*

The Honorable George Caram Steeh, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0205p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

GREG MCNEILLY,

Plaintiff-Appellant,

v.

TERRI LYNN LAND,

Defendant-Appellee.

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No. 10-2244

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 10-00612—Janet T. Neff, District Judge.

Argued: November 15, 2011

Decided and Filed: July 3, 2012 

Before: MARTIN and GIBBONS, Circuit Judges; STEEH, District Judge.*

_________________

COUNSEL

ARGUED: Matthew G. Davis, WITTE LAW OFFICES, Lansing, Michigan, for

Appellant. Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee. ON BRIEF: Matthew G. Davis, WITTE LAW

OFFICES, Lansing, Michigan, for Appellant. Ann M. Sherman, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

STEEH, District Judge. Plaintiff-Appellee Greg McNeilly appeals the district

court’s denial of his request for a preliminary injunction enjoining Defendant-Appellant

Terri Lynn Land, in her official capacity as Michigan Secretary of State, from enforcing

1
No. 10-2244 McNeilly v. Land Page 2

the individual contribution limits for contributions to state House and Senate candidates

as set forth in Michigan Compiled Laws (MCL) § 169.252(1). Because the district court

accurately found that the established factors in this case mitigate against a preliminary

injunction, its decision is AFFIRMED.

I.

On June 28, 2010, McNeilly filed an action in the U.S. District Court for the

Western District of Michigan challenging the constitutionality of MCL § 169.252(1),

which sets limits on individual campaign contributions. MCL § 169.252(1) provides:

Except as provided in subsection (5) or (11) and subject to subsection

(8), a person other than an independent committee or a political party

committee shall not make contributions to a candidate committee of a

candidate for elective office that, with respect to an election cycle, are

more than the following:

***

(b) $1,000.00 for a candidate for state senator, or for a candidate for local

elective office if the district from which he or she is seeking office has

a population of more than 85,000 but 250,000 or less.

(c) $500.00 for a candidate for state representative, or for a candidate for

local elective office if the district from which he or she is seeking office

has a population of 85,000 or less.

The original act, 1976 PA 388, imposed limits of $250 per state House primary election,

$250 per state House election, $450 per state Senate primary election, and $450 per state

Senate general election. The current statute regulates contributions per “election cycle,”

rather than election. MCL § 169.211(2) provides: “‘Person’ means a business,

individual, proprietorship, firm, partnership, joint venture, syndicate, business trust,

labor organization, company, corporation, association, committee, or any other

organization or group of persons acting jointly.” MCL § 169.252(9) provides criminal

penalties of $1,000 and up to 90 days in jail for violations of the statute by an individual.

MCL § 169.209(2) defines “[i]ndependent expenditure” as “an expenditure by a person

if the expenditure is not made at the direction of, or under the control of, another person

and if the expenditure is not a contribution to a committee.” 
No. 10-2244 McNeilly v. Land Page 3

McNeilly attests that he wished to make contributions to the candidate

committees of individuals running for state House and state Senate in Michigan in 2010

in excess of the limits imposed by MCL § 169.252(1) for an individual. He attests that

he wished to make such contributions for the purpose of helping candidates amass the

resources necessary to mount effective challenges in their respective campaigns. He also

attests that he feared prosecution for making contributions in excess of the limits in

place.

In his action, McNeilly claims the contribution limits violate his rights of

political association and political expression under the First Amendment to the United

States Constitution. He requests preliminary and permanent injunctive relief and a

declaratory judgment. His injunctive relief claim seeks an injunction enjoining

Michigan Secretary of State Terri Lynn Land from enforcing MCL § 169.252(1).

On the same day he filed the action, McNeilly filed a motion for preliminary

injunction and sought expedited consideration. In his motion, McNeilly requested a

preliminary injunction preventing Land from enforcing the contribution limits imposed

by MCL § 169.252(1), under which individuals seeking to contribute to political

campaigns are limited to $500 per state House candidate committee and $1,000 per state

Senate candidate committee. The motion was fully briefed. The district court denied

McNeilly’s request for expedited consideration and set a hearing date. In the days

before the hearing, both sides filed supplemental documents.

