National Organization for Marr v. Walter McKee ( 2011 )

United States Court of Appeals
For the First Circuit
Nos. 10-2000
10-2049
NATIONAL ORGANIZATION FOR MARRIAGE,
Plaintiff, Appellant/Cross-Appellee,
AMERICAN PRINCIPLES IN ACTION,
Plaintiff,
v.
WALTER F. MCKEE, in his official capacity as member of the
Commission on Governmental Ethics and Election Practices, ET AL.,
Defendants, Appellees/Cross-Appellants,
MATTHEW DUNLAP, in his official capacity as Secretary of the
State of Maine,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Boudin, and Lipez, Circuit Judges.
James Bopp, Jr., with whom Randy Elf, Joseph A. Vanderhulst,
James Madison Center for Free Speech, Stephen C. Whiting, and The
Whiting Law Firm were on brief, for appellant/cross-appellee.
Thomas A. Knowlton, Assistant Attorney General, with whom
Janet Mills, Attorney General, and Phyllis Gardiner, Assistant
Attorney General, were on brief, for appellees/cross-appellants.
Lisa J. Danetz, Brenda Wright, DEMOS, and John Brautigam on
brief for Maine Citizens for Clean Elections, amicus curiae.
August 11, 2011
LIPEZ, Circuit Judge. This appeal requires us to address
the constitutionality of several Maine election laws governing,
inter alia, the registration of political action committees
("PACs") and the disclosure and reporting of information about
expenditures made for election-related advocacy.1 Appellant
National Organization for Marriage ("NOM"), a New Jersey-based
nonprofit corporation organized for the purpose of providing
"organized opposition to same-sex marriage in state legislatures,"
contends that Maine's laws are unconstitutionally vague and
overbroad. Claiming a chill of its First Amendment-protected
advocacy efforts in Maine, NOM brought a facial and as-applied
challenge seeking an injunction against the laws' enforcement and
a declaration of their unconstitutionality. On summary judgment,
the district court largely rejected NOM's claims, agreeing only
that the phrase "for the purpose of influencing," which the court
severed from the provisions in which it appeared, was
unconstitutionally vague.2
NOM renews here its arguments challenging Maine's laws on
vagueness and overbreadth grounds. NOM asks as well that we
reverse a ruling by the district court unsealing the trial record.
1
In a companion opinion filed today, we consider appellant's
challenges to a related provision of Rhode Island's election laws.
See Nat'l Org. for Marriage v. Daluz, No. 10-2304 (1st Cir. 2011).
2
The court also held unconstitutional a regulation governing
the timing of disclosures. That holding is not at issue in this
appeal.
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In turn, the defendants (various Maine officials) contend that the
district court erred in finding vague, and severing from Maine's
statutes, the phrase "for the purpose of influencing."
After careful consideration of the parties' arguments and
key precedents, we conclude that Maine's laws pass constitutional
muster. Central to our holding is the nature of the laws NOM
challenges here. These provisions neither erect a barrier to
political speech nor limit its quantity. Rather, they promote the
dissemination of information about those who deliver and finance
political speech, thereby encouraging efficient operation of the
marketplace of ideas. As the Supreme Court recently observed, such
compulsory "transparency enables the electorate to make informed
decisions and give proper weight to different speakers and
messages." Citizens United v. FEC, 130 S. Ct. 876, 916 (2010).
While we acknowledge that disclosure can, in some cases, unduly
burden or chill political speech, there is no evidence that the
Maine laws at issue here have had such a deleterious effect on NOM
or its constituents.
We agree with the appellees that the use of "for the
purpose of influencing" in the statutes at issue, given the
appropriately limited reading offered by Maine's Commission on
Governmental Ethics and Election Practices, is not
unconstitutionally vague, and therefore we vacate the district
court's holding as to that phrase and the consequent severance of
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portions of Maine's statutes. We otherwise affirm the district
court's judgment in its entirety.
I. Statutory and Procedural Background
A. Maine's Election Laws
Maine has enacted a comprehensive set of election laws
that embraces, among other things, contribution limits, a public
financing system for state-office candidates, and various reporting
and disclosure requirements for those engaged in election-related
advocacy. We have previously described the contribution limit and
public financing aspects of Maine's regulation of elections --
which are not at issue here -- in some detail. See Daggett v.
Comm'n on Governmental Ethics & Election Practices, 205 F.3d 445,
450-52 (1st Cir. 2000). The provisions challenged here, all
relating solely to reporting and disclosure, fall into three
categories: rules governing PACs, rules governing "independent
expenditures," and general attribution and disclaimer requirements.
1. PAC Provisions
Maine's PAC provisions are, as the appellees aptly
characterize them, "pure disclosure laws." Maine imposes no
limitation on the amount of money PACs may raise, nor does it cap
the sum a PAC may spend independently of a candidate or candidate
committee. If they contribute money directly to a candidate, PACs
are subject to the same per-candidate contribution limits -- $750
per election for gubernatorial candidates and $350 per election for
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legislative candidates -- as any other donor. See Me. Rev. Stat.
tit. 21-A, § 1015(1), (2). The only PAC-specific requirements
relate to registration, recordkeeping, and reporting.
An organization may qualify as a PAC under Maine law in
one of several ways, of which two are relevant here. The first
pertains to so-called "major-purpose" PACs. An organization that
"has as its major purpose initiating, promoting, defeating or
influencing a candidate election, campaign or ballot question" must
register as a PAC in Maine if it receives contributions or makes
expenditures aggregating more than $1,500 in a given calendar year
for that purpose. Id. §§ 1052(5)(A)(4), 1053. The second relates
to "non-major-purpose PACs," which are subject to a significantly
higher contribution/expenditure threshold for registration.
Specifically, Maine law requires that an organization register as
a PAC if it "does not have as its major purpose promoting,
defeating or influencing candidate elections but . . . receives
contributions or makes expenditures aggregating more than $5,000 in
a calendar year for the purpose of promoting, defeating or
influencing in any way the nomination or election of any candidate
to political office." Id. §§ 1052(5)(A)(5), 1053.
Within seven days of exceeding the relevant contribution
or expenditure threshold, a PAC must register with the Maine
Commission on Governmental Ethics and Election Practices (the
"Commission"). Id. § 1053. Registration requires that the
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organization supply a name and address for the PAC; identify its
form of organization and date of origin; name its treasurer,
principal officers, and primary fundraisers and decisionmakers; and
indicate which candidates, committees, referenda, or campaigns it
supports or opposes. Id. An organization need not make any formal
changes, such as forming a separate legal entity or creating a
segregated fund, to operate as a PAC in Maine.
Once registered, a PAC is subject to two ongoing
obligations under Maine law. First, the PAC treasurer must
maintain records of certain election-related expenditures and
contributions for four years following the election to which the
records pertain. Id. § 1057. Second, the PAC must electronically
file campaign finance reports on a quarterly basis, with additional
reports due eleven days before any primary or general election and
forty-two days after. Id. § 1059. The contents of the report vary
by type of PAC. A major-purpose PAC must report any contribution
to the PAC of more than $50 (including the name, address,
occupation, and place of business of the contributor), while a non-
major-purpose PAC reports only those contributions made "for the
purpose of promoting, defeating or influencing a ballot question or
the nomination or election of a candidate to political office."
Id. § 1060(6). The reporting of expenditures breaks down along
similar lines: major-purpose PACs report all expenditures,
including operational and administrative expenses, whereas non-
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major-purpose PACs report "only those expenditures made for the
purpose of promoting, defeating or influencing a ballot question or
the nomination or election of a candidate to political office."
Id. § 1060(4), (5), (7).
Maine law also explicitly requires PACs that are
organized in another state to comply with all applicable
registration and reporting requirements. See id. § 1053-B. There
is, however, a narrow exemption: out-of-state PACs may contribute
to candidates, party committees, and PACs in Maine without
registering with the Commission, provided that (1) such
contributions are the out-of-state PAC's only financial activity
within Maine and (2) the out-of-state PAC "has not raised and
accepted any contributions during the calendar year to influence an
election or campaign" in Maine. Id.
2. "Independent Expenditure" Provision
In addition to its PAC-specific requirements, Maine's
election laws also require across-the-board reporting of certain
"independent expenditures." At a general level, an "independent
expenditure" is any payment or obligation made "for the purpose of
influencing the nomination or election of any person to political
office" other than a direct contribution to candidates and their
campaign committees. Id. §§ 1012(3), 1019-B(1). Maine law
provides that any individual or entity making independent
expenditures aggregating more than $100 over the course of a
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particular candidacy must file a report with the Commission. Id.
§ 1019-B(3). That report must simply identify the expenditures by
date, payee, and purpose, state whether the expenditures were made
in support of or opposition to the relevant candidate, and state
under oath or affirmation whether the expenditures were coordinated
with a candidate or candidate committee. Id.
An expenditure may qualify as an "independent
expenditure" in one of two ways. First, an expenditure will fall
within the independent expenditure reporting requirement where it
is made to finance a communication that "expressly advocates the
election or defeat of a clearly identified candidate" and it is not
a direct contribution to a candidate or candidate's committee.3
Id. § 1019-B(1)(A). Second, certain expenditures for
communications made close to an election -- twenty-one days before
a primary and thirty-five days before the general election -- are
presumed to be "independent expenditures." Id. The presumption
applies only to an expenditure "made to design, produce or
disseminate a communication that names or depicts a clearly
identified candidate" in a race where at least one candidate has
accepted public financing. Id. § 1019-B(1)(B). The person
making the expenditure is afforded a chance to rebut the
3
A candidate will be considered "clearly identified" where
the name or a depiction of the candidate appears, or where the
"identity of the candidate is apparent by unambiguous reference."
Me. Rev. Stat. tit. 21-A, § 1012(1).
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presumption by filing a written statement with the Commission
within forty-eight hours of the expenditure "stating that the cost
was not incurred with the intent to influence the nomination,
election or defeat of a candidate." Id. § 1019-B(2). Once a
rebuttal statement is filed, the Commission will determine by a
preponderance of the evidence, after gathering relevant material,
whether the expenditure was incurred with such an intent. Id.
3. Attribution and Disclaimer Requirements
Finally, Maine law also requires that political
advertisements and certain other political messages contain
statements of attribution and disclaimer. The governing statute
provides that any "communication expressly advocating the election
or defeat of a clearly identified candidate . . . clearly and
conspicuously state" whether it has been authorized by the
candidate (the disclaimer) and state the name and address of the
person who financed the communication (the statement of
attribution). Id. § 1014(1)-(2). These disclaimer and attribution
statements must also be included in any communication shortly
before an election4 that "names or depicts a clearly identified
candidate," unless the communication "was not made for the purpose
4
As with the independent expenditure reporting requirements,
the relevant period is twenty-one days before a primary and thirty-
five days before a general election. Me. Rev. Stat. tit. 21-A, §
1014(2-A).
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of influencing the candidate's nomination for election or
election." Id. § 1014(2-A).
4. Sanctions
The Commission may level a variety of sanctions --
primarily in the form of fines -- for violations of the provisions
discussed above. An entity that falls within the definition of a
PAC but fails to register may be subject to a civil fine of $250,
id. § 1062-A(1), and a PAC's failure to file reports within thirty
days of a reporting deadline can result in a fine of up to $10,000
or a criminal misdemeanor charge. Id. § 1062-A(8). Likewise,
violations of the independent expenditure reporting requirement are
punishable by a civil fine of up to $5,000. Id. § 1020-A(5-A)(A).
Finally, violations of the attribution and disclosure requirements
are subject to lesser fines (up to $200 if made within 20 days
before an election, and no more than $100 at other times), but may
be punished by a special fine of up to $5,000 if the violation was
committed with the intent to misrepresent the source or candidate
authorization of the advertisement. Id. § 1014(4).
B. Procedural History
NOM filed the initial complaint in this case in October
2009, shortly before a referendum election in Maine on a raft of
issues that included same-sex marriage.5 The complaint challenged
5
NOM was joined in its initial complaint by co-plaintiff
American Principles in Action. The specific claims at issue in
this appeal were only pursued by NOM, and, accordingly, American
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the constitutionality of a provision relating to ballot question
committees, Me. Rev. Stat. tit. 21-A, § 1056-B,6 and was
accompanied by motions for a temporary restraining order and a
preliminary injunction. Following an expedited hearing, the
district court denied NOM's motion for a temporary restraining
order. NOM subsequently amended its complaint to add the claims at
issue here: those targeting the constitutionality of Maine's PAC
registration, independent expenditure, and attribution and
disclaimer laws.
