IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION

RICHARD L. SCOTT, 

 Plaintiff, 

 

vs. Case No. 4:10cv283-RH/WCS 

DAWN K. ROBERTS, in her official 

Capacity as Interim Secretary of State 

of the State of Florida, 

Defendant, 

and 

IRA WILLIAM (“BILL”) MCCOLLUM, JR., 

 Intervenor. 

________________________________________/

INTERVENOR’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S 

MOTION FOR A PRELIMINARY INJUNCTION AND REQUEST FOR AN 

EXPEDITED HEARING

 Pursuant to Northern District of Florida Local Rule 7.1(C), Intervenor Ira William 

(“Bill”) McCollum, Jr. (“Bill McCollum” or “McCollum”) files this Memorandum in 

Opposition to Plaintiff Richard L. Scott’s Motion for a Preliminary Injunction and 

Request for an Expedited Hearing. Plaintiff’s Motion must be denied because it fails to 

establish the factors necessary to warrant relief. In particular, Bill McCollum would be 

extraordinarily harmed by entry of the requested preliminary injunction, as would the 

state’s voters, who have an interest in a robust political debate in the final weeks before 

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2 

the primary election. Moreover, the Motion must be denied because the Plaintiff cannot 

demonstrate a substantial likelihood of success on the merits. 

 A preliminary injunction is an “extraordinary and drastic remedy,” Citizens for 

Police Accountability Political Committee v. Browning, 572 F. 2d 1213, 1217 (11th Cir. 

2009), quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) 

(quoting All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 

(11th Cir. 1989). Entry of a preliminary injunction “should never be indulged except in a 

case clearly warranting it.” Lee v. Resor, 348 F. Supp. 389 (M.D. Fla. 1972). In each 

case, courts “must balance the competing claims of injury and must consider the effect on 

each party of the granting or withholding of the requested relief.” Winter v. Natural 

Resources Defense Council, Inc. 129 S. Ct. 365, 376 (2008), quoting Amoco Production 

Co. v. Gambell, 480 U.S. 531, 542 (1987). The Plaintiff has asked this Court to prevent 

implementation of a key element of Florida’s campaign financing structure just six weeks 

before the primary election. Presented with a similar request in a case also challenging 

campaign finance statutes, a District Court judge in Arizona, even after concluding the 

statute was unconstitutional, declined to enter a preliminary injunction, citing the 

“extraordinary balance of the harms required in the context of an ongoing election.” 

McComish v. Brewer, 2010 WL 2292213 at *6 (D. Ariz. January 20, 2010), reversed on 

other grounds, McComish v. Bennett, -- F.3d --, 2010 WL 2595288 (9th Cir. June 23, 

2010).1

 

 

1

 Plaintiff relies heavily in his Motion on the Supreme Court’s recent Order 

vacating the District Court’s injunction and staying the mandate of the Ninth Circuit’s 

decision in the McComish case so that a petition for certiorari could be submitted. 

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3 

 Moreover, courts are only to interfere with elections in process in the most 

extraordinary of circumstances. Even in situations where underlying aspects of an 

election are determined to be unconstitutional, such as an improper apportionment of 

districts, interference with an imminent election is not warranted. In the landmark 

apportionment case of Reynolds v. Sims, 377 U.S. 533, 585 (1964), the Supreme Court 

reasoned: 

 It is enough to say now that, once a State's legislative apportionment 

scheme has been found to be unconstitutional, it would be the unusual 

case in which a court would be justified in not taking appropriate action to 

insure that no further elections are conducted under the invalid plan. 

However, under certain circumstances, such as where an impending 

election is imminent and a State's election machinery is already in 

progress, equitable considerations might justify a court in withholding the 

granting of immediately effective relief in a legislative apportionment 

case, even though the existing apportionment scheme was found invalid. 

In awarding or withholding immediate relief, a court is entitled to and 

should consider the proximity of a forthcoming election and the mechanics 

and complexities of state election laws, and should act and rely upon 

general equitable principles. With respect to the timing of relief, a court 

can reasonably endeavor to avoid a disruption of the election process 

which might result from requiring precipitate changes that could make 

unreasonable or embarrassing demands on a State in adjusting to the 

requirements of the court's decree. 

