1

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

__________________________________________ 

RICHARD L. SCOTT, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No.: 

 ) 

DAWN K. ROBERTS, et al. ) 4:10-cv-00283-RH-WCS 

 ) (Oral Argument Requested) 

Defendants. ) 

__________________________________________) 

DEFENDANT’S RESPONSE IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

 Defendant, Florida Secretary of State Dawn K. Roberts, provides this response in 

opposition to the Plaintiff’s Motion for a Preliminary Injunction. Plaintiff Richard L. Scott 

(“Scott”) fails to meet the four criteria necessary for injunctive relief. No substantial likelihood 

of success exists on his First Amendment claim; his claim of irreparable harm is unsupported; 

and the public interest and balance of harms both weigh against the injunctive relief he seeks.

BACKGROUND

Less than three weeks after his chief opponents in Florida’s gubernatorial race filed 

irrevocable statements opting into public campaign financing under the Florida Election 

Campaign Finance Act1

 (the “Act”), Scott asks this Court to enjoin the operation of a crucial 

provision of the Act that would disburse campaign funds to his opponents. While Scott frames 

his argument as an infringement on his First Amendment right to speak on behalf of his 

campaign, the challenged statute does not restrict the amount of speech that Scott may engage in 

or the amount of money he may spend engaging in political speech. It is undisputed that the 

Florida Election Code allows Scott to make unlimited personal contributions to his campaign 

                                                           

1

 §§ 106.30-106.36, Fla. Stat.

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committee, to engage in unlimited campaign expenditures, and to make unlimited contributions 

to other political organizations (so-called “527” committees), with which he may coordinate his 

efforts – again, without limitation. 

The last-minute injunction sought by Scott would disrupt the orderly operation of 

Florida’s system of public campaign financing in the critical final weeks before the primary 

election. The injunction would frustrate the State of Florida’s compelling interest in preventing 

corruption and the appearance of corruption, as well as its interest in encouraging candidate 

participation in the public campaign financing system. Finally, the injunction would deny 

Scott’s electoral opponents the benefit of the bargain they struck when they agreed to participate 

in public campaign financing under the existing statute. 

 For these reasons and those set forth in detail below, Florida Secretary of State Dawn K. 

Roberts respectfully requests that this Court deny the Plaintiff’s Motion for a Preliminary 

Injunction. 

STATEMENT OF FACTS

I. THE FLORIDA ELECTION CAMPAIGN FINANCING ACT 

A. History of the Act 

In 1986, the Florida Legislature adopted the Florida Election Campaign Finance Act, the 

purpose of which is “to preserve the integrity of the election process by supporting candidates 

who are free from the influence of special interest money and to remove corruption and the 

appearance of corruption from that process.” Connor v. Division of Elections, 643 So. 2d 75, 77 

(Fla. 1st DCA 1994) (citing State v. Republican Party of Florida, 604 So. 2d 477 (Fla. 1992)). 

The codified statement of legislative intent expresses the concern that the public perceived 

political contributions from “special interests” could unduly influence government officials to 

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the detriment of the public interest. § 106.31, Fla. Stat. The Legislature therefore intended the 

Act “to alleviate these factors, dispel the misperception, and encourage qualified persons to seek 

statewide elective office who would not, or could not, otherwise do so and to protect the 

effective competition by a candidate who used public funding.” § 106.31, Fla. Stat. 

 The provision of the Act challenged in this case, Section 106.355, was adopted in 1991 as 

part of a comprehensive “campaign finance reform bill” that, among other things, reduced 

campaign contribution limits for statewide candidates from $3,000 to $500, prohibited the 

solicitation or acceptance of campaign contributions in government buildings, and amended 

other provisions of the Act. Ch. 91-107, Laws of Fla. As noted by the First District, the 

Legislature’s purpose in enacting the Act was to “remove corruption and the appearance of 

corruption” from the election process. Connor, 643 So. 2d at 77. 

Florida’s Constitution Revision Commission later proposed an amendment to the Florida 

Constitution, adopted by the voters in 1998, to reiterate the state’s public policy supporting 

public financing of campaigns as a way to “provide for state-wide elections in which all qualified 

candidates may compete effectively.” Art. VI, § 7, Fla. Const. 

 B. Operation of the Florida Election Campaign Financing Act 

Although Scott challenges only one provision of the Act, to understand the operation of 

Section 106.355, Florida Statutes, and its impact on both candidates who elect to receive public 

campaign financing (“participating candidates”) and those who do not (“non-participating 

candidates”), it is necessary to review the Act’s larger statutory scheme. 

Under the Act, public campaign financing is available to candidates for statewide office, 

i.e., the Governor and members of the Cabinet.2

 § 106.33, Fla. Stat. Upon qualifying for office, 

                                                           

2

 Because Scott is a candidate for Governor, the remainder of this Response will address the provisions of the Act 

applicable to gubernatorial candidates rather than the somewhat different standards for Cabinet candidates. 

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candidates seeking to participate in public campaign financing must file a request for such 

financing with the Division of Elections. Id.

To be eligible to receive contributions, a candidate must agree to abide by the 

expenditure limits for the 2010 election cycle. § 106.33, Fla. Stat. For the Governor and 

Lieutenant Governor (who are treated as a single candidate), the expenditure limit for the 2010 

election cycle is $24,901,170 ($2 for each registered voter). § 106.34, Fla. Stat.; Declaration of 

Sarah Jane Bradshaw (“Bradshaw Declaration”) at ¶ 6. 

