Full opinion text
OPINION and ORDER “Michigan Chamber 2 ” PAUL L. MALONEY, Chief Judge. Rejecting Defendant’s Ripeness, Administrative Exhaustion, Abstention, and Laches Arguments; Granting in Part and Denying in Part the Application for Preliminary Injunctive Relief: Preliminarily Enjoining the Defendant from Enforcing Mich. Comp. Laws § 169.254 against Corporations/Unions’ Paying Money to a PAC or Other Conduit for the Purpose of the PAC Making Expenditures Which Are Not in Any Degree Coordinated with a Candidate or Candidate-Related Entity and against the PAC’s Solicitation, Receipt and Expenditure of Such Monies Permitting the Defendant to Enforce Mich. Comp. Laws § 169.254 against The Plaintiff Corporations Paying Money to a PAC or other Conduit for the Purpose of the PAC Making Expenditures Which Are in Any Degree Coordinated with a Candidate or Candidate-Related Entity, and against the PAC’s Solicitation, Receipt and Expenditure of Such Monies Declining to Stay the Preliminary Injunction Pending Appeal This is a civil-rights action under 42 U.S.C. § 1983 to enjoin the Michigan Secretary of State (“Secretary”)’s alleged ongoing violation of the plaintiffs’ First Amendment rights to freedom of political speech and association. Specifically, the plaintiffs lodge an as-applied challenge to the Secretary’s interpretation and application of a provision of the Michigan Campaign Finance Act (“MCFA”), Mich. Comp. Laws § 169.254(1). See generally New Mexico Youth Organized v. Herrera, No. 09-2212, 611 F.3d 669, 677 n. 5 (10th Cir.2010) (“The ‘as-applied’ challenge acknowledges may have some potentially constitutionally permissible applications, but argues that the law is not constitutional as applied to these organizations.”); US v. Stephens, 594 F.3d 1033, 1039 (8th Cir.2010) (the distinction between facial challenge and as-applied challenge is “ ‘both instructive and necessary’ insofar as it ‘goes to the breadth of the remedy employed by the Court’ ”) (quoting Citizens United v. FEC, 558 U.S. at-, 130 S.Ct. 876, 893 (2010)). The court has uncontested federal-question jurisdiction pursuant to 28 U.S.C. § 1343(a)(3), which confers original jurisdiction on the federal district courts over § 1983 actions. The Secretary contends that the court should deny preliminary injunctive relief and dismiss the complaint on four independent grounds: ripeness, laches, failure to exhaust state administrative/judicial remedies, and abstention. In the alternative, the Secretary urges the court to deny preliminary injunctive relief by rejecting plaintiffs’ claims under a standard less demanding than strict scrutiny. For the reasons that follow, the court will reject these arguments, consider the merits of the complaint under the strict-scrutiny standard, and issue preliminary injunctive relief (though not of the scope requested by the plaintiffs). The court will also decline to stay the injunction pending appeal. The plaintiffs are the Michigan Chamber of Commerce (“the Chamber”), Chamber member Sterling Consulting Corporation (“Sterling”), and the Michigan Chamber Political Action Committee (“PAC”). The Chamber is a non-profit organization, organized under Internal Revenue Code § 501(c)(6), whose membership is open to persons, corporations or other entities who subscribe to its mission statement, pay dues, and are accepted for membership, Complaint filed July 12, 2010 (“Comp”) ¶ 21 and Ex D-Affidavit of Michigan Chamber of Commerce CEO and President Richard Studley executed July 12, 2010 (“Studley Aff.”) ¶¶ 1 and 3. Sterling is a for-profit corporation and Chamber member which “lacks the resources to finance a meaningful amount of independent expenditures on its own behalf’ and thus “intends to associate with other similarly situated corporations ... to pool resources” with other corporations “in order to amplify their own voices with respect to independent expenditures on behalf of or in opposition to candidates for political office.” Comp. ¶ 23 and Ex F-Affidavit of Sterling Consulting Corporation President Stephen Linder executed July 9, 2010 (“Linder Aff.”). Critical to the resolution of the instant case, the PAC’s sole purpose is to make independent expenditures under MCFA, and it would receive contributions for this purpose from corporations and other entities, including the Chamber and Sterling. See Comp. ¶ 22 & Ex. E-Affidavit of Michigan Chamber PAC III Treasurer Robert LaBrant executed July 12, 2010 (“Labrant Aff.”). The Chamber, the PAC, and Sterling intend to engage in corporate independent expenditures supporting and opposing candidates for political office, including advertisements in newspapers and on billboards, television, radio and the Internet; endorsing candidates and informing businesses of those endorsements; placing endorsements on websites; using blogs to post messages of support or endorsement; encouraging Chamber members to endorse or support certain candidates; coordinating rallies; and organizing and staffing telephone banks, see Comp. ¶ 24. The three plaintiffs have refrained from engaging in these independent corporate expenditures when they would seem to be prohibited by the defendant Michigan Secretary of State Terri Lynn Land (“Seeretary”)’s interpretation of the MCFA, see Comp. ¶29. Plaintiffs instituted this action on July 12, 2010 by filing a complaint and ex paite applications for temporary restraining order, preliminary and permanent injunctive relief, and declaratory relief. Defendant Land is named only in her official capacity as Secretary of State and therefore chief elections officer for the State of Michigan. See Comp. ¶¶ 9-12. The Chamber complains that Secretary Land’s interpretation of the Michigan Campaign Finance Act, Mich. Comp. Laws § 169.201 et seg., violates their First Amendment rights to freedom of speech and freedom of association by restricting their right to make certain “independent” political expenditures during and in connection with campaigns for state elective office. The Chamber persuasively contends that the need to remove the putatively unconstitutional restrictions is urgent given the approach of Michigan’s upcoming party primary elections on August 3, 2010 and the general election on November 2, 2010. Specifically, the Chamber attacks the Secretary’s interpretation and application of section 54, subsection 1 of the MCFA, which provides as follows: Except with respect to the exceptions and conditions in subsections (2) and (3) and section 55 [Mich. Comp. Laws § 169.255], and to loans made in the ordinary course of business, a corporation, joint stock company, domestic dependent sovereign, or labor organization shall not make a contribution or expenditure or provide volunteer personal services that are excluded from the definition of a contribution by section 4(3)(a) [Mich. Comp. Laws § 169.204(3)(a), i.e., certain volunteer services or travel cost reimbursement less than $500 in a calendar year], Mich. Comp. Laws § 169.254(1) (emphasis added). In turn, MCFA section 4(1) defines a contribution to mean a payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, or donation of