(Emphasis supplied). See also Ely v. Klahr, 403 U.S. 108, 113 (1971) (allowing election 

to proceed under unconstitutional apportionment plan); Kilgarlin v. Hill, 386 U.S. 120, 

121 (1967) (permitting impending election to proceed despite finding that the Texas 

statutory provisions governing legislative appointment were invalid); White v. Weiser, 

 

McComish v. Bennett, 2010 WL 2265319 (U.S. June 8, 2010). Putting aside for the 

moment the merits of the District Court’s or the Ninth Circuit’s decisions in that case, it 

is important to remember that the District Court judge, although eventually finding the 

Arizona campaign finance scheme to be unconstitutional, refused to enjoin the 

implementation of the statute in the midst of an election. 

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412 U.S. 783, 789 (1973) (granting stay of order finding plan unconstitutional and 

permitting election to proceed); Grudzinski v. Bradbury, 2007 WL 2733826 (D. Ore. 

2007) (lateness of plaintiff’s request to remove a ballot measure tilts the balance of harms 

in favor of the state and the voting public). 

 Bill McCollum has elected to participate in the Florida Election Campaign 

Financing Act, described in sections 106.30-.36, Florida Statutes. By virtue of his 

participation in that system, McCollum has a reasonable expectation that the system will 

remain in place through the 2010 election cycle and that he will receive funds that will 

become available pursuant to section 106.355 once Scott exceeds the $24.9 million 

threshold. As more fully described below, McCollum’s campaign has advertising and 

fund raising strategies in place and has planned its use of the funds authorized by section 

106.355. If this Court enters a preliminary injunction prohibiting implementation of 

section 106.355 funds, McCollum’s campaign will lack the funds needed to implement 

the plan in the last weeks of the election and his freedom of speech will be curtailed. This 

chilling effect on Bill McCollum’s free speech rights is just one of the reasons the 

Plaintiff’s Motion must be denied. 

I. BILL MCCOLLUM HAS REASONABLY RELIED ON FUNDS 

 BECOMING AVAILABLE PER SECTION 106.355, AND GRANTING 

 THE INJUNCTION WILL SEVERELY IMPEDE HIS ABILITY TO GET 

 HIS MESSAGE TO VOTERS IN THE FINAL WEEKS OF THE 

 PRIMARY CAMPAIGN. 

If the Plaintiff’s Motion for Preliminary Injunction is granted, Bill McCollum will 

suffer immediate harm. Bill McCollum elected to participate in Florida’s election 

campaign financing system “[a]fter considering the benefits of the Act, as well as the 

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5 

restrictions placed on a candidate by the Act . . . .” See Affidavit of Ira William (“Bill”) 

McCollum, Jr. (attached as Exhibit A).2

 Section 106.355 provides that whenever a 

candidate for Governor who has not elected to participate in the system exceeds the 

applicable expenditure limit – $24.9 million for this election cycle – the Department of 

State shall, upon request, provide the participating candidate with funds equal to the 

amount by which the non-participating candidate exceeded the expenditure limit. If the 

preliminary injunction requested by Plaintiff is granted, Bill McCollum loses that benefit, 

but still is subject to most of the Act’s restrictions. He states in his affidavit: 

Mr. Scott now asks this Court to drastically alter the playing field in this 

election by enjoining the Act’s provisions that provide protections to me 

for his exceeding the spending cap but leaving in effect all of the Act’s 

restrictions on my ability to obtain contributions in amounts that would 

offset Mr. Scott’s spending. 

If the injunction is entered as requested by Mr. Scott, I will no longer be 

subject to the $24.9 million spending limit but I will still be prohibited 

from loaning my campaign more than $25,000 from my personal funds 

and subject to an audit by the state at the close of the campaign. Of 

course, the statutory limitations on contributions by individual donors and 

by executive committees of political parties will still be in effect. 

Id. at ¶¶ 7-8. 