In addition, a participating gubernatorial candidate is not eligible to receive matching 

funds until he or she raises at least $150,000 in “qualifying matching contributions” – 

contributions of $250 or less made after September 2009 from individuals who are state residents 

at the time they contribute. § 106.35(2)(b), Fla. Stat. Participating candidates must agree to 

limit loans or contributions from their own personal funds to $25,000 and to further limit 

contributions from national, state, and county executive committees of a political party to 

$250,000 in the aggregate. § 106.33(3), Fla. Stat. 

All gubernatorial candidates, both participating and nonparticipating, must file regular 

reports of contributions received. § 106.07, Fla. Stat. The following chart sets forth the 

reporting schedule for the August 24, 2010, Primary Election: 

2010 Primary Election Reports 

Due Dates Period Covered 

Friday, July 23, 2010 April 1 – July 16, 2010 

Friday, July 30, 2010 July 17 – July 23, 2010 

Friday, August 6, 2010 July 24 – July 30, 2010 

Friday, August 13, 2010 July 31 – August 6, 2010 

Friday, August 20, 2010 August 7 – August 19, 2010 

Bradshaw Declaration at ¶ 10. 

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Scott has limited his constitutional challenge to only one provision of the Act: Section 

106.355, Florida Statutes, which addresses nonparticipating candidates exceeding the 

expenditure limits for participating candidates. When a candidate who has chosen not to 

participate in public financing exceeds the expenditure limit in Section 106.34, all opposing 

participating candidates are released from the expenditure limit to the extent the nonparticipating 

candidate exceeded the limit. § 106.355, Fla. Stat. These participating candidates are still 

eligible for matching contributions up to such limit and are not required to reimburse any 

matching funds that are provided pursuant to Section 106.355, Florida Statutes. However, the 

participating candidates remain bound by the limits on personal and party contributions in 

Section 106.33(3), Florida Statutes. 

Within seven days after a request by a participating candidate, the Department of State 

must provide the candidate with funds equal to the amount by which the nonparticipating 

candidate exceeded the expenditure limit. § 106.355, Fla. Stat. These matching funds are 

capped at twice the amount of the expenditure limits for participating candidates specified in 

Section 106.34, Florida Statutes. Id.

Note: Although Section 106.355 states that the public funds available to candidates are 

not considered “matching funds,” the cases discussing this model of supplemental public 

contributions to participating candidates in other states universally refer to these contributions as 

“matching funds.” For the sake of clarity, this Response will follow this practice and use the 

term “matching funds” to refer to the funds available under Section 106.355, Florida Statutes. 

As used herein, the term “matching funds” does not include the “matching funds” or “matching 

contributions” available to participating candidates under Section 106.35, as the Complaint is 

expressly limited to the category of matching funds addressed in Section 106.355. 

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II. CANDIDATE QUALIFYING FOR THE 2010 ELECTIONS IN FLORIDA 

The qualifying period for the 2010 general election began on June 14, 2010 and ended on 

June 18, 2010. Bradshaw Declaration at ¶ 4. Fourteen candidates3

 qualified to seek the office of 

Governor. Bradshaw Declaration at ¶ 5. Of the fourteen qualified candidates, seven candidates 

submitted a request for public campaign financing from the Trust Fund. Bradshaw Declaration 

at ¶ 6. These “participating candidates” are Lawton “Bud” Chiles, Daniel Imperato, Farid 

Khavari, Josue Larose, Bill McCollum, C.C. Reed, and Alex Sink. Bradshaw Declaration at ¶ 6. 

Scott did not submit a request to participate in public campaign financing. Bradshaw 

Declaration at ¶ 8. 

The requests executed by these candidates provide, in part: 

I agree to abide by the expenditure limits provided in Section 

106.34, Florida Statutes. I understand that I am not eligible for 

matching contributions until I receive contributions equal to 

$150,000 (in the case of a candidate for Governor) or $100,000 (in 

the case of a candidate for Cabinet office). Contributions received 

from individuals for $250 or less made after September 1 of the 

calendar year prior to the election will be eligible for match. 

Aggregate contributions from individuals in excess of $250 will be 

matched only up to $250. Contributions for both threshold 

amounts and qualifying matching contributions must be from 

individuals who are Florida residents. 

ARGUMENT

A “preliminary injunction is an extraordinary and drastic remedy.” Horton v. City of St. 

Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001). “The chief function of a preliminary 

injunction is to preserve the status quo until the merits of the controversy can be fully and fairly 

adjudicated.” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001). 

                                                           

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 The candidates who qualified for the office of Governor are: Peter L. Allen (IDP), Michael E. Arth (NPA), Karl 

Behm (WRI), Lawton “Bud” Chiles (NPA), Daniel Imperato (NPA), Farid Khavari (NPA), Josue Larose (WRI), 

Mike McCalister (REP), Bill McCollum (REP), Brian P. Moore (DEM), C.C. Reed (NPA), Rick Scott (REP), Alex 

Sink (DEM), and John Wayne Smith (LIB).

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When, as here, the movant seeks to alter rather than maintain the status quo, courts generally 

exercise a higher degree of scrutiny. Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 

27, 33-34 (2d Cir. 1995). 

In this case, Scott seeks an injunction barring the Secretary of State from disbursing 

funds to participating candidates in accordance with a statute that has been part of Florida’s 

public campaign financing system for nearly 20 years. This would be a drastic change of the 

status quo and Scott accordingly bears a heavy burden of persuasion. 