The district court held a hearing on NOM's motion for a
preliminary injunction, consolidated with a bench trial on the
merits, on August 12, 2010.7 The parties stipulated to a joint
trial record, which was submitted under seal. At the hearing, the
district court expressed doubt about the basis for sealing the
record, and subsequently issued an order to show cause why the
trial record should be maintained under seal.
In a decision issued on August 19, 2010, the district
court largely denied NOM's claims and upheld the constitutionality
of the challenged statutes. See Nat'l Org. for Marriage v. McKee,
Principles in Action does not appear as an appellant.
6
The constitutionality of § 1056-B is not at issue in this
appeal.
7
The hearing addressed solely the specific claims at issue
in this appeal, leaving the challenges to § 1056-B for a later
summary judgment hearing.
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723 F. Supp. 2d 245 (D. Me. 2010). Finding that NOM had adequately
demonstrated an interest in engaging in expressive activity that
was deterred by the prospect of regulation under Maine's laws, the
court held that NOM had standing to challenge the statutes at
issue.8 Id. at 256-58. On the merits, the court found for NOM on
only two points.
First, the court held the phrase "for the purpose of
influencing" to be unconstitutionally vague, citing the treatment
of similar language in the Supreme Court's opinion in Buckley v.
Valeo, 424 U.S. 1 (1976). Nat'l Org. for Marriage, 723 F. Supp. 2d
at 261. The phrase (and variants thereof) appears in several
places throughout the challenged statutes, including in the
definition of a non-major-purpose PAC,9 the rebuttal provision for
presumed independent expenditures (i.e., those made shortly prior
to an election),10 and in the provisions defining which
8
The court declined, however, to reach the constitutionality
of the "major-purpose" PAC provision, § 1052(5)(A)(4), noting that
the record showed no basis for concluding that NOM would be subject
to that regulation. See Nat'l Org. for Marriage, 723 F. Supp. 2d
at 254.
9
See Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5) (defining non-
major-purpose PAC to include "[a]ny organization that . . .
receives contributions or makes expenditures aggregating more than
$5,000 . . . for the purpose of promoting, defeating or influencing
in any way the nomination or election of any candidate to political
office").
10
See Me. Rev. Stat. tit. 21-A, § 1019-B(2) ("A person
presumed . . . to have made an independent expenditure may rebut
the presumption by filing a signed written statement . . . stating
that the cost was not incurred with the intent to influence the
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communications are subject to disclaimer and attribution
requirements.11 The court determined that the appropriate remedy
was to sever the phrase from the statutes. Id. The most
significant impact of this holding was on the independent
expenditure statute. Because the rebuttal procedure for presumed
independent expenditures was dependent on the term "influencing,"12
the court's ruling severed the entire rebuttal procedure. Thus,
the independent expenditure presumption became conclusive for
expenditures for communications clearly identifying a candidate
made shortly before an election. The court held that the
provision, as altered, nonetheless passed constitutional muster, as
recent Supreme Court decisions "have made the rebuttal exercise
pointless." Id. at 265.13
nomination, election or defeat of a candidate . . . .").
11
See Me. Rev. Stat. tit. 21-A, § 1014(2-A) ("[D]isclosure is
not required if the communication was not made for the purpose of
influencing the candidate's . . . election.").
12
The other statutes contained additional advocacy-related
terms that remained after "influencing" was stricken -- e.g.,
"promoting" and "defeating," Me. Rev. Stat. tit. 21-A,
§ 1052(5)(A)(5) -- whereas the independent expenditure rebuttal
procedure turned solely on the word "influence," see id. § 1019-
B(2) (applying to expenditures made "with the intent to influence"
candidate elections).
13
The district court reached this conclusion primarily on the
basis of Citizens United, which upheld a similar federal-law
disclosure provision for advertisements made shortly before an
election. The Court ruled that the statute, which contained no
rebuttal provision analogous to Maine's, passed First Amendment
muster in light of a general "public . . . interest in knowing who
is speaking about a candidate shortly before an election."
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Second, the court held one of the implementing
regulations for the independent expenditure statute
unconstitutional, finding that it impermissibly burdened First
Amendment speech. Id. at 266. The regulation was one of a pair
governing the timing of reporting independent expenditures. The
first, which the court upheld, required that independent
expenditures of over $100 made within two weeks of an election be
reported to the Commission within twenty-four hours. See 94-270-
001 Me. Code R. § 10(3)(A). The second required the reporting
within twenty-four hours of any independent expenditures
aggregating over $250, regardless of when made. Id. § 10(3)(B).
Finding the short reporting time frame mandated by both regulations
to be burdensome, the court held that the second regulation, unlike
the first, could not be justified by a close relationship to "the
state's interest in providing information to voters at precisely
the time that such information can be of greatest use." Nat'l Org.
for Marriage, 723 F. Supp. 2d at 266. The defendants do not
challenge this holding on appeal.
In addition to its merits holdings, the district court
also ruled that the trial evidence must be unsealed. Explaining
that it was "not willing to make a First Amendment decision based
Citizens United, 130 S. Ct. at 915.
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upon a sealed record," the court ordered the parties to refile the
record in publicly available form.14 Id. at 249 n.4.
This timely appeal followed.
II. Standing
We begin, as we must, with the defendants' argument that
NOM lacks standing to prosecute some of its constitutional claims.
We review a district court's ruling on the question of standing de
novo. Sullivan v. City of Augusta, 511 F.3d 16, 24 (1st Cir.
2007).
The standing requirement -- or, more accurately,
requirements, as standing "comprises a mix of constitutional and
prudential criteria," Osediacz v. City of Cranston, 414 F.3d 136,
139 (1st Cir. 2005) -- flows from the limited nature of federal
court jurisdiction, and specifically from the grounding of the
federal judicial power in "Cases" and "Controversies." U.S. Const.
art. III, § 2; Ariz. Christian Sch. Tuition Org. v. Winn, 131 S.
Ct. 1436, 1441-42 (2011). The constitutional aspect of standing
embraces three core requirements:
"First, the plaintiff must have suffered an
'injury in fact' —- an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) 'actual or imminent,
not "conjectural" or "hypothetical."' Second,
there must be a causal connection between the
injury and the conduct complained of -— the
injury has to be 'fairly trace[able] to the
14
We subsequently stayed the unsealing order upon NOM's
emergency motion for a stay pending appeal.
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challenged action of the defendant, and not
. . . th[e] result [of] the independent action
of some third party not before the court.'
Third, it must be 'likely,' as opposed to
merely 'speculative,' that the injury will be
'redressed by a favorable decision.'"
Ariz. Christian Sch., 131 S. Ct. at 1442 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The Supreme
Court has overlaid these constitutional dictates with several
prudential limitations on standing, including "'the general
prohibition on a litigant's raising another person's legal rights,
the rule barring adjudication of generalized grievances more
appropriately addressed in the representative branches, and the
requirement that a plaintiff's complaint fall within the zone of
interests protected by the law invoked.'" Osediacz, 414 F.3d at
139 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). In
certain facial First Amendment challenges to a statute, we may
relax these prudential limitations, Osediacz, 414 F.3d at 141, but
the constitutional requirements apply with equal force in every
case, Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 326 n.6 (1st
Cir. 2009).
Defendants do not seek to dispose of the entire suit on
standing grounds, but instead surgically target NOM's standing to
challenge Maine's PAC-related election laws.15 They assert that NOM
15
Such a targeted approach is consistent with the claim-
specific nature of standing; "standing is not dispensed in gross,"
Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996), and thus a plaintiff
must separately prove standing "for each claim he seeks to press."
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lacks standing to bring the PAC claims because it failed to prove
that it came within the reach of Maine's PAC laws, i.e., that NOM's
activities would have qualified it as a PAC. In light of the fact
that prudential limitations on standing may be relaxed in the
context of First Amendment challenges -- and because defendants
cite the constitutional standards for standing in making their
argument -- we construe this argument as a challenge to the
adequacy of NOM's Article III injury-in-fact showing.16
Preenforcement First Amendment challenges like this one
occupy a somewhat unique place in Article III standing
jurisprudence. By definition, such cases present us with
situations where the government has not yet applied the allegedly
unconstitutional law to the plaintiff, and thus there is no
tangible injury. However, in these circumstances the Supreme Court
has recognized "self-censorship" as "a harm that can be realized
even without an actual prosecution." Virginia v. Am. Booksellers
Ass'n, 484 U.S. 383, 393 (1988); see also N.H. Right to Life
Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996)
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
16
Defendants do not appear to contest that the second and
third prongs of the constitutional standing analysis would be met
here; to the extent that the plaintiff has suffered a cognizable
injury at all, the injury can "be traced to the existence and
threatened enforcement of the challenged statutes," and is
redressable in an action against the defendants here, who are
charged with enforcing Maine's election laws. N.H. Right to Life
Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996).
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("[I]t is not necessary that a person expose herself to arrest or
prosecution under a statute in order to challenge that statute in
a federal court."). The chilling of protected speech may thus
alone qualify as a cognizable, Article III injury.
The mere allegation of a "chill," however, will not
suffice to open the doors to federal court. See Laird v. Tatum,
408 U.S. 1, 13-14 (1972) ("Allegations of a subjective 'chill' are
not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm . . . .").
Where, as here, the plaintiff claims injury based on such a
chilling of speech, the plaintiff must establish with specificity
that she is "within the class of persons potentially chilled."
Osediacz, 414 F.3d at 142. This burden will be satisfied by record
evidence supporting "an objectively reasonable possibility that she
would be subject to the allegedly unconstitutional [law]." Id. at
143; see also N.H. Right to Life, 99 F.3d at 14 ("A party's
subjective fear that she may be prosecuted for engaging in
expressive activity will not be held to constitute an injury for
standing purposes unless that fear is objectively reasonable.").
NOM challenges three separate provisions of Maine's PAC
laws: the major-purpose PAC definition, the non-major-purpose PAC
definition, and the provision governing out-of-state PACs. We
examine in turn whether the record supports an "objectively
reasonable possibility" that each provision would be applied to
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NOM, Osediacz, 414 F.3d at 143, and then turn briefly to a related
inquiry specific to NOM's vagueness challenges to the PAC statutes.
A. Standing to Challenge Major-Purpose PAC Provision
It is plain that NOM has no objectively reasonable
apprehension of being regulated as a major-purpose PAC. Among
other things, a major-purpose PAC must have "as its major purpose
initiating, promoting, defeating or influencing a candidate
election, campaign or ballot question" in Maine. Me. Rev. Stat.
tit. 21-A, § 1052(5)(A)(4). NOM identifies itself as a nonprofit
advocacy organization with a national scope, dedicated to providing
"organized opposition to same-sex marriage in state legislatures."
NOM's advocacy efforts and expenditures have spanned the country,
with significant expenditures in California, Iowa, New York, and
New Hampshire, among others. In 2009, the year of NOM's largest
expenditures in Maine (made to support repeal of Maine's same-sex
marriage law), NOM spent $1.8 million in Maine out of $8 million in
total expenditures for the year. In light of this record, NOM does
not have as its "major purpose" election advocacy in Maine, and it
is accordingly not subject to regulation as a major-purpose PAC.
NOM therefore lacks standing to challenge § 1052(5)(a)(4).
B. Standing to Challenge Non-Major-Purpose PAC Provision
It is a closer question whether the record reveals an
objectively reasonable possibility that NOM would be regulated as
a non-major-purpose PAC under Maine law. To so qualify, NOM would
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have to anticipate receiving contributions or making expenditures
of more than $5,000 in a year "for the purpose of promoting,
defeating or influencing in any way the nomination or election of
any candidate to political office." Me. Rev. Stat. tit. 21-A, §
1052(5)(A)(5). The evidence is inconclusive as to whether NOM
actually crossed the $5,000 threshold during the 2010 election
cycle.17 However, we need not determine whether NOM in fact became
subject to the provision during the relevant period, because NOM
claims injury based upon self-censorship in anticipation of the
law's application to it, and not upon the actual burdens of the
law. NOM's executive director, Brian Brown, testified --
consistently with the allegations in NOM's complaint -- that NOM's
fear of enforcement of Maine's election laws was curtailing NOM's
speech, and that "[u]ntil Maine's law is changed," NOM was "not
going to expend precious resources" becoming involved in campaigns
in the state. The appropriate inquiry, then, is whether it was
objectively reasonable for NOM to believe that the non-major-
purpose PAC provision might apply to it and that it would have to
curtail its activities in Maine to avoid such a result.
