California Pro-Life Council, Inc. v. Randolph ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA PRO-LIFE COUNCIL, INC., 
Plaintiff-Appellant,
v.
LIANE RANDOLPH, Chairman of the
Fair Political Practices No. 05-15507
Commission; PHILIP BLAIR, FPP
Commissioner; SHERIDAN DOWNEY,  D.C. No.
CV-00-01698-FCD
III, FPP Commissioner; EUGENE
OPINION
HUGUENIN, FPP Commissioner;
PAMELA KARLAN, FPP
Commissioner; BILL LOCKYER,
Attorney General,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
February 12, 2007—San Francisco, California
Filed November 14, 2007
Before: John T. Noonan, Ronald M. Gould, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
14797
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14801
COUNSEL
James Bopp, Jr. (briefed and argued), Richard E. Coleson
(briefed), Terre Haute, Indiana, for the appellant.
Teri L. Block (argued), Luisa Menchaca (briefed), Lawrence
T. Woodlock (briefed and argued), Fair Political Practices
Commission General Counsel; Louis R. Mauro, Senior Assis-
tant Attorney General, Catherine M. Van Aken, Supervising
Deputy Attorney General, Robert E. Leidigh, Deputy Attor-
ney General, Kathryn Gimple (briefed), Sacramento, Califor-
nia, for the appellees.
Trevor Potter, J. Gerald Hebert, Paul S. Ryan, Washington,
D.C.; Daniel R. Ortiz, Charlottesville, Virginia, for amicus
curiae Campaign Legal Center.
Rob McKenna, Attorney General, Nancy Krier, Senior Coun-
sel, Olympia, Washington for amici curiae States of Washing-
ton, Arizona, Hawaii, Iowa, Montana, Nevada, New Mexico
and Oregon.
OPINION
RAWLINSON, Circuit Judge:
California Pro-Life Council, Inc. (CPLC) challenges certain
provisions of California’s Political Reform Act (PRA),
including the PRA’s definition of “contribution” and the
recipient committee requirements imposed on a multi-purpose
organization, such as CPLC. On cross-motions for summary
judgment, the district court granted summary judgment in
14802 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
favor of Appellees (collectively referred to as California) and
denied CPLC’s motion for summary judgment. Because strict
scrutiny applies and CPLC conceded the existence of a com-
pelling governmental interest in the disclosure of the informa-
tion at issue, we focus on the narrow tailoring inquiry,
concluding that the definition of contribution is narrowly tai-
lored, and the additional recipient committee requirements are
not.
I. BACKGROUND
CPLC, a non-profit corporation under 26 U.S.C.
§ 501(c)(4), is a nonpartisan, nonsectarian, educational orga-
nization dedicated to educating the public on abortion, infanti-
cide, and euthanasia. CPLC is the state affiliate of the
National Right to Life Committee (NRLC), one of the
nation’s most powerful lobbying and interests groups.
According to CPLC, its major purpose is not the nomination
or election of candidates or the passage or defeat of ballot
measures, but rather to educate Californians regarding the
value of life. In keeping with its expressed purpose, CPLC
periodically generates mass mailings, ranging from 15,000 to
in excess of 100,000 in number.
The purpose of the PRA is to inform voters of the identity
of individuals and/or organizations who expend money in
support of or in opposition to ballot measures. The informa-
tion collected pursuant to PRA disclosure requirements is
accessible to the public via the Secretary of State’s website.
In 2004, there were 18,243,899 documented hits on this site,
in 2005 11,118,821 documented hits, and in 2006 20,049,141
documented hits.
CPLC filed a ten-count amended verified complaint for
declaratory and injunctive relief, alleging that particular pro-
visions of the PRA violate the First and Fourteenth Amend-
ments. Because CPLC disseminated voter guides before the
1998 primary and general elections and the 2000 primary
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14803
election, expending, in excess of $1,000, it would be deemed
a recipient committee under the Act. Although it would like
to provide similar information to the general public in the
future, as long as the PRA remains in effect, CPLC asserts
that it will refrain, due to the requirements imposed upon a
recipient committee and the consequent penalties for failure
to comply.
Counts 1 (overbreadth — candidate communications), 2
(overbreadth — ballot measures), 3 (overbreadth — advocacy
regarding candidates), 4 (overbreadth — advocacy regarding
ballot measures), and 6 (facial challenge) were dismissed by
the district court. Counts 5 (vagueness) and 10 (vagueness)
were also dismissed to the extent that they were directed at
regulation of communications involving candidates and mere
discussion of ballot measure initiatives. The counts were not
dismissed to the extent they were directed at express ballot
measure advocacy. Thereafter, the parties stipulated to the
dismissal without prejudice of counts 7 (major purpose), 8
(major purpose), and 9 (major purpose), i.e., all claims relat-
ing to state regulation of groups as committees without regard
to their major purpose.
In 2003, we remanded this case to the district court to “de-
termine whether California’s informational interest is suffi-
ciently compelling to justify its regulation of groups like
CPLC and, if so, whether the PRA regulations are closely tai-
lored to advance this interest.” California Pro-Life Council,
Inc. v. Getman, 328 F.3d 1088, 1101 (9th Cir. 2003).
Although we noted a lack of clarity regarding the appropriate
level of scrutiny, we applied strict scrutiny. Id. at 1101 n.16.
Upon remand, the district court concluded that the regula-
tory scheme imposed on CPLC and groups like CPLC who
engage in express ballot measure advocacy is the least restric-
tive means available for California to achieve its compelling
interest in fully informing voters and preventing organizations
14804 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
from disguising their involvement in express ballot measure
advocacy. CPLC filed a timely appeal.
Although we agree with the district court that strict scrutiny
applies and that the definition of contribution is narrowly tai-
lored, we hold that the additional recipient committee require-
ments are not.
II. STANDARD OF REVIEW
“The district court’s grant of summary judgment is
reviewed de novo.” Qwest Communications, Inc. v. City of
Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006) (citation omit-
ted). “We must determine, viewing the evidence in the light
most favorable to . . . the non-moving party, whether there are
any genuine issues of material fact and whether the district
court correctly applies the substantive law.” Olsen v. Idaho
State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) (cita-
tion omitted).
III. DISCUSSION
A. For Purposes Of Summary Judgment, CPLC Cannot
Rely On “Factual Presuppositions.”
CPLC argued to the district court that “the factual frame-
work for th[e] remand is that provided [by the panel’s deci-
sion in Getman.]” This argument raised several issues: (1)
whether CPLC was relieved of its duty to present evidence;
(2) if not, whether CPLC presented sufficient admissible evi-
dence to raise an issue of material fact; (3) if CPLC failed to
present sufficient evidence, whether its failure to do so is fatal
to its appeal; (4) whether a district court is bound by the
remand instructions from an appellate court; and (5) in the
context of a motion under Rule 12(b)(6) of the Federal Rules
of Civil Procedure (FRCP), whether the district court was
bound by the factual underpinnings of the remand order.