To obtain a preliminary injunction, the movant must clearly establish the following 

factors: (1) a substantial likelihood of success on the merits; (2) irreparable injury will be 

suffered unless the injunction issues; (3) that the threatened injury outweighs whatever damage 

the proposed injunction may cause the opposing party; and (4) that the injunction would not be 

adverse to the public interest. Florida Democratic Party v. Hood, 342 F.Supp.2d 1073, 1076 

(N.D. Fla. 2004) (citing McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306) (11th Cir. 

1998)). “In this Circuit, ‘[a] preliminary injunction is an extraordinary and drastic remedy not to 

be granted unless the movant clearly established the ‘burden of persuasion’ as to the four 

requisites.” Robertson, 147 F.3d at 1306. 

Scott’s motion should be denied because it falls well short of the necessary showing for 

the extraordinary and drastic remedy of a preliminary injunction. 

I. SCOTT DOES NOT HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON 

THE MERITS4

Scott does not have a substantial likelihood of success on the merits of his challenge to 

the “matching funds” available to participating candidates under Section 106.355, Florida 

Statutes, because, as described below, the matching fund provisions are constitutional. To the 

                                                           

4

 The Plaintiff’s Motion for a Preliminary Injunction and its supporting memorandum address only the likelihood of 

success on Count I of the Complaint. This Response is accordingly limited to the First Amendment issue.

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extent that matching funds impose any burden on the speech of nonparticipating candidates, the 

burden is minimal and indirect and is sufficiently justified by the State of Florida’s recognized 

interests in preventing corruption and the appearance of corruption, and encouraging candidates 

to participate in public campaign financing. 

The Complaint does not challenge the constitutionality of the Florida Election Campaign 

Finance Act in its entirety. Indeed, the constitutionality of public campaign financing in general 

is not in doubt. The Supreme Court established conclusively in Buckley v. Valeo that “Congress 

may engage in public financing of election campaigns and may condition acceptance of public 

funds on an agreement by the candidate to abide by specified expenditure limitations.” 424 U.S. 

1, 57 n. 65 (1976). The Court found that public financing of elections “furthers, not abridges, 

pertinent First Amendment values” by “facilitat[ing] and enlarg[ing] public discussion and 

participation in the electoral process, goals vital to a self-governing people.” Id. at 92-93. 

Scott’s more limited challenge to the matching funds available to participating candidates 

under Section 106.355 fares no better. Circuit Courts have repeatedly rejected constitutional 

challenges to “matching fund” provisions of state public campaign finance systems. See

McComish v. Bennett, 2010 WL 2595288 at *1 (9th Cir. 2010) (upholding matching fund 

provisions of Arizona’s Citizens Clean Elections Act); North Carolina Right to Life, Inc. v. 

Leake, 524 F.3d 427, 437-39 (4th Cir. 2008) (upholding matching fund provisions of the North 

Carolina Judicial Campaign Reform Act); Daggett v. Comm’n on Governmental Ethics and 

Election Practices, 205 F.3d 445, 463-65, 468-70 (1st Cir. 2000) (upholding matching fund 

provisions of the Maine Clean Election Act); Gable v. Patton, 142 F.3d 940, 949 (6th Cir. 1998) 

(upholding Kentucky’s public funding trigger provision). 

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Given these precedents, and the further reasons below, Scott does not have a substantial 

likelihood of success on the merits of his constitutional challenge. Thus, he has not made the 

type of showing necessary to support the drastic relief of enjoining the operation of Florida’s 

public campaign financing laws on an emergency basis just before the election. 

A. The matching fund provisions of the Act do not burden Scott’s speech. 

The ability of participating candidates to receive matching funds under Section 106.355 

imposes no burdens on Scott’s speech. As with the plaintiffs in McComish, “the essence of 

[Scott’s] claim is not that [he] has been silenced, but that the speech of [his] opponents has been 

enabled.” McComish at *10. But the First Amendment does not guarantee a right “to outraise 

and outspend an opponent” or “to speak free from response.” Daggett at 464. Rather, the First 

Amendment’s purpose is to “secure the widest possible dissemination of information from 

diverse and antagonistic sources.” Id. (citing Buckley, 424 U.S. at 49) (internal quotations 

omitted). 

Scott argues that the matching fund statute has burdened his right to speak on behalf of 

his campaign in two ways. First, he alleges that his opponents’ receipt of matching funds will 

“reduce” or “diminish” his own communications on behalf of his campaign. Second, he claims 

that his speech has been unconstitutionally “chilled” because he has structured his campaign 

expenditures to delay the date on which he will exceed the threshold triggering matching funds 

for his opponents. Neither argument is meritorious. 

 Florida’s matching fund statute “in no way limits the quantity of speech one can engage 

in or the amount of money one can spend engaging in political speech, nor does it threaten 

censure or penalty for such expenditures.” Daggett at 464. As a nonparticipating candidate, 

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Scott is “free to raise and spend as much money, and engage in as much political speech, as [he] 

desire[s].” Leake, 524 F.3d at 437. 

In assessing related issues under Rhode Island’s campaign finance law, the First Circuit 

found “difficulty believing that a statutory framework which merely presents candidates with a 

voluntary alternative to an otherwise applicable, assuredly constitutional, financing option 

imposes any burden on first amendment rights.” Vote Choice v. DiStefano, 4 F.3d 26, 39 (1st 

Cir. 1993). See also Daggett, 205 F.3d at 464-65 (concluding that a matching funds statute 

imposed no First Amendment burden); Leake, 524 F.3d at 437-49 (same). 