On August 30, 2010, the district court held a hearing on McNeilly’s motion for

preliminary injunction. At the hearing, McNeilly argued Michigan’s contribution limits

are unconstitutional under the framework established in Randall v. Sorrell, 548 U.S. 230

(2006) (plurality). McNeilly acknowledged a state interest in preventing genuine quid

pro quo corruption but argued the limits are unconstitutional because: (1) they are not

indexed to inflation; (2) they “fall below the Vermont limits, when looked at especially

in terms of real dollars”; (3) “the volunteer services are also a drag on the ability of one

to associate with a candidate of his choice” (which appears to be a reference to limits on

money spent in connection with volunteer activities); and (4) “these factors combined
No. 10-2244 McNeilly v. Land Page 4

to prohibit challengers from making viable challenges to incumbents.” With respect to

irreparable harm, McNeilly argued that, although the August 3, 2010 primary had

passed, even a momentary deprivation of a First Amendment right constitutes irreparable

harm. With respect to the balancing of the harms, McNeilly acknowledged that if a

preliminary injunction issued there would be a “gap” of time in which no contribution

limits were in place. McNeilly argued it was “possible” the legislature would enact new

limits before the November 2010 election.

At the hearing, Land argued a preliminary injunction would harm the public

because it was still election season. Land noted the statute and its limits “have been in

place for decades” yet McNeilly waited until “four and a half weeks from the May date

for filing for candidacy” to file the action. Land emphasized the “balancing of harms”

and pointed out the requested preliminary injunction would “leave the state with no

limits whatsoever within just months of the general election.” Land argued contribution

limits are important to avoid not only corruption but the appearance of corruption. Land

also argued the public would “suffer both in terms of their turnout at the polls and in

terms of an orderly administration of the election season here.” Land noted McNeilly

had not shown that “any contribution has yet been made in any amount to a state

representative or a senate candidate.” Land also argued the Michigan contribution limits

are not unreasonably low, noting the limits in Randall were $200 and $300, respectively.

Land argued the statute must be read as a whole and the court should consider the fact

that individuals may make unlimited “coordinated independent expenditures” in favor

of a candidate. The statute also allows for larger contributions from the parties than the

statute at issue in Randall.

In rebuttal argument at the hearing, McNeilly disputed Land’s interpretation of

“coordinated independent expenditures” and argued that the statute is void for vagueness

or the functional equivalent of prior restraint.

After argument from both sides, the court denied the motion on the record and

entered an order reflecting its decision. The court noted that granting “preliminary

injunctive relief is extraordinary” and analyzed the four factors considered in a
No. 10-2244 McNeilly v. Land Page 5

preliminary injunction request. In weighing three of the preliminary injunction factors,

the court recognized that there was no showing of irreparable harm to McNeilly while

there would be significant harm to defendant and the public if a preliminary injunction

issued. As to the final factor, likelihood of success, the court found the factor did not

favor either side. The court noted it was a “very complex issue” and found Randall

distinguishable for a number of reasons. The court stated “the only hard evidence in this

case thus far is that the statutory limits are not indexed to inflation.” The court found

this small showing did not lead to the conclusion that McNeilly has a strong likelihood

of success on the merits. The court noted the absence of empirical evidence to determine

the effect of Michigan’s individual contribution limits on the power to mount a

campaign. Thus, the court concluded that the factors weighed in defendant’s favor and

denied McNeilly’s request for a preliminary injunction.

II.

A district court’s denial of a request for preliminary injunction is reviewed for

an abuse of discretion. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003).

“The district court's determination will be disturbed only if the district court relied upon

clearly erroneous findings of fact, improperly applied the governing law, or used an

erroneous legal standard...Under this standard, we must review the district court’s legal

conclusions de novo and its factual findings for clear error.” Id. (internal citations

omitted). “Moreover, the standard of review that this court must apply to the district

court’s findings on a preliminary injunction motion is highly deferential.” Leary v.

Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).

III.

In evaluating a request for a preliminary injunction, a district court should

consider: (1) the movant’s likelihood of success on the merits; (2) whether the movant

will suffer irreparable injury without a preliminary injunction; (3) whether issuance of

a preliminary injunction would cause substantial harm to others; and (4) whether the

public interest would be served by issuance of a preliminary injunction.