17
At the time the district court issued its merits decision
in August 2010, "NOM ha[d] endorsed no one, d[id] not . . . plan to
make expenditures, and did not even budget for expenditures in [the
2010] Maine election cycle." Nat'l Org. for Marriage, 723 F. Supp.
2d at 258.
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The record evidence confirms that NOM's fears were
objectively reasonable and led NOM to engage in self-censorship.18
The complaint, which was verified by Brown, explained that NOM
sought to engage in a variety of forms of election-related speech,
including "radio ads, direct mail, and publicly accessible Internet
postings of its radio ads and direct mail." NOM alleged that some
portion of these advertisements would relate to "clearly identified
candidates for state or local offices." To this end, NOM discussed
potential advertisements with a marketing vendor, and went so far
as to have the vendor create three template advertisements
(specifically, copy for two broadcast advertisements and one
mailer) to be used in not-yet-identified candidate races. One such
template, titled "Consequences," raised fears that legalizing same-
sex marriage would lead to schools teaching children about same-sex
relationships, and concluded:
18
As defendants note, NOM did expend some resources in two
legislative races in September 2010 (after the district court
issued its opinion). Specifically, NOM sent out postcards that
read: "In May 2009, the Maine Legislature approved homosexual
'marriage.' Rep. Linda Valentino and Rep. Donald Pilon voted to
support same-sex 'marriage.' Now it's time to let Don Pilon and
Linda Valentino know we don't agree with their decision to back
same-sex 'marriage.' Email [them] . . . and tell them they stand
on the wrong side of House District[s] 133 and 134." The other
side of the postcards contained pictures of the candidates'
opponents, identified them as "stand[ing] for marriage as between
one man and one woman," and urged voters to email them to "thank
them for standing for traditional marriage." However, because
these mailings took place after NOM had filed its notice of appeal,
they are not properly part of the record here and we do not
consider them in our standing analysis.
-22-
Legislator Z and some politicians in Maine
can't fix the real problems in these troubled
times, but they've got time to push gay
marriage on Maine families? Call Legislator Z
and tell him/her: "Don't mess with marriage."
While the record does not indicate how much the contemplated
advertisements would cost, NOM alleged generally that each of its
communications costs more than $250. The advertisements were never
used, in line with NOM's claim to have curtailed its planned
speech. The record also contained evidence that NOM had made
political expenditures in Maine in the past, including
contributions of $1.8 million in 2009 to a committee opposed to
Maine's same-sex marriage law.
We agree with the district court that, although NOM's
"showing certainly could have been stronger," Nat'l Org. for
Marriage, 723 F. Supp. 2d at 258, NOM has met its standing burden
with respect to its challenge to § 1052(5)(A)(5). The burden of
proving that one's speech was chilled is a modest one. See
Osediacz, 414 F.3d at 143. The record evidence adequately
establishes both "an objectively reasonable possibility" that NOM
would be subject to Maine's requirements for non-major-purpose PACs
if it engaged in its intended speech, and that NOM forwent
political speech to avoid the alleged burdens (and possible
penalties for non-compliance) attending the non-major-purpose PAC
provision. Id. Such self-censorship in the face of possible legal
repercussions suffices to show Article III injury. See N.H. Right
-23-
to Life, 99 F.3d at 13 ("[A]n actual injury can exist when the
plaintiff is chilled from exercising her right to free expression
or forgoes expression in order to avoid enforcement
consequences.").
C. Standing to Challenge Out-of-State PAC Provision
We next examine NOM's standing to challenge § 1053-B,
which provides generally that a "political action committee
organized outside of [Maine] shall register and file reports with
the [C]ommission" in accordance with Maine's PAC laws.19 Me. Rev.
Stat. tit. 21-A, § 1053-B. The question of whether NOM might be
considered a "political action committee" retreads ground we have
just covered. Maine law defines "political action committee" to
include, among other things, a non-major-purpose PAC. Moreover,
the record shows that NOM, which operates from New Jersey, is
organized as a Virginia nonprofit. Thus, there is no question that
NOM is "organized outside of [Maine]," and there is a reasonable
possibility that it would be considered a "political action
committee" within the meaning of the statute. NOM therefore has
standing to challenge the out-of-state PAC provision.
19
As described above, the provision also establishes a narrow
exemption from registration and reporting for an out-of-state PAC
if its "only financial activity within the State is to make
contributions to candidates, party committees, political action
committees or ballot question committees." Me. Rev. Stat. tit. 21-
A, § 1053-B. As NOM indicated that it intended to make independent
expenditures for political advertising, it would not fall within
this exemption.
-24-
D. Standing to Bring Vagueness Challenge
We last address a standing-related argument specific to
NOM's vagueness claims. Defendants argue that NOM cannot bring a
vagueness challenge to the non-major-purpose PAC definition, as
well as to its corresponding definition of the term "expenditure,"20
because NOM's advocacy efforts were clearly covered by the
provisions' terms. In so arguing, defendants rely on the well-
established proposition that a "'plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others.'" Holder v.
Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010) (quoting
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
495 (1982)).21 Defendants contend that certain postcards NOM sent
in September 2010 targeting state legislative candidates were
20
"Expenditure," which appears in the definition of a non-
major-purpose PAC, is defined by another portion of the statute to
include a "purchase, payment, distribution, loan, advance, deposit
or gift of money or anything of value, made for the purpose of
influencing the nomination or election of any person to political
office; or for the initiation, support or defeat of a campaign,
referendum or initiative, including the collection of signatures
for a direct initiative, in this State." Me. Rev. Stat. tit 21-A,
§ 1052(4)(A)(1).
21
While Supreme Court precedent does not explicitly brand
this an issue of standing, see, e.g., Humanitarian Law Project, 130
S. Ct. at 2719, it is conceptually related to standing doctrine and
has been so treated by a number of circuit courts. See, e.g.,
United States v. Tyler, 281 F.3d 84, 91 n.6 (3d Cir. 2002); United
States v. Hill, 167 F.3d 1055, 1064 (6th Cir. 1999); see also Hunt
v. City of Los Angeles, 638 F.3d 703, 710 (9th Cir. 2011)
(referring to the bar on vagueness challenges by those whose
conduct is clearly covered as a "special standing principle[]").
-25-
unambiguously covered by the non-major-purpose PAC statute and
expenditure definition, i.e., that they were "for the purpose of
promoting, defeating or influencing in any way" a candidate
election, Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5), and "for the
purpose of influencing the . . . election of any person to
political office; or for the initiation, support or defeat of a
campaign," id. § 1052(4)(A)(1).
The defendants' argument is off-target for at least two
reasons. First, the question of whether the non-major-purpose PAC
provisions clearly applied to NOM's September mailings is
irrelevant to NOM's standing to bring its vagueness claims.
Because this is a preenforcement challenge based on conduct forgone
due to an alleged chill, the appropriate focus for the defendants'
arguments would be on whether "the statutory terms are clear in
their application to [NOM's] proposed conduct." Humanitarian Law
Project, 130 S. Ct. at 2720 (emphasis added). Moreover, the
judgment in this case was entered and NOM's appeal was filed in
August 2010, and thus evidence of NOM's September 2010 advocacy
efforts is not properly part of the record on appeal.22 At the time
of the hearing below, NOM had not yet engaged in any advocacy
efforts in Maine in 2010.
Second, NOM's claim is not simply a challenge to the
vagueness of the provisions as they would be applied to its actual
22
See supra note 18.
-26-
or intended advocacy efforts; NOM also brings a facial challenge to
the provisions under the First Amendment overbreadth doctrine. The
bar against vagueness challenges by those whose conduct the law
clearly proscribes is "relaxed . . . in the First Amendment
context, permitting plaintiffs to argue that a statute is overbroad
because it is unclear whether it regulates a substantial amount of
protected speech." United States v. Williams, 553 U.S. 285, 304
(2008).23 We thus see no bar to reaching the merits of NOM's
vagueness challenge to the non-major-purpose PAC provisions.
III. First Amendment Overbreadth Challenges
Turning to the merits of NOM's constitutional challenges,
we first address its First Amendment arguments that Maine's
election laws are unconstitutionally overbroad, reviewing those
claims de novo. United States v. Morales-de Jesús, 372 F.3d 6, 8
(1st Cir. 2004) (constitutional challenges are reviewed de novo).
The First Amendment's guarantee of free speech applies with special
vigor to discussion of public policy and the qualifications of
23
Humanitarian Law Project is not to the contrary.
Humanitarian Law Project simply noted, in the context of an as-
applied vagueness challenge to a federal criminal statute, that the
general rule prohibiting such challenges where the petitioner's
speech is clearly proscribed applies in the First Amendment arena.
Humanitarian Law Project, 130 S. Ct. at 2719 ("Th[e] rule makes no
exception for conduct in the form of speech."). Consistent with
Williams, however, Humanitarian Law Project noted that the
petitioner's vagueness arguments might make out a valid claim if
framed as an "overbreadth claim under the First Amendment." Id.-27-
political candidates.24 Buckley v. Valeo, 424 U.S. 1, 14 (1976).
Indeed, "there is practically universal agreement that a major
purpose of [the First] Amendment was to protect the free discussion
of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218
(1966). Accordingly, "[t]he First Amendment affords the broadest
protection to such political expression in order 'to ensure [the]
unfettered interchange of ideas for the bringing about of political
and social changes desired by the people.'" Buckley, 424 U.S. at
14 (alteration in original) (quoting Roth v. United States, 354
U.S. 476, 484 (1957)).
NOM has framed its First Amendment challenges to Maine's
election laws as overbreadth claims, arguing that each law is
unconstitutional on its face. Under the overbreadth doctrine, "a
statute is facially invalid if it prohibits a substantial amount of
protected speech." Williams, 553 U.S. at 292. The overbreadth
doctrine is "'strong medicine'" that should be "employed . . . with
hesitation, and then 'only as a last resort.'" New York v. Ferber,
458 U.S. 747, 769 (1982) (quoting Broadrick v. Oklahoma, 413 U.S.
601, 613 (1973)). For that reason, courts "vigorously enforce[]
the requirement that a statute's overbreadth be substantial, not
24
The First Amendment is incorporated through the Fourteenth
Amendment and thus applies to Maine's laws. Vote Choice, Inc. v.
DiStefano, 4 F.3d 26, 31 (1st Cir. 1993) (citing N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 276-77 (1964)).
-28-
only in an absolute sense, but also relative to the statute's
plainly legitimate sweep." Williams, 553 U.S. at 292.
A. Distinction Between Issue Discussion and Express Advocacy
We first address NOM's arguments that the statutes
challenged here are overbroad because they may reach discussion of
issues as well as express advocacy of a candidate's election or
defeat. The division between pure "issue discussion" and "express
advocacy" of a candidate's election or defeat is a conceptual
distinction that has played an important, and at times confounding,
role in a certain set of modern Supreme Court election law
precedents. Though the contours (and significance) of the
distinction have never been firmly fixed, the core premise is that
regulation of speech expressly advocating a candidate's election or
defeat may more easily survive constitutional scrutiny than
regulation of speech discussing political issues more generally.
Because a number of NOM's arguments here raise, both
directly and indirectly, this distinction between issue discussion
and express advocacy, we pause briefly to describe how the
distinction arose and developed. We ultimately conclude, however,
that the distinction is not important for the issues addressed in
this appeal.
1. Issue/Express Advocacy Distinction Generally
The issue discussion/express advocacy distinction has its
roots in the Supreme Court's decision in Buckley v. Valeo. Perhaps
-29-
the Court's seminal decision in the area of campaign finance
regulation, Buckley resolved a wide-ranging series of challenges to
provisions of the Federal Election Campaign Act of 1971 ("FECA").
