ATTORNEYS FOR APPELLANTS            ATTORNEYS FOR APPELLEES

James Bopp, Jr.                Jeffrey A. Modisett
John K. Abegg                    Attorney General of Indiana
Terre Haute, Indiana
                            Jon Laramore
                            Deputy Attorney General
                            Indianapolis, Indiana

BROWNSBURG AREA PATRONS AFFECTING                     )
CHANGE and JOHN PATTEN,                                    )
                                                           )
    Plaintiffs-Appellants,                                 )
                                                           )
        v.                                                 ) Cause No. 94S00-9803-CQ-144
                                                           )
PATRICIA BALDWIN, Prosecuting                              )
Attorney for Hendricks County,                             )
Indiana, et al.,                                           )
                                                           )
    Defendants-Appellees.                                  )

                                                       

                                                       

                        

                                                       

SHEPARD, Chief Justice.

    Brownsburg Area Patrons Affecting Change (BAPAC), and its founder John Patten sought a preliminary injunction from the United

States District Court for the Southern District of Indiana. The court denied the request, and BAPAC filed an interlocutory appeal in the Court of Appeals for the Seventh Circuit.
    
    Before resolving BAPAC's claims, the Seventh Circuit certified a question of state law for this Court's consideration, pursuant to Seventh Circuit Rule 52 and Indiana Appellate Rule 15(O). The question reads:
Does the Indiana Code's definition of a "political action committee," i.e., any organization which "accepts contributions or makes expenditures . . . to influence the election of a candidate . . . or the outcome of a public question . . . that in aggregate exceed one hundred dollars ($100)," include only those organizations which make contributions or expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for office or the victory or defeat of a public question?

Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 510 (7th Cir. 1998). We answer this question in the affirmative.

or directors. BAPAC's mission is "to educate the citizens of Brownsburg and its environs on political, economic, and social issues and to serve as an organ for members of the community to advise public officials of citizens' views on issues." (Appellant's Br. at 4.) To accomplish its goals, BAPAC disseminates information on a telephone hotline recording and distributes flyers. BAPAC, 137 F.3d at 504. The telephone recordings state candidates' positions on issues and sometimes indicate whether these views accord with those of BAPAC. Id.

    On June 6, 1996, following a primary election in May, William Daily, chairman of the Hendricks County Election Board, sent Patten a letter suggesting that BAPAC might be subject to the rules governing political action committees, including some registration and reporting requirements. Id.; (App. to Appellant's Br. at 27- 28). Two months later, BAPAC responded to the Board's inquiry with a letter explaining that it could not be considered a political action committee "because BAPAC's major purpose is not to expressly advocate the election or defeat of any candidate." (App. to Appellant's Br. at 31.)

    On August 28th, Daily sent BAPAC another letter explaining that while the Board had not reached a final decision about whether BAPAC was a political action committee under Indiana law, it appeared as though their activities fell under the statute. (App. to Appellant's Br. at 33.) According to Daily, the statute covers

organizations that spend more than $100 to influence the outcome of an election, and BAPAC's hotline message appeared to be an attempt to influence an election. (Id.) As such, Daily asserted that if BAPAC spent over $100 on the hotline message, it would be required to follow the rules for political action committees.

    BAPAC did not respond to the second letter from Daily. Instead, in September 1996, it filed a complaint in District Court and moved for a preliminary injunction against the Attorney General of Indiana, four members of the Indiana Election Commission, the Hendricks County Prosecuting Attorney, and three members of the Hendricks County Election Board. The complaint alleged that the Indiana Code's definition of "political action committee" is unconstitutionally overbroad because it impermissibly regulates "issue advocacy" in violation of Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). BAPAC, 137 F.3d at 505. Issue advocacy involves discussion of issues as opposed to express advocacy for or against certain candidates or electoral outcomes. Id. BAPAC also challenged the statute on the ground that it regulates groups which do not have the "major purpose" of engaging in express advocacy, a limitation it maintains is also required by Buckley. Id. BAPAC sought the injunction to prohibit enforcement of the allegedly unconstitutional election provisions.

    The District Court denied the motion, concluding that BAPAC did not demonstrate a likelihood of success on the merits. BAPAC,

943 F.Supp. at 993. More specifically, the court found that Indiana's statute did not regulate issue advocacy, based on the Buckley Court's interpretation of similar language contained within the Federal Election Campaign Act of 1971. Id. at 986-89. Because the court concluded that BAPAC engaged only in issue advocacy,See footnote 2 it held that BAPAC was not a PAC under Indiana law. Thus, the statute did not apply to BAPAC, and a preliminary injunction was unnecessary. Id. at 989.See footnote 3

    On appeal, BAPAC contended that the District Court erred in holding that the Indiana definition of a PAC applied only to express advocacy groups. BAPAC, 137 F.3d at 505. Rather than speculate about how we would interpret a state statute, and given that our answer would be outcome determinative, see id. at 509, the Court of Appeals certified a question to us.