American Imaging Services, Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus.,
No. 10-2244 McNeilly v. Land Page 6

Inc.), 963 F.2d 855, 858 (6th Cir. 1992). “[T]he four considerations applicable to

preliminary injunctions are factors to be balanced and not prerequisites that must be

satisfied.” Id. at 859. “These factors simply guide the discretion of the court; they are

not meant to be rigid and unbending requirements.” Id. “[T]he proof required for the

plaintiff to obtain a preliminary injunction is much more stringent than the proof

required to survive a summary judgment motion” because a preliminary injunction is an

extraordinary remedy. Leary, 228 F.3d at 739. The party seeking the preliminary

injunction bears the burden of justifying such relief, including showing irreparable harm

and likelihood of success. Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441

(1974).

McNeilly makes four arguments: (1) that the district court abused its discretion

when it failed to place the burden on the state to show the contribution limits are

constitutional and thus erred in its consideration of likelihood of success on the merits;

(2) that the district court committed error by failing to apply the principle that even a

temporary deprivation of a protected right constitutes irreparable harm and by placing

the burden on plaintiff to show irreparable harm; (3) that the balance of interests favors

granting the preliminary injunction because there are no concerns of genuine quid pro

quo corruption; and (4) that the public’s interest will be served if the court grants a

preliminary injunction, because it will allow a greater amount of debate on public policy

issues in the upcoming primary. While McNeilly makes all of these arguments, the bulk

of his argument is centered on likelihood of success.

A.

Likelihood of Success

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court considered the

constitutionality of a number of provisions contained in the Federal Election Campaign

Act of 1971. The Court noted that “[t]he Act’s contribution and expenditure limitations

operate in an area of the most fundamental First Amendment activities,” involving rights

of political association and political expression. Id. at 14. The Court found in “contrast
No. 10-2244 McNeilly v. Land Page 7

with a limitation upon expenditures for political expression, a limitation upon the

amount that any one person or group may contribute to a candidate or political

committee entails only a marginal restriction upon the contributor’s ability to engage in

free communication.” Id. at 20. This is so because a “limitation on the amount of

money a person may give to a candidate or campaign organization . . . permits the

symbolic expression of support evidenced by a contribution but does not in any way

infringe the contributor’s freedom to discuss candidates and issues.” Id. at 21.

However, “[g]iven the important role of contributions in financing political campaigns,

contribution restrictions could have a severe impact on political dialogue if the

limitations prevented candidates and political committees from amassing the resources

necessary for effective advocacy.” Id. at 21. Contribution limits also implicate

associational freedoms because “[m]aking a contribution, like joining a political party,

serves to affiliate a person with a candidate.” Id. at 22.

Under Buckley, with regard to contribution limits, “[e]ven a significant

interference with protected rights of political association may be sustained if the State

demonstrates a sufficiently important interest and employs means closely drawn to avoid

unnecessary abridgment of associational freedoms.” Id. at 25 (internal quotations

omitted). In Buckley, the Supreme Court found it unnecessary to look beyond the

government’s purpose of limiting “the actuality and appearance of corruption resulting

from large individual financial contributions in order to find a constitutionally sufficient

justification for the $1,000 contribution limitation.” Id. at 26. “To the extent that large

contributions are given to secure a political quid pro quo from current and potential

office holders, the integrity of our system of representative democracy is undermined.”

Id. at 26-27. “Of almost equal concern as the danger of actual quid pro quo

arrangements is the impact of the appearance of corruption stemming from public

awareness of the opportunities for abuse inherent in a regime of large individual

financial contributions.” Id. at 27. The Court therefore found that the interests served

by the individual contribution limit were sufficient to justify the effect on First

Amendment rights. Id. at 29. The Court upheld the individual contribution limit as

constitutional.
No. 10-2244 McNeilly v. Land Page 8

With regard to expenditure limits, the Court in Buckley noted that a “restriction

on the amount of money a person or group can spend on political communication during

a campaign necessarily reduces the quantity of expression by restricting the number of

issues discussed, the depth of their exploration, and the size of the audience reached.”