One of those challenged provisions, of relevance to our discussion
here, imposed an absolute cap on independent expenditures, stating
that "'[n]o person may make any expenditure . . . relative to a
clearly identified candidate during a calendar year which, when
added to all other expenditures made by such person during the year
advocating the election or defeat of such candidate, exceeds
$1,000.'" Buckley, 424 U.S. at 39 (alterations in original)
(quoting 18 U.S.C. § 608(e)).
Reviewing this language, the Court first noted that the
"use of so indefinite a phrase as 'relative to' a candidate" raised
serious vagueness concerns. Id. at 41. The Court construed the
phrase (by reference to its surrounding terms) as limited to
expenditures "advocating the election or defeat of" a candidate.
However, this construction, in the Court's estimation, merely
"refocus[ed] the vagueness question." Id. at 42. The Court's
evident concern was that the statute, even as limited, failed to
draw a sharp enough line between advocacy of a candidate's election
and discussion of issues, and that the resulting uncertainty over
what the statute covered would "'compel[] the speaker to hedge and
trim,'" id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535
(1945)):
-30-
[T]he distinction between discussion of issues
and candidates and advocacy of election or
defeat of candidates may often dissolve in
practical application. Candidates, especially
incumbents, are intimately tied to public
issues involving legislative proposals and
governmental actions. Not only do candidates
campaign on the basis of their positions on
various public issues, but campaigns
themselves generate issues of public interest.
Id. at 42. To avoid this uncertainty, the Court limited the scope
of the statute to "expenditures for communications that in express
terms25 advocate the election or defeat of a clearly identified
candidate for federal office." Id. at 44.26
The constitutional basis for this concern with
distinguishing between laws that regulate advocacy of a candidate's
election and those that regulate pure issue discussion has never
been entirely clear. Buckley explicitly framed its discussion in
terms of unconstitutional vagueness under the Due Process Clause,
and there is, to be sure, a vagueness dimension to the analysis.
See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 497
(2007) (Scalia, J., concurring in part) (referring to the express
advocacy portion of Buckley as the decision's "vagueness holding").
25
The Court provided specific examples of such "express
terms," including "'vote for,' 'elect,' 'support,' 'cast your
ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' [and]
'reject.'" Buckley, 424 U.S. at 44 n.52.
26
The Court grafted a similar limiting construction onto the
language of a disclosure statute, 2 U.S.C. § 434(e), to address
perceived problems with its use of the phrase "for the purpose of
influencing [a candidate election]." Buckley, 424 U.S. at 80.
-31-
However, this interpretation has its limits; the mere fact that a
statute may cover issue discussion as well as candidate advocacy
does not alone render it vague under due process standards,
provided that the statute is reasonably clear in its coverage.
Perhaps for this reason, there are hints in Buckley that
the constitutional basis for the Court's concern lay more in
overbreadth – i.e., that statutes that reached issue discussion
might be deemed to regulate impermissibly a substantial amount of
speech protected by the First Amendment -- than in vagueness. See,
e.g., 424 U.S. at 80 (limiting a second, disclosure-related
provision of FECA to communications that "expressly advocate" a
candidate's election to "insure that the reach of [the provision]
is not impermissibly broad"). This reading finds considerable
support in subsequent authority. See Osborne v. Ohio, 495 U.S.
103, 120 n.14 (1990) (describing Buckley as a "case where a law was
construed to avoid potential overbreadth problems"); FEC v. Mass.
Citizens for Life, Inc., 479 U.S. 238, 248 (1986) (stating that
Buckley's "express advocacy" limitation was imposed to "avoid
problems of overbreadth"); cf. McConnell v. FEC, 540 U.S. 93, 192
(2003) (noting that Buckley "narrowly read[] the FECA provisions
. . . to avoid problems of vagueness and overbreadth"), overruled
on other grounds by Citizens United, 130 S. Ct. 876. Regardless of
its origins, the dividing line between issue discussion and express
advocacy, as it evolved, came to be associated more strongly with
-32-
First Amendment overbreadth analysis than with due process
vagueness concerns.27 See, e.g., Wis. Right to Life, 551 U.S. at
457 (noting that the "law in this area requires us . . . to draw
such a line, because we have recognized that the interests held to
justify the regulation of campaign speech [under the First
Amendment] . . . 'might not apply' to the regulation of issue
advocacy" (quoting McConnell, 540 U.S. at 206 n.88)).
2. Application to Maine's Election Statutes
Drawing on these cases, NOM argues that the statutes
before us are unconstitutionally overbroad because they reach issue
advocacy as well as express advocacy of a candidate's election or
defeat. NOM's argument presumes that the distinction between issue
discussion and express advocacy is relevant to the review of the
statutes here. That is not the case for a couple of reasons.
First, the issue/express advocacy dichotomy has only
arisen in a narrow set of circumstances not present here. From the
beginning, the distinction's primary purview has been cases
27
This is so to the extent that the line between issue
advocacy and candidate advocacy was considered a valid distinction
at all. Indeed, the majority in McConnell indicated that it was
not "persuaded, independent of our precedents, that the First
Amendment erects a rigid barrier between express advocacy and
so-called issue advocacy," noting that the "notion cannot be
squared with our longstanding recognition that the presence or
absence of magic words cannot meaningfully distinguish
electioneering speech from a true issue ad." McConnell, 540 U.S.
at 193.
-33-
scrutinizing limits on independent expenditures.28 The statute that
prompted the Buckley Court to introduce the "express advocacy"
construction was a blanket $1,000 limit on independent
expenditures. 424 U.S. at 41-44. The more recent Supreme Court
precedents to make use of the express/issue advocacy distinction
addressed a narrower federal law prohibiting corporations and labor
unions from employing general treasury funds to pay for
"electioneering" communications targeting candidates for election.
See McConnell, 540 U.S. at 189-209; Wis. Right to Life, 551 U.S. at
464-82. This line of cases came to a definitive end with Citizens
United, which held limitations on such expenditures by corporations
and unions to be unconstitutional, and thus effectively prohibited
any law limiting independent expenditures regardless of the
identity of the regulated entity. 130 S. Ct. at 896-913. As the
present case does not involve a limit on independent expenditures,
the relevance of these cases is limited at best.
Second, and more fundamentally, the Supreme Court has
explicitly rejected an attempt to "import [the] distinction"
between issue and express advocacy into the consideration of
disclosure requirements. Id. at 915; see also id. ("[W]e reject
Citizens United's contention that the disclosure requirements must
28
In FEC v. Akins, 524 U.S. 11, 27 (1998), the Court
explicitly entertained the possibility, but did not decide, that
Buckley's "express advocacy" narrowing construction was limited to
addressing "the First Amendment problems presented by regulation of
'independent expenditures.'"
-34-
be limited to speech that is the functional equivalent of express
advocacy."). The provisions before us are all effectively
disclosure laws, in that they require the divulgence of information
to the public or the Commission, but do not directly limit speech.29
We find it reasonably clear, in light of Citizens United, that the
distinction between issue discussion and express advocacy has no
place in First Amendment review of these sorts of disclosure-
oriented laws. Accord Human Life of Wash. Inc. v. Brumsickle, 624
F.3d 990, 1016 (9th Cir. 2010) ("Given the Court's analysis in
Citizens United, and its holding that the government may impose
disclosure requirements on speech, the position that disclosure
29
Of the provisions at issue here, Maine's requirement that
non-major-purpose PACs register with the Commission is, on its
face, the furthest from a traditional disclosure law. In function,
however, it too is first and foremost a disclosure provision. The
registration requirement does not obligate the PAC to form a
separate entity, create a segregated fund, or make any substantive
change to its operation or form; the law merely requires the
reporting of certain information about the PAC after it crosses the
applicable contribution/expenditure threshold (along with certain
other de minimis requirements, such as ongoing maintenance of
records). See Me. Rev. Stat. tit. 21-A, § 1053.
Moreover, Citizens United may be read to suggest that the
Court views this type of information-gathering registration
requirement as akin to a disclosure requirement. In explaining why
it was not importing the express advocacy limitation into its
analysis of the disclosure law before it, the Court cited a case
upholding against First Amendment challenge a federal law that
imposed both disclosure and registration requirements on lobbyists,
noting that such requirements were found permissible "even though
Congress has no power to ban lobbying itself." Citizens United,
130 S. Ct. at 915 (citing United States v. Harriss, 347 U.S. 612,
625 (1954)).
-35-
requirements cannot constitutionally reach issue advocacy is
unsupportable.").
Thus, to the extent that NOM's overbreadth arguments turn
on the distinction between issue discussion and express advocacy,
we reject them.
B. Standard of Scrutiny
Since Buckley, the Supreme Court has distinguished in its
First Amendment jurisprudence between laws that restrict "the
amount of money a person or group can spend on political
communication" and laws that simply require disclosure of
information by those engaging in political speech. 424 U.S. at 19,
64. The Court has recognized that disclosure laws, unlike
contribution and expenditure limits, "impose no ceiling on
campaign-related activities," id. at 64, and thus are a "less
restrictive alternative to more comprehensive regulations of
speech." Citizens United, 130 S. Ct. at 915; see also Buckley, 424
U.S. at 68 ("[D]isclosure requirements certainly in most
applications appear to be the least restrictive means of curbing
the evils of campaign ignorance and corruption that Congress found
to exist."). For that reason, disclosure requirements have not
been subjected to strict scrutiny, but rather to "'exacting
scrutiny,' which requires a 'substantial relation' between the
disclosure requirement and a 'sufficiently important' governmental
interest." Citizens United, 130 S. Ct. at 914 (quoting Buckley,
-36-
424 U.S. at 64, 66); see also Doe v. Reed, 130 S. Ct. 2811, 2818
(2010).30
While NOM concedes that exacting scrutiny applies to
review of Maine's independent expenditure and disclaimer and
attribution laws, it contends that Maine's PAC definitions are
subject to strict scrutiny. In fact, NOM suggests that any law
defining an organization as a PAC is subject to strict scrutiny,
because, "[a]s a matter of law, not fact," PAC status is burdensome
and subjects an entity to "extensive regulations." NOM's argument
here reflects two contradictory points. On the one hand, NOM seeks
to justify the application of strict scrutiny by reference to some
undefined set of "full-fledged political committee burdens." On
the other, NOM disclaims any challenge to the disclosure
requirements attendant to PAC status under Maine law -- i.e., the
actual burdens of registration and reporting imposed by the state's
PAC provisions -- but purports to challenge only the "PAC
definition, through which Maine unconstitutionally imposes full-
fledged political committee burdens." NOM's point appears to be
that "by giving government the power to license speech" by defining
30
Additionally, the application of a disclosure requirement
may be held to violate the First Amendment where the challengers
can show "'a reasonable probability that the compelled disclosure
[of personal information] will subject them to threats, harassment,
or reprisals from either Government officials or private parties.'"
Reed, 130 S. Ct. at 2820 (alteration in original) (quoting Buckley,
424 U.S. at 74). NOM has not attempted to make such a showing here
with respect to the disclosures required by Maine law.
-37-
an entity as a PAC, whatever obligations are imposed on PACs "in
effect are prior restraints."
NOM's attempt to ascribe a free-standing significance to
the PAC label is unpersuasive. It is not the designation as a PAC
but rather the obligations that attend PAC designation that matter
for purposes of First Amendment review. Those obligations -- as
well as the basic definition of a "PAC" -- vary across the
jurisdictions that regulate PACs. Maine's requirements are
substantially different from those at issue in the cases NOM cites
in support of its contention that PAC status is inherently
burdensome. For example, in Citizens United, where, as NOM points
out, the Supreme Court characterized federal-law PACs as "expensive
to administer and subject to extensive regulations,"31 130 S. Ct.
at 897, the Court was considering a regime that required
corporations to set up a separate legal entity and create a
segregated fund prior to engaging in any direct political speech.
In addition, these federal-law PACs were subject to numerous
obligations and restrictions, among them a prohibition on an
organization soliciting contributions for its segregated fund from
anyone except its "members," which excluded "those persons who have
31
Partly for this reason, the Court refused to consider the
option of financing speech through a PAC to be a factor mitigating
the corporate and union independent expenditure ban's burden on
speech. See Citizens United, 130 S. Ct. at 897 ("Section 441b is
a ban on corporate speech notwithstanding the fact that a PAC
created by a corporation can still speak.").