money or anything of ascertainable monetary value, or a transfer of anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage or defeat of a ballot question. Mich. Comp. Laws § 169.204(1) (emphasis added). “[W]hen a statute specifically defines a given term, that definition alone controls.” Tryc v. Michigan Veterans’ Facility, 451 Mich. 129, 136, 545 N.W.2d 642 (Mich.1996) (“Applying these principles, the definition of ‘hospital’ supplied in the statute, being clear and unambiguous, controls. Judicial construction is not permitted.”) (citing, inter alia, Butterfield Theatres, Inc. v. Revenue Dep’t, 353 Mich. 345, 91 N.W.2d 269 (Mich.1958)) (footnote omitted). An individual who knowingly violates MCFA section 54(1) by making such a contribution is guilty of a felony punishable by a fine up to $5,000 and/or a prison sentence up to three years; a corporation or labor union which knowingly does so is guilty of a felony punishable by a fíne up to $10,000. See Mich. Comp. Laws § 169.254(4). The Chamber, the PAC, and Sterling Consulting all propose and intend to engage in campaign activities and expenditures which are prohibited by Mich. Comp. Laws § 169.254 as interpreted by the Secretary, and they fear that the Secretary will initiate criminal prosecution against them and their officers, employees and agents if they do so. See Comp. ¶ 16. After the United States Supreme Court issued its opinion in Citizens United v. Federal Election Commission, — U.S. -, 130 S.Ct. 876, — L.Ed.2d - (2010), the Chamber on February 19, 2010 wrote a letter to Secretary Land requesting a declarative ruling or interpretive statement of portions of the MCFA. The Chamber’s request stated the following facts: 1. The Chamber is a Michigan nonprofit corporation and a trade association, and is an interested person whose course of action would be affected by a declaratory ruling. 2. The Chamber’s members consist of more than 7,000 entities, many of them corporations. 3. MCPAC III will not be a separate segregated fund of the Chamber under section 55 of the MCFA (MCL 169.255). 4. MCPAC III will be a distinct and separate entity. Its funds and assets will not be commingled with those of the Chamber, the Michigan Chamber PAC, the Michigan Chamber PAC II, or any other entity. 5. Contributions to MCPAC III would come from the following sources: a. Contributions from persons that [sic] were specifically solicited or received for the express purpose of making a contribution to MCPAC III. b. Chamber treasury funds. 6. MCPAC III would report contributions from the Chamber treasury as being from the Chamber. MCPAC III would report contributions from another person’s treasury funds as being made from that person. 7. The Chamber intends to make in-kind contributions to MCPAC III, “including, but not limited to, in-kind contributions with respect to the administration and solicitation of contributions to MCPAC III.” Complaint filed July 12, 2010 (“Comp.”), Exhibit (“Ex.”) A (May 21, 2010 Declaratory Ruling and Interpretive Statement of Michigan Secretary of State Terri Lynn Land) at 1-2. Secretary Land issued her declaratory ruling on May 21, 2010, construing the Chamber’s request as “focus[ing] on the applicability of the Act’s registration and reporting requirements to corporate independent expenditures.” Comp. Ex. A at 2. In pertinent part, the Secretary’s ruling answered the Chamber’s questions as follows: In Citizens United, the United States Supreme Court overruled its decision in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 [110 S.Ct. 1391, 108 L.Ed.2d 652] (1990). By overruling Austin, the Supreme Court declared that section 54 of the MCFA (MCL 169.254) is unconstitutional to the extent that it prohibits independent expenditures by corporations, labor organizations or domestic dependent sovereigns (collectively referred to as “corporations” for purposes of this response). However, as pointed out in your request, Citizens United left in effect the prohibition against “contributions” as defined in section 4 of the Act [Mich. Comp. Laws § 169.204(3)(a) ] from those organizations. 2. “Whether Michigan Chamber PAC III may make ‘independent expenditures’ on behalf of candidates (as defined in the Act) pursuant to the Act?” Yes. It is clear that the MCFA cannot constitutionally prohibit a corporation from making independent expenditures to express its own views in support of or opposition to candidates in Michigan elections. 3. “Whether Michigan Chamber PAC III may only engage in express advocacy activities for candidates by making independent expenditures pursuant to the Act?” The limited impact of Citizens United under the MCFA is that it allows a corporation to make and report independent expenditures by engaging in political speech that expressly advocates the nomination or election of state and local candidates. The express advocacy must consist of the corporation’s own political speech and be funded exclusively by that corporation. 4. “Whether Michigan Chamber PAC III may make contributions to another political committee which contains funds derived from Section 54 entities?” No. Citizens United only lifted the section 54 ban on independent expenditures. The ban on contributions remains intact and cannot be avoided by transferring corporate funds to MCPAC III and then contributing those funds to another committee. Moreover, an MCPAC III contribution to another political committee would not be an “independent expenditure” permitted under Citizens United. Pursuant to section 9(2) of the MCFA (MCL 169.209), an “independent expenditure” is 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.” (Emphasis added.) Comp. Ex. A at 1 (First ¶ break added) and 4. A June 20, 2010 newspaper editorial by Secretary Land further illustrates her interpretation of Citizens United: [T]he Court held it is unconstitutional to bar corporations, labor organizations and domestic dependent sovereign nations (Indian tribes) from using their general treasury funds to make independent expenditures on behalf of federal, state or local candidates. In essence, the Court ruled that these entities can voice their direct support [of] or opposition to candidates. This decision, Citizens United v. Federal Election Commission, overruled the Court’s 1990 ruling in Austin v. Michigan Chamber of Commerce .... In response, the Department of State issued guidance on how corporations, unions and tribes wishing to make independent expenditures should disclose this information in accordance with the Michigan Campaign Finance Act. * * * First, please note that the Supreme Court did not lift its existing ban on direct contributions. Corporations (and other entities) still cannot make contributions to candidates themselves or their [the candidates’] political committees. However, corporations may now make independent expenditures by engaging in political speech that expressly advocates the nomination or election of state and local candidates. Each corporation must exclusively use its own general treasury funds to express its political views. A corporation may not solicit contributions from other