Id. at 19. Thus, limits on independent expenditures “impose far greater restraints on the

freedom of speech and association than” contribution limits. Id. at 44. As a result, limits

on personal expenditures are subjected to strict scrutiny. Id. at 44-45. The Court found

that “independent advocacy . . . does not presently appear to pose dangers of real or

apparent corruption comparable to those identified with large campaign contributions.”

Id. at 46. The Court explained:

Unlike contributions, such independent expenditures may well provide

little assistance to the candidate’s campaign and indeed may prove

counterproductive. The absence of prearrangement and coordination of

an expenditure with the candidate or his agent not only undermines the

value of the expenditure to the candidate, but also alleviates the danger

that expenditures will be given as a quid pro quo for improper

commitments from the candidate.

Id. at 47. The Court thus concluded the limit on independent expenditures “fails to serve

any substantial government interest in stemming the reality or appearance of corruption

in the electoral process” and “heavily burdens core First Amendment expression.”

Id. at 47-48.

In his briefs, McNeilly refers to the standards for both contribution limits and for

independent expenditures. However, Land asserts the issue of expenditures is not

properly raised in this appeal. Following Land’s argument that the issue is not properly

before this court, it appears McNeilly dropped his argument that the definition of

independent expenditure is unclear and therefore Michigan’s statutory scheme is void

for vagueness or a prior restraint on speech. The claim before the district court at the

time of the preliminary injunction hearing was McNeilly’s claim that Michigan’s

individual contribution limits violate his rights of political association and political

expression under the First Amendment. It was only after the district court’s denial of

McNeilly’s motion for a preliminary injunction that McNeilly filed a First Amended
No. 10-2244 McNeilly v. Land Page 9

Complaint adding two claims challenging Michigan’s provisions regarding independent

expenditures. McNeilly’s arguments concerning independent expenditures thus will not

be considered here.

On the issue of Michigan’s individual contribution limits, McNeilly argues the

contribution limits are not closely drawn to achieve a sufficiently important state

interest. In Randall, the Supreme Court examined the constitutionality of Vermont’s

limits on individual contributions. Applying Buckley, a plurality of the Court stated it

must determine whether Vermont’s limits “prevent candidates from ‘amassing the

resources necessary for effective [campaign] advocacy.’” Randall, 548 U.S. at 248

(quoting Buckley, 424 U.S. at 21). The plurality stated: “We cannot determine with any

degree of exactitude the precise restriction necessary to carry out the statute’s legitimate

objectives. In practice, the legislature is better equipped to make such empirical

judgments, as legislators have ‘particular expertise’ in matters related to the costs and

nature of running for office.” Id. (citing McConnell v. FEC, 540 U.S. 93, 137 (2003),

overruled in part on other grounds in Citizens United v. FEC, __ U.S. __, 130 S. Ct.

876, 913 (2010)). Yet, the plurality recognized “the existence of some lower bound.”

Id.

In Randall, the individual contribution limits at issue were $200 for a candidate

for state representative and $300 for a candidate for state senate per election cycle.

Id. at 238. The same limits applied to a political committee and to a political party. Id.

A plurality of the Court found these limits “sufficiently low as to generate suspicion that

they are not closely drawn.” Id. at 249. The plurality noted that, “considered as a whole,

Vermont’s contribution limits are the lowest in the Nation.” Id. at 250. Because the

limits were “substantially lower than both the limits we have previously upheld and

comparable limits in other States,” the plurality determined it “must examine the record

independently and carefully to determine whether [the statute’s] contribution limits are

‘closely drawn’ to match the State’s interests.” Id. at 253. The plurality considered the

following five factors in determining the statute was not closely drawn: (1) whether the

“contribution limits will significantly restrict the amount of funding available for
No. 10-2244 McNeilly v. Land Page 10

challengers to run competitive campaigns”; (2) whether there is a statutory requirement

“that political parties abide by exactly the same low contribution limits that apply to

other contributors”; (3) whether expenses incurred volunteering are included in

contribution limit amounts; (4) whether the contribution limits were adjusted for

inflation; and (5) whether the state has a special justification for low and restrictive

limits (such as corruption). Id. at 253-261.