-38-
merely contributed to or indicated support for the organization in
the past." Mass. Citizens for Life, 479 U.S. at 253-54 (citing 2
U.S.C. § 441b(b)(4)(A), (C)). In contrast, Maine's non-major-
purpose PAC provision does not condition political speech on the
creation of a separate organization or fund, establishes no funding
or independent expenditure restrictions,32 and imposes three simple
obligations on an entity qualifying as a PAC: filing of a
registration form disclosing basic information, quarterly reporting
of election-related contributions and expenditures, and simple
recordkeeping.
Because Maine's PAC laws do not prohibit, limit, or
impose any onerous burdens on speech, but merely require the
maintenance and disclosure of certain financial information, we
reject NOM's argument that strict scrutiny should apply.
Accordingly, we review each of the laws at issue under the
"exacting scrutiny" standard applicable to disclosure requirements.
C. Application of Exacting Scrutiny to Maine's Laws
As we have stated, we will consider a law constitutional
under exacting scrutiny standards where there is a "substantial
relation" between the law and a "'sufficiently important'
governmental interest." Citizens United, 130 S. Ct. at 914(quoting Buckley, 424 U.S. at 64, 66). In Buckley, the Court
32
The only restriction on a PAC's expenditures is for direct
contributions to candidates; PACs are subject to the same per-
candidate contribution limits as any other entity or individual.
-39-
recognized the goal of "provid[ing] the electorate with information
as to where political campaign money comes from and how it is
spent" to be such a "sufficiently important" governmental interest
capable of supporting a disclosure law. 424 U.S. at 66 (internal
quotation marks omitted). The Court's more recent decisions have
continued to recognize the importance of this informational
interest. See, e.g., Citizens United, 130 S. Ct. at 914-15;
McConnell, 540 U.S. at 196.
Buckley tied the government's interest in the
dissemination of information to the functioning of the electoral
process, noting that "[i]n a republic where the people are
sovereign, the ability of the citizenry to make informed choices
among candidates for office is essential." 424 U.S. at 14-15. The
Court observed that disclosure has several benefits in this regard:
It allows voters to place each candidate in
the political spectrum more precisely than is
often possible solely on the basis of party
labels and campaign speeches. The sources of
a candidate's financial support also alert the
voter to the interests to which a candidate is
most likely to be responsive and thus
facilitate predictions of future performance
in office.
Id. at 67.
However, the informational interest is not limited to
informing the choice between candidates for political office. As
Citizens United recognized, there is an equally compelling interest
in identifying the speakers behind politically oriented messages.
-40-
In an age characterized by the rapid multiplication of media
outlets and the rise of internet reporting, the "marketplace of
ideas" has become flooded with a profusion of information and
political messages. Citizens rely ever more on a message's source
as a proxy for reliability and a barometer of political spin.
Disclosing the identity and constituency of a speaker engaged in
political speech thus "enables the electorate to make informed
decisions and give proper weight to different speakers and
messages."33 Citizens United, 130 S. Ct. at 916; see also Cal. Pro-
Life Council, Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir. 2003)
(recognizing that, in the "cacophony of political communications
through which . . . voters must pick out meaningful and accurate
messages[,] . . . being able to evaluate who is doing the talking
is of great importance"). Additionally, in the case of corporate
or organizational speakers, disclosure allows shareholders and
members to "hold [them] accountable for their positions." Citizens
United, 130 S. Ct. at 916. In short, "[t]he First Amendment
protects political speech; and disclosure permits citizens and
shareholders to react to [that] speech . . . in a proper way." Id.
33
As the Court observed in First National Bank v. Bellotti,
435 U.S. 765 (1978), "the people in our democracy are entrusted
with the responsibility for judging and evaluating the relative
merits of conflicting arguments. They may consider, in making
their judgment, the source and credibility of the advocate." Id.
at 791-92 (footnote omitted).
-41-
In line with these precedents, defendants offer Maine's
interest in disseminating information about political funding to
the electorate in support of the laws challenged here.34 As the
district court found, the interest is plainly a motivating factor
behind Maine's laws, and "Maine, through its Commission website and
otherwise, makes [the financial disclosure] information easily
available to the public." Nat'l Org. for Marriage, 723 F. Supp. 2d
at 263. We thus proceed under the exacting scrutiny framework to
examine whether there is a "substantial relation" between Maine's
informational interest and each of the laws at issue.
1. Non-Major-Purpose PAC Provisions
As we have described, Maine considers an entity to be a
non-major-purpose PAC when it receives contributions or makes
expenditures of more than $5,000 annually "for the purpose of
promoting, defeating or influencing in any way" a candidate's
election. Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5). Upon
crossing that threshold, the newly-deemed non-major-purpose PAC
must register with the Commission, maintain records of certain
expenditures as well as donor contributions aggregating more than
$50, and file reports both on a quarterly basis and shortly before
34
Defendants also cite an interest in "gathering data
necessary to enforce substantive election law restrictions."
Though we note that Buckley recognized a similar interest in
"gathering the data necessary to detect violations of [FECA's]
contribution limitations," 424 U.S. at 68, we find the
informational interest sufficient to support Maine's laws and thus
do not reach this second class of interests.
-42-
and after each election. Id. §§ 1053, 1057, 1059-60. The
reporting requirements are well tailored to Maine's informational
interest, requiring disclosure only of the candidates or campaigns
the non-major-purpose PAC supports or opposes, its expenditures
made to support or oppose the same, and identifying information for
any contributors who have given more than $50 to the PAC to support
or oppose a candidate or campaign. Id. § 1060.
NOM does not challenge the substantive obligations
attendant to non-major-purpose PAC status, nor contest that the
registration, recordkeeping, and reporting requirements bear a
substantial relation to Maine's informational interest. Instead,
NOM contends that Maine's definition of a non-major-purpose PAC,
standing alone, is unconstitutionally overbroad. In rejecting
NOM's argument for strict scrutiny, we have already addressed the
claim that PAC status is somehow inherently burdensome apart from
the specific requirements it entails. However, there is a second
aspect to NOM's argument. NOM contends that Supreme Court
precedent sharply limits regulation of PACs to those that are under
the control of a candidate or have as their "major purpose" the
election of a candidate. By its very definition, Maine's non-
major-purpose PAC provision covers entities that fall outside of
that allegedly limited zone of permissible regulation, and thus,
NOM contends, the provision is fatally overbroad. We disagree.
-43-
NOM extracts support for its argument from a dictum in
Buckley, albeit a dictum that has had some reach. In Buckley, the
Court concluded that the definition of expenditure used in
connection with FECA's disclosure provision -- and particularly the
phrase "for the purpose of influencing" -- raised significant line-
drawing problems because it had the "potential for encompassing
both issue discussion and advocacy of a political result." 424
U.S. at 79. In the course of its discussion, the Court noted that
FECA's definition of "political committees," which, like the
disclosure provision, was defined in terms of contributions and
expenditures, "could raise similar vagueness problems." Id. The
provision escaped these concerns, the Court explained, because it
could be construed more narrowly:
To fulfill the purposes of [FECA, political
committees] need only encompass organizations
that are under the control of a candidate or
the major purpose of which is the nomination
or election of a candidate. Expenditures of
candidates and of "political committees" so
construed can be assumed to fall within the
core area sought to be addressed by Congress.
They are, by definition, campaign related.
Id. Buckley's narrow reading of FECA's political committee
definition, though dictum, appears to have been accepted by later
opinions. See McConnell, 540 U.S. at 170 n.64; Mass. Citizens for
Life, 479 U.S. at 252 n.6; cf. FEC v. Akins, 524 U.S. 11, 26-27
(1998) (noting dispute over extent of narrowing construction). NOM
draws from this the conclusion that the First Amendment permits an
-44-
entity to be designated a "PAC" only where it (1) "is under the
control of a candidate" or (2) has as its major purpose "the
nomination or election of a candidate."
We find no reason to believe that this so-called "major
purpose" test, like the other narrowing constructions adopted in
Buckley, is anything more than an artifact of the Court's
construction of a federal statute. See McConnell, 540 U.S. at 191-
92. The Court has never applied a "major purpose" test to a
state's regulation of PACs, nor have we. And, as we have
discussed, the line-drawing concerns that led the Court to read
FECA's definition of "political committee" narrowly are not
relevant to our First Amendment review of Maine's statutes.
Moreover, as the district court aptly observed, application of
NOM's "major-purpose" test would "yield perverse results" here:
Under NOM's interpretation, a small group with
the major purpose of re-electing a Maine state
representative that spends $1,500 for ads
could be required to register as a PAC. But a
mega-group that spends $1,500,000 to defeat
the same candidate would not have to register
because the defeat of that candidate could not
be considered the corporation's major purpose.
Nat'l Org. for Marriage, 723 F. Supp. 2d at 264. We, like the
district court, see no basis to conclude "that the First
Amendment's protections should apply so unequally." Id.We therefore reject NOM's argument that the non-major-
purpose PAC definition is unconstitutionally overbroad. Because we
find a substantial relation between Maine's disclosure-oriented
-45-
regulation of non-major-purpose PACs and its interest in the
dissemination of information regarding the financing of political
speech, we conclude that the law does not, on its face, offend the
First Amendment.
2. Independent Expenditure Provision
We similarly find that Maine's independent expenditure
reporting provision poses no First Amendment concerns. The law
primarily obligates anyone spending more than an aggregate of $100
for communications expressly advocating the election or defeat of
a candidate to report the expenditure to the Commission. Me. Rev.
Stat. tit. 21-A, § 1019-B(1)(A), (3). Reviewing a prior,
substantially similar version of this provision in Daggett v.
Commission on Governmental Ethics and Election Practices, 205 F.3d
445, 466 (1st Cir. 2000), we held that "the modest amount of
information requested is not unduly burdensome and ties directly
and closely to the relevant government interests." We see no
reason to depart from that conclusion here.
The independent expenditure law also presumptively
requires a report of any expenditure over $100 for communications
naming or depicting a clearly identified candidate within a set
period prior to any election. Me. Rev. Stat. tit. 21-A, § 1019-
B(1)(B), (3). Though we did not review this aspect of the law in
Daggett, the Supreme Court upheld in Citizens United a similar
provision of federal election law that required disclosure in
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connection with expenditures for electioneering communications
(communications made shortly before an election that refer to a
clearly identified candidate for federal office). 130 S. Ct. at
913-16. In so doing, the Court noted that "the public has an
interest in knowing who is speaking about a candidate shortly
before an election." 130 S. Ct. at 915-16. The law here is
perhaps more tailored than that at issue in Citizens United, as it
offers an opportunity to rebut the presumption that a communication
made shortly before an election and identifying a candidate had the
"intent to influence the nomination, election or defeat of a
candidate." Me. Rev. Stat. tit 21-A, § 1019-B(2). Regardless, the
information that must be reported under this subsection is, as
Daggett found, "modest," 205 F.3d at 466, and it bears a
substantial relation to the public's "interest in knowing who is
speaking about a candidate shortly before an election." Citizens
United, 130 S. Ct. at 915-16.
NOM argues that Maine lacks a "sufficiently important"
interest in the $100 threshold at which the reporting requirement
adheres, and, alternatively, that the threshold lacks a
"substantial relation" to a sufficiently important governmental
interest. NOM's argument operates from a mistaken premise; we do
not review reporting thresholds under the "exacting scrutiny"
framework. In Buckley, facing a similar challenge to a $10
threshold for a recordkeeping provision and a $100 reporting
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threshold, the Supreme Court noted that the choice of where to set
such monetary thresholds "is necessarily a judgmental decision,
best left in the context of this complex legislation to
congressional discretion." 424 U.S. at 83. The Court concluded
that, although there was no evidence in the record that Congress
had "focused carefully on the appropriate level at which to require
recording and disclosure," and despite the fact that the low
thresholds might "discourage participation by some citizens in the
political process," it could not say that "the limits designated
are wholly without rationality." Id.; see also id. n.111 ("[W]hen
it is seen that a line or point there must be, and that there is no
mathematical or logical way of fixing it precisely, the decision of
the legislature must be accepted unless we can say that it is very
wide of any reasonable mark." (quoting Louisville Gas Co. v.
Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting))). The
Court thus upheld FECA's recordkeeping and reporting thresholds.