In this case, Scott has voluntarily chosen not to participate in Florida’s public campaign 

finance program and has vigorously exercised his First Amendment rights as a nonparticipating 

candidate. Scott’s Declaration states that he has spent approximately $21 million in support of 

his candidacy from April 9, 2010, through July 7, 2010. If true, Scott’s campaign has already 

spent more money engaging in political speech since he entered the race than the $19.8 million 

spent by the winning candidate during the entire 2006 gubernatorial election (primary and 

general elections combined). See Florida Division of Elections, 2006 General Election 

Campaign Finance Activity, available at: http://election.dos.state.fl.us/campaignfinance/expend.asp

Nor does Scott demonstrate an unconstitutional “chilling effect” through his Declaration 

that he has structured some of his campaign expenditures to delay the date on which he must 

disclose that he has exceeded the $24.9 million threshold. “Many campaign finance regulations, 

particularly disclosure requirements, lead candidates to engage in such strategic behavior, but 

this does not make them unconstitutional.” McComish, at *10. Even in the absence of a 

matching fund provision, a campaign may choose to delay its expenditures simply because, as 

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the Supreme Court has noted, “the public begins to concentrate on elections only in the weeks 

immediately before they are held.” Citizens United, 130 S.Ct at 895. And to the extent that 

Scott is actually deterred from spending in excess of the threshold, “the deterrence results from a 

strategic, political choice, not from a threat of government censure or prosecution.” Leake, 524 

F.3d at 438. 

The single Circuit Court opinion striking down a state matching funds provision is Day v. 

Holahan, 34 F.3d 1356 (8th Cir. 1994).5 The court in Day found that a Minnesota matching 

funds provision resulted in “self-censorship” by non-participating candidates who desired to 

avoid triggering matching funds for their participating opponents, and further concluded that this 

form of self-censorship “is no less a burden on speech that is susceptible to constitutional 

challenge than is direct governmental censorship.” Id. at 1360. 

The courts in Daggett and Leake, however, have expressly rejected the analysis of the 

Day court. See Daggett, 205 F.3d at 464-465 (declining to adopt the logic of Day equating 

“responsive speech with an impairment to the original speaker”); Leake, 524 F.3d at 437-438 

(rejecting “as unpersuasive the Eighth Circuit’s decision in Day” based on the “flawed 

proposition” that the potential for self-censorship equates to “direct government censorship.”) 

Both the Leake and Daggett courts also expressed doubt regarding the continuing viability of 

Day even within the Eighth Circuit. See Leake, 524 F.3d at 438 (discussing the inconsistencies 

between Day and the Eighth Circuit’s later decision in Rosenstiel v. Rodriguez6

, 101 F. 3d 1544, 

                                                           

5

 Shortly before the deadline for filing this Response, the undersigned became aware of the Second Circuit’s newlyreleased opinion in Green Party of Connecticut v. Garfield, Docket Nos. 09-3760-cv(L), 09-3941-cv(CON). On 

initial review, it appears that the Garfield opinion exacerbates a circuit split over the constitutionality of matching 

fund provisions. The Second Circuit (Garfield) and Eighth Circuit (Day) have held matching funds unconstitutional, 

while the First Circuit (Daggett), Fourth Circuit (Leake), Sixth Circuit (Gable), and Ninth Circuit (McComish) have 

upheld matching fund provisions against constitutional challenge.

6 Rosenstiel upheld a separate provision of Minnesota’s campaign finance law despite similar concern of “selfcensorship” by participating candidates.

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1555 (8th Cir 1996)); Daggett, 205 F.3d at 465 n.25 (noting that the “continuing vitality” of Day

after Rosenstiel was “open to question”). 

Here, Scott has demonstrated no burden on his First Amendment right that warrants the 

injunctive relief he seeks. Even if the matching funds were held to impose some indirect or 

minimal burden on Scott’s speech, the narrowly-drawn matching funds provision of the Act 

serves Florida’s compelling interests and should be upheld.

B. If the Court finds any burden on Scott’s speech, intermediate scrutiny is the 

appropriate standard of review 

Because the availability of matching funds for participating candidates imposes no 

burden on the speech of nonparticipating candidates, Section 106.355 does not violate the First 

Amendment. If, however, the Court concludes that matching funds impose any burden on the 

speech of nonparticipating candidates, they should be subject to intermediate scrutiny, not strict 

scrutiny as suggested by Scott. 

Unlike the courts in Daggett and Leake, which found no burden imposed by matching 

funds, the Ninth Circuit in McComish concluded based on the extensive factual record before it 

that “any burden the Act imposes on Plaintiffs’ speech is indirect or minimal.” McComish at 

*10. Because a matching funds provision “does not actually prevent anyone from speaking in 

the first place or cap campaign expenditures,” the McComish court concluded that the minimal or 

indirect burden created by matching funds “is most analogous to the burden of disclosure and 

disclaimer requirements in Buckley and Citizens United” and should be examined under 

“intermediate scrutiny.” McComish at *11-*12. 