On the first Randall factor, McNeilly argues the limits are preventing challengers

from running effective campaigns. McNeilly cites an article entitled “No Contest in

Michigan, How Money and Incumbency Reduced Competitiveness in 2004," which was

published April 26, 2006, in support of his argument. The article states “due to the

state’s contribution limits, no single donor had a major impact on any given race.”

However, in discussing the top 10 business and special interest donors, the article also

states “although no committee alone could give enough to influence the outcome of any

given race, together the top donors packed quite a punch.” The article also found that

the House Republican Campaign Committee and the Michigan House Democratic Fund

were the two largest contributors to legislative campaigns and that the money from these

parties “had a direct impact on the outcome of several races.” McNeilly notes that “the

Court in Randall determined that the plaintiffs in that case did not need to conclusively

prove that Vermont’s contribution limits restricted challengers – only that the record

suggest as much.” In Randall, the Court stated “the record suggests, though it does not

conclusively prove, that Act 64’s contribution limits will significantly restrict the amount

of funding available for challengers to run competitive campaigns.” 548 U.S. at 253.

The plurality found the evidence presented by the plaintiff raised an inference that the

contribution limits were so low as to pose an obstacle to candidates in competitive

campaigns, and that this evidence was unrebutted. Id. at 256. In Randall, the parties

introduced expert testimony on contributions and specifically on the way contributions

from political parties influence competitive races. Id. at 254. The same quality or

quantity of evidence is not present in this case. In addition, Michigan does not have the

same limitations on political party contributions that were discussed by the experts in

Randall. Land cites a more general but recent study suggesting low contribution limits
No. 10-2244 McNeilly v. Land Page 11

actually enhance competitiveness in elections. Land also argues that the 1989 revision

to Michigan’s statute, which changed limits from election to election cycle, allows more

flexibility for the contributor and candidate to decide at what time, and in which election,

the money is best spent strategically. The record before this panel does not suggest that

Michigan’s contribution limits significantly restrict the funding for challengers to run

competitive campaigns.

On the second Randall factor, McNeilly admits Michigan’s statute does not

provide that political parties abide by the exact same contribution limits that apply to

individual contributors. At the hearing on the motion for preliminary injunction,

McNeilly admitted “one particular facet here that is not at issue is the contribution limits

imposed in Randall in Vermont on political parties. And in Michigan, political parties

are able to give I’m almost sure it’s 20 times the contribution limit of a person.” This

factor thus does not suggest that Michigan’s contribution limits are unconstitutional.

On the third Randall factor, the statute’s treatment of volunteer services,

McNeilly argues Michigan’s limits on volunteer contributions are nearly identical to the

limits imposed by Vermont in Randall. However, MCL § 169.204(C)(3) excludes, from

the definition of contribution, up to $500 in travel expenses incurred volunteering and

$100 in food and beverage donations. These exclusions were not present in Randall, and

the importance of such exclusions was emphasized in Randall:

But the Act does not exclude the expenses those volunteers incur, such

as travel expenses, in the course of campaign activities . . . unlike the

Federal Government’s treatment of comparable requirements, the State

has not (insofar as we are aware) created an exception excluding such

expenses . . . . The absence of some such exception may matter in the

present context, where contribution limits are very low.

548 U.S. at 259-60. Given the statute’s exception for a certain amount of volunteerrelated expenses, this factor does not suggest Michigan’s contribution limits are

unconstitutional.

On the fourth Randall factor, McNeilly states Michigan’s contribution limits are

not indexed to inflation. McNeilly appears most focused on this factor, arguing that the
No. 10-2244 McNeilly v. Land Page 12

“real dollar amounts” of the contribution limits have declined by almost 75 percent over

time as the limits “haven’t been substantially adjusted for more than 34 years.”

In Randall, the Supreme Court stated “[a] failure to index limits means that limits which

are already suspiciously low . . . will almost inevitably become too low over time.”