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14805
1. CPLC Was Not Relieved Of Its Duty To Present
Evidence.
[1] Contrary to CPLC’s position that it could rely on “fac-
tual presuppositions” of the prior panel decision, the Getman
panel noted that “a more fully developed record” was needed
to resolve the compelling interest and narrowly tailored inqui-
ries. See 328 F.3d at 1107. The panel’s decision in no way
relieved CPLC of its duty to present evidence to support its
summary judgment motion or to challenge California’s
motion.
2. CPLC Failed To Present Sufficient Admissible
Evidence To Raise An Issue Of Material Fact.
CPLC contends that its amended verified complaint quali-
fies as an affidavit for summary judgment purposes.1 We dis-
agree.
[2] “[A] verified complaint may serve as an affidavit for
purposes of summary judgment if [1] it is based on personal
knowledge and if [2] it sets forth the requisite facts with spec-
ificity.” Moran v. Selig, 447 F.3d 748, 760 n.16 (9th Cir.
2006) (citation omitted) (emphasis added). The verified com-
plaint in this case was signed by Brian Johnston, the Execu-
tive Director of CPLC. During his deposition, Johnston’s lack
of personal knowledge regarding CPLC was apparent. A
series of questions was asked regarding CPLC’s PACs and
Johnston responded that he did not know to nearly every
inquiry. His knowledge regarding how CPLC funds are spent
was also scant. As could be expected in view of Johnston’s
lack of personal knowledge, the verified complaint was
impermissibly heavy on legal conclusions and light on “facts
relevant to the summary judgment motion.” Lew v. Kona Hos-
pital, 754 F.2d 1420, 1424 (9th Cir. 1985), as amended.
1
CPLC also submitted a “Supplemental Affidavit in Support of Plain-
tiff’s Motion for Preliminary Injunction,” detailing CPLC’s prospective
plans for the November 2000 election.
14806 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
3. CPLC’s Failure To Present Sufficient Evidence To
Raise An Issue Of Material Fact Is Not Fatal To Its
Appeal.
[3] Even though we conclude that CPLC failed to present
sufficient admissible evidence in support of its motion for
summary judgment or in opposition to California’s motion for
summary judgment to raise a material question of fact, this
determination is not dispositive. We must still determine
whether the undisputed facts entitle California to summary
judgment as a matter of law. See Tellis v. Godinez, 5 F.3d
1314, 1316 (9th Cir. 1993). This leads us to an examination
of the remand order.
4. A District Court Is Bound To Follow The
Instructions Of An Appellate Court Upon Remand.
“A district court, on remand, has a duty to follow this
court’s instructions as to how the case is to proceed.” United
States v. Montgomery, 462 F.3d 1067, 1072 (9th Cir. 2006)
(citation omitted). “[C]lear direction to the district court on
how to proceed continues to be binding precedent . . .” Oper-
ating Engineers Pension Trust v. Charles Minor Equip.
Rental, Inc., 766 F.2d 1301, 1304 (9th Cir. 1985).
[4] The district court was bound by the Getman panel’s
instructions: “On remand, the district court should determine
whether California’s informational interest is sufficiently
compelling to justify its regulation of groups like CPLC and,
if so, whether the PRA regulations are closely tailored to
advance this interest.” Getman, 328 F.3d at 1101. The Get-
man panel described CPLC as a group “whose major purpose
is not campaign advocacy, but who occasionally make[s]
independent expenditures.” Id. at 1101 n.21 (citation omitted).
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14807
5. In The Specific Context Of A FRCP 12(b)(6)
Motion, No Factual Determinations Were Made
That Would Bind The District Court On Remand.
In reviewing a motion to dismiss under FRCP 12(b)(6),2
“we assume all facts alleged in the . . . Complaint are true
. . .” Sacks v. Office of Foreign Assets Control, 466 F.3d 764,
773 (9th Cir. 2006) (citation omitted). Because of the assump-
tion that all facts in the Complaint are true, there is no need
for judicial factfinding. See FRCP 52(a) (“Findings of fact
and conclusions of law are unnecessary on decisions of
motions under Rule 12 . . .”). Indeed, the court is not “faced
[with any] factual issue.” Adams v. United States, 225 F.3d
787, 797 (9th Cir. 2001). As the Getman panel was not faced
with any factual issues, its passing statement regarding
CPLC’s “major purpose” could not reasonably be construed
as making a factual determination.3
[5] Therefore, although CPLC had a duty to present evi-
dence, its failure to present relevant admissible evidence is
not fatal to its appeal because we must still consider whether
the undisputed facts entitle California to summary judgment
as a matter of law. Moreover, because in a motion to dismiss
under FRCP 12(b)(6), we assume all facts to be true, the dis-
trict court was not bound by our passing statement regarding
CPLC’s “major purpose.”
B. Strict Scrutiny Applies In This Case.4
2
See Getman, 328 F.3d at 1101 (reviewing “the district court’s dismissal
for failure to state a claim”).
3
In any event, the determination regarding CPLC’s “major purpose” has
no bearing on this case because: (1) the parties voluntarily stipulated to the
dismissal of the major purpose claims, and (2) neither party disputes that
CPLC is a multi-purpose organization.
4
The Supreme Court’s recent decision in Federal Election Commission
v. Wisconsin Right to Life, Inc. (WRL), 127 S. Ct. 2652 (2007), does not
affect our treatment of this case. WRL concerned a corporation’s “ability
to engage in political speech.” Id. at 2660. WRL did not undertake an anal-
ysis of statutory disclosure requirements.
14808 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
This case was remanded to the district court for application
of strict scrutiny to its analysis of the PRA. See Getman, 328
F.3d at 1101 n.16. Nonetheless, because McConnell v. Fed-
eral Election Commission, 540 U.S. 93 (2003), was decided
subsequent to the Getman remand, the parties dispute the
applicable standard.5
As noted, we are bound to apply strict scrutiny. See Get-
man, 328 F.3d at 1101 n.16 (selecting the strict scrutiny stan-
dard). Because neither the McConnell decision nor the
Supreme Court’s recent decision in WRL, 127 S. Ct. 2652,
called into question the analysis reflected in Federal Election
Commission v. Massachusetts Citizens for Life, Inc. (MCFL),
479 U.S. 238, 252 (1986), upon which we relied in Getman,6
we are not compelled to abandon the standard adopted in Get-
man. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.