Intermediate scrutiny is less demanding than strict scrutiny, requiring only a “substantial 

relation” between the matching fund provisions and a “sufficiently important” governmental 

interest. McComish at *12 (citing Citizens United, 130 S.Ct at 914) (internal quotation marks 

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omitted). Strict scrutiny is not the appropriate standard for assessing the constitutionality of 

matching fund provisions. Rather, strict scrutiny is reserved for laws that directly and 

substantially burden political speech. Citizens United v. Federal Election Comm’n, 130 S.Ct 

876, 898. Under strict scrutiny, the government must prove “that the restriction furthers a 

compelling interest and is narrowly tailored to achieve that interest.” Id. (citing Federal Election 

Comm’n v. Wisconsin Right to Life, 551 U.S. 449, 464 (2007) (opinion of Roberts, C.J.) 

Although Section 106.355 should not be held to the burden of strict scrutiny, it should be 

noted that the matching funds provision would satisfy this standard because it furthers Florida’s 

compelling interest in preventing corruption and the appearance of corruption. In addition, the 

matching fund provisions in Section 106.355 satisfy intermediate scrutiny because they are 

“substantially related” to several other “sufficiently important” governmental interests.

C. The matching funds provisions are narrowly-tailored to achieve compelling 

governmental interests. 

Because the matching fund statute does not impose any limitation on Scott’s right to 

speak or expend funds on behalf of his campaign, the statute does not implicate any First 

Amendment concerns. At most, the matching fund provisions impose an indirect burden on 

Scott’s expenditures and should be upheld because they are substantially related to Florida’s 

compelling interests in preventing corruption and the appearance of corruption as well as 

encouraging participation in the public campaign financing system as a means of preventing 

corruption. See, e.g., § 106.31, Fla. Stat.; Connor, 643 So. 2d at 77 (citing State v. Republican 

Party of Florida, 604 So. 2d 477 (Fla. 1992)). These interests are certainly sufficient, if not 

compelling, when weighed against the minimal burden they impose on the speech of 

nonparticipating candidates such as Scott. 

(1) Matching funds further Florida’s governmental interests 

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The matching fund provisions of the Act further the State’s interests in preventing 

corruption and the appearance of corruption and in encouraging participation in the public 

campaign financing system. These interests should be held to satisfy the First Amendment’s 

requirements under any standard of review. 

The purpose of the Act is “to preserve the integrity of the election process by supporting 

candidates who are free from the influence of special interest money and to remove corruption 

and the appearance of corruption from that process.” Connor, 643 So. 2d at 77. The prevention 

of corruption and the appearance of corruption have long been recognized as compelling 

interests that will support campaign finance regulations. 

Florida also has an interest in encouraging candidates to participate in public financing 

under the Act. When a state has adopted a public campaign financing alternative, the state “need 

not be completely neutral on the matter of public financing of elections.” Vote Choice v. 

DiStefano, 4 F.3d 26, 39 (1st Cir. 1993). Florida has a “valid interest in having candidates accept 

public financing because such programs...tend to combat corruption.” Id. (citing Buckley, 424 

U.S. at 91).

(2) Matching funds are a narrowly-tailored component of the Act that are 

necessary to accomplish its purposes 

The matching funds provisions of the Act are a narrowly-tailored means of 

accomplishing the purposes of the Act. Matching funds encourage candidate participation in 

Florida’s public campaign financing system. § 106.31, Fla. Stat. Candidates would be less 

likely to participate in a system that would prevent them from running effective and competitive 

campaigns, or that would necessarily put them at an extreme financial disadvantage to 

nonparticipating opponents. 

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D. Neither Davis v. FEC nor the Supreme Court’s order in McComish supports 

Scott’s position that Section 106.355 is unconstitutional. 

Faced with recent precedent from the First, Fourth, Sixth, and Ninth Circuits dismissing 

constitutional challenges to matching fund or “trigger” provisions in public campaign financing 

systems, Scott nonetheless maintains that Section 106.355 is unconstitutional. His motion relies 

primarily on Davis v. FEC, a 2008 Supreme Court decision striking down the so-called 

“Millionaire’s Amendment” contained in the Bipartisan Campaign Reform Act of 2002 

(“BCRA”). 2 U.S.C. § 441a-1(a). Scott also relies on the Supreme Court’s June 8, 2010 order 

granting a stay of the Ninth Circuit’s mandate in McComish. Neither of these decisions supports 

Scott’s argument. 

(1) Davis does not address matching funds or public campaign financing 

In Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008), the Supreme Court 

addressed the constitutionality of a provision intended to “level electoral opportunities for 

candidates of different personal wealth” by creating “a new, asymmetrical regulatory scheme” in 

any congressional race in which one candidate’s expenditure of personal funds exceeded 

$350,000. Davis, 128 S.Ct at 2667, 2773. Under the scheme, the “self-financing” candidate 

remained subject to the ordinary limits on contributions but was burdened with additional 

disclosure requirements. Id. at 2766-2777. The “non-self-financed candidate,” however, could 

accept individual contributions three times greater than the ordinary limit and could accept 

coordinated party expenditures without limit. Id. at 2766. 

The Supreme Court struck down the Millionaire’s Amendment, reasoning that the 

imposition of asymmetrical contribution limits impermissibly burdened the self-funding 

candidate’s right to use personal funds for campaign speech. Id. at 2771-72. It noted, however, 

that the self-funding candidate’s argument “would plainly fail” if the law had simply raised the 

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contribution limits for all candidates. Id. at 2770. The Court went on to conclude that the 

burden imposed on self-funding candidates was not justified by any interest in preventing 

corruption and that “leveling” of electoral opportunities for candidates of different personal 

wealth is not a compelling interest. Id. at 2773. 