Following Buckley, we have granted "judicial deference to
plausible legislative judgments" as to the appropriate location of
a reporting threshold, and have upheld such legislative
determinations unless they are "'wholly without rationality.'"
Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 32-33 (1st Cir. 1993)
(quoting Buckley, 424 U.S. at 83). In Daggett, for example, we
applied these standards in rejecting a challenge to the $50
reporting threshold in the prior iteration of Maine's independent
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expenditure law. 205 F.3d at 466 ("We remain unconvinced . . .
that, if $100 was an appropriate threshold for requiring the
reporting of independent expenditures in federal elections in
Buckley, $50 is an illegitimate threshold for Maine elections.").
Despite the fact that the threshold has been doubled
since Daggett, NOM argues that we should find the line
unconstitutional because it is not indexed to inflation. In so
arguing, it relies on an observation in Randall v. Sorrell, 548
U.S. 230, 261 (2006), that "[a] failure to index limits means that
limits which are already suspiciously low . . . will almost
inevitably become too low over time." The limits at issue in
Sorrell, however, were substantive contribution limits, the setting
of which presents different considerations than the determination
of the threshold for a reporting requirement,35 and which is subject
to different standards of review. Neither we nor the Supreme Court
has ever second-guessed a legislative decision not to index a
reporting requirement to inflation. Indeed, in Buckley, the Court
acknowledged that Congress, in setting FECA's $100 reporting
threshold, appeared to have simply adopted the threshold used in
similar disclosure laws since 1910 -- i.e., over the course of more
than sixty years, without any adjustment for inflation. 424 U.S.
35For instance, we have held that the First Amendment would
permit, in some cases, a first-dollar reporting requirement, see
Vote Choice, 4 F.3d at 33, whereas the First Amendment clearly sets
a "lower bound" for contribution limits. Sorrell, 548 U.S. at 248.
-49-
at 83. We thus reject NOM's argument that the $100 threshold is
unconstitutional simply because it is static. Moreover, we cannot
conclude that Maine's choice of a $100 threshold, double the amount
we upheld just a decade ago in Daggett, is wholly without
rationality.
3. Disclaimer and Attribution Provisions
Finally, we agree with the district court that "Citizens
United has effectively disposed of any attack on Maine's
attribution and disclaimer requirements." Nat'l Org. for Marriage,
723 F. Supp. 2d at 267. NOM argues that Maine's "attribution and
disclaimer requirements are so great that the government's interest
does not reflect the burden on speech," as the required disclosures
will "distract readers and listeners from NOM's message." We
disagree. The requirements are minimal, calling only for a
statement of whether the message was authorized by a candidate and
disclosure of the name and address of the person who made or
financed the communication. Me. Rev. Stat. tit. 21-A, § 1014(1)-
(2). These are precisely the requirements approved in Citizens
United,36 see 130 S. Ct. at 913-14 (citing 2 U.S.C. § 441d), and
they bear a close relation to Maine's interest in dissemination of
36
In fact, the statute at issue in Citizens United was
slightly more prescriptive, specifying that, for video messages,
"[t]he required statement must be made in a 'clearly spoken
manner,' and displayed on the screen in a 'clearly readable manner'
for at least four seconds." 130 S. Ct. at 914 (quoting 2 U.S.C. §
441d(d)(2)).
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information regarding the financing of political messages. The
disclaimer and attribution requirements are, on their face,
unquestionably constitutional.37
IV. Due Process Vagueness Challenges
Having found that each of the challenged statutes pass
muster under the First Amendment, we turn next to NOM's contention
that portions of the statutes are unconstitutionally vague.
The vagueness doctrine, a derivative of due process,
protects against the ills of laws whose "prohibitions are not
clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108
(1972); see also Williams, 553 U.S. at 304. In prohibiting overly
vague laws, the doctrine seeks to ensure that persons of ordinary
intelligence have "fair warning" of what a law prohibits, prevent
"arbitrary and discriminatory enforcement" of laws by requiring
that they "provide explicit standards for those who apply them,"
and, in cases where the "statute 'abut(s) upon sensitive areas of
basic First Amendment freedoms,'" avoid chilling the exercise of
First Amendment rights. Grayned, 408 U.S. at 108-09 (alteration in
original) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).
In view of this last interest, the Constitution requires a
37
NOM argues that, though Citizens United and other courts may
have approved disclaimer and attribution limitations in the precise
circumstances before them, such measures have never been approved
per se. That may be so, but the mere fact that disclaimer and
attribution requirements have not been considered in the
environment in which we review them now does not weaken our
conclusion that the requirements withstand exacting scrutiny.
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"'greater degree of specificity'" in cases involving First
Amendment rights. Buckley, 424 U.S. at 77 (quoting Smith v.
Goguen, 415 U.S. 566, 573 (1974)).
Even under the heightened standard for First Amendment
cases, though, not all vagueness rises to the level of
constitutional concern. "Many statutes will have some inherent
vagueness, for '[i]n most English words and phrases there lurk
uncertainties.'" Rose v. Locke, 423 U.S. 48, 49-50 (1975) (per
curiam) (quoting Robinson v. United States, 324 U.S. 282, 286
(1945)); see also Ward v. Rock Against Racism, 491 U.S. 781, 794
(1989) ("[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.").
Moreover, "[t]he mere fact that a regulation requires
interpretation does not make it vague." Ridley v. Mass. Bay
Transp. Auth., 390 F.3d 65, 93 (1st Cir. 2004). We have thus said
that "a statute is unconstitutionally vague only if it 'prohibits
. . . an act in terms so uncertain that persons of average
intelligence would have no choice but to guess at its meaning and
modes of application.'" United States v. Councilman, 418 F.3d 67,
84 (1st Cir. 2005) (en banc) (quoting United States v. Hussein, 351
F.3d 9, 14 (1st Cir. 2003)).
With these standards in mind, we review NOM's vagueness
challenges de novo. Hussein, 351 F.3d at 14. NOM poses challenges
to three sets of terms, and variations thereof: (1) "promoting,"
-52-
"support," and "opposition"; (2) "influencing"; and (3)
"initiation." In addition, NOM claims that the definition of
"expressly advocate" is unconstitutionally vague because it invites
the use of context to determine the purpose of a communication.
A. "Promoting," "Support," and "Opposition"
We begin with NOM's vagueness challenge to variations of
the terms "promoting," "support," and "opposition," which appear in
three separate provisions:38 the definition of a non-major-purpose
PAC,39 the PAC statute's definition of an "expenditure,"40 and the
independent expenditure provision.41 The district court held each
of these terms to be sufficiently clear to evade due process
concerns. We agree.
38
The term "promoting" also appears in the definition of a
major-purpose PAC, Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(4), which
we do not address here in light of our holding that NOM lacks
standing to challenge the major-purpose PAC provision.
39
The statute defines a non-major-purpose PAC to mean an
entity that crosses the requisite threshold of contributions or
expenditures "for the purpose of promoting, defeating or
influencing in any way" a candidate election. Me. Rev. Stat. tit
21-A, § 1052(5)(A)(5) (emphasis added).
40
The statute defines "expenditure" to include giving
something of value "for the initiation, support, or defeat" of a
campaign or initiative. Me. Rev. Stat. tit. 21-A, § 1052(4)(A)(1)
(emphasis added).
41
The independent expenditure statute instructs that reports
submitted pursuant to the provision "must state whether the
expenditure is in support of or in opposition to the candidate."
Me. Rev. Stat. tit. 21-A, § 1019-B(3)(B) (emphasis added).
-53-
The Supreme Court rejected a vagueness challenge to
substantially similar statutory language in McConnell, 540 U.S. 93,
overruled on other grounds by Citizens United, 130 S. Ct. 876. The
language at issue was a provision of federal election law defining
"Federal election activity" to include "a public communication that
refers to a clearly identified candidate for Federal office . . .
and that promotes or supports a candidate for that office, or
attacks or opposes a candidate for that office (regardless of
whether the communication expressly advocates a vote for or against
a candidate)." 2 U.S.C. § 431(20)(A)(iii). Applying due process
standards, the Court observed that "[t]he words 'promote,'
'oppose,' 'attack,' and 'support' clearly set forth the confines
within which potential party speakers must act in order to avoid
triggering the provision." McConnell, 540 U.S. at 170 n.64. The
Court concluded that "[t]hese words 'provide explicit standards for
those who apply them' and 'give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited,'" and thus
held that the provision was not unconstitutionally vague. Id.(quoting Grayned, 408 U.S. at 108-09).
NOM acknowledges McConnell's relevance, but argues that
the opinion's holding is limited to the context of the federal law
at issue there, citing several authorities that purportedly held
similar statutory language to be "vague and overbroad vis-à-vis
other speech or other speakers." NOM's argument is misguided. The
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authorities NOM cites -- circuit court opinions and a partial
concurrence to the Court's 2007 decision in Wisconsin Right to Life
-- address the conceptually distinct question of whether terms such
as "promote," "oppose," "attack," and "support" maintain an
acceptably clear distinction between express campaign advocacy and
issue advocacy. See Wis. Right to Life, 551 U.S. at 492-93(Scalia, J., concurring); Ctr. for Individual Freedom v. Carmouche,
449 F.3d 655, 662-66 (5th Cir. 2006); N.C. Right to Life, Inc. v.
Bartlett, 168 F.3d 705, 712-13 (4th Cir. 1999). This is, as we
have discussed, primarily an overbreadth issue, and we have already
rejected NOM's arguments that the statutes here are
unconstitutionally overbroad.
If, on the other hand, NOM offers these authorities
solely for the purpose of countering McConnell's vagueness holding
-- which is the relevant point here -- they also fall short of the
mark. None of the cited cases is a majority Supreme Court opinion
issued after McConnell, so McConnell remains the leading authority
relevant to interpretation of the terms before us. Of course, the
statutes here are distinct from the provision that McConnell
construed, and thus the Court's reading is not dispositive.
However, contrary to NOM's assertion, the statutory context here is
close enough to McConnell to make the Court's conclusion that the
terms are not vague particularly persuasive. In each of the
provisions, the terms "promote"/"promoting," "support," and
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"oppose"/"opposition" have an election-related object: "candidate"
in the federal law, 2 U.S.C. § 431(20)(A)(iii), and "candidate,"
"nomination or election of any candidate" and "campaign, referendum
or initiative" in the Maine provisions, Me. Rev. Stat. tit. 21-A,
§§ 1019-B(3)(B), 1052(4)(A)(1), (5)(A)(5). If anything, the terms
of Maine's statutes provide slightly more clarity: for example,
§ 1052(5)(A)(5)'s reference to "promoting . . . the nomination or
election of any candidate" is more precise than the federal law's
reference to "promot[ing] . . . a candidate," 2 U.S.C. §
431(20)(A)(iii). We thus find the use of "promoting," "support,"
and "opposition" in §§ 1019-B and 1052 clear enough to "give the
person of ordinary intelligence a reasonable opportunity to know
what is prohibited." Grayned, 408 U.S. at 108.
B. "Influencing"
The term "influencing" (appearing also as "influence")
presents a closer question.42 The district court held "influencing"
42
"Influencing" appears in a number of places throughout the
statutes challenged by NOM. These include: the definition of a
non-major-purpose PAC, Me. Rev. Stat. 21-A, § 1052(5)(A)(5)
(defining non-major-purpose PAC to mean an entity that crosses the
requisite threshold of contributions or expenditures "for the
purpose of promoting, defeating or influencing in any way" a
candidate election (emphasis added)); the out-of-state PAC
provision, id. § 1053-B (providing that an out-of-state PAC need
not register if, among other things, it "has not raised and
accepted any contributions during the calendar year to influence an
election or campaign in [Maine]" (emphasis added)); the attribution
and disclaimer provision, id. § 1014(2-A) (clarifying that
disclaimer and attribution requirements do not apply to
communications made shortly before an election that name or depict
a candidate "if the communication was not made for the purpose of
-56-
to be unconstitutionally vague and severed it from the various
statutes challenged here. On appeal, defendants urge that we find
"influencing" sufficiently clear to avoid due process concerns.
NOM, in turn, contends that the district court erred in severing
"influencing," suggesting that we should find the statutes
unconstitutional in their entirety. Because we agree with
defendants that the use of "influencing" in the statutes before us
is, when given a properly limited meaning, not unconstitutionally
vague, we need not reach the question of severance.