 As a participating candidate, Bill McCollum has a substantive legal right to 

require the Department of State to pay him the funds when the Plaintiff exceeds the 

expenditure limit. The Bill McCollum campaign is counting on receiving these funds and 

has planned a media strategy that will be paid for by these funds. See Affidavit of Jack 

 

2

 By electing to participate in the Florida Election Campaign Financing Act, Bill 

McCollum is prohibited from loaning his campaign more than $25,000 from his personal 

funds and from spending more than $2 for each Florida-registered voter, which is $24.9 

million. He also is required to submit to a post-election audit by the Division of 

Elections. McCollum Affidavit, at ¶ 5. 

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Matthew Williams, campaign manager for the Bill McCollum Campaign (attached as 

Exhibit B) (also attached as Exhibit 1 to D.E. 13). As Williams attests, the campaign has 

been monitoring the Plaintiff’s media expenses since he entered the race in April of this 

year. Id. at ¶ 6. Because of the significant amount spent on media advertising by the 

Plaintiff, the Bill McCollum campaign altered its original plans for its own media 

campaign and began purchasing radio and television advertisements earlier than 

originally planned. Id. at ¶ 7. As the Plaintiff’s spending on advertising continued, the 

Bill McCollum campaign concluded that the Plaintiff was likely to exceed the $24.9 

million expenditure limit, despite his public promise that he would not do so. Id. at ¶ ¶ 8-

9. 

 Recognizing that the Plaintiff’s incredible expenditures will result in a dollar-fordollar distribution of funds to the Bill McCollum campaign, the campaign has made plans 

for how it will spend the additional money it will receive seven days after the cap is 

exceeded. Id. at ¶ 10. Campaign staff members have estimated that the section 106.355 

funds could amount to as much as $16 million before the August 24 primary election. Id. 

at ¶ 11. That money will be used to buy television and radio advertisements all over 

Florida to communicate Bill McCollum’s message concerning how he would govern the 

state of Florida. Any disruption in Bill McCollum’s planned media strategy at this late 

date would put him at an extreme disadvantage in this very competitive election. See 

Affidavit of Stephen R. Hazleton at ¶ 6 (attached as Exhibit C). 

 If a preliminary injunction is granted, the Bill McCollum campaign will have to 

go through the time-consuming process of recreating its advertising and fundraising 

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strategies in the crucial final weeks before the primary election at a time when most 

voters are just beginning to focus on the candidates. Id. at ¶ 3. An unexpected change in 

the law at this late date would unfairly penalize Bill McCollum and deprive the campaign 

of funds that it has been expecting to receive and that it intends to use for advertising and 

other campaign strategies. As Hazleton, a professional media consultant, explains in his 

affidavit, the last few weeks of a campaign are the most important time for a candidate to 

have his advertisements on the air, as it is the time when the public is most interested. Id. 

Thus, it is Bill McCollum’s First Amendment rights that will be infringed by the entry of 

a preliminary injunction. He will be unfairly punished for abiding by the law as written 

and will be unable to get his message to voters in a manner that he had reasonably 

planned in reliance on the section 106.355 funds. 

 In considering whether to grant a preliminary injunction, a court must “balance 

the equities in determining whether, in the exercise of its discretion, a preliminary 

injunction is warranted.” Faculty Senate of Florida Intern. University v. Winn, 477 F. 

Supp. 2d 1198, 1209 (S.D. Fla. 2007); see also Martinez v. School Bd. of Hillsborough 

County, 675 F. Supp 1574, 1582 (M.D. Fla. 1987) (“It is the duty of this Court to weigh 

all factors in this case and balance the competing interests, in order to determine if a 

preliminary injunction is appropriate.”) 

 Notably, Plaintiff executed a Statement of Candidate on April 13, 2010, stating 

that he had received, read and understood the requirements of Chapter 106, Florida 

Statutes (attached to the Affidavit of Bill McCollum, Exhibit A). Yet he waited until 

July 7, 2010, to challenge the constitutionality of the provision in section 106.355 that 

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provides funds to candidates such as McCollum, who elected to participate in the public 

campaign financing system. Such an eleventh-hour ambush should not be rewarded with 

equitable relief. If anything, the needless delay here tilts the balance of equities in favor 

of Bill McCollum. If Plaintiff understood the provisions of Chapter 106 three months 

ago, as he stated, he presumably believed then that part of section 106.355 was 

unconstitutional. He should have challenged it at that time. Grudzinski, 2007 WL 

2733826 at *3 (lateness of plaintiff’s request to remove a ballot measure tilts the balance 

of harms in favor of the state and the voting public and raises a valid claim of laches 

against plaintiffs to preclude injunctive relief). 