sources[,] and treasury funds from other corporations cannot be contributed for the purpose of funding these independent expenditures. Any corporation that does so would violate the MCFA and be subject to criminal penalties. Comp. Ex. B (Lansing State Journal of June 20, 2010 at 11A, unnumbered ¶¶ 2-7). In other words, Secretary Land interprets Mich. Comp. Laws § 169.254(1) to prohibit the Chamber, Sterling or any other corporation from making a monetary payment to the PAC for the purpose of the PAC making independent expenditures, (2) prohibit the Chamber from soliciting anyone to contribute to the PAC for that purpose, and (3) thereby prevent the PAC from making independent expenditures, because it could not receive “contributions” from the Chamber, Sterling Consulting, a Chamber member, or any other eorporation. See’ Comp, at 1-2. The plaintiffs maintain that such payments by itself or its corporate members do not constitute “contributions” (through the PAC) to the candidate benefitted by the independent expenditures. This is a significant, potentially dispositive disagreement, because Supreme Court case law permits a State to prohibit corporations and labor unions from making “contributions” to candidates. Conversely, that same case law does not permit a State to. abridge a corporation or labor union’s right to make “independent expenditures”, which are intended to benefit and presumably do benefit particular candidates but are not given directly to the candidate or his candidate or party committee (nor coordinated with or controlled by the candidate). This Controversy is Ripe for Adjudication. The Secretary contends that this as-applied challenge to Mich. Comp. Laws § 169.254(1) is not ripe for adjudication for the following reasons: [O]ther than stating that Plaintiffs would like to engage in the activities described in ¶ 24 of their complaint, Plaintiffs do not demonstrate that they have made any significant preparations for engaging in such activity, or that they are immediately prepared to begin such activities. Thus, it is not clear that the harm Plaintiffs allege — enforcement of the MCFA by the Secretary — will come to pass any time soon. Second, no factual record has been developed that will produce a fair adjudication on the merits of Plaintiffs’ as-applied First Amendment claim. Without engaging in any activities or making any contributions or expenditures against which to assess the law, Plaintiffs’ claims cannot be fairly decided. This case does not present solely a question of law. Finally, it is not clear what hardship Plaintiffs will suffer if the Court denies relief at this stage. * * * Moreover ... Plaintiff corporations are free to engage in all of the described activities on their own or jointly [with other corporations, but not, according to the Secretary, by banding together with other corporations to pay money to the PAC for the PAC to make independent expenditures benefitting a candidate]. Secretary’s Opp. (Doc. 11) at 20 (paragraph break added). The court disagrees. Designed to ensure that the federal courts resolve “existing, substantial controversies,” Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir.2002), not disputes “anchored in future events that may not occur as anticipated” or may not occur at all, Nat’l Rifle Ass’n of America v. Magaw, 132 F.3d 272, 284 (6th Cir.1997), the ripeness doctrine ensures that a dispute is concrete and real before the judicial branch resolves it. See Carey v. Wolnitzek, Nos. 08-6468 and 08-6538, 614 F.3d 189, 195-96 (6th Cir.2010) (J. Sutton, joined by J. Batchelder, with D.J. Wise-man concurring in pertinent part). The doctrine, “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction,” the ripeness doctrine seeks to avoid premature adjudication of legal questions, thus preventing courts from “entangling themselves in abstract debates that may turn out differently in different settings.” Warshak, 532 F.3d at 525. It is the plaintiffs’ burden to show that their as-applied challenge is ripe for review. See Connection Dist’g Co. v. Holder, 557 F.3d 321, 342 (6th Cir.) (J. Sutton for the Court, joined by J. Griffin and nine others) (ere banc), cert. denied, — U.S. -, 130 S.Ct. 362, 175 L.Ed.2d 30 (2009). As the Secretary notes, Opp at 20, three considerations inform the doctrine: Is the alleged injury likely to occur? Is the factual record sufficiently developed to resolve the question? And what kinds of hardships, if any, will the parties if the court delays resolution of the question? Carey, 614 F.3d at 195-96 (citing Warshak v. US, 532 F.3d 521, 525 (6th Cir.2008) (ere banc)). The Secretary neglects to mention, however, that “[i]n the context of a free-speech ... challenge like this one, a relaxed ripeness applies to steer clear of the risk that the law ‘may cause others not before the court to refrain from constitutionally protected speech or expression.’ ” Carey, 614 F.3d at 195-96 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). The court intimates no opinion as to whether this complaint could meet the customary ripeness standard, finding only that it satisfies the relaxed ripeness standard governing free-speech cases. Essentially, the Secretary would have the plaintiffs either not exercise what they colorably believe to be their First Amendment rights, or exercise those rights and take their chance on being prosecuted for a felony offense under Michigan law, see Mich. Comp. Laws § 169.254(4). In a very similar Free Speech context, Justice Scalia respond to the FEC’s assurance that enforcement of a statute was an uncertain prospect: So you’re — you are a lawyer advising somebody who is about to come out with a book and you say don’t worry, the FEC has never tried to send someone to prison for this. This statute covers it, but don’t worry, the FEC has never done it. Is that going to comfort your client. I don’t think so. Transcript of Oral Argument in Citizens United v. FEC, 558 U.S. -, 130 S.Ct. 876, — L.Ed.2d - (2010), attached as P’s Reply Ex N. It is undisputed that all three plaintiffs are ready to engage in activities which are arguably protected by the First Amendment, see Comp. ¶¶ 16-31; Comp. Ex. D (Studley Aff.) ¶¶ 5-6 and 8; Comp. Ex. E (LaBrant Aff.) ¶¶5-6 and 10; Comp. Ex. F (Linder Aff.) ¶¶ 2-3 and 6, but are not doing so due to their fear of prosecution under the Secretary’s interpretation of MiCH. Comp. Laws § 169.254(1), see Comp. Ex. D ¶¶ 9 & 11, Comp. Ex. E ¶¶ 7 & 9, and Comp. Ex. F ¶¶ 5 & 7. Thus this matter is ripe for decision. See Carey, 614 F.3d at 195-96 (“In future judicial elections, as in prior ones, he claims an interest in engaging in protected speech that implicates, if not violates, each clause. He wants to let voters know his party affiliation. He wants to solicit campaign funds directly, as opposed to indirectly via an election committee. And he wants to answer judicial questionnaires propounded by a local right-to-life organization. These aspects of the canon at least chill, and in some instances prohibit, these forms of communication, and in the course of the November 2006 election, at least until the