2001) (“Once a panel resolves an issue in a precedential opin-
ion, the matter is deemed resolved, unless overruled . . . by
the Supreme Court.”) (footnote reference omitted).
5
Two cases in this Circuit have discussed how McConnell may have
changed the legal landscape. These cases have drawn a “distinction
between direct regulation of the content of political speech and requiring
the later reporting of the funding of speech . . .” American Civil Liberties
Union of Nevada v. Heller, 378 F.3d 979, 987 (9th Cir. 2004) (applying
strict scrutiny to the former and implying that “McConnell cases new
light” on the latter); see also Alaska Right to Life Committee v. Miles
(ARLC), 441 F.3d 773, 788 (9th Cir. 2006) (concluding that “the Court [in
McConnell] did not apply ‘strict scrutiny’ or require a ‘compelling state
interest[,]’ ” but nonetheless “assum[ing] without deciding that strict scru-
tiny applies to all of the challenged disclosure requirements”) (citation
omitted). We need not resolve any potential conflict because we are bound
by the “law of the case” to apply strict scrutiny. Minidoka Irrigation Dis-
trict v. U.S. Dept. of Interior, 406 F.3d 567, 574 (9th Cir. 2005) (“[W]e
are bound by the opinion of the prior panel as the law of the case.”) (cita-
tion and internal quotation marks omitted).
6
See, e.g., McConnell, 540 U.S. at 211 (referring to MCFL without criti-
cism); see also Getman, 328 F.3d at 1101 (relying on MCFL’s application
of strict scrutiny).
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14809
Applying strict scrutiny, California bears the burden of
proving that the PRA provisions at issue are “(1) narrowly tai-
lored, to serve (2) a compelling state interest.” Republican
Party of Minnesota v. White, 536 U.S. 765, 774-75 (2002)
(citation omitted).7
C. California Has A Compelling Interest In Requiring
Disclosure Of Contributions To Groups Who Seek To
Influence Voters.
CPLC concedes that “California has a compelling interest
in regulating true contributions (gifts to groups like CPLC
that are made for the purpose of influencing voters . . .).”
CPLC makes a distinction between “true contributions” and
“mere donations,” which CPLC contends are not made for the
purpose of influencing voters. Citing to McConnell, 540 U.S.
at 206, CPLC argues that for California “[t]o justify its
required disclosure of mere donations, California had the bur-
den of proving that donations are the ‘functional equivalent’
of contributions.” However, CPLC’s framing of the issue is
unsupported by governing law.
[6] California seeks disclosure of “contributions” of $100
or more. See California Government Code (CGC) § 84211(f).
Thus, the appropriate inquiry is whether the PRA’s definition
of “contributions” impermissibly classifies donations that
were not made for the purpose of influencing voters as “con-
tributions.”
[7] CPLC’s “functional equivalent” argument is unavailing.
California does not attempt to extend the coverage of the dis-
7
We note that for purposes of the narrow tailoring analysis, the district
court adopted the framework outlined by the Second Circuit in Landell v.
Sorrell, 382 F.3d 91 (2d Cir. 2004), as amended. Because there are “cases
on point from this circuit,” we need not consider opinions from other cir-
cuits. Roy v. Lampert, 465 F.3d 964, 971 (9th Cir. 2006), as amended; see,
e.g., Getman, 328 F.3d at 1104 & n.16 (discussing narrow tailoring).
14810 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
closure requirements to donations unless the donee expends
funds to influence voters. Therefore, California does not have
to establish that donations are the functional equivalent of
“contributions.” Cf. McConnell, 540 U.S. at 205-06 (conclud-
ing that issue advocacy that is the “functional equivalent” of
express advocacy may fall within the statute’s provisions); see
also WRL, 127 S. Ct. at 2659, 2664 (2007) (addressing the
issue of “whether the speech at issue is the ‘functional equiva-
lent’ of speech expressly advocating the election or defeat of
a candidate for federal office, or instead a genuine issue ad[ ]”
and reiterating the holding in McConnell) (citation and alter-
ation omitted). Rather, we must determine whether the statute
is narrowly tailored to advance California’s compelling inter-
est in disclosure of those groups who seek to influence voters.8, 9
(Text continued on page 14812)
8
We note that in the context of disclosure requirements, the govern-
ment’s interest in providing the electorate with information related to elec-
tion and ballot issues is well-established. See, e.g., McConnell, 540 U.S.
at 196; see also Buckley v. Valeo, 424 U.S. 1, 66 (1976); Goland v. United
States, 903 F.2d 1247, 1261 (9th Cir. 1990); ARLC, 441 F.3d at 791.
Despite the fact that CPLC conceded that California has a compelling
informational interest, California also presented persuasive evidence dem-
onstrating the importance of providing the electorate with pertinent infor-
mation. Researcher David Binder conducted a telephone survey from June
23-26, 2001. “The goals of this project were to determine objectively,
using established methods of scientific public opinion research, what
sources of information regarding candidates and ballot measures are
important to California voters.” According to Binder’s findings, “[m]ore
than seven of ten California voters (71%) state that it is important to know
the identity of the source and amount of campaign contributions to the bal-
lot measure by both supporters and opponents, including unions, busi-
nesses or other interest groups.” “Fifty seven percent (57%) of California
voters state that endorsements by interest groups, politicians or celebrities
are important in helping them make up their own mind on how to vote on
ballot measures.” “A majority of California voters (57%) state they would
be less likely to vote for a proposition to build senior citizen housing if
the proposition was supported by a well-known and respected senior activ-
ist who was discovered to have been paid by developers to promote the
proposition. Only one-third (34%) stated that this information would not
make any difference in their vote.”
Professor Bruce Cain, a Professor of Political Science at the University
of California, Berkeley, and Director of the Institute of Governmental
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14811
Studies, added that “there are several compelling reasons for such a
requirement. Foremost among them is the fact that the names groups give
themselves for disclosure purposes can be, and frequently are, ambiguous
or misleading.”
Sandy Harrison, a former journalist for radio stations and newspapers
and since 1995, a press secretary and communications director for the
president pro tem of the state Senate, the state Department of Finance, and
the state Controller, emphasizes this point in her affidavit:
A prime example of this was Proposition 188 on the November
1994 ballot, an effort to overturn California’s recently enacted
workplace smoking ban. Supporters falsely portrayed the mea-
sure as a grassroots effort by small businesses. By reviewing the
campaign finance report, I was able to report to readers that it
was not the work of small businesses, but actually giant tobacco
Companies . . . . If the campaign finance report had not been pub-
lic, I could not have substantiated or conveyed this important
information to the readers, and they may never have learned the
truth about who was really behind this proposition.