 At this point in the election, almost all absentee ballots have been mailed. 

McCollum Affidavit at ¶ 6. Strategies have been planned, and the final push for votes is 

about to begin. As Bill McCollum attests: 

In reliance on the protections provided by the Act, my campaign, in 

response to the significant spending by Mr. Scott, altered the timing of 

planned expenditures fully expecting that Mr. Scott would, if he has not 

already, exceed the spending limit and that section 106.355 funds would 

be available to my campaign during the critical last weeks before the 

election. 

Given the short period left to raise money by contributions and the chilling 

effect on potential donors of the specter that my campaign will not have 

sufficient funds to effectively communicate my political message to the 

electorate, if the section 106.355 funds are withheld from me at a time 

when the electorate is most attentive, it will be impossible for my 

campaign to generate contributions in an amount that would equal or even 

approach the amount of the lost section 106.355 funds. 

Id. at ¶¶ 9-10. 

 

 The entry of the requested preliminary injunction here would hobble Bill 

McCollum’s entire campaign strategy and essentially eliminate his ability to 

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communicate with Florida’s Republican voters in the final weeks of the campaign for 

Governor. Entry of a preliminary injunction also would have a chilling effect on 

potential contributors to the McCollum campaign, as it will exacerbate a perception that 

he will not have sufficient funds to counter the millions being spent by his opponent. 

McCollum Affidavit at ¶ 11. Against the backdrop of this irreparable consequence and 

impact, Plaintiff’s complaint of a “drag” on his First Amendment rights is of no moment. 

As his Declaration proves, the Plaintiff is not an inaudible victim. In balancing the 

equities, this Court should find that the harm to Bill McCollum outweighs any harm to 

the Plaintiff. Plaintiff has failed to prove otherwise. 

II. THE PUBLIC ALSO WOULD BE HARMED BY AN INJUNCTION IN 

 THE MIDST OF AN ELECTION, AS ROBUST DEBATE WOULD BE 

 CURTAILED AND THE ELECTION PROCESS WOULD BE 

 DISRUPTED. 

 If the preliminary injunction is granted, not only would Bill McCollum be 

harmed, but the voters of Florida will be harmed as well. As the primary election 

approaches, the vast majority of voters begin to pay close attention to the candidates and 

their messages for the first time. See Hazleton Affidavit at ¶ 3. If Bill McCollum is 

deprived of the millions of dollars in section 106.355 funds he is expecting, the voters 

will not hear his message. Instead, they will hear only one voice, that of the candidate 

who can afford to spend as much as he wants. 

 The importance of a robust debate on public issues has been repeatedly 

emphasized by courts. E.g., Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (recognizing the 

“profound national commitment to the principle that debate on public issues should be 

uninhibited, robust, and wide-open”) (quoting New York Times Co. v. Sullivan, 376 U.S. 

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254, 270 (1964)); Florida Committee for Liability Reform v. McMillan, 682 F. Supp. 

1536 (M.D. Fla. 1988) (public interest in robust debate on public issues would be 

furthered by enjoining enforcement of statute prohibiting solicitation within 150 feet of 

polling places); Clean-Up ’84 v. Heinrich, 582 F. Supp. 125 (M.D. Fla. 1984) (“All 

citizens have an interest in robust debate on public issues.”). Entry of the preliminary 

injunction Scott requests would chill public debate, not further it. 

 The United States District Court for Arizona faced a similar situation two years 

ago when the Arizona Citizens Clean Elections Act, the public financing scheme for that 

state, was challenged by a number of plaintiffs. Although the Arizona system differs in 

certain respects from Florida’s, it does include a provision that provides additional funds 

to publicly-funded candidates when non-publicly funded candidates exceed certain 

campaign expenditure and fundraising limits. The plaintiffs argued that their First 

Amendment rights were violated by this funding scheme and sought both a preliminary 

injunction to block distribution of matching funds to participating candidates and a 

temporary restraining order (“TRO”) to enjoin enforcement of the matching funds 

provisions of the Act. McComish, 2010 WL 2292213 at *6. Both motions were denied. 