In arguing that "influencing" is unconstitutionally
vague, NOM relies on the Supreme Court's construction of similar
language in Buckley v. Valeo. The relevant portion of Buckley
concerned a disclosure requirement applicable to anyone "'who makes
contributions or expenditures' aggregating over $100 in a calendar
year." Buckley, 424 U.S. at 74-75 (quoting 2 U.S.C. § 434(e)).
The statute defined "expenditures" to include "the use of money or
other valuable assets 'for the purpose of . . . influencing' the
influencing the candidate's . . . election" (emphasis added)); the
independent expenditure provision, id. § 1019-B(2) (providing that
a person presumed to have made an independent expenditure may rebut
the presumption by filing a statement that "the cost was not
incurred with the intent to influence the nomination, election or
defeat of a candidate" (emphasis added)); and the definitions of
"expenditure" used in connection with the attribution and
disclaimer, independent expenditure, and PAC provisions, id. §§
1012(3) (defining "expenditure" to include giving something of
value "for the purpose of influencing the nomination or election of
any person to political office" (emphasis added)), 1052(4)(A)(1)
(same).
-57-
nomination or election of candidates for federal office." Id. at
77 (quoting 2 U.S.C. § 431(f)). The Court noted that the
"ambiguity" of the phrase "for the purpose of influencing" "poses
constitutional problems" and "raises serious problems of
vagueness," id. at 76-77, in that it had the "potential for
encompassing both issue discussion and advocacy of a political
result," id. at 79. This was, of course, the same concern the
Court raised with respect to the phrase "relative to a candidate"
in FECA's independent expenditures cap, and the Court reached an
identical solution. The Court skirted its constitutional concerns
by imposing a limiting construction on the definition of
expenditure "to reach only funds used for communications that
expressly advocate the election or defeat of a clearly identified
candidate." Id. at 80 (footnote omitted).
NOM's argument that Buckley dictates a finding of
vagueness here is flawed on several counts. First, as more recent
Supreme Court precedents have made clear, Buckley's narrowing
interpretation of the phrase "for the purpose of influencing" "was
the product of statutory interpretation rather than a
constitutional command." McConnell, 540 U.S. at 192. The Court
never squarely held in Buckley that the term "influencing" was
unconstitutionally vague under due process standards, and the
constitutional concern that prompted the Court to narrow the term
-- the fear that the statute might be read to reach issue
-58-
discussion -- is, as we have said, not a relevant one for review of
disclosure laws. Second, even if Buckley were to have found
"influencing" unconstitutionally vague in FECA, it would not be
dispositive of the question here. Terms claimed to be vague must
be interpreted in light of their precise statutory context, see URI
Student Senate v. Town of Narragansett, 631 F.3d 1, 14 (1st Cir.
2011); Welch v. United States, 750 F.2d 1101, 1112 (1st Cir. 1985),
and thus a phrase deemed problematic in federal election statutes
might not run afoul of vagueness standards in Maine's statutes.
Nonetheless, Buckley's concerns aside, the term
"influencing" does present some vagueness problems. The other
candidate-related terms employed by the statutes here -- such as
"promoting," "opposition," "defeat," and "support," Me. Rev. Stat.
tit. 21-A, §§ 1019-B(3)(B), 1052(4)(A)(1), (5)(A)(5) -- are more
plainly result-oriented, focusing on advocacy for or against a
particular candidacy. Influence, on the other hand, covers a wider
range of objectives. Conceivably falling within the meaning of
"influence" are objectives as varied as advocacy for or against a
candidate's election; championing an issue for inclusion in a
candidate's platform; and encouraging all candidates to embrace
public funding. Without more context, we believe the intended
meaning of "influence" to be uncertain enough that a person of
average intelligence would be forced to "'guess at its meaning and
modes of application.'" Councilman, 418 F.3d at 84 (quoting
-59-
Hussein, 351 F.3d at 14).
Arguing that the statutes' use of "influencing" is
adequately clear, defendants point us to the interpretive canon of
noscitur a sociis, which provides that an ambiguous statutory term
may be "given more precise content by the neighboring words with
which it is associated." Williams, 553 U.S. at 294. For example,
in the non-major-purpose PAC definition, defendants suggest that
"influencing" should be given a meaning similar to or consistent
with "promoting" and "defeating." See Me. Rev. Stat. tit. 21-A, §
1052(5)(A)(5) ("for the purpose of promoting, defeating or
influencing in any way"). This argument fails for two reasons.
First, "influencing" appears on its own in some of the
statutes before us, thus defeating the noscitur a sociis exercise
for those provisions. See, e.g., id. § 1014(2-A) ("The disclosure
is not required if the communication was not made for the purpose
of influencing the candidate's nomination for election or
election."). Second, in those statutes where "influencing" is
paired with other terms, we find more persuasive the countervailing
interpretive canon counseling that a statute should "'be so
construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.'" TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S.
167, 174 (2001)). Our interpretation is guided by the fact that,
even where it appears with other terms, "influencing" appears to
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have been intentionally set apart. For example, the relevant
language of § 1052(5)(A)(5) reads "for the purpose of promoting,
defeating or influencing in any way;" the addition of "in any way"
logically gives "influencing" a broader sweep than the foregoing
terms. The differentiation is even more apparent in the PAC
statute's definition of expenditure, where the term "influencing"
appears in a different clause and is given a different (though
related) object from the other terms. See Me. Rev. Stat. tit.
21-A, § 1052(4)(A)(1) (defining expenditure to cover the transfer
of anything of value "for the purpose of influencing the nomination
or election of any person to political office; or for the
initiation, support or defeat of a campaign, referendum or
initiative."). The natural inference from this separation is that
the drafters intended "influencing" to carry a different meaning
from the words with which it appears.
Despite their continued insistence that the use of
"influencing" in the statutes here is not vague, defendants
recognize that we, like the district court, might find
"influencing" insufficiently clear on its face to satisfy due
process standards. Therefore, as a fallback position, defendants
offer a narrowing construction that has been adopted by the
Commission with respect to a separate statute regulating ballot
question committees. In written guidance, the Commission has
clarified that it interprets the phrase "for the purpose of
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initiating, promoting, defeating or influencing in any way a
campaign," Me. Rev. Stat. tit. 21-A, § 1056-B, in the context of
ballot-question campaigns, to "include communications and
activities which expressly advocate for or against a ballot
question or which clearly identify a ballot question by apparent
and unambiguous reference and are susceptible of no reasonable
interpretation other than to promote or oppose the ballot
question," Me. Comm'n on Governmental Ethics & Elections Practices,
Guidance on Reporting as a Ballot Question Committee, available at
http://www.maine.gov/ethics/bqcs/guidance.htm (last visited July
25, 2011). This narrowing construction was not offered to the
district court.43 However, there is no barrier to our considering
it here -- and, indeed, we are required to do so. See Hoffman
Estates, 455 U.S. at 494 n.5 ("In evaluating a facial challenge to
a state law, a federal court must . . . consider any limiting
construction that a state court or enforcement agency has
proffered.").
As narrowed, the terms "influencing" and "influence," as
used in the statutes at issue here, would include only
43
The Maine Attorney General had offered in prior litigation
before the district court a narrowing construction limiting the
term "influencing" to express advocacy. See Volle v. Webster, 69
F. Supp. 2d 171, 175 (D. Me. 1999). In light of the fact that
Supreme Court precedent subsequent to that litigation "made clear
that the state may regulate speech other than express advocacy,"
the Attorney General believed that the narrowing construction was
"no longer required" and therefore did not offer it in the
proceedings below.
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"communications and activities that expressly advocate for or
against [a candidate] or that clearly identify a candidate by
apparent and unambiguous reference and are susceptible of no
reasonable interpretation other than to promote or oppose the
candidate." This narrowed formulation is considerably more precise
than the original, and succeeds both in "provid[ing] explicit
standards for those who apply" the provisions at issue here and in
ensuring that persons of average intelligence will have reasonable
notice of the provisions' coverage. Grayned, 408 U.S. at 108. We
thus conclude that the provisions' use of the terms "influencing"
and "influence," so limited, is not so vague as to offend due
process.
C. "Initiation"
Among the statutes at issue in this appeal, the term
"initiation" appears only in the PAC statute's definition of
"expenditure."44 NOM offers no support for its argument that
"initiation" is vague, contending only that "initiation" "fare[s]
no better" than the other terms challenged on vagueness grounds.
We find "initiation" to be adequately clear. The context --
defining "expenditure" to include giving something of value "for
44
The statute defines "expenditure" to include the transfer
of something of value "for the initiation, support or defeat of a
campaign, referendum or initiative." Me. Rev. Stat. tit. 21-A, §
1052(4)(A)(1) (emphasis added). NOM also challenges the use of
"initiating" in the definition of a major-purpose PAC, but we have
held that it lacks standing to pursue that claim.
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the initiation . . . of a campaign" -- makes plain that
"initiation" is being used as the noun form of the verb "initiate,"
the primary definition of which is "to begin, set going, or
originate." The Random House Dictionary of the English Language
982 (2d ed. unabr. 1987). Used in this way, the language is
unequivocal, and easily would put an individual of average aptitude
on notice that the act of incurring an expense for the purpose of
beginning an electoral campaign will constitute an "expenditure"
within the meaning of § 1052(4)(A)(1). See Grayned, 408 U.S. at
108. NOM's argument that "initiation" is unconstitutionally vague
thus fails.
D. Use of Context in Definition of "Expressly Advocate"
NOM's final vagueness argument is somewhat distinct from
the preceding ones. While NOM's claim focuses on the phrase
"expressly advocate" in the independent expenditure statute,45 NOM
does not contend that the phrase itself is unconstitutionally
vague. Instead, NOM argues that Maine's definition of "expressly
advocate," set forth in regulations promulgated by the Commission,
renders the term vague because it invites reliance on a
communication's context and employs a purportedly unconstitutional
45
The statute defines an "independent expenditure" to be one
"that expressly advocates the election or defeat of a clearly
identified candidate." Me. Rev. Stat. tit. 21-A, § 1019-B(1)(A).
Though the attribution and disclaimer provisions also use the
phrase "expressly advocating," see id. § 1014(1), the regulations
challenged here relate solely to the definition of an "independent
expenditure."
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"appeal-to-vote" formulation for determining what qualifies as
express advocacy. Specifically, the regulations provide that a
communication will be considered to "expressly advocate" when it
employs phrases that "in context can have no other reasonable
meaning than to urge the election or defeat of one or more clearly
identified candidate(s), such as posters, bumper stickers,
advertisements, etc. which say 'Pick Berry,' 'Harris in 2000,'
'Murphy/Stevens' or 'Canavan!'" 94-270-001 Me. Code R. §
10(2)(B).46 As we explain, NOM's arguments read far too much into
a limited line of Supreme Court precedents, and provide no basis
for concluding that Maine's regulations are unconstitutionally
vague.
NOM's arguments have their roots in the recent trio of
46
The full text of the definition is as follows:
"Expressly advocate" means any communication that uses
phrases such as "vote for the Governor," "reelect your
Representative," "support the Democratic nominee," "cast
your ballot for the Republican challenger for Senate
District 1," "Jones for House of Representatives," "Jean
Smith in 2002," "vote Pro-Life" or "vote Pro-Choice"
accompanied by a listing of clearly identified candidates
described as Pro-Life or Pro-Choice, "vote against Old
Woody," "defeat" accompanied by a picture of one or more
candidate(s), "reject the incumbent," or communications
of campaign slogan(s) or individual word(s), which in
context can have no other reasonable meaning than to urge
the election or defeat of one or more clearly identified
candidate(s), such as posters, bumper stickers,
advertisements, etc. which say "Pick Berry," "Harris in
2000," "Murphy/Stevens" or "Canavan!".
94-270-001 Me. Code R. § 10(2)(B).
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Supreme Court cases addressing the constitutionality of the federal
prohibition of independent expenditures by corporations and unions
for "electioneering" communications -- those made shortly before a
primary or general election that clearly identify a candidate for
federal office. The trio began with McConnell, in which the Court
upheld the electioneering provision against a facial overbreadth
challenge. In so doing, the Court found unavailing the contention
that the provision would regulate a substantial amount of issue
advocacy, noting that the argument "fail[ed] to the extent that the
issue ads broadcast during the [relevant period] are the functional
equivalent of express advocacy." McConnell, 540 U.S. at 206.