According to Stephen K. Hopcraft, the President and co-owner of “a
full-service public relations firm specializing in grass roots and public
education campaigns[,]” “the information gleaned from . . . disclosure
reports is absolutely critical to assist news media and voters in sorting
through the claims and counter-claims in a ballot measure campaign . . . .
With all the hyperbole in campaigning, the financial backing of each side
gives voters a yardstick to measure the truth of the assertions.” Indeed,
CPLC admitted that “[b]ecause political operators in many states are able
to avoid campaign finance disclosure requirements, citizens are likely to
be uninformed and unaware of the tens of millions of dollars that are spent
on ballot measure campaigns by veiled political actors (VPAs) . . .”
9
Although we are satisfied that California has a compelling interest in
disclosure of pertinent information to the electorate, we do not completely
adopt the district court’s articulation of the compelling governmental
interest. The district court concluded that California had a compelling state
interest in both “[1] informing the electorate regarding contributions and
expenditures made to pass or defeat ballot measure initiatives and[,] [2] in
maintaining the integrity of its electoral and legislative processes prevent-
ing veiled political actors from concealing their involvement in the politi-
cal process.” The latter interest implicates the notion of deterring
corruption, which has been rejected as a constitutionally sufficient interest
14812 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
D. CPLC’s Challenge To The Narrow Tailoring Of The
Statute Is Valid As To The PAC-Like Reporting
Requirements But Not As To The Other Provisions.
CPLC posits that (1) California’s presumption, described in
California Code of Regulations, tit. 2 (CCR) § 18215(b)(1),
“transmogrifies” donations into contributions and thus is not
narrowly tailored to California’s compelling interest in disclo-
sure of information to the electorate;10 and, (2) the resulting
recipient committee requirements are not narrowly tailored.11
in the ballot measure disclosure context. See, e.g., Montana Chamber of
Commerce v. Argenbright, 226 F.3d 1049, 1056 (9th Cir. 2000)
(“Referenda are held on issues, not candidates for public office. The risk
of corruption perceived in cases involving candidate elections simply is
not present in a popular vote on a public issue.”); see also First National
Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of corrup-
tion perceived in cases involving candidate elections, simply is not present
in a popular vote on a public issue.”) (citation and footnote references
omitted).
10
CPLC refers to the presumption contained in CCR § 18215(b)
throughout its brief as a transmogrifying presumption. “Transmogrify”
means “[t]o change into a different shape or form, especially one that is
fantastic or bizarre.” The American Heritage College Dictionary 1347 (3d
ed. 2000).
11
Citing to Buckley, 424 U.S. at 79 and MCFL, 479 U.S. at 252 n.6,
CPLC maintains that because its major purpose is not campaign advocacy,
it was improper for California to “treat [CPLC] like a PAC.” Having
determined that “the major purpose test is inapplicable,” the district court
did not reach the issue of “whether CPLC’s major purpose is campaign
activity.” In any event, in addition to the fact that the parties stipulated to
dismissal of the “major purpose” claims, this Court has held that irrespec-
tive of the major purpose of an organization, disclosure requirements may
be imposed. See, e.g., ARLC, 441 F.3d at 786. CPLC’s argument to the
contrary is unpersuasive.
CPLC’s supplemental citation to the recent Tenth Circuit case of Colo-
rado Right to Life Committee, Inc. v. Coffman (CRLC), Nos. 05-1519, 05-
1538, 2007 WL 2372368 (10th Cir. Aug. 21, 2007), does not persuade us
otherwise. Not only are we unable to stray from our prior precedent, see
Hulteen v. AT&T, 498 F.3d 1001, 1010 (9th Cir. 2007) (en banc), but the
Tenth Circuit expressly limited its holding to the confines of “restrictions
on expenditures.” See CRLC, 2007 WL 2372368 at *11.
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14813
1. The PRA Provisions Contain Three Alternatives To
Determine If Disclosure Requirements Are
Triggered.12
The PRA’s stated purpose is to ensure that “[r]eceipts and
expenditures in election campaigns [are] fully and truthfully
disclosed in order that the voters may be fully informed and
improper practices may be inhibited.” CGC § 81002(a).
Pursuant to CGC § 82013, a committee subject to disclo-
sure requirements may be formed in three ways. First, a recip-
ient committee forms if “any person or combination of
persons . . . receives contributions totaling $1,000 or more in
a calendar year.” § 82013(a). Second, an independent expen-
diture committee forms if “any person or combination of per-
sons . . . makes independent expenditures totaling $1,000 or
more in a calendar year . . .” § 82013(b). Third, a major donor
committee forms if “any person or combination of persons . . .
makes contributions totaling $10,000 or more in a calendar
year to or at the behest of candidates or committees.”
§ 82013(c).
Pursuant to CGC § 82013:
“Independent expenditure” means an expenditure
made by any person in connection with a communi-
cation which expressly advocates the election or
defeat of a clearly identified candidate or the qualifi-
cation, passage or defeat of a clearly identified mea-
sure, or taken as a whole and in context,
unambiguously urges a particular result in an elec-
tion but which is not made to or at the behest of the
affected candidate or committee.
12
Although the focus on this appeal is on the recipient committee provi-
sions, it is useful to peruse the other provisions for context.
14814 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
Under CGC § 82015(a), “contribution” is a term of art
which “means a payment, a forgiveness of a loan, a payment
of a loan by a third party, or an enforceable promise to make
a payment except to the extent that full and adequate consid-
eration is received, unless it is clear from the surrounding cir-
cumstances that it is not made for political purposes.”
(emphases added). CCR § 18215(a) defines a “contribution”
as “any payment made for political purposes for which full
and adequate consideration is not made to the donor . . .”
[8] The PRA considers a payment to be “made for political
purposes if it is . . . [f]or the purpose of influencing or
attempting to influence the action of the voters for or against
the nomination or election of a candidate or candidates, or the
qualification or passage of any measure . . .” CCR
§ 18215(a)(1). CCR § 18215(b)(1) further defines “contribu-
tion” to include:
Any payment made to a person or organization other
than a candidate or committee, when, at the time of
making the payment, the donor knows or has reason
to know that the payment, or funds with which the
payment will be commingled, will be used to make
contributions or expenditures. If the donor knows or
has reason to know that only part of the payment
will be used to make contributions or expenditures,
the payment shall be apportioned on a reasonable
basis in order to determine the amount of the contri-
bution.
(emphases added). This section further presumes that:
the donor does not have reason to know that all or
part of the payment will be used to make expendi-
tures or contributions, unless the person or organiza-
tion has made expenditures or contributions of at
least one thousand dollars ($1,000) in the aggregate
during the calendar year in which the payment
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14815
occurs, or any of the immediately preceding four cal-
endar years.