In her Order denying the TRO, Judge Roslyn O. Silver reasoned that the balance of 

harms analysis was not simple in a case of this nature: 

 On the one hand, Plaintiffs suffer a burden on their First Amendment 

rights and have proffered some evidence that the candidates opposing 

them benefit directly from that opposition. On the other hand, the State 

Defendants have a clear interest in running a smooth and orderly election 

which, in this case, includes a significant number of candidates who have 

been operating under the assumption that matching funds would be 

distributed and planning their campaign strategies accordingly. Those 

disadvantaged candidates are not currently parties to this litigation, but 

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disrupting their expectations of funding shortly before an election surely 

interferes with the State’s interest in holding a fair, contested election. 

Furthermore, courts have traditionally treated injunctions in election cases 

differently than in other contexts, as “[i]n this case, hardship falls not only 

upon the putative defendant” but on all citizens of the state. Southwest 

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

2003). 

Order in McComish v. Brewer, CV-08-1550-PHX-ROS at p. 7-8, August 9, 2008 

(attached as Exhibit D) (emphasis supplied). 

 In her Findings of Fact and Conclusions of Law in support of her denial of the 

plaintiffs’ motion for preliminary injunction, Judge Silver reasoned that “i[t] is not only 

the parties to this suit that would be affected by issuance of an injunction. Each 

candidate that stands to trigger or receive matching funds, and the public itself, which has 

an overriding interest in free and fair elections, also stand to gain or lose by an 

injunction.” Findings of Fact and Conclusions of Law in McComish v. Brewer, CV-08-

1550-PHX-ROS at p. 15 (attached as Exhibit E). Judge Silver concluded: 

 [I]in the extraordinary context of an election in progress, Plaintiffs and 

Plaintiff-Intervenors have not demonstrated sufficient harm to find that the 

balance of harms and the public interest tilts in their favor. The 

countervailing harm that would be done to candidates that relied on Clean 

Elections funding and the significant interest the public has in the smooth 

functioning of an election, one that would be compromised if participating 

candidates were unable to deliver their message to voters as planned, are 

sufficient to push the balance of harms in their direction, especially as the 

election is upon us. This Court will not interfere with the fortuitous 

currents and eddies of this vital democratic process. Simply, the public 

interest would not be served by granting an injunction. 

Id. at p. 18. 

 Similarly, in Florida, candidates such as McCollum, who have chosen to 

participate in Florida’s public campaign finance system and have relied on funds 

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becoming available if a non-participating candidate exceeds the mandatory cap, will be 

harmed if an injunction is entered in the midst of the election process. The voters also 

will be harmed, as they will be deprived of McCollum’s message at a crucial point in the 

campaign. Thus, the balance of harms in this case, as in McComish, tilts in favor of 

McCollum and the public, and the Motion for Preliminary Injunction should be denied. 

III. PLAINTIFF IS NOT LIKELY TO SUCCEED ON THE MERITS 

 BECAUSE HE MISREADS THE SUPREME COURT’S OPINION IN 

DAVIS AND OVERSTATES THE SIGNIFICANCE OF THE COURT’S 

 RECENT ORDER IN MCCOMISH. 

Section 106.355 is presumed to be constitutional. Statutes come to the Court 

“clothed with a presumption of constitutionality.” Bush v. Holmes, 919 So. 2d 392, 405 

(Fla. 2006); Department of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So. 

2d 879, 881 (Fla. 1983). In addition, “all reasonable doubts as to the validity of statutes 

under the Constitution are to be resolved in favor of constitutionality.” In re Caldwell's 

Estate, 247 So. 2d 1, 3 (Fla. 1971); see also DuFresne v. State, 826 So. 2d 272, 274 (Fla. 

2002) (where reasonably possible a statute will be interpreted by the courts in a manner 

that resolves all doubt in favor of its validity); Crist v. Florida Ass'n of Criminal Defense 

Lawyers, Inc., 978 So. 2d 134, 139 (Fla. 2008) (stating that in order to overcome the 

presumption of constitutionality, “the invalidity must appear beyond reasonable doubt, 

for it must be assumed the legislature intended to enact a valid law”). 