 The matching fund provision challenged by Scott differs from the provision at issue in 

Davis in several ways. First, unlike the Millionaire’s Amendment, the matching funds available 

to participating candidates under Florida law are linked to total campaign expenditures by a 

nonparticipating candidate, not to the expenditure of personal funds. 

Second, the Davis court’s concerns with the “asymmetric regulatory scheme” do not 

apply with the same force in a voluntary public campaign financing system such as the Act. 

Such a system necessarily imposes different benefits and burdens on participating and nonparticipating candidates. Unlike Davis, however, the Florida Election Code does not impose 

asymmetric caps on individual campaign contributions. The individual contribution limits are 

$500 for participating and non-participating candidates alike. § 106.08, Fla. Stat. 

Third, the Court found the government’s stated interest in Davis – leveling electoral 

opportunities for candidates of different financial resources – to be an insufficient justification 

for the burden imposed on the self-financing candidate’s expenditure of personal funds. In this 

case, it is irrelevant that a self-financed candidate expends personal funds to finance his 

campaign. The act that triggers the operation of Section 106.355, Florida Statutes, is the 

expenditure of $24.9 million, irrespective of the sources from which those funds were derived. 

Beyond that, the reporting and disbursement schedule in Section 106.355 ensures a 7-14 day “lag 

time” such that that the matching funds can never “level” the expenditures between participating 

and non-participating candidates. 

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Finally, as described above, Florida has articulated numerous legitimate governmental 

interests supporting Section 106.355, including the prevention of corruption and the appearance 

of corruption. 

 (2) The Supreme Court’s Order in McComish does not address the merits 

of the Ninth Circuit’s opinion. 

As discussed above, the Ninth Circuit Court of Appeals in McComish upheld a matching 

fund provision of Arizona law against constitutional challenge. Although Scott’s Memorandum 

of Law claims that “[t]he impact of McComish on this case cannot be overstated,” he manages to 

do just that by seeking to have this Court issue a preliminary injunction based, in substantial part, 

on the Supreme Court’s recent Order in McComish v. Bennett, No. 09A1163, 2010 WL 2265319 

at *1 (U.S. June 8, 2010). Memorandum at 16. 

In this one-paragraph Order, the Supreme Court granted an application to vacate the stay 

of the United States District Court for the District of Arizona’s injunction and to stay the 

mandate of the United States Court of Appeals for the Ninth Circuit in case No. 10-15165 

pending the filing and disposition of a petition for writ of certiorari. The Ninth Circuit, in 

McComish v. Bennett, 2010 WL 2395288 (9th Cir. 2010), had reversed a District Court decision 

enjoining implementation of the matching funds provision of the Arizona’s Citizens Clean 

Elections Act. 

Scott argues that this one-paragraph Order provides “an even stronger indication” that 

Arizona’s matching funds provision will be declared unconstitutional. Memorandum at 15-16. 

However, as Scott himself concedes, the decision to stay a mandate is not a decision on the 

merits of the underlying legal issues. Indiana State Police Pension Trust v. Chrysler LLC, 129 

S.Ct. 2275, 2276 (2009); Memorandum at 2. Rather, “the propriety of [a stay] is dependent upon 

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the circumstances of the particular case,” and the “traditional stay factors contemplate 

individualized judgments in each case.” Chrysler, 129 S.Ct at 2276. 

At issue in McComish is a distinctive Arizona statute, which specifically applies to 

candidates for public office in Arizona. The Arizona statute and Florida statute are readily 

distinguishable. Notably, the Arizona Citizens Clean Election Act attributes independent 

expenditures supporting or opposing a candidate against the participating candidate’s 

expenditure limit. Florida does not. The expenditure limit for participating candidates in Florida 

is not only unaffected by expenditures of outside committees, Florida allows a candidate’s 

campaign to coordinate electioneering expenditures with outside political committees without 

any effect on the participating candidate’s expenditure limit. § 106.011(18(c), Fla. Stat. Scott 

has done exactly that in creating an affiliated “section 527 organization,” the expenditures of 

which do not count against the $24.9 million threshold. Declaration at p. 4, ¶ 14. 

Even in cases in which an identical issue was being considered, the Eleventh Circuit 

Court of Appeals has repeatedly held that it is improper to rely on the grant of certiorari in 

another case raising an issue identical to one that the movant had raised as a basis to stay an 

execution. Schwab v. Dep’t of Corrections, 507 F.3d 1297, 1298 (11th Cir. 2007). In Schwab, 

the Eleventh Circuit stated: 

The district court’s action in granting the stay is contrary to the 

unequivocal law of this circuit that, because grants of certiorari do 

not themselves change the law, they must not be used by courts of 

this circuit as a basis for granting a stay of execution that would 

otherwise be denied. Rutherford v. Crosby, 438 F.3d 1087, 1093 

(11th Cir. 2006) (“At least four times over the years, we have been 

asked to issue a stay of execution based on a grant of certiorari in 

another case raising an issue identical to one that the movant was 

raising in the case before us, an issue foreclosed by existing circuit 

precedent that might be overruled by the Supreme Court. All four 

times we have declined to do so because the grant of certiorari 

does not change circuit precedent, and it makes sense to let the 

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Court that is going to be deciding the issue determine whether 

there should be a stay in another case raising it. 

Id. at 1298; see also Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004) (declining to 

grant a stay pending the Supreme Court’s decision in another case because “the grant of 

certiorari alone is not enough to change the law of this circuit or to justify this Court in granting 

a stay of execution on the possibility that the Supreme Court may overturn circuit law.”) 