Id.
[9] This presumption contained in CCR § 18215(b)(1) is
known as the “one bite (or first bite) of the apple” rule.
According to the California Fair Political Practices Commis-
sion, once an organization makes expenditures or contribu-
tions of at least $1,000, this is considered the “first bite.”
California Fair Political Practices Commission, Diane M.
Fishburn Advice Letter No. A-06-075 (Fishburn Advice Let-
ter) at *4 (June 9, 2006). “For the remainder of the year [after
the $1,000 or more contribution and/or expenditure] and the
following four years, any donor to the organization would
presumably know or have reason to know that funds with
which the donations will be commingled may be used for
political purposes.” Id. Thus,
[i]f a subsequent contribution or expenditure of
$1,000 or more is made by the organization during
the applicable period (current year plus 4 following
years), the organization becomes a recipient commit-
tee, and any donations or membership fees it
receives after the “first bite” contribution or expen-
diture of $1,000 or more has been taken, are deemed
to have been received for political purposes, and the
sources of any funds used by the organizations to
make those contributions would [be] subject to dis-
closure on a reasonably apportioned basis.
Id. (emphasis added).13
Within ten days after a person or group of persons qualifies
13
CPLC refers to the current year plus the four previous years as the
“lookback period” and refers to the “time from the second expenditure
back to the beginning of the calendar year” as the “reachback period.”
14816 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
as a recipient committee, a statement of organization must be
filed. CGC § 84101(a); see also id., § 84102 (describing the
contents of the statement of organization). The committee
must have a treasurer. Id., § 84100. “It shall be the duty of
each candidate, treasurer, and elected officer to maintain
detailed accounts, records, bills, and receipts necessary to pre-
pare campaign statements, to establish that campaign state-
ments were properly filed, and to otherwise comply with the
provisions of this chapter.” Id., § 84104. A recipient commit-
tee must file semi-annual statements. Id., § 84200(a).
The required contents of a campaign statement are listed in
§ 84211(f). In pertinent part, subsection (f) requires:
If the cumulative amount of contributions (including
loans) received from a person is one hundred dollars
($100) or more and a contribution or loan has been
received from that person during the period covered
by the campaign statement, all of the following
[must be reported]:
(1) His or her full name.
(2) His or her street address.
(3) His or her occupation.
(4) The name of his or her employer, or if
self-employed, the name of the business.
(5) The date and amount received for each
contribution received during the period
covered by the campaign statement and if
the contribution is a loan, the interest rate
for the loan.
(6) The cumulative amount of contribu-
tions.
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14817
Id., § 84211(f). To determine whether a particular donor or
member’s contribution was $100 or more for any given calen-
dar year, a pro-rata amount may be used for reporting purposes.14
According to Carla Wardlow, Chief of the Technical Assis-
tance Division of the California Fair Political Practices Com-
mission, “[d]uring even-numbered years, CPLC may be
required to file up to four pre-election campaign reports (two
reports to the primary election and two reports prior to the
general election), if the committee makes contributions or
independent expenditures totaling $500 or more during the
period covered by the pre-election statement.” CGC
§ 84200.7 specifies the time for filing pre-election statements.
For example, pursuant to § 84200.7(b)(1), pre-election state-
ments for the November election should be filed no later than
October 5. For those contributions received after the applica-
ble date, a committee like CPLC would have to file a late con-
tribution form. Id., § 82036(a). However, according to
Wardlow, “most campaign disclosure reports are required
only when CPLC engages in campaign activity. If CPLC has
no activity, only two reports are required each year - simple
statements affirming that CPLC is conducting no campaign
activity . . . .”
14
In a 2003 advice letter, the California Fair Political Practices Commis-
sion provided the following example of pro-rating:
[The organization] raises money from membership dues and by
holding an annual fundraiser . . . Money raised from the fund-
raiser and membership dues . . . equals $40,000. [The organiza-
tion] also contributes $10,000 to candidates and committees dur-
ing this time. Thus, one quarter of all receipts are used for
political purposes. Any person who donates $400 or more to [the
organization] during this time period must be itemized, as
required in section 84211(f), since one quarter of their donations
are deemed contributions to the committee . . . .
California Fair Political Practices Commission, Ginger Osborne Advice
Letter, No. A-03-108 (Osborne Advice Letter), at *2 (June 11, 2003).
14818 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
Thereafter, if a recipient committee wishes to terminate, it
must file a notice of its termination pursuant to CGC § 84214.
By terminating, the committee “insure[s] that [it] will have no
activity which must be disclosed . . .” Id., § 84214.
2. California Satisfied Its Burden Of Demonstrating
That The Definition Of Contribution Is Narrowly
Tailored To Advance Its Compelling Governmental
Interest In Disclosure Of Groups Who Seek To
Influence Voters.
In determining whether legislation is narrowly tailored, we
consider whether the restriction “(1) promotes a substantial
government interest that would be achieved less effectively
absent the regulation, and (2) [does] not burden substantially
more speech than is necessary to further the government’s
legitimate interests.” Kuba v. 1-A Agriculural Ass’n, 387 F.3d
850, 861 (9th Cir. 2001) (quoting Ward v. Rock Against Rac-
ism, 491 U.S. 781, 798 (1989)) (alteration and internal quota-
tion marks omitted).15
a. Other Methods of Defining What Payments Must
Be Disclosed Do Not Advance California’s
Informational Interest.
CPLC argues that California’s compelling interest only jus-
tifies the disclosure of those payments that are expressly
“made for political purposes for which full and adequate con-
sideration is not made to the donor[,]” CCR § 18215(a). Cali-
fornia counters that:
By simply discouraging donors from earmarking
their donations for expenditures on express cam-
paign advocacy or by commingling earmarked con-
15
Our earlier discussion of California’s compelling interest explains
why the regulation is necessary to meet the governmental interest in dis-
closing the sources of political speech to the voting public.
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14819
tributions with other funds, any multi-purpose group
could escape classification as a ‘recipient committee’
under [CGC] section 82013(a), and thereby avoid the
duty to disclose its contributors regardless of the size
of the contribution or the level of its political activ-
ity.
[10] Supreme Court precedent supports a definition of
“contribution” broader than that advocated by CPLC. In
MCFL, 479 U.S. at 241, 252, 262, the Court upheld the dis-
closure requirements in 2 U.S.C. § 434(c). In that statute,
“contribution” was defined as “any gift . . . or anything of
value made by any person for the purpose of influencing any
election for Federal office[.]” 2 U.S.C. § 431(8)(A)(I)
(emphasis added). The Court did not question the constitu-
tionality of these disclosure provisions, i.e., what is meant by
“to influence elections” or when the corporation will know
that there is a “contribution.” The fact that California has
more explicitly defined “contribution” does not weaken its
legislation. Cf. Garza v. County of Los Angeles, 918 F.2d 763,
772 (9th Cir. 1990) (noting that “while more frequent appor-
tionment was not constitutionally required, it would be consti-
tutionally permissible, and even practically desirable[ ]”)
(internal quotation marks and citation omitted).