548 U.S. at 261. McNeilly disagrees with Land’s statement that “the limits should be

evaluated on their face, not in relation to their value in 1976”, arguing such a position

ignores Randall. However, McNeilly ignores a significant phrase in Randall – the

failure to index becomes particularly significant for contribution limits “which are

already suspiciously low.” Id. at 261 (emphasis added). Thus, Land’s argument about

the present amount of contribution limits, without reference to whether they have been

indexed, is relevant. Land cites a 2010 state limits survey showing that Michigan’s

contribution levels are not the lowest in the nation. The survey shows that, as of January

20, 2010, Arizona allows $410 per election cycle for legislative candidates, Delaware

allows $600 per election cycle for legislative candidates, Colorado allows $200 per

legislative candidate per election, and Maine allows $250 per senate candidate per

election. After the survey was published, Montana raised its limit to $250 per legislative

candidate per election. Land also notes that Michigan’s limit for House races is more

than double the limit in Randall and for Senate races is more than triple the limit in

Randall. Michigan’s contribution limits rank lower than average overall, and this factor,

at best, may weigh slightly in favor of McNeilly.

On the fifth Randall factor, McNeilly argues “individual donors to state

legislative races raise no concern about genuine quid pro quo corruption because the

state does not create laws to inure to the benefit of just one person.” McNeilly argues

“[b]ecause Defendant cannot demonstrate that any Michigan statute exists as a result of

contributions for votes, this Court should determine that Plaintiff has a substantial

likelihood of prevailing on the merits.” McNeilly cites a Detroit Free Press article

suggesting Manuel Moroun’s political contributions did not ensure his business interests

as owner of the Ambassador Bridge to Canada were protected by those politicians. Land

notes the article is not conclusive as: a) Moroun may not be representative of Michigan

contributors since he gave to both Republicans and Democrats; b) the bridge project is
No. 10-2244 McNeilly v. Land Page 13

not necessarily representative of a contributor’s ability to sway politicians on other

issues; and c) the size of Moroun’s individual contributions have thus far been limited

by Michigan’s statute, the very limits at issue in this case. Moreover, Land notes the

Supreme Court’s decisions articulating the importance of contribution limits in

preventing quid pro quo corruption and the appearance of quid pro quo corruption. In

Buckley, the Court found sufficient justification for contribution limits having the

“purpose to limit the actuality and appearance of corruption resulting from large

individual financial contributions.” 424 U.S. at 26. In Nixon v. Shrink Missouri

Government PAC, 528 U.S. 377, 389 (2000), the Supreme Court interpreted Buckley as

recognizing “the broader threat from politicians too compliant with the wishes of large

contributors.” Thus, Land argues, Michigan need not demonstrate a history of actual

corruption to have an interest in preventing the appearance of quid pro quo corruption.

McNeilly argues Citizens United, 130 S. Ct. at 910, changed the way potential

corruption is considered in determining that “[i]ngratiation and access . . . are not

corruption.” However, while the Supreme Court in Citizens United held that the

government has no anti-corruption interest in limiting independent expenditures, it left

intact the government’s interest in limiting individual contributions in order to prevent

quid pro quo corruption or the appearance of such corruption. Id. at 909. This factor

therefore does not suggest Michigan’s contribution limits are unconstitutional.

In evaluating the five factors set forth in Randall, McNeilly has not shown a

likelihood of success on the merits of his claim that Michigan’s individual contribution

limits are unconstitutional. The district court found:

[T]he Randall opinion is distinguishable for a number of reasons, and I

think that if you look at prior case law which almost uniformly upholds

individual contribution limits, and then you have Randall which is kind

of a mixed bag, I don’t think you can take anything from Randall that

gives the plaintiff a strong argument that it has a significant, that he has

a significant likelihood of success on the merits.

The district court decided that, while McNeilly may ultimately prevail on the merits,

sufficient evidence was not presented regarding the contribution limits to show a

likelihood of success on the merits under controlling precedent. The district court
No. 10-2244 McNeilly v. Land Page 14

emphasized the importance of showing the effect of contribution limits on the power to

mount an effective campaign and noted the lack of evidence on such point, as the “only

hard evidence” presented by McNeilly at this early point in the case was the lack of

indexing of the contribution limits. The district court carefully considered the proper

factors and found that the lack of indexing over time, by itself, did not get McNeilly to

a likelihood of success on the merits. The district court did not err in its consideration

of McNeilly’s likelihood of success.