 Plaintiff, in his Memorandum of Law in support of his Motion for Preliminary 

Injunction, relies primarily on two cases for his argument that he is likely to succeed on 

the merits. These are Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008) and 

an Order of the Supreme Court vacating the Ninth Circuit’s stay of the injunction 

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imposed by the District Court and staying the mandate of the Ninth Circuit in 

McComish.

3

 The Plaintiff’s reading of Davis is too broad, as the case is factually 

distinguishable from this one. Additionally, the Plaintiff relies too much on the Supreme 

Court’s Order in McComish, which is not a decision on the merits but merely an 

indication that the Court is interested in hearing the case. 

 The Davis case involved the federal Bipartisan Campaign Reform Act of 2002 

and its so-called “Millionaire’s Amendment,” which increased the amount of 

contributions a candidate for the U.S. House of Representatives could receive from 

individual contributors when his or her opponent’s personal expenditures exceeded a 

certain amount. The Millionaire’s Amendment provided that when a candidate’s 

expenditure of personal funds caused the “opposition personal funds amount” (“OPFA”) 

to exceed $350,000, the opposing candidate could receive individual contributions of 

three times the legal limit. The OPFA “is a statistic that compares the expenditure of 

personal funds by competing candidates and also takes into account to some degree 

certain other fundraising.” Davis, 128 S. Ct. at 2766. Thus, once a candidate becomes 

“self-financing” by exceeding the OPFA limit, that candidate’s opponent is permitted to 

raise additional money through higher contribution limits, but the “self-financing” 

candidate must continue to abide by normal contribution limits. 

 

3

 After more than a year of litigation, the U.S. District Court of Arizona invalidated 

the Arizona Citizens Clean Elections Act on January 20, 2010, and enjoined its 

enforcement, after finding that its matching funds provision violated the First 

Amendment. The Ninth Circuit reversed on May 21, 2010 (opinion amended on June 23, 

2010), concluding that any burden imposed on the plaintiffs’ speech was indirect or 

minimal, as the matching funds provision did not actually prevent anyone from speaking. 

McComish, 2010 WL 2595288 at *11. 

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 The Supreme Court found that the “asymmetrical limits” on contributions violated 

the First Amendment, reasoning that “[w]e have never upheld the constitutionality of a 

law that imposes different contribution limits for candidates who are competing against 

each other, and we agree with Davis that this scheme impermissibly burdens his First 

Amendment right to spend his own money for campaign speech.” 128 S. Ct. at 2771. 

 An analysis of Davis in the Harvard Law Review argues that the case has been 

read much too broadly by other commentators who have suggested, as Plaintiff does, that 

it calls into question the constitutionality of state campaign financing schemes. 

Comment, 122 Harv. L. Rev. 375 (Nov. 2008): 

[S]ome have suggested that Davis’s reasoning carries broader implications 

that draw into question the public financing laws of many states. 

According to these commentators, the Court’s characterization of the 

BCRA’s asymmetrical restriction scheme as an unconstitutional burden on 

self-financing candidates’ speech implies that asymmetrical public 

financing schemes must also unconstitutionally burden speech. This 

reading of Davis is understandable, but ultimately incorrect. It 

oversimplifies and overbroadens the Court’s reasoning, and it ignores the 

critical constitutional distinction between government restrictions on 

speech and government subsidies of speech. While the Court may well set 

its sights on asymmetrical public funding, Davis is hardly the warning shot 

these commentators think it is. 

Id. at 380-81. 

 Like Florida, a number of states have “asymmetrical” public funding schemes by 

which candidates who participate in the state’s public financing system receive additional 

funds from the state once a non-participating opponent exceeds a certain cap. Most of 

these statutory schemes that have been challenged have been upheld. See Gable v. 