In addition to a pure earmarking system, California consid-
ered “the system applicable to PACs, under which all receipts
are reported as contributions[.]” California noted that such a
system is “more restrictive and more burdensome than the
current reporting requirements of the PRA.” Consideration of
alternatives and selection of a less burdensome alternative that
furthers California’s compelling interest supports a conclusion
of narrow tailoring. Cf. Kuba, 387 F.3d at 862 n.12 (consider-
ing alternatives in assessing narrow tailoring).
b. Section 18215(b)(1)’s Presumption, Used To
14820 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
Identify Those Payments That Qualify As
Contributions, Is Permissible.16
Citing to Riley v. Nat’l Federation of the Blind, 487 U.S.
781 (1988), and Virginia v. Black, 538 U.S. 343 (2003),
CPLC postulates that California’s presumption violates the
First Amendment. It also urges us to conclude that presump-
tions cannot be applied to it, because it is not a PAC. CPLC’s
argument fails because both cases it relies on are distinguish-
able.
In Riley, 487 U.S. at 784-85, the Supreme Court considered
the constitutionality of a North Carolina statute in which “a
fee [to a professional fundraiser] exceeding 35% [wa]s pre-
sumed unreasonable, but the fundraiser [could] rebut the pre-
sumption . . .” The Court stated that “using percentages to
decide the legality of the fundraiser’s fee is not narrowly tai-
lored to the State’s interest in preventing fraud.” Id. at 789.
In Black, 538 U.S. at 348, the Supreme Court considered
the constitutionality of a Virginia cross-burning statute pro-
viding that “burning of a cross shall be prima facie evidence
of an intent to intimidate a person or group of persons.” (cita-
tion omitted). The provision was held to be unconstitutional
because it “would create an unacceptable risk of the suppres-
sion of ideas.” Id. at 365 (citation omitted). “[T]he provision
chills constitutionally protected political speech because of
the possibility that the Commonwealth will prosecute - and
potentially convict - someone engaging only in lawful politi-
cal speech at the core of what the First Amendment is
designed to protect.” Id.In both cases, the Supreme Court was concerned with the
chilling of speech. Although CPLC implies that California’s
16
CPLC does not take issue with the definition of “contribution” in CCR
§ 18215(a). Therefore, this discussion focuses on the provisions of
§ 18215(b)(1).
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14821
presumption may cause a group to “give up its right to
express itself” to avoid designation as a recipient committee,
there is no evidence in the record suggesting that such a chill-
ing effect has occurred.17
[11] Contrary to CPLC’s contentions, the record reflects
that the presumption in § 18215(b)(1) is rebuttable, thus pro-
viding flexibility for a group like CPLC to adopt a reasonable
method for identifying donors who are on notice of the exis-
tence of qualifying contributions.18
CGC § 82015(a) defines “contribution” as “a payment . . .
unless it is clear from the surrounding circumstances that [the
payment] is not made for a political purpose.” (Emphasis
added). Additionally, CCR § 18215(b) specifies that when a
donor has reason to know that its donation may be used for
17
In a related argument challenging the use of a presumption, CPLC
contends that by using the term “purpose” in CCR § 18215(a), California
is precluded from relying on a presumption. This argument is unavailing
because it assumes that California is required to have a system in which
only those donations which are specifically earmarked as “for the purpose
of influencing” voters may be regulated. As discussed above, California
has demonstrated that such a system would not advance its compelling
governmental interest. Because CPLC is essentially making an over-
breadth argument, it has the burden of showing that the inclusion of pro-
tected speech, i.e., donations not made “for the purpose of influencing”
voters, is substantial. See Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973). Parsing words used in California’s definition of “contribution”
does not meet this burden.
18
CPLC argues that California may not put forth this argument because
the district court described the one-bite-at-the-apple presumption as irre-
buttable and because California advances this argument for the first time
on appeal. These arguments are unconvincing. To the extent that the dis-
trict court’s order may be read as classifying the presumption as irrebutt-
able, we are not bound by its interpretation because “[this Court] review[s]
any element of legal analysis and statutory interpretation . . . de novo.”
Siegel v. The Federal Home Loan Mortgage Corp., 143 F.3d 525, 528 (9th
Cir. 1998) (citation omitted). Because claims, not arguments, are waived,
we may address California’s argument. See United States v. Pallares-
Galan, 359 F.3d 1088, 1095 (9th Cir. 2004).
14822 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
political purposes, the recipient committee may “apportion[ ]
[the payment] on a reasonable basis in order to determine the
amount of the contribution.” Thus, in the event that a donation
was made during a calendar year but before CPLC made the
$1,000 expenditure that would put donors on notice, CPLC
would not have to disclose those donations, because it is not
reasonable to assume the donors had notice of the potential
use of their donations for political purposes. Pursuant to CGC
§ 82015, the circumstances would convey that the donation
was not meant to be a “contribution.”19 CPLC represents that
“[a] presumption based on what the payee has done [i.e. made
expenditures or contributions of $1,000 or more during the
“lookback period”], not what the payor knows, that is applied
even where the payor knows nothing of the payee’s activity
is not narrowly tailored to an interest in the disclosure of gifts
‘made for the purpose of influencing’ voters.” This argument
is unconvincing, because it is based on an erroneous interpre-
tation of the PRA provisions. As discussed above, the pre-
19
This interpretation is supported by the Fishburn Advice Letter. “For
the remainder of that year [after the $1,000 or more contribution and/or
expenditure] and the following four years, any donor to the organization
would presumably know or have reason to know that funds with which the
donations will be commingled may be used for political purposes.” Id. at
*4. Thus,
[i]f a subsequent contribution or expenditure of $1,000 or more
is made by the organization during the applicable period (current
year plus 4 following years), the organization becomes a recipient
committee, and any donations or membership fees it receives
after the “first bite” contribution or expenditure of $1,000 or
more has been taken, are deemed to have been received for politi-
cal purposes, and the sources of any funds used by the organiza-
tions to make those contributions would [be] subject to disclosure
on a reasonably apportioned basis.
Id. (emphasis added).
We do not determine the constitutionality of the presumption in
§ 18215(b)(1) on its face. Rather, we review the statute as interpreted by
California. See Tollis, Inc. v. San Bernardino County, 827 F.2d 1329, 1333
(9th Cir. 1987) (reviewing ordinance as interpreted by County).