This conditional assertion was put to the test several
years later in Wisconsin Right to Life, when the Court,
entertaining an as-applied challenge to the electioneering
provision, considered whether several specific advertisements
qualified as the "functional equivalent of express advocacy." The
Court concluded they did not, and accordingly held the provision
unconstitutional in its application. Along the way, the principal
opinion made two points relevant to NOM's arguments here. First,
it suggested that an advertisement would qualify as the "functional
equivalent of express advocacy," and thereby could be regulated
without triggering overbreadth concerns, only when it "is
susceptible of no reasonable interpretation other than as an appeal
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to vote for or against a specific candidate."47 Wis. Right to Life,
551 U.S. at 469-70. NOM refers to this formulation as the "appeal-
to-vote test." Second, the Court criticized efforts to use the
advertisements' context to determine whether they qualified as the
"'functional equivalent' of express advocacy," noting that
"contextual factors of the sort invoked [there] should seldom play
a significant role in the inquiry." Id. at 473-74.
Most recently, the Court concluded in Citizens United
that Congress could not limit the campaign-related speech of
corporations and unions and thus held the electioneering provision
unconstitutional, overturning McConnell. Citizens United provides
the launching point for NOM's first argument that Maine's
definition of "expressly advocate" is vague. NOM contends that
Citizens United eliminated "the appeal-to-vote test as a
constitutional limit on government power," and reads into this an
implicit holding that the test was unconstitutionally vague.
NOM's reading finds no support in the text of Citizens
United, though we agree with NOM that, in striking down the federal
electioneering expenditure statute, Citizens United eliminated the
47
En route to this test, the principal opinion rejected
proposed intent- and effect-based standards, i.e. frameworks that
would have required inquiry into the intent of the speaker to
affect an election or an examination of the actual effect the
speech would have on an election or on its target audience. Wis.
Right to Life, 551 U.S. at 467-69.
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context in which the appeal-to-vote test has had any significance.48
It is a large and unsubstantiated jump, however, to read Citizens
United as casting doubt on the constitutionality of any statute or
regulation using language similar to the appeal-to-vote test to
define the scope of its coverage. The basis for Citizens United's
holding on the constitutionality of the electioneering expenditure
statute had nothing to do with the appeal-to-vote test or the
divide between express and issue advocacy. Instead, the decision
turned on a reconsideration of prior case law holding that a
corporation's political speech may be subjected to greater
regulation than an individual's. See Citizens United, 130 S. Ct.
at 886. The opinion offered no view on the clarity of the appeal-
to-vote test. In fact, the Court itself relied on the appeal-to-
vote test in disposing of a threshold argument that the appeal
should be resolved on narrower, as-applied grounds. See id. at
889-90 (applying appeal-to-vote test in determining that
advertisements at issue were the functional equivalent of express
advocacy).
48
We do not agree, however, with NOM's characterization of the
appeal-to-vote test, or any of the other tests proposed by the
Court for distinguishing between express and issue advocacy, as a
"constitutional limit on government power." Citizens United made
clear that at least some forms of regulation may reach issue
advocacy, see 130 S. Ct. at 915, and there are substantial
questions as to whether the line between issue advocacy and express
advocacy is constitutionally rooted, see McConnell, 540 U.S. at 193(noting doubts that "the First Amendment erects a rigid barrier
between express advocacy and so-called issue advocacy").
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We find similarly misguided NOM's argument that the
definition of "expressly advocate" is vague due to the regulation's
reference to consideration of an advertisement's words "in
context." NOM misinterprets Wisconsin Right to Life in suggesting
that the principal opinion barred all consideration of context to
determine whether an advertisement was the functional equivalent of
express advocacy. To the contrary, the opinion explicitly
acknowledges that "[c]ourts need not ignore basic background
information that may be necessary to put an ad in context." Wis.
Right to Life, 551 U.S. at 474.49 It is apparent from the examples
provided by the regulation here -- "'Pick Berry,' 'Harris in 2000,'
'Murphy/Stevens' or 'Canavan!'" -- that "knowing that Berry is a
candidate to be picked on the ballot, that 2000 is an election
where Harris should win, etc.," Nat'l Org. for Marriage, 723 F.
Supp. 2d at 266, is precisely the sort of basic background
information that may be consulted in the express advocacy
determination.
In any event, we find the regulation's definition of
"expressly advocate," as a whole, to be sufficiently clear to
49
In Citizens United, the Court also relied on contextual
factors in determining that the communication at issue -- a ninety-
minute documentary about Hillary Clinton -- constituted the
functional equivalent of express advocacy. See 130 S. Ct. at 890
("In light of historical footage, interviews with persons critical
of her, and voiceover narration, the film would be understood by
most viewers as an extended criticism of Senator Clinton's
character and her fitness for the office of the Presidency.").
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satisfy due process. The definition offers abundant examples
(fourteen in all) of the sorts of language that will constitute
express advocacy, and, as we have noted before, "[t]he existence of
clear examples of conduct covered by a law may . . . help to
insulate the law against an accusation of vagueness." URI Student
Senate, 631 F.3d at 14; see also Hotel & Motel Ass'n v. City of
Oakland, 344 F.3d 959, 972–73 (9th Cir. 2003) (finding ordinance
provided sufficient notice where it listed "no less than nineteen
specific examples of the types of conduct to which th[e] provision
applie[d]"). Moreover, the phrase set forth in the regulation --
"can have no other reasonable meaning than to urge the election or
defeat of one or more clearly identified candidate(s)" -- is
certainly as clear, if not more so, as words such as "support" and
"promote" that the Supreme Court has held non-vague. See
McConnell, 540 U.S. at 170 n.64; see also Wis. Right to Life, 551
U.S. at 474 n.7 (explaining that the appeal-to-vote formulation
meets the "imperative for clarity" in regulation of political
speech). We therefore reject NOM's arguments that the regulation's
definition of the phrase "expressly advocate" is unconstitutionally
vague.
V. Challenge to the District Court's Unsealing Order
The remaining issue in this appeal is whether the
district court erred in ruling that the trial record must be
unsealed. Reviewing the court's unsealing order under a
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deferential standard, see Siedle v. Putnam Invs., Inc., 147 F.3d 7,
10 (1st Cir. 1998) (unsealing orders are reviewed "only for mistake
of law or abuse of discretion"), we find no abuse of discretion.
Decisions on the sealing of judicial documents require a
balancing of interests, although the scales tilt decidedly toward
transparency. The starting point must always be the common-law
presumption in favor of public access to judicial records. See
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978); Siedle,
147 F.3d at 9. As we have noted in prior cases, "[p]ublic access
to judicial records and documents allows the citizenry to 'monitor
the functioning of our courts, thereby insuring quality, honesty
and respect for our legal system.'" FTC v. Standard Fin. Mgmt.
Corp., 830 F.2d 404, 410 (1st Cir. 1987) (quoting In re Cont'l Ill.
Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984)). The presumption
favoring public access, which extends to both civil and criminal
trials, is not inviolate, and may on some occasions be overcome by
competing interests. Siedle, 147 F.3d at 10; see also id. at 10-12(finding abuse of discretion where unsealing order would make
public information that was likely subject to the attorney-client
privilege and a confidentiality agreement). That said, "the
presumption is nonetheless strong and sturdy," and thus "'[o]nly
the most compelling reasons can justify non-disclosure of judicial
records.'" Standard Fin. Mgmt. Corp., 830 F.2d at 410 (alteration
in original) (quoting In re Knoxville News-Sentinel Co., 723 F.2d
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470, 476 (6th Cir. 1983)).
Portions of the trial record here were initially filed in
sealed form, albeit by the parties' stipulation rather than court
order.50 Following trial, the district court issued sua sponte an
order to show cause why the entire record should not be filed in
publicly accessible form. NOM responded with a brief arguing,
inter alia, that disclosure of certain of its strategic documents
included in the record would severely burden NOM's ability to
effectively engage in protected political activities, and would
invade the privacy of NOM's third-party service providers and
contractors identified in the record and risk subjecting them to
harassment. The district court found NOM's arguments unavailing
and ordered the record unsealed such that it would be "public in
precisely the way that it would have been had live witnesses been
called to testify." Nat'l Org. for Marriage, 723 F. Supp. 2d at249 n.4. We granted an emergency motion to stay the unsealing
order during the pendency of this appeal.
On appeal, NOM fields two arguments for abuse of
discretion. It first argues that the district court erred in
50
In the course of discovery, the parties entered into a
confidentiality agreement, which was entered as a consent order by
the magistrate judge overseeing discovery matters. That consent
order required, among other things, that any documents designated
confidential that were filed with the court be submitted under
seal. In subsequently stipulating to a joint trial record, the
parties included a number of documents that had previously been
filed under seal pursuant to the consent order.
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unsealing the documents without a "finding of true necessity."
NOM's argument flips the proper analysis on its head. The
presumption here favors openness, and a court need make no finding,
let alone one of "true necessity," in order to make the proceedings
and documents in a civil trial public. Instead, it is the party
seeking to keep documents sealed who must make a showing sufficient
to overcome the presumption of public access. See Standard Fin.
Mgmt. Corp., 830 F.2d at 411. Second, NOM suggests that the
district court erred in failing to consider a number of controlling
legal principles. On examination, the authorities it cites are,
without exception, inapposite.51
51
For example, NOM cites cases involving the validity of a
federal regulation that required release of materials compiled by
the FEC during investigations into alleged election law violations,
see Am. Fed'n of Labor & Cong. of Indus. Orgs. v. FEC, 333 F.3d 168(D.C. Cir. 2003), and a claim of First Amendment privilege against
the compelled disclosure of internal documents pursuant to a court
order enforcing a discovery request, see Perry v. Schwarzenegger,
591 F.3d 1147 (9th Cir. 2010). Those cases involved the possible
compelled disclosure of information to which there was no
presumptive right of public access; here, in contrast, the
documents at issue were voluntarily included in the record filed
with the district court, and thus subject to a presumption of
public access.
NOM also contends that the two-step inquiry set forth in
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986), must
be applied to determine whether the documents here are within the
public's presumptive right of access. That inquiry relates to the
categorical determination of whether a particular type of
proceeding or class of court documents falls within the public's
right of access, see In re Bos. Herald, Inc., 321 F.3d 174, 182-83
(1st Cir. 2003); it does not govern whether individual documents
filed with a court should be made public. NOM does not contest
that the right of public access extends to the trial record in a
civil matter, Siedle, 147 F.3d at 10, and thus Press-Enterprise's
two-step inquiry is inapplicable.
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On the record before us, we cannot conclude that the
district court abused its discretion in ordering the trial record
unsealed. While NOM claims harm from disclosure of certain
strategic documents, neither before the district court nor in this
appeal has NOM identified any specific information that, if made
public, would damage or chill its political advocacy efforts.
Indeed, the documents it identifies as particularly sensitive,
including a strategic planning document it terms its "playbook,"
disclose primarily advocacy priorities and expenditures in past
election cycles, and we see little among them that could advantage
NOM's opponents going forward. NOM's claims that its contractors
and service-providers could be subject to harassment also lack
support, resting upon allegations of harassment against a vendor
that performed work for supporters of California's Proposition 8.
While "'privacy rights of participants and third parties[] are
among those interests which, in appropriate cases, can limit the
presumptive right of access to judicial records,'" Standard Fin.
Mgmt. Corp., 830 F.2d at 411 (internal quotation marks omitted)
(quoting In re Knoxville News-Sentinel Co., 723 F.2d at 478), NOM
failed to make a compelling case that the specific vendors
referenced in the documents here have any reasonable privacy
concerns relating to the disclosure of their business relationship
with NOM.
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VI. Conclusion
For the reasons set forth above, we vacate the portion of
the district court's judgment finding the terms "influencing" and
"influence" unconstitutionally vague, remand for entry of judgment
in defendants' favor in full on those claims, and affirm the
judgment in all other respects. We also vacate our stay of the
district court's unsealing order. Costs shall be awarded to the
appellees.
So ordered.
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