund did not allege a credible threat and dismissed the lawsuit for lack of standing.
On appeal, the 7th Circuit Court of Appeals ruled the state’s high court is the only body that can definitively construe Indiana election laws and certified a question to the court: “Does the Indiana Election Code — in particular, §§ 3-9-2-3 to -6 — prohibit or otherwise limit corporate contributions to PACs or other entities that engage in independent campaign-related expenditures?”
“We believe that the answer to that question is yes,” Terre Haute attorney James Bopp Jr., representing the fund and private company, told the justices.
Sarkes, an Indiana-based TV and radio company, wants to make a $10,000 contribution to the fund, according to court filings.
But Indiana’s election officials say they have no intent to enforce the laws in the way the plaintiffs are claiming and that doing so would be a violation of the First Amendment. The state also said in a filing that “it is clear” Indiana’s election laws don’t prohibit or limit corporate contributions for independent campaign-related expenditures.
Given that, “Why are we here?” Indiana Chief Justice Loretta Rush asked.
Bopp argued election officials’ “empty promises” are not binding.
When asked why the issue is being litigated rather than the two sides coming to an agreement, Kyle Hunter of the Indiana Attorney General’s Office, representing the state officials, said the state has a duty to defend the statute.
State officials named as defendants include Indiana Secretary of State Diego Morales and the Indiana Election Commission.
Bopp argued Section 6 of the election code, which provides exceptions to which limits on contributions don’t apply, doesn’t include contributions for independent expenditures. He also pointed to Section 5(c), which limits the circumstances under which a corporation can make a contribution to a PAC.
But Hunter argued the disputed sections only address contributions that are disbursed to candidates and political parties. He said the statute does not regulate independent expenditures.
Despite what Hunter called “ambiguity” in the statute, he said the Indiana General Assembly was seeking to prevent quid pro quo corruption and wasn’t purporting to regulate corporate contributions made for independent expenditures. The Legislature’s silence on that type of contribution makes its position clear, he said.
According to Hunter, the state’s high court can find ambiguity in the statute and interpret it in a way that is constitutional and “consistent with the Legislature.”
Hunter also said the court should take the 7th Circuit’s invitation to reformulate the question as: “Does Indiana’s election code prohibit or otherwise limit corporate donations to incorporated entities that engage only in independent campaign-related expenditures?”
He emphasized “donations” — replacing the word “contributions” — because he said it’s not clear whether super PACs are operating as PACs under Indiana law. Once the fund, which is a nonprofit corporation, makes an expenditure, Hunter said it would be excluded from the definition of a PAC.
The case is Indiana Right to Life Victory Fund and Sarkes Tarzian, Inc. v. Diego Morales, et al., 23S-CQ-00108.
The full arguments are available online.
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