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14823
sumption is rebuttable. To the extent it can be shown that the
donor had no knowledge of the organization’s activities, then
the organization need not disclose the donation. In addition,
according to CGC § 82015, if it is clear from the surrounding
circumstances that the donor did not intend for the donations
to be for the purpose of influencing voters, no disclosure is
required.
CPLC asserts that California’s scheme is also underinclu-
sive and thus not narrowly tailored. According to CPLC,
“California considers donors to be on some level of construc-
tive notice after a group makes an initial expenditure [during
the current calendar year or the previous four calendar years]
. . . but asserts no interest in disclosure during this period.”
For example, because the “reachback period is only for the
calendar year, . . . it would not reach a large donation on
December 31 of the prior year, even if the second, triggering
independent expenditure occurs on the following day on Janu-
ary 1 of the present year.” However, CPLC itself demon-
strates why its argument does not establish
underinclusiveness, recognizing that “of course, if that gift
[on December 31 of the prior year] were really ‘made for the
purpose of influencing’ voters, it would already be captured
as a disclosable true contribution and the recipient group
would properly be a recipient committee.” Thus, the scheme
is not underinclusive because to the extent that the hypotheti-
cal payment on December 31 were “made for the purpose of
influencing” voters, it would be necessarily disclosed.
[12] Accordingly, we conclude that the presumption in
§ 18215(b)(1) is narrowly tailored. “To be narrowly tailored,
a statute need not be the least restrictive means of furthering
the government’s interests, but the restriction may not burden
substantially more speech than necessary to further the inter-
ests.” Menotti v. City of Seattle, 409 F.3d 1113, 1130-1131
(9th Cir. 2005) (citation and internal quotation marks omit-
ted). California has demonstrated why other alternatives fail
to advance its compelling informational interest. Moreover, as
14824 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
interpreted by California, § 18215(b)(1) does not burden sub-
stantially more speech than necessary and serves to advance
the compelling informational interest. See Arizona Right to
Life Political Action Committee v. Bayless, 320 F.3d 1002,
1011 (9th Cir. 2003) (“In determining whether a statute is nar-
rowly tailored to serve a significant government interest, we
look to the ‘fit’ between the state’s regulation and the stated
purposes[.]”) (citation omitted).
c. Pro-Ration and The Articulated Exception For
Organizations With Other Funds Further
Demonstrate That The Definition Of
“Contribution” Is Narrowly Tailored.
[13] A recipient committee is only required to disclose
those “contributions” that on a pro-rated basis are $100 or
more. According to California, pro-ration advances its com-
pelling governmental interest because “[t]he greater the orga-
nization’s political involvement and the greater the size of the
contribution, the greater the disclosure.”
[14] CPLC counters that the pro-ration is not narrowly tai-
lored because “the larger a group’s receipts, the smaller the
chance that a donation will be disclosed as a ‘contribution.’ ”
Contrary to this assertion, the pro-ration approach actually
demonstrates California’s attempt to narrow the statute and
capture only those payments “made for the purpose of influ-
encing” voters, because a donation is disclosed only to the
extent that the donee corporation participates in ballot mea-
sure advocacy.
CPLC asserts that there is a resulting underinclusiveness
because “the same donation made to two groups (with the
same lack of any communicated ‘purpose to influence’ voters)
would be disclosable as a prorated ‘contribution’ if made to
one but not the other.” CPLC explains that the California
scheme “permits the group to first count any proceeds it has
from sales toward the expenditure, so if a group has offsetting
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14825
proceeds from sales it does not need to report any ‘contribu-
tions.’ ” However, this challenge is based on a misinterpreta-
tion of how the PRA provisions operate. In fact, the pro-ration
provision applies only if the organization’s “contributions or
expenditures are made solely from that source . . .” Fishburn
Advice Letter, at *5 (explaining that this provision addresses
circumstances where “an organization has sufficient income
[from sources other than donations or membership dues] . . .
and [its] contributions or expenditures are made solely from
that source”) (emphasis added).
[15] California examined alternatives and reasonably deter-
mined that the alternatives do not advance its compelling
interest or were more restrictive. Additionally, CPLC failed to
establish that the presumption was impermissibly overinclu-
sive or underinclusive. Therefore, the PRA’s disclosure provi-
sions meet the “narrowly tailored” requirement.
3. California Has Not Satisfied Its Burden Of
Demonstrating That The Political Action
Committee-Like Requirements Imposed On A
Group Like CPLC Are Narrowly Tailored To
California’s Compelling Informational Interest.
[16] In addition to requiring disclosure of “contributions,”
the PRA imposes political action committee-like requirements
on a group like CPLC, a multi-purpose organization. Califor-
nia makes two primary arguments in support of these require-
ments. “First, the Constitution permits California to require
CPLC to form and use a PAC [Political Action Committee]
for its political activities, treating all its ‘donations’ as ‘contri-
butions.’ ” “Second, CPLC is not the kind of organization
exempted from PAC-like reporting obligations under the
teaching of MCFL.”
California’s arguments ignore the distinction between can-
didate and ballot measure elections. Instead, California relies
on its observation that “the federal counterpart to the PRA has
14826 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
required all groups organized in corporate form, including
non-profit corporations, to channel express campaign advo-
cacy through PACs, to which all ‘donations’ are, of course,
‘contributions.’ ” The following language in McConnell is
specified in support of this proposition:
Since our decision in Buckley, Congress’ power to
prohibit corporations and unions from using funds in
their treasuries to finance advertisements expressly
advocating the election or defeat of candidates in
federal elections has been firmly embedded in our
law. The ability to form and administer separate seg-
regated funds authorized by FECA . . . has provided
corporations and unions with a constitutionally suffi-
cient opportunity to engage in express advocacy.
That has been this Court’s unanimous view, and it is
not challenged in this litigation.
Id. (citing McConnell, 540 U.S. at 203) (citation and footnote
reference omitted) (emphasis added). However, California’s
reliance on McConnell and its interpretation of the federal
statute are both mistaken.
McConnell supports the required use of a separate segre-
gated fund when the organization is “expressly advocating the
election or defeat of candidates . . .” 540 U.S. at 203 (empha-
sis added). The reasoning of McConnell extends no further.
See also MCFL, 479 U.S. at 241, 247-48 (interpreting 2
U.S.C. § 441b to cover expenditures made directly to candi-
dates as well as on behalf of candidates). This reading is fur-
ther supported by the language of § 441b(a) making it
unlawful “for any . . . corporation . . . to make a contribution
or expenditure in connection with any election to any political
office, or in connection with any primary election . . . held to
select candidates for any political office . . .” 2 U.S.C.