Patton, 142 F.3d 940 (6th Cir. 1988) (upholding a Kentucky statute that lifted the 

expenditure cap and provided a two-for-one match for participating candidates once a 

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15 

non-participating candidate exceeded that cap); Daggett v. Commission on 

Governmental Ethics and Election Practices, 205 F.3d 445 (2000) (upholding the 

matching funds provision of Maine’s Clean Elections Act); North Carolina Right to Life 

Committee for Independent Political Expenditures v. Leake, 524 F.3d 427 (2008) 

(upholding a public financing program providing supplemental “rescue” payments to 

opponents accepting financing if nonparticipants’ expenditures exceeded a specified 

threshold); McComish, 2010 WL 2595288 (upholding Arizona matching fund scheme 

whereby a participating candidate receives additional matching funds from the state once 

a non-participating opponent spends more than a set amount); but see Day v. Holahan, 34 

F.3d 1356 (8th Cir. 1994) (finding unconstitutional a Minnesota statute providing an 

increase in expenditure limits and providing public funds to a candidate once certain 

amounts of independent expenditures were made to defeat the candidate); Green Party of 

Conn. v. Garfield, No. 09-3760-cv(L), -- F.3d -- (2d Cir. July 13, 2010) (finding 

unconstitutional a Connecticut provision that provides matching funds for participating 

candidates who are outspent by a non-participating opponent). 

 As the Ninth Circuit explained in McComish, the regulatory framework struck 

down in Davis is much different from the Arizona public financing system. Under the 

Arizona system, a candidate who chooses to participate in the voluntary public financing 

scheme relinquishes his or her right to raise private campaign contributions. Instead, the 

candidate receives an initial grant of funds from the state. If the participating candidate 

has an opponent who is not participating in the system and whose campaign expenditures 

or contributions exceed a threshold set by the statute, the participating candidate receives 

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additional matching funds from the state. McComish, 2595288 at *1. The Ninth Circuit 

reasoned: 

In Davis, the Millionaire’s Amendment was an attempt to ‘level electoral 

opportunities for candidates of different personal wealth.’ This was 

problematic because Buckley had held that ‘the First Amendment simply 

cannot tolerate [a] restriction upon the freedom of a candidate to speak 

without legislative limit on behalf of his own candidacy.’ . . . Under the 

[Arizona] Act, while matching funds are calculated based on the total 

contributions received and expenditures made by a nonparticipating 

opponent, they are not distributed specifically to the opponents of wealthy 

candidates. Matching funds do not distinguish between different sources 

of nonparticipating candidates’ financing at all. The law in Davis was 

problematical because it singled out the speakers to whom it applied based 

on their identity. The Act’s matching funds provision makes no such 

identity-based distinctions.

Id. at *9, quoting Davis, 128 S. Ct. at 2773 and Buckley at 424 U.S. at 54 (emphasis 

supplied). 

 Florida’s campaign financing system, like Arizona’s and those of a number of 

other states, does not single out speakers based on their wealth. Nor does it restrict 

speech, as the Millionaire’s Amendment did, by allowing one candidate to raise more 

money than his or her opponent simply because the first candidate was raising money 

from individuals and the opponent was self-financing. Rather, Florida’s public financing 

system promotes speech based on an opponent’s exercise of his or her own free speech 

rights. As the Harvard Law Review commentator noted, the distinction in First 

Amendment jurisprudence between government promotion of speech and government 

restriction of speech is significant. 122 Harv. L. Rev. at 383. The author noted: 

Justice Alito [writing for the majority in Davis] did characterize 

asymmetrical contribution limits as a ‘burden’ on speech. But he was 

careful not to say that any policy measure that arguably gives one 

candidate more speech power is an unconstitutional burden. Instead, he 

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merely reasoned that restricting a candidate’s speech based on his decision 

to exercise his speech rights is an unconstitutional burden. Promoting a 

candidate’s speech based on an opponent’s exercise of his speech rights is 

a different matter. While both kinds of regulation might seek to level the 

field between the candidates, only one does so by affirmatively limiting a 

candidate’s First Amendment right to speak. 

Id. 

Another court evaluating public campaign finance systems similar to Florida’s4

 have 

found that providing additional funds to participating candidates when a non-participating 

candidate exceeds a certain spending amount promotes speech rather than restricts it. 