    As the Seventh Circuit points out, this case possesses an odd procedural posture. Id. at 505. BAPAC brought the case to escape the application of Ind. Code § 3-5-2-37. The District Court held that the statute did not apply to organizations that engaged only in issue advocacy. Because BAPAC, by its own contentions, engaged

only in issue advocacy, it successfully avoided the statute. Undeterred by winning, BAPAC pushes on.

(emphasis added).See footnote 4 BAPAC maintains that the District Court's narrow construction of "influence" as covering only express advocacy was untenable, and that a proper construction of the language would cover BAPAC's activities. BAPAC argues that the legislature's decision to regulate groups that seek "to influence"

elections impermissibly regulates issue advocacy in violation of Buckley. We disagree.

Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). On the other hand, "[t]he constitutional power of Congress to regulate federal elections is well-established . . . ." Buckley, 424 U.S. at 13. Thus, "the critical constitutional questions presented here go not to the basic power . . . to legislate in this area, but to whether the specific legislation . . . enacted interferes with First Amendment freedoms . . . ." Id. at 13-14.

    Assessing these competing interests, the Court divided political speech into two parts. "Express advocacy" is that speech which "in express terms advocate[s] the election or defeat of a

clearly identified candidate . . . ." Id. at 44.See footnote 5 Speech that does not expressly advocate the election or defeat of a clearly identified candidate, but does involve political ideas or social commentary, is now generally called "issue advocacy." See, e.g., BAPAC, 943 F.Supp. at 977. As phrased by the District Court: "[T]he government may impose certain organizational and reporting requirements and expenditure and contribution limits on express advocacy, but any power to regulate the broader category of issue advocacy is far more limited." BAPAC, 943 F.Supp. at 977.See footnote 6

    Second, the Indiana statute was introduced in the legislature shortly after the passage of FECA, and the General Assembly passed it shortly after Buckley was handed down. BAPAC, 943 F.Supp. at 987. We think the District Court was correct that the parallels between FECA and the Indiana statute are "strong and obvious." Id. According to the District Court, "[T]hese factors make this a strong case for presuming that the Indiana legislature intended to

adopt the federal construction in Buckley v. Valeo." Id. at 988.See footnote 8

(Appellant's Br. at 16.)

    This argument's flaw is that it asks us to assume the legislature intended that "influence" in Ind. Code § 3-5-2-37 mean something broader than express advocacy, and did so after Buckley was handed down. This requires us to assume an unconstitutional intent. As a general rule, "Unconstitutional intention will not be attributed to the legislature if reasonably avoidable." Price v. State, 622 N.E.2d 954, 963 (Ind. 1993) (citing Conter v. Commercial Bank of Crown Point, 209 Ind. 510, 513-14, 199 N.E. 567, 569 (1936)). This brings us to the canon that seems weightiest for today's purposes.

U.S. 922 (1995) (citing Brady v. State, 575 N.E.2d 981 (Ind. 1991)). "If a statute can be construed to support its constitutionality, such construction must be adopted." Burris, 642 N.E.2d at 968 (citing Miller v. State, 517 N.E.2d 64 (Ind. 1987)). The question thus becomes whether Ind. Code § 3-5-2-37 is amenable to a reasonable constitutional construction.
    BAPAC urges us to find that "influence" may not reasonably be read to encompass only express advocacy. (See Appellant's Br. at 13.) If so, however, the Supreme Court was wrong when it construed that term in Buckley. As the State points out, "Buckley constitutes the U.S. Supreme Court's authoritative construction of federal statutory language." (Appellee's Br. at 10.) Although this case involves the interpretation of state law, the approach of the Buckley Court seems a suitable way of addressing whether the language in our statute may reasonably bear a narrowing construction.

    In Buckley, the Supreme Court noted that the "influence" language of FECA, on its face, had "potential for encompassing both issue discussion and advocacy of a political result," and "could be interpreted to reach groups engaged purely in issue discussion." 424 U.S. at 79. The Court then acknowledged that, as lower courts

had demonstrated,See footnote 11 the purpose of the Act could be fulfilled and constitutional problems avoided by construing the language more narrowly. Id. The Court stated:
To insure that the reach of [the statute] is not impermissibly broad, we construe "expenditure" for purposes of that section . . . to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.

Id. at 80 (footnote omitted). Examining language virtually identical to that contained in the Indiana statute, the Supreme Court concluded that the statute should be narrowly construed. "[T]he Supreme Court of the United States has not only held that the material language at issue . . . can bear the constitutional interpretation but has given that language the definitive interpretation as a matter of federal law." BAPAC, 943 F.Supp. at 989. We believe that Ind. Code § 3-5-2-37, like FECA, can reasonably bear a narrowing construction.

defeat of a clearly identified candidate for office or the victory or defeat of a public question." BAPAC, 137 F.3d at 510.See footnote 12 Such a ruling accommodates a permissible level of election regulation while protecting important First Amendment activities. "This is consistent with the firmly established principle that the right to speak out at election time is one of the most zealously protected under the Constitution." Central Long Island Tax Reform, 616 F.2d at 53 (citing Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72 (1971)). Accordingly, we answer the certified question in the affirmative.

Dickson, Sullivan, Selby, and Boehm, JJ.,concur.

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