entry of the October 2006 injunction, Carey, censored himself on each topic. All of this establishes a ‘credible fear of enforcement,’ Norton, 298 F.3d at 554, sufficient to overcome any ripeness concerns.”). Plaintiff Chamber’s Failure to Exhaust Its State Administrative Remedies Does Not Require or Counsel this Court to Decline Jurisdiction over this Section 1983 Action. Under state law, “[a] declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case.” Mich. Comp. Laws § 24.263. Namely, the plaintiffs had sixty calendar days to notice an appeal from the Secretary’s interpretive ruling, first to the circuit court and then, if necessary, to the Michigan Court of Appeals and Michigan Supreme Court. See Mich. Comp. Laws §§ 24.263 and 24.301 and 24.304(1). Parties dissatisfied with the Secretary’s interpretation of the MCFA have availed themselves of this route before. See, e.g., MEA v. Michigan SOS, 280 Mich.App. 477, 483, 761 N.W.2d 234, 237 (Mich.App.2008) (P.J. Wilder, O’Connell, Whitbeck) (“Respondent Secretary of State appeals by leave granted the trial court order setting aside as arbitrary and capricious respondent’s declaratory ruling interpreting § 57 of the Michigan Campaign Finance Act.”), app. granted on other grounds, 486 Mich. 952, 782 N.W.2d 507 (Mich.2010). It is undisputed that the plaintiffs have not pursued such an appeal. The Secretary contends that [bjecause Plaintiff invoked the administrative process, which entitled it to direct review in the state courts, Plaintiff Chamber should be required to exhaust that process before seeking relief in this Court. There is no reason to believe that appealing to the circuit court would have been futile, and any concern over timeliness could have been resolved by seeking an injunction and expedited relief from the court. State’s Opp. at 19-20. Under Michigan law, the presence of constitutional issues does not necessarily relieve a party aggrieved by an SOS declaratory ruling of its duty to appeal through the state courts as specified by Michigan statute. As the Michigan Court of Appeals stated in a recent published decision, Plaintiff associations were required to exhaust their administrative remedies because they sought review of defendant’s interpretation of the MCFA and because the remedies afforded by the act “are the exclusive means by which this act may be enforced.” M.C.L. § 169.215(16) (emphasis added). With respect to Count III, which raised constitutional challenges, the mere framing of an issue as constitutional does not excuse plaintiff associations “from pursuing statutorily imposed administrative remedies when other issues are in controversy.” Huron Valley Schs. v. Michigan Sec’y of State, 266 Mich.App. 638, 653, 702 N.W.2d 862, 870 (Mich.App.2005) (quoting WA Foote Mem. Hosp. v. Dep’t of Pub. Health, 210 Mich.App. 516, 524, 534 N.W.2d 206 (Mich.App.1995)), app. den., 474 Mich. 1085, 711 N.W.2d 336 (Mich.2006). The Michigan courts do hold that “[e]xhaustion of administrative remedies is not an inflexible condition precedent to judicial consideration ... and will not be required if review of the agency’s final decision would not provide an adequate remedy....” Citizens for Common Sense in Gov’t v. Michigan Atty. Gen., 243 Mich.App. 43, 53, 620 N.W.2d 546, 552 (Mich.App.2000) (quoting IBM Corp. v. Dep’t of Treasury, 75 Mich.App. 604, 610, 255 N.W.2d 702, 707 (Mich.App.1977) (P.J. Bashara, Cavanagh, Riley) (citing Mich. Comp. Laws § 24.301 and M.S.A. § 3.560(201))). In this vein, the complaint asserts that “Plaintiffs are seeking relief that could not be granted by the Defendant in a declaratory ruling, and therefore, could not be granted by a State Court in an appeal of a declaratory ruling.” Comp. ¶ 19. To the extent that plaintiffs rest on the notion that the Secretary of State — or state courts reviewing the Secretary’s ruling — cannot address constitutional claims, the court must reject that notion. Michigan’s state courts are perfectly well qualified to consider and rule intelligently on federal constitutional claims. See Nevers v. Killinger, 169 F.3d 352, 371 (6th Cir.1999) (“ ‘State courts are fully qualified to identify constitutional error....’”) (C.J. Rehnquist for the majority) (quoting Brecht v. Abrahamson, 507 U.S. 619, 636, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)), abrogated o.g. by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000); Morris v. Bell, No. 96-5510, 124 F.3d 198, 1997 WL 560055, *2 (6th Cir. Sept. 5,1997) (Batchelder, Moore, Cole) (“The Supreme Court has consistently recognized that the state courts are fully empowered to adjudicate federal rights adequately, and federal courts may not assume that the state courts will fail to carry out that responsibility.”) (citing Ex Parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 29 L.Ed. 868 (1886) (stating that, under our federal system, the federal and state courts are “equally bound to guard and protect rights secured by the Constitution”)). Experience shows that in appropriate cases, the Michigan courts can consider such federal constitutional issues on appeal from an SOS ruling. For example, in Swinehart v. Michigan Sec’y of State, 27 Mich.App. 318, 183 N.W.2d 397 (Mich.App.1970) (P.J. Quinn, Brennan, Cir. J. Ziem), Swinehart appealed from the Secretary of State’s determination that the procedure for challenging non-renewal of driver’s license did not violate his constitutional rights. The Michigan Court of Appeals would have entertained the appeal if not for the fact that the Secretary had issued Swinehart a license and the situation was unlikely to recur, rendering the appeal moot. Swinehart, 27 Mich.App. at 320-21, 183 N.W.2d at 398-99. Nonetheless, as a matter oí federal law, exhaustion of administrative remedies is simply not required in non-prisoner actions under 42 U.S.C. § 1983. In other words, the exhaustion of administrative remedies is not a jurisdictional prerequisite for non-prisoner section 1983 actions as it is with some other types of federal-court actions. The Secretary cites Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) for the proposition that “[wjhile the exhaustion of state administrative remedies is generally not required as a prerequisite to bringing an action pursuant to 42 U.S.C. § 1983, this Court has discretion to require exhaustion.” State’s Opp. at 17-18 with n. 48. Patsy stands for no such proposition. Rather, Patsy merely recognized that Congress has “created a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983.” Patsy, 457 U.S. at 508, 102 S.Ct. 2557 (discussing The Civil Rights of Institutionalized Persons Act, particularly 42 U.S.C. § 1997e). Far from recognizing or intimating a district court’s discretion to require other section 1983 plaintiffs to exhaust state administrative remedies, Patsy declared that Section 1997e and its legislative history demonstrate that Congress understood that exhaustion is not generally required in section 1983 actions, and that it decided to carve out only a narrow exception to this rule. A judicially imposed exhaustion requirement would be inconsistent with Congress’ decision to adopt § 1997e and would usurp policy judgments that Congress has reserved for itself. Patsy, 457 U.S. at 508, 102 S.Ct. 2557; see, e.g., Cramer v. Vitale, 359 F.Supp.2d 621, 628 (E.D.Mich.2005) (John Corbett O’Meara, J.) (in First Amendment free-speech action, court stated, “To require plaintiff to exhaust state judicial remedies before proceeding on a 1983 claim is contrary to the Supreme Court’s holding in both Patsy and Williamson [Cty. Reg. Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) ].”). Thus, the Secretary has presented no authority, binding or persuasive, in support of her assertion that this court has discretion to decline jurisdiction solely due to the plaintiffs’ failure or refusal to seek review of the Secretary’s decision in the Michigan state courts. The court finds no such authority, but need not decide this issue today in any event. To the extent that this court might have discretion to decline jurisdiction due to lack of exhaustion, whether under Younger, under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) as urged by the Secretary (Gov’s Opp. at 20-21), or under Colorado River the court chooses to exercise jurisdiction and reach the merits of this important controversy, which clearly favor the plaintiffs. See generally Wright v. Morris, 111 F.3d 414, 421 (6th Cir.1997) (“Sending these plaintiffs back to exhaust their administrative remedies would, of course, lighten this court’s docket, at least temporarily. However, ‘policy considerations alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent.’ ”) (quoting Patsy, 457 U.S. at 513, 102 S.Ct. 2557). As a final note on the exercise of jurisdiction, the Secretary contends that plaintiffs’ federal section 1983 cause of action is defeated as a matter of law by the MCFA, which provides as follows: There is no private right of action, either in law or in equity, under this act. The remedies provided in this act are the exclusive means by which this act may be enforced and by which any harm resulting from a violation of this act may be redressed. Mich. Comp. Laws § 169.215. The Secretary also relies on decisions holding that “ ‘[a] declaratory judgment action cannot be maintained to resolve disputes which are within the exclusive jurisdiction of an administrative agency.’” State’s Opp. at 18 (quoting Huron Valley Schs. v. Michigan SOS, 266 Mich.App. 638, 646, 702 N.W.2d 862 (Mich.App.2006) (quoting St. Paul Fire & Marine Ins. Co. v. Littky, 60 Mich.App. 375, 378, 230 N.W.2d 440 (Mich.Ap.1975))) and citing Citizens for Common Sense in Gov’t v. Atty. Gen., 243 Mich.App. 43, 50, 620 N.W.2d 546 (Mich.App.2000) (“if the Legislature has expressed an intent to make an administrative tribunal’s jurisdiction exclusive, then the circuit court cannot exercise jurisdiction over those same areas.”). The Secretary’s argument on this score lacks merit for at least two reasons. First, it is not at all clear that the Michigan Legislature intended to commit federal constitutional claims to the exclusive jurisdiction of the Secretary. Indeed, that would be an odd and counterintuitive move, as there is no reason to believe that the Secretary has any particular expertise, compared to the federal and state courts, in interpreting the U.S. Constitution. Second, even if the Michigan Legislature through the aforementioned provisions intended to commit federal constitutional issues to the exclusive jurisdiction of the Secretary (with an "appeal to the state courts), the Legislature lacked authority to do so. Although the Tenth Amendment’s text and the very structure and history of the Constitution reserve substantial powers to the States rather than the federal government, there is no precedent suggesting that a State may presume to effectively block federal courts from entertaining federal constitutional challenges to state regulatory action and interpretation. The federal courts and the state courts of Michigan generally have concurrent jurisdiction to adjudicate federal constitutional claims, and the Secretary proffers no authority that this situation presents an exception. Having decided to exercise jurisdiction, the court must address one more issue before turning to the merits: the Secretary’s laches defense. The Secretary contends that the plaintiffs delayed inexcusably in bringing this action, and then demanding relief before the August 3, 2010 primary. The Secretary issued her declaratory ruling on May 21, 2010. Had Plaintiff Chamber of Commerce appealed to the [state] circuit court shortly thereafter, the issues presented here could have been decided by the state courts in a more timely and sensible manner before the primary. [T]here seems to be no reason why the instant lawsuit was not filed shortly after the declaratory ruling. Instead, Plaintiffs waited 59 days from the ruling to file their lawsuit, leaving only 23 days within which to address matters before the August 3 primary. Plaintiffs should not be rewarded for delaying filing, thereby creating their own “emergency” need for relief. Gov’s Opp. at 21-22. The court disagrees with the Secretary and will not dismiss the complaint on the basis of laches. The Secretary shows that the first element of laches is satisfied (lack of reasonable diligence by the plaintiffs), but she fails to satisfy the second element (material prejudice to the Secretary and/or the State of Michigan or its voters). Preliminarily, “[a] constitutional claim can become time-barred just as any other claim can”, US v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 9, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008) (Roberts, C.J., for a unanimous Court) (citation omitted), and the determination of whether laches applies is a question for the court, not a jury, see Bonner Farms v. Fritz, 355 Fed.Appx. 10, 18 (6thCir.2009) (citing, inter alia, Int’l Union v. Cummins, Inc., 434 F.3d 478, 487 (6th Cir.2006)). “Laches arises from an extended failure to exercise a right to the detriment of another party,” Ottawa Tribe of Oklahoma v. Logan, 577 F.3d 634, 639 n. 6 (6th Cir.2009). A party asserting laches must show (1) lack of diligence by the party against whom the defense is asserted, here the plaintiffs, and (2) prejudice to the party asserting the defense. See Bridgeport Music, Inc. v. Justin Combs. Pub., 507 F.3d 470, 493 (6th Cir.2007) (citing Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 231 (6th Cir.2007) (citation omitted)). Whether the party confronted with a laches defense has been sufficiently diligent is a fact-dependent inquiry. In other words, how quickly a party must seek judicial review of a challenged statute or state action depends on all the circumstances. As Judge Lioi recently stated, “[i]t is well established that in election-related matters, extreme diligence and promptness are required.” McClafferty v. Portage Count Bd. of Elections, 661 F.Supp.2d 826, 839 (N.D.Ohio 2009). Thus, the court must evaluate the plaintiffs’ diligence, or lack thereof, in the context of a rapidly approaching election, the party primaries on August 3, 2010. That primary election (1) has been scheduled for