The Court in North Carolina Right to Life Committee Fund found: 

We conclude that the state’s provision of matching funds does not burden 

the First Amendment rights of nonparticipating candidates . . . . The 

plaintiffs remain free to raise and spend as much money, and engage in as 

much political speech, as they desire. They will not be jailed, fined, or 

censured if they exceed the trigger amounts. The only (arguably) adverse 

consequence that will occur is the distribution of matching funds to any 

candidates participating in the public financing system. But that does not 

impinge on the plaintiff’s First Amendment rights. To the contrary, the 

distribution of these funds ‘furthers, not abridges, pertinent First 

Amendment values’ by ensuring that the participating candidate will have 

an opportunity to engage in responsive speech. 

524 F.3d 427, 437, quoting Buckley, 424 U.S. at 92-93. 

 Unlike in Davis, Florida’s section 106.355 funds provision does not manipulate a 

candidate’s ability to accept contributions based on whether or not that candidate is 

participating in the public financing system. Thus, the Davis case is distinguishable. 

 Concerning the Supreme Court’s June 8, 2010 Order in McComish, little can be 

said other than that the state of the law, as articulated by the Ninth Circuit in that case, is 

 

4

 Each of the states’ public campaign financing system is different. But they share 

a common theme that expenditures by a non-participating candidate above a certain 

amount trigger an allocation of public funds to the participating candidate. 

Case 4:10-cv-00283-RH-WCS Document 24 Filed 07/13/10 Page 17 of 19
18 

unsettled. The Supreme Court may or may not grant a petition for certiorari. If and until 

it does, and if until the Court issues its own opinion, it is simply not accurate or correct to 

say that the Ninth Circuit’s opinion in McComish is not good law. 

 Thus, Plaintiff’s arguments about why he is likely to succeed on the merits are not 

well-founded. This Court may find Davis distinguishable and find the analysis in such 

cases as North Carolina Right to Life Committee Fund persuasive. 

IV. CONCLUSION 

 Granting injunctive relief to the Plaintiff just six weeks before the August 24, 

2010, Republican primary in the Florida Governor’s race would cause considerable harm 

both to Bill McCollum and to the voting public, who are entitled to a robust debate 

during the campaign between these two candidates. Bill McCollum has made strategic 

campaign plans in reliance on the funds he is entitled to receive once his opponent 

exceeds the $24.9 million cap, and to deny him those funds through a preliminary 

injunction would be inequitable. Thus, the balance of equities favor McCollum and the 

voters in this case. Moreover, the Plaintiff has not demonstrated a likelihood of success 

on the merits. He overreaches in his analysis of the Davis case, which is distinguishable, 

and he makes too much of the Supreme Court’s recent Order in McComish. For the 

reasons expressed, Bill McCollum respectfully requests that this Court deny Plaintiff’s 

Motion for a Preliminary Injunction. 

 Respectfully submitted, 

/s/ Christopher B. Lunny 

 CHRISTOPHER B. LUNNY (008982) 

 clunny@radeylaw.com 

Case 4:10-cv-00283-RH-WCS Document 24 Filed 07/13/10 Page 18 of 19
19 

 HARRY O. THOMAS (195097) 

 hthomas@radeylaw.com 

 DONNA E. BLANTON (948500) 

 dblanton@radeylaw.com 

 Radey Thomas Yon & Clark, P.A. 

 Post Office Box 10967 (32302) 

 301 S. Bronough Street, Suite 200 

 Tallahassee, Florida 32301-1722 

 Telephone: (850) 425-6654 

 Facsimile: (850) 425-6694 

COUNSEL FOR INTERVENOR 

WILLIAM MCCOLLUM

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing will be 

furnished by the Court via the CM/ECF system this 13th day of July, 2010, to the 

following: 

Enu A. Mainigi 

Carl R. Metz 

George W. Hicks, Jr. 

Williams & Connolly, LLP 

725 Twelfth St. N.W. 

Washington, DC 20005 

Charles M. Trippe 

Moseley, Prichard, Parrish, Knight and Jones 

501 West Bay Street 

Jacksonville, FL 32202 

John Beranek 

Richard E. Doran 

Kenneth R. Hart 

Major B. Harding 

Ausley & McMullen 

Post Office Box 391 

Tallahassee, FL 32302 

/s/ Christopher B. Lunny 

 CHRISTOPHER B.LUNNY

Case 4:10-cv-00283-RH-WCS Document 24 Filed 07/13/10 Page 19 of 19