While executions are obviously factually distinct from elections, that line of cases is 

nonetheless compelling. Here, the Supreme Court’s Order of June 8, 2010 in McComish

(included as Scott’s Exhibit “D”) provides no guidance as to whether the Court will even accept 

certiorari. It certainly does not presage a position on the merits. As the Eleventh Circuit stated 

in Schwab, “the Supreme Court itself probably does not know [how it will decide the case] given 

the fact that briefing has not even been completed in that case.” Schwab at 1299. 

For the foregoing reasons, Scott has failed to demonstrate a likelihood of success on the 

merits of his claim.

II. SCOTT HAS NOT, AND WILL NOT, SUFFER IRREPARABLE HARM 

Scott fails to demonstrate that he has suffered, or will suffer, irreparable harm absent the 

issuance of an injunction. Because the Florida Election Campaign Financing Act does not 

violate the First Amendment, Scott has not, and will not, suffer any constitutionally-recognizable 

harm from the continued operation of the Act’s matching fund provisions. Scott is free to speak 

and spend money to promote his campaign without limitation. To the extent his strategic 

decisions on where and how to spend funds have legal consequences, Scott is no differently 

situated than his opponents who have chosen to participate in the system. They, too, have likely 

made strategic decisions based on the requirements of the Florida Election Code – including the 

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decision to opt in to the public campaign financing system based on an assessment of the 

advantages and disadvantages of the system under existing law. 

 In arguing that his harm would be irreparable, Scott suggests that the Supreme Court’s 

order in McComish was issued because no post-election remedy could compensate a candidate 

for the harm of allowing an election to proceed under the cloud of an unconstitutional provision. 

The procedural history of McComish is highly relevant to assessing this argument. 

When the McComish case was originally presented to the District Court on a motion for 

temporary restraining order shortly before the 2008 primary elections, the District Court denied

the temporary restraining order given the pending election and the justifiable expectations of the 

participating candidates. See Order in McComish v. Brewer, Case No. 2:08-cv-01550-ROS, 

August 29, 2008. The District Court also denied a subsequent motion for preliminary injunction, 

again based on the reliance interests of participating candidates. See Findings of Fact and 

Conclusions of Law in McComish v. Brewer, Case No. 2:08-cv-01550-ROS, October 17, 2008. 

The Supreme Court’s Order in June 2010 staying the Ninth Circuit’s mandate issued only 

after the McComish case had been thoroughly briefed and argued in the District Court, in the 

Ninth Circuit, and in motions before the Supreme Court for nearly two years and an entire 

biennial election cycle. 

III. ANY HARM TO SCOTT IN DENYING THE INJUNCTION WOULD BE 

OUTWEIGHED BY THE DAMAGE TO THE STATE, THE PUBLIC INTEREST, 

AND PARTICIPATING CANDIDATES IN GRANTING THE INJUNCTION. 

Enjoining the Secretary of State from enforcing the Act and distributing matching funds 

to eligible candidates at this time would substantially injure the State and harm the public. 

“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives 

of its people, it suffers...injury.” New Motor Vehicle Bd. of Cal. v.Orrin W. Fox Co, 434 U.S. 

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1345, 1351 (1997) (Rehnquist, J., in chambers). A “presumption of constitutionality” attaches to 

every legislative act, and that presumption is “an equity to be considered in favor of . . . [the 

government] in balancing hardships.” Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 

1323, 1324 (1984) (Rehnquist, J., in chambers). 

The harm to the public if the Secretary is enjoined from enforcing the public campaign 

financing law far outweighs Scott’s alleged harm. Whether the injunction is granted or denied, 

Scott will be able to lawfully spend any amount of money in furtherance of his candidacy. An 

injunction striking the matching funds provision of Section 106.355 could threaten the viability 

of public campaign financing in Florida. 

The Act serves Florida’s interests in preventing corruption and the appearance of 

corruption by providing an optional public financing system for candidates who agree to limit 

their total campaign expenditures and, accordingly, their contributions. § 106.31, Fla. Stat. To 

accomplish the State’s interest, the Act must present an attractive alternative in which candidates 

will participate. Candidates will be unlikely to participate in a system that so significantly 

disadvantages them compared to nonparticipating candidates. Section 106.355 is, therefore, 

critical to the accomplishment of the State’s interests. If the injunction is granted and the Act is 

stricken, candidates will not choose to participate in the system in the future and the State’s 

interests in combating corruption will be frustrated. 

Candidates who have chosen to participate in the public campaign financing system for 

the 2010 election cycle would also be harmed by an order enjoining the Act. These candidates 

opted into the system in reasonable reliance on the existing statute. Scott asks the Court to alter 

the bargain after the fact. If the Court were to issue the preliminary injunction that Scott requests 

at this late hour, participating candidates would remain bound by the restrictions in the Act 

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(including the $25,000 limit on personal contributions) but they would not receive the matching 

fund benefits of the Act on which they reasonably relied. 

As exemplified by the procedural history of the McComish case, when the McComish

plaintiffs filed their complaint and motion for a temporary restraining order mere weeks before 

the primary election, the District Court refused to enjoin the operation of Arizona’s matching 

funds statute given the disruption it would cause to the election process and the reliance by 

participating candidates on the availability of matching funds. The parties in McComish briefed 

the case on cross-motions for summary judgment in 2009. In January 2010, the District Court 

issued a final judgment declaring Arizona’s law unconstitutional. The Court stayed its own 

decision pending review in the Ninth Circuit. After briefing and argument, the Ninth Circuit 

reversed the District Court’s judgment and concluded that the program was constitutional. It was 

the mandate from that Ninth Circuit decision that was stayed by the Supreme Court in June 2010. 