many months according to predictable, known law, which apparently has not changed this year, and (2) can be expected to involve hundreds of thousands, if not more than a million voters across an entire, sizeable State. This is even more true of the general election, with its likely greater voter participation compared to the primaries. Even when asserting a colorable constitutional claim, a party reasonably can be expected to act more quickly than the plaintiffs did here. The plaintiffs certainly knew, or should have known, of the logistical difficulty, inefficiency, and confusion that may result if the Secretary’s statutory interpretation is struck down or judicially modified close in time to the elections. After filing the complaint, a TRO/PI application, and a reply brief, the plaintiffs have not identified a persuasive reason for waiting until July 12 to file this action. Accordingly, the court finds that the plaintiffs did not act with reasonable diligence in bringing this action nearly two full months after the Secretary issued her declaratory interpretive ruling on May 21, 2010. For these reasons, the court determines that the Secretary has established the first element of laches. But the Secretary does not come close to establishing the second element of laches: she fails to show how her office, or the State of Michigan or its voters or citizens or corporations generally, have been meaningfully prejudiced by the plaintiffs’ undue delay. It is true that “[t]he state has a compelling interest in the orderly process of elections. Court[s] can reasonably endeavor to unnecessarily precipitate changes that would result in immense administrative difficulties for election officials.” New Democratic Coalition v. Austin, 41 Mich.App. 343, 356-57, 200 N.W.2d 749 (Mich.1972) (per curiam) (citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)). In our case, however, the Secretary has not alleged, let alone provided evidence of, some substantial administrative or logistical difficulties, confusion, disorganization, or expense which would be caused if the court allowed the plaintiffs to press these admittedly delayed constitutional claims. See Bogaert v. Land, 572 F.Supp.2d 883, 897 (W.D.Mich.2008) (Robert Holmes Bell, J.) (“The injunctive relief sought by Plaintiff does not pose the same potential for creating ‘immense administrative difficulties for election officials’ as the injunctive relief sought by the plaintiffs in New Democratic Coalition. Moreover, Wayne County Intervenors have not articulated what change of material condition warrants the application of laches. Therefore, the doctrine of laches does not bar Plaintiffs lawsuit.”), recon. denied, 2008 WL 4155338 (W.D.Mich. Aug.29, 2008), app. dismissed, 543 F.3d 862 (6th Cir.2008) (government’s appeal was moot, given that the specific steps ordered by the preliminary injunction it challenged had already been done and could not be un-done). Having decided to exercise jurisdiction and rejected the Secretary’s laches defense, the court turns now to the propriety of preliminary injunctive relief. On Tuesday, July 13, 2010, this court denied the Chamber’s application for a TRO, but took under advisement its application for a preliminary injunction. See Michigan Chamber of Commerce et al. v. Michigan Sec’y of State, 2010 WL 2757975 (W.D.Mich. July 13, 2010) (Maloney, C.J.) (“Chamber 1 ”). The court provided the following preliminary analysis: The MCFA defines “contribution” broadly to include: a payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, or donation of money or anything of ascertainable monetary value, or a transfer of anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. M.C.L. § 169.204(1). The MCFA excludes limited volunteer services from the definition of “contribution.” M.C.L. § 169.204(3)(a). The MCFA prohibits corporations from making contributions that are “excluded from the definition of a contribution pursuant to section 4(3)(a).” M.C.L. § 169.254(2). Plaintiffs assert, based on the declaratory ruling issued by Defendant, [that] their ability to exercise their freedom of speech has been unconstitutionally restricted, with the threat of criminal sanctions as enforcement. Specifically, Plaintiffs claim Defendant’s interpretation of the statute prevents the political action committee from receiving contributions from corporations for the purpose of making independent expenditures, prevents corporations from contributing to the political action committee, and prevents the corporations from soliciting contributions on behalf of the political action committee. A. Likelihood of Success on the Merits This factor does not weigh in favor of or against the issuance of a temporary restraining order. Plaintiffs base their claim on the holding in Citizens United. The holding in Citizens United does not clearly resolve the questions raised. Citizens United did not directly address the sort of restrictions on corporate contributions at issue here, although the rationale in Citizens United may implicate the rationale supporting the restrictions found in the Michigan statute. The other authority cited by Plaintiffs also does not directly address the questions raised here. The court is currently without the benefit of a response to the motion by Defendant. B. Iri'eparable Harm This factor weighs slightly in Plaintiffs’ favor. The United States Supreme Court has held that “[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The Michigan primary election will be held on August 3, 2010. Defendant’s interpretation of the MCFA does not ban corporate speech; corporations may use their general revenue funds for their own independent expenditures. Defendant’s interpretation of the MCFA restricts corporations from contributing [their] general revenue funds to other third parties for the purpose of independent expenditures. Plaintiffs were aware of Defendant’s interpretation of the statute approximately seven weeks before this suit was filed. The court will hold a preliminary injunction hearing nine (9) calendar days from the entry of this order. Given the time parameters, this factor leans somewhat in Plaintiffs’ favor. C. Balance of Harm to Defendant and Others This factor does not weigh in favor or against granting the temporary restraining order. In this instance, declining to grant Plaintiffs’ request for a temporary restraining order assures a continuation of the status quo, pending a hearing on a preliminary injunction. It is unclear how Defendant or others would be affected, either beneficially or in some negative manner, by a temporary restraining order. D.Public’s Interest This favor weighs against issuing a temporary restraining order. The public has an interest in having the laws enacted by its representatives enforced. Courts must begin with the presumption that the challenged statute is constitutional. [footnote: The court, like Defendant, acknowledges that the holdings in Citizens United have rendered portions of the MCFA unconstitutional]. Specifically, after Citizens United, statutes may not constitutionally prohibit corporations from making independent