B.

Irreparable Harm to Movant

Second, McNeilly argues the district court committed error by failing to apply

the principle that even a temporary deprivation of a protected right constitutes

irreparable harm and by placing the burden on plaintiff to show irreparable harm. In

Elrod v. Burns, 427 U.S. 347, 373-74 (1976), the case relied upon by

McNeilly,“respondents sufficiently demonstrated a probability of success on the merits”

and “injury was both threatened and occurring at the time of respondents’ motion”; it

was “clear therefore that First Amendment interests were either threatened or in fact

being impaired at the time relief was sought.” Once a probability of success on the

merits was shown, irreparable harm followed. The Elrod Court found that “[t]he loss

of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Id. at 373. McNeilly argues the district court erred by

not applying this principle. However, it is clear from the hearing transcript that the

district court did not find irreparable harm because it did not find a probability of success

on the First Amendment claim. The district court found: “I do not believe that the

plaintiff has shown that he will suffer irreparable harm to important rights. I think

there’s been no showing that his First Amendment rights have been or will be abridged

beyond constitutional limits.” Because McNeilly does not have a likelihood of success

on the merits, as discussed above, his argument that he is irreparably harmed by the

deprivation of his First Amendment rights also fails.
No. 10-2244 McNeilly v. Land Page 15

C.

Substantial Harm to Others

Third, McNeilly argues the balance of interests favors granting the preliminary

injunction because there are no concerns of genuine quid pro quo corruption. McNeilly

argues “there is no empirical data to show that the existing limits are preventing any

corruption” and that “the current levels have become arbitrary with the passage of time.”

McNeilly argues that he is currently prohibited from making the contributions he wishes

to make and that an injunction allowing those contributions would not cause Michigan

to be suddenly overwhelmed by corruption. The balancing of the harms, he argues,

therefore favors an injunction. However, the balancing of harms is squarely within the

discretion of the district court. As noted by the district court, a preliminary injunction

enjoining enforcement of the statute would leave Michigan without limits on individual

contributions:

I think everybody agrees that if preliminary injunction issued in this case,

there would essentially be no limits on individual contributions. I do not

think that I have as much discretion – as a United States District Judge,

I don’t think I have the discretion to set substitute limits, and, in fact, the

plaintiff hasn’t suggested any basis for or any amounts for substitute

limits to what are expressed in the statute.

Land argues that enjoining the enforcement of contribution limits would invite the very

corruption that contribution limits are designed to prevent; also such an injunction would

interfere with Land’s ability to run an orderly election. In light of these considerations,

and less than three months before Michigan’s November general elections, the district

court did not err in concluding “there will be significant harm to the defendant upon the

issuance of a preliminary injunction.”

D.

Public Interest

Fourth, McNeilly argues the public’s interest will be served if the court grants

a preliminary injunction, because it will allow a greater amount of debate on public
No. 10-2244 McNeilly v. Land Page 16

policy issues in the upcoming primary. McNeilly argues “[a]llowing more money to

flow from individual donors to candidate committees will naturally entail the type of

speech our courts recognize as the ‘precondition to enlightened self-government.’”

However, Land argues the lack of limits would open the door to quid pro quo corruption

or the appearance of it, which could discourage voters from participating in the elections.

Land argues that without a finding that the statutory provision at issue is

unconstitutional, the public interest cannot be served by an injunction leaving no

individual contribution limits in place. Given the failure to show a substantial likelihood

of success on the merits of McNeilly’s claim that the contribution limits are

unconstitutional, the district court’s conclusion that “the [adverse] effect on the public

and the public interest” from enjoining the enforcement of the statute less than three

months before the general election “would be very significant” is also proper.

IV.

In conclusion, the district court did not abuse its discretion in denying

McNeilly’s motion for preliminary injunction. The district court carefully considered

all of the preliminary injunction factors and concluded the factors weighed in Land’s

favor because McNeilly did not demonstrate the need for such extraordinary relief.

McNeilly does not have a substantial likelihood of success on the merits and thus failed

to show irreparable harm while Land showed significant harm to the public from the

issuance of a preliminary injunction. For these reasons, the decision of the district court

is AFFIRMED.