Thus, candidates for the 2010 election cycle in Arizona have been on notice for nearly two years 

that the state’s matching funds program was in jeopardy. 

Here, the Secretary has been served with this lawsuit at the eleventh hour. Both the 

Department and participating candidates would be significantly burdened by an order enjoining 

the operation of a significant provision of the statutory public campaign finance system. In 

weighing the relative burdens to the Plaintiff, the Department, and participating candidates, this 

Court should adopt a similar approach to that taken by the District Court in McComish and deny 

the motion for a preliminary injunction. 

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IV. AN INJUNCTION WOULD NOT SERVE THE PUBLIC INTEREST 

For the additional reasons stated below, the public interest would be disserved by an 

order enjoining the operation of Florida’s public campaign financing system in the middle of an 

election process already underway. 

The State of Florida unquestionably has “a compelling interest in preserving the integrity 

of its election process.” Purcell v. Gonzalez, 549 U.S. 1, 7 (2006) (citing Eu v. San Francisco 

County Democratic Central Comm., 489 U.S. 214, 231 (1989)). Moreover, “[c]onfidence in the 

integrity of our electoral processes is essential to the functioning of our participatory 

democracy.” Purcell at 4. The courts have routinely recognized “that election cases are 

different from ordinary injunction cases. Interference with impending elections is 

extraordinary.” Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th 

Cir. 2003). 

This Court considered the disruption of the election process when a suit was brought 

challenging Florida’s congressional districting plan seven weeks before the first primary 

election. In Johnson v. Smith, 1994 WL 907596 (N.D. Fla. 1994), this Court declined to enter a 

preliminary injunction “primarily because the court finds that the public interest would not be 

served by an act that would inevitably disrupt an election process already well underway.” In 

Johnson, as in this case, the qualifying period for candidates had ended, and the candidates had 

begun to organize their campaigns, to raise funds, and to spend those funds in reliance on the 

then-existing districting scheme. This Court found that the issuance of a preliminary injunction 

“would produce considerable confusion, inconvenience, and uncertainty among voters, 

candidates, and election officials.” 

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Similarly, in this case, the election process is well underway. The qualifying period for 

nonfederal candidates ended at noon on June 18, 2010. § 99.061, Fla. Stat. The end of 

qualifying was also the deadline for candidates to elect participation in public campaign 

financing under the Act. § 106.33, Fla. Stat. The deadline for supervisors of elections to mail 

primary election absentee ballots to absent uniformed services voters and overseas voters passed 

on July 10, 2010. § 101.62(4)(a), Fla. Stat. Early voting for the primary election begins on 

August 9, 2010, less than one month from now. 

The candidates have presumably organized their campaigns, are raising funds, and are 

spending funds based on the existing statutory framework. At the last minute, Scott seeks to 

upend this statutory scheme, leaving no doubt that the issuance of a preliminary injunction would 

produce considerable confusion, inconvenience, and uncertainty among voters, candidates, and 

election officials. The injunctive relief sought by Scott would disserve the public interest. 

CONCLUSION

For the foregoing reasons, the Secretary of State of the State of Florida respectfully 

requests that this Court deny Scott’s motion for a preliminary injunction. 

 Respectfully submitted, 

/s Richard Doran 

C.B.UPTON JOHN BERANEK 

Fla. Bar. No.: 0037241 Fla. Bar No.: 0005419 

General Counsel jberanek@ausley.com

Florida Department of State RICHARD E. DORAN 

R.A. Gray Building Fla. Bar No: 0325104 

500 S. Bronough Street rdoran@ausley.com

Tallahassee, FL 32399-0250 KENNETH R. HART 

850-245-6536 Fla. Bar No. 0192580 

850-245-6127 (facsimile) khart@ausley.com

cbupton@dos.state.fl.us MAJOR B. HARDING 

 Fla. Bar No.: 0033657 

 mharding@ausley.com

 Ausley & McMullen 

Case 4:10-cv-00283-RH-WCS Document 22 Filed 07/13/10 Page 24 of 25
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 Post Office Box 391 

 Tallahassee, FL 32302 

 850-224-9115 

 850-222-7560 (facsimile) 

Attorneys for Florida Secretary of State Dawn K. Roberts 

 

CERTIFICATE OF SERVICE

 This is to certify that on the 13th day of July, 2010, the foregoing Response in Opposition 

to Plaintiff’s Motion for Preliminary Injunction was filed electronically. Notice of this filing will 

be sent to the below parties by operation of the Court’s electronic filing system. Parties may 

access this filing through the court’s system. 

Charles M. Trippe 

Mosely, Prichard, Parrish, Knight and Jones 

501 West Bay Street 

Jackonsville, FL 32202 

Enu a. Mainigi 

Carl R. Metz 

George W. Hicks, Jr. 

Williams & Connolly LLP 

725 Twelfth Street N. W. 

Washington, DC 20005 

 

Harry O. Thomas 

Radey Thomas Yon & Clark, P. A. 

301 S. Bronough Street, Sutie 200 

Tallahassee, FL 32301-1722

 /s Richard E. Doran 

 Attorney 

 

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