expenditures to express the corporation’s views in support of or in opposition to a political candidate. See I.N.S. v. Chada, 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Fairbank v. United States, 181 U.S. 283, 285, 21 S.Ct. 648, 45 L.Ed. 862 (1901); see also Turner Broadcasting Sys., Inc. v. FCC, 507 U.S. 1301, 1301, 113 S.Ct. 1806, 123 L.Ed.2d 642 (1993) (rejecting a request for an injunction against enforcement of certain sections of a statute and holding that “[t]he 1992 Cable Act, like all Acts of Congress, is presumptively constitutional” and further noting that the applicants were “not merely requesting the stay of a lower court’s order, but an injunction against the enforcement of a presumptively valid Act of Congress” which would alter the legal status quo) (Rehnquist, C.J.). As explained by Defendant Land in a statement published in the Lansing State Journal, she must administer the laws enacted by the Leg'islature, [and] she cannot make new laws. (PL Ex. B.) The balance of the four factors weighs against issuing a temporary restraining order. To be clear, the court has not concluded that Defendant’s interpretation is correct or that Plaintiffs’ correctly claim that the state law is unconstitutional. The court merely concludes that Plaintiffs have not established that an emergency is occurring which justifies the need for immediate action without affording Defendant an opportunity to be heard. Two of the factors are neutral. The irreparable harm factor weighs slightly in Plaintiffs’ favor, while the interest of the public weighs more strongly against issuance of the temporary restraining order. The harm Plaintiffs will suffer between now and the hearing on a preliminary injunction is the same harm they have suffered for the past seven weeks. Michigan Chamber 1, 2010 WL 2757975 at *2-3 (some paragraph breaks added). As the Court anticipated, the Secretary has interposed an aggressive defense of Michigan’s statutes in light of Citizens United. However, since the denial of the TRO, the court has had the benefit of full briefing, oral argument, and time for fuller consideration, which leads the court to conclude that preliminary injunctive relief is warranted. Test for Preliminary Injunctive Relief. “The level of proof required for the Plaintiff to obtain a preliminary injunction or TRO ‘is much more stringent than the proof required to survive a summary judgment motion.’ ” Luckett v. U.S. Bank Nat’l Ass’n, 2009 WL 22858, *2 (E.D.Mich. Jan. 5, 2009) (quoting Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000)); see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (“[W]hat is at issue is not even a defendant’s motion for summary judgment, but a plaintiffs motion for preliminary injunctive relief, as to which the requirement for substantial proof is much higher.”). To obtain preliminary injunctive relief, the plaintiff must show that he is being threatened with a legally cognizable irreparable injury for which there is no adequate legal remedy (such as monetary damages). Audi AG v. D’Amato, 469 F.3d 534, 550 (6th Cir.2006) (citing eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (Thomas, J.)). When deciding whether to issue a PI, this court considers (1) whether the plaintiffs have shown a substantial likelihood that they will prevail on the merits, (2) whether there is a threat of irreparable harm to the plaintiffs if the injunction does not issue, (3) whether issuance of the injunction would substantially harm others, and (4) whether issuance of the injunction would serve the public interest. Essroc Cement Corp. v. CPRIN, Inc., 593 F.Supp.2d 962, 967 (W.D.Mich.2008) (Maloney, C.J.) (citing, inter alia, Warshak v. US, 490 F.3d 455, 465 (6th Cir.2007)). The standard is the same whether the applicant seeks an injunction which requires the adversary to do something (a mandatory injunction) or an injunction which forbids the adversary to do something (a prohibitive injunction). See PACCAR, Inc. v. TeleScan Techs., LLC, 319 F.3d 243, 249 n. 4 (6th Cir.2003) (citing United Food & Commercial Workers Union, Local 1099 v. S.W. Ohio Reg. Transit Auth., 163 F.3d 341, 348 (6th Cir.1998)), abrogated on other grounds by KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004). The failure to show any likelihood of success on the merits — let alone a strong or substantial likelihood of success—is enough, by itself, to warrant denial of preliminary injunctive relief. See Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir.2006) (“a finding of no likelihood of success ‘is usually fatal’ ”) (quoting Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir.2000)); see also Essroc Cement Corp. v. CPRIN, Inc., 593 F.Supp.2d 962, 967 n. 1 (W.D.Mich.2008) (Maloney, C.J.) (“Our Circuit has not yet expressly called the likelihood of success on the merits [a] sine qua non of preliminary injunctive relief. It has held, however, that it [i]s not error to dispense with analysis of the other three factors where the movants ma[k]e a weak showing on the merits.”) (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000) and Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.2003)). DISCUSSION: FIRST AMENDMENT AND ELECTION LAW Likelihood of Success on the Merits of the First Amendment Claim. The first of the four factors strongly favors the issuance of preliminary injunctive relief. The United States Supreme Court recently reaffirmed that “speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection....” Holder v. Humanitarian Law Project, — U.S. -, 130 S.Ct. 2705, 2732, 177 L.Ed.2d 355 (2010) (Roberts, C.J., for the majority) (citing, inter alia, N.Y. Times Co. v. Sullivan, 376 U.S. 254, 259, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (the Founding Fathers fashioned the First Amendment “ ‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ”) (quoting Roth v. US, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957))) (emphasis omitted). The Court has gone so far as to declare that instruments articulating or disseminating ideas and opinions in the political arena are “weapons in the defense of liberty.” Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938) (rejecting licensing scheme for pamphlets and leaflets). See also Siefert v. Alexander, 608 F.3d 974, 983-84 (7th Cir.2010) (Tinder, joined by Flaum, with Rovner dissenting in part on other grounds) (“ ‘Speech about the qualifications of candidates for public office’ is ‘at the core of our First Amendment freedoms.’ ”) (quoting Republican Party of Minnesota v. White, 536 U.S. 765, 774, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (Sealia, J., for the majority)). The court determines that the independent expenditures proposed by the plaintiffs—and the solicitation and pooling of funds they propose in order to make those expenditures both larger and more effective—qualify as core political speech. That speech must be protected to the fullest extent possible, because “the First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference.” NY State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 209, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008) (J. Scalia, for the Court, joined by all JJ. except Kennedy) (emphasis in original). Applicable Level of Scrutiny. If a statute regulates conduct and only incidentally burdens freedom of speech and expression, it is subject only to intermediate scrutiny; under that standard, “a content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Holder v. Humanitarian Law Project, — U.S. -, 130 S.Ct. 2705, 2723, 177 L.Ed.2d 355 (2010) (Roberts, C.J., for the majority) (quoting Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 189, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (citing US v. OBrien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (rejecting draft-card burner’s First Amendment challenge to a conviction under a general prohibition on destroying conscription identification card))). The court determines that the challenged provision— Mich. Comp. Laws § 169.254(1) as interpreted by the Secretary of State — is not such a provision. Rather than only “incidentally” burdening the freedoms of speech and association, that section as interpreted by the Secretary directly, substantially, and purposefully burdens those freedoms. As a law that burdens political speech, Mich. Comp. Laws § 169.254(1) (as interpreted by the Secretary) is “ ‘subject to strict scrutiny’, which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ ” Citizens United v. Federal Election Commission, — U.S. -, 130 S.Ct. 876, 898, — L.Ed.2d - (2010) (quoting Federal Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 2664, 168 L.Ed.2d 329 (2007) (Roberts, C.J., for the Court, joined by JJ. Alito, Scalia, Kennedy and Thomas) (citations omitted)). See also Green Party of Connecticut v. Garfield, Nos. 09-0599-cv(L) and 09-0609-cv(Con), 616 F.3d 189, 198, 2010 WL 2737134, *5 (2d Cir.2010) (contribution restrictions need only be “closely drawn” to serve a “sufficiently important” government interest, while restrictions on non-contribution campaign expenditures and campaign-related speech are subject to strict scrutiny). The Supreme Court’s Recent Decision in Citizens United (Jan. 2010) The plaintiffs rely heavily on the Supreme Court’s recent decision in Citizens United v. Federal Election Commission, — U.S. -, 130 S.Ct. 876, — L.Ed.2d - (2010), and rightly so. There, a nonprofit corporation, Citizens United, collected voluntary donations from individuals and for-profit corporations and used some of the funds to create a highly critical documentary film entitled “Hillary: The Movie”, with the apparent purpose of lowering the public’s esteem for then-Senator Hillary Rodham Clinton and diminishing her chance of winning her party’s presidential nomination. See Citizens United, 130 S.Ct. at 886-87. Having released the film in movie theaters and on DVD, Citizens United wanted to increase distribution by making it available to digital-cable-television subscribers through “video on demand” free of charge, and by promoting the video on demand version by running advertisements on broadcast and cable television. Id. at 887. Citizens United sued the FEC for declaratory and injunctive relief, stating that it feared being subjected to civil and criminal penalties for violating the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. § 441b (“BCRA”), if it took those actions to express its opposition to the candidacy of Senator Clinton. Id. at 887. To understand the particular prohibition of which Citizens United feared running afoul, it is useful to consult the Court’s explanation of federal statutory campaign-finance law before and after the enactment of the BCRA in 2002. Before the BCRA, federal law prohibited corporations and unions from (1) using general-treasury funds to make direct contributions to candidates or (2) using general-treasury funds to make independent expenditures that expressly advocated the election or defeat of a candidate, through any form of media, in certain specified federal elections. Citizens United, 130 S.Ct. at 887, 130 S.Ct. 876. The BCRA continued those prohibitions on corporate/union campaign activity, and added a third: it prohibited corporations and unions from making any “electioneering communication”, defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” made within thirty days of a party primary election or within sixty days of a general election. Citizens United, 130 S.Ct. at 887, 130 S.Ct. 876. While the law post-BCRA prohibited corporations and unions from using general-treasury funds for these three types of payment, it permitted them to establish a “separate segregated fund,” i.e., a PAC, for those three purposes. Id. PACs, however, were permitted to receive funds only from the PAC’s corporation’s shareholders and employees (or, in the case of a union, from union members). Id. at 888. Citizens United feared that both the documentary film and the ads for the video-on-demand version would violate BCRA’s ban on corporate independent expenditures from the corporation’s own general-treasury funds. Citizens United, 130 S.Ct. at 888, 130 S.Ct. 876. Speaking through Justice Anthony Kennedy, a majority of five Justices expressly overruled McConnell v. FEC, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), which had upheld limits on corporate/union electioneering communications, as well as the decision on which it rested, Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). See Citizens United, 130 S.Ct. at 886, 130 S.Ct. 876. The Court first noted that a corporation’s legal right to create a PAC to “speak” through independent expenditures, was not equivalent or tantamount to the corporation itself being legally allowed to speak through such independent expenditures. Id. at 897. For one thing, the Court reasoned, PACs are expensive to administer and subject to burdensome regulations, which may account for the fact that fewer than 2,000 of the nation’s millions of corporations have established PACs. Id. at 897-98. Therefore, as a logical and a practical matter, the fact that a corporation may create a PAC which “speaks” politically through independent expenditures, does not eliminate the burden which BCRA’s independent-expenditure prohibition imposed on corporations/unions’ right to speak through such expenditures, nor does it obviate the need to decide whether such restriction on the corporations/unions’ right to make independent expenditures is constitutional. The Court stated as follows: Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quality of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Buckley v. Valeo, 424 U.S. 1, 19, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251, 124 S.Ct. 619 (opinion of Scalia, J.) (Government could repress speech by “attacking all levels of the production and dissemination of ideas”, for “effective public communication requires the speaker to make use of the services of others”). If § 441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect. Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, [424 U.S.] at 14-15, 96 S.Ct. 612 (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “ ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989).... *