§ 441b(a) (emphasis added). “Contribution” is defined as
“any gift, subscription, loan, advance, or deposit of money or
anything of value made by any person for the purpose of
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14827
influencing any election for Federal office[.]” § 431(8)(A)(I)
(emphasis added). “Expenditure” is defined as “any purchase,
payment, distribution, loan, advance, deposit, or gift of money
or anything of value, made by any person for the purpose of
influencing any election for Federal office[.]” § 431(9)(A)(I)
(emphasis added). “Federal office” is defined as “the office of
President or Vice President, or of Senator or Representative
in, or Delegate or Resident Commissioner to, the Congress.”
§ 431(3). Thus, the requirement of a separate segregated fund
pursuant to § 441b appears to only be in the context of contri-
butions or expenditures to or on behalf of candidates.
California’s citation to Bellotti does not salvage its argu-
ment. In Bellotti, 435 U.S. at 767, the Supreme Court consid-
ered a “state criminal statute that for[bade] certain
expenditures by banks and business corporations for the pur-
pose of influencing the vote on referendum proposals . . .”
The Court held the statute to be unconstitutional, noting “[t]he
risk of corruption perceived in cases involving candidate elec-
tions, simply is not present in a popular vote on a public
issue.” Id. at 776, 790 (citations and footnote reference omit-
ted). California contends that “[t]he statute at issue in Bellotti
did not provide corporations with the ‘PAC option’ that Buck-
ley found to be a ‘constitutionally sufficient opportunity’ for
corporations wishing to engage in political speech.” Califor-
nia asks us to conclude that the Supreme Court would have
upheld the statute reviewed in Bellotti had such an option
existed. However, the Court’s decision simply does not sup-
port that conclusion.
The weakness of California’s first argument undermines its
second argument. Based on the fact that McConnell recog-
nized an exception from the § 441b segregated-fund require-
ment for MCFL-type corporations, see McConnell, 540 U.S.
at 211, California contends that because CPLC does not qual-
ify as an MCFL-type corporation, it “is not entitled to an
‘exemption’ from requirements that it disclose the sources of
14828 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
money actually spent on ballot measure advocacy.”20 How-
ever, as discussed above, it is not at all certain that the
Supreme Court would apply the same criteria to ballot mea-
sure advocacy as it did when election of candidates was
involved.
In addition to these two primary arguments, California
presented testimony demonstrating that a group such as CPLC
could form a PAC to simplify reporting. However, the Court
in MCFL discounted that fact in analyzing the disclosure
requirements. See 540 U.S. at 203 & n.86.
California also argues that the “reporting, registration,
record-keeping and notice requirements . . . imposed on
CPLC or groups like CPLC are necessary and reasonable[,]”
because the “ ‘burdens’ enumerated [by] CPLC[ ] . . . have all
been upheld by the Supreme Court and could constitutionally
be imposed on CPLC by California.” However, this argument
is again unpersuasive because McConnell dealt solely with
disclosures in the candidate context. See 540 U.S. at 194.
[17] In MCFL, the Federal Election Commission argued
that “the inapplicability of § 441b to MCFL would open the
door to massive, undisclosed political spending by similar
entities, and to their use as conduits for undisclosed spending
by business corporations and unions.” MCFL, 479 U.S. at
262. The Court responded that it “s[aw] no such danger. Even
if § 441b is inapplicable, an independent expenditure of as lit-
20
In its reply brief, CPLC argues that it would “likely qualify as an
MCFL-type because donations from corporations, if any, would be de
minimis, and several federal courts have held that the exception require-
ment is satisfied with de minimis corporate donations.” We need not
address this argument because it is raised for the first time in the reply
brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)
(“It is well established in this circuit that the general rule is that appellants
cannot raise a new issue for the first time in their reply briefs.”) (citation
and alteration omitted). Moreover, insufficient evidence exists in the
record to determine whether corporate donations were in fact de minimis.
CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14829
tle as $250 by MCFL will trigger the disclosure provisions of
§ 434(c).” Id. “These reporting obligations provide precisely
the information necessary to monitor MCFL’s independent
spending activity and its receipt of contributions. The state
interest in disclosure therefore can be met in a manner less
restrictive than imposing the full panoply of regulations that
accompany status as a political committee under the Act.” Id.;
see also Bellotti, 435 U.S. at 767, 795 (invalidating a Massa-
chusetts statute that restricted corporations from contributing
to ballot measure referenda).
E. CPLC Has Failed To Establish Overbreadth.
To prevail on its overbreadth challenge, CPLC must dem-
onstrate that “the overbreadth of [the] statute [is] not only . . .
real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.” Broadrick, 413 U.S. at 615.
CPLC argues that the “reason to know” presumption con-
tained in CCR § 18215(b) is irrebuttable and thus overbroad.
CPLC contends that “[i]f a donor makes a gift to a group like
CPLC for the earmarked purpose of building a new office and
the transmogrifying presumption engages, there is no excep-
tion in the PRA regulations that permits the group to exclude
that gift from being considered a prorated contribution . . . .
California insists that it was ‘made for the purpose of influ-
encing’ voters.” This argument fails because as discussed
above, the presumption may be rebutted. See CGC
§ 82015(a), CCR § 18215(b).
CPLC also asserts that its associational rights are violated.
In NAACP v. Alabama, 357 U.S. 449, 462 (1958), the
Supreme Court invalidated compelled disclosure of member-
ship in an organization because the NAACP “made an uncon-
troverted showing that on past occasions revelation of the
identity of its rank-and-file members has exposed these mem-
bers to economic reprisal, loss of employment, threat of phys-
ical coercion, and other manifestations of public hostility.”
14830 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH
The Court in McConnell clarified that for compelled disclo-
sure to be unconstitutional, as in NAACP, “the evidence must
demonstrate a reasonable probability that the compelled dis-
closure of a party’s contributors’ names will subject them to
threats, harassment or reprisals from either Government offi-
cials or private parties.” McConnell, 540 U.S. at 198 (citation
omitted). CPLC made no such showing.
Thus, California has met its burden of demonstrating that
the definition of “contribution” is narrowly tailored to its
compelling informational interest, and CPLC may be required
to disclose “contributions,” as defined by the PRA.
CONCLUSION
[18] We hold that California has demonstrated the exis-
tence of a compelling governmental interest and that the
PRA’s definition of “contribution” is narrowly tailored to pro-
mote its compelling informational interest. However, Califor-
nia has failed to demonstrate how the additional political
committee-like requirements are narrowly tailored to advance
its compelling governmental interest.
AFFIRMED in part, REVERSED in part, and
REMANDED.
Each party is to bear its costs on appeal.