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National Organization for Marriage, Inc. v McKee

Case No. 11-1196 (C.A. 1, Jan. 31, 2012)

This appeal presents the second chapter of a lawsuit challenging the constitutionality of Maine laws imposing registration and disclosure requirements on entities that finance election-related advocacy. In a recent decision, we rejected claims made by one of the appellants here, the National Organization for Marriage ("NOM"), asserting that Maine's laws regulating political action committees ("PACs") are unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments. See NOM v. McKee, 649 F.3d 34 (1st Cir. 2011) ("NOM I"). We now consider similar contentions raised by NOM and co-appellant American Principles in Action, Inc. ("APIA") concerning the law applicable to ballot question committees ("BQCs"). See Me. Rev. Stat. Ann. tit. 21-A, § 1056-B. Our decision in NOM I effectively disposes of most of appellants' challenges to Maine's BQC requirements. On the only substantively distinct issue — the constitutionality of the definition of "contribution" in section 1056-B — we conclude that the BQC law, like the PAC laws, is constitutional. We thus affirm in its entirety the district court's grant of summary judgment for the defendants.

I.



A. The BQC Law: Section 1056-B



Maine's BQC law, section 1056-B, imposes disclosure and reporting requirements on certain individuals and organizations that "receive[] contributions or make[] expenditures," other than through PACs, "for the purpose of initiating or influencing a [ballot-measure] campaign." See Me. Rev. Stat. Ann. tit. 21-A, § 1056-B.1 Individuals and groups who receive or make aggregate contributions or expenditures in excess of $5,000 for such a purpose are required to file periodic reports with the Commission on Governmental Ethics and Election Practices ("Commission"). Id. §§ 1001(1), 1056-B. They must register with the Commission as a BQC within seven days of reaching the $5,000 threshold, and the information provided on the registration form "must include specification of a treasurer for the committee, any other principal officers and all individuals who are the primary fund-raisers and decision makers for the committee." Id. § 1056-B. The statute requires BQCs to report contributions from, and expenditures to, "a single source aggregating in excess of $100 in any election." Id. § 1056-B(2).

Under section 1056-B(2-A), a contribution is defined to include:

A. Funds that the contributor specified were given in connection with a campaign;

B. Funds provided in response to a solicitation that would lead the contributor to believe that the funds would be used specifically for the purpose of initiating or influencing a campaign;

C. Funds that can reasonably be determined to have been provided by the contributor for the purpose of initiating or influencing a campaign when viewed in the context of the contribution and the recipient's activities regarding a campaign; and

D. Funds or transfers from the general treasury of an organization filing a ballot question report.





 

 

Judge(s): Kermit Lipez
Jurisdiction: U.S. Court of Appeals, First Circuit
Related Categories: Constitutional Law , Domestic Relations , Government / Politics
 
Circuit Court Judge(s)
Michael Boudin
Kermit Lipez
Bruce Selya

 
Trial Court Judge(s)
Brock Hornby

 
Amicus Lawyer(s) Amicus Law Firm(s)
Mary Bonauto Pierce Atwood LLP
Catherine Connors Pierce Atwood LLP

 
Appellant Lawyer(s) Appellant Law Firm(s)
Randy Elf James Madison Center for Free Speech
Jeffrey Gallant James Madison Center for Free Speech
Josiah Neeley James Madison Center for Free Speech
James Bopp Jr. The Whiting Law Firm
Stephen Whiting The Whiting Law Firm

 
Appellee Lawyer(s) Appellee Law Firm(s)
Phyllis Gardiner Office of the Maine Attorney General
Thomas Knowlton Office of the Maine Attorney General

 

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Click the maroon box above for a formatted PDF of the decision.
of initiating or influencing a campaign when viewed in the context solicit such contributions. appellants' complaint lists thirteen v. rock against racism, 491 u.s. 781, 794 (1989)))). the test is articulation reveals why the $100 threshold is narrowly tailored to regulation of pacs. our decision in nom i rested solely on the it must entail minimal if any discovery, to allow parties compl., 34. as described in the complaint, this communication requirements are not unconstitutionally burdensome and are pursued only by nom, were resolved by the district court in august co., 513 u.s. 527, 547 (1995)) (alteration in original) (citations judgment to set a $100 reporting threshold is "wholly without initiating or influencing a [maine] campaign." me. rev. stat. ann. so ordered. would be used specifically for the purpose of initiating or maine referendum, focusing their arguments instead on the language mckee, 666 f. supp. 2d 193 (d. me. 2009), nom amended the complaint opportunity and ordered liberty." second am. compl. ("compl."), did not include an explicit solicitation and, hence, might be thought to fall outside the scope of subsection b's coverage of "promoting" or "defeating" in its explanation. and a barometer of political spin." id. at 57; see also, e.g., v. zannino, 895 f.2d 1, 17 (1st cir. 1990). given the importance of public works projects or regulatory reform. invitation to contribute to a specific ballot question campaign. multitude of gifts, even small gifts, from a have been provided by the contributor for the purpose of . . . appeal-to-vote test in holding that an advertisement could be -8- campaign when viewed in the context of the 649 f.3d at 48 (noting that nom spent $1.8 million in maine in out." compl., 38; docket no. 114-3, at 14. the email asked contributions made to the filer for the purpose of initiating or specific communication they distributed or proposed. rather, they "imposes three simple obligations on an entity qualifying as a applied to all of their speech. in the solicitations. see nat'l org. for marriage, 666 f. supp. 2d -16- emails distributed by nom between may and september 2009, most of appellants have not challenged the statute on appeal based12 franklin, 660 f.3d 531, 535 n.2 (1st cir. 2011); united states v. knowledge of the maine ballot measure would be enough to make their or defeat of a ballot measure, (3) its definition of "contribution" entities to easily evade disclosure requirements by guiding the f.3d at 61 (rejecting nom's challenge to the $100 pac threshold marriage in maine and across the country, by section 1056-b "are unconstitutionally vague as applied to most of defendants. explain why they were unable, or would be unable, to link help secure this victory. can you help us boudin, selya, and lipez, circuit judges. political speech by opening the door to a trial on every ad . . . appeal to vote for or against a specific candidate"). indeed, as notwithstanding . . . procedural default"); in re two appeals that the resulting gift that did not expressly repeat those contributions or expenditures in excess of $5,000 for such a "for the purpose of influencing" was of concern in the context of 1056-b. individuals and groups who receive or make aggregate1 disclaimer laws, nom i, 649 f.3d at 44. those additional claims, applies." id. test -- as it was merely "an artifact of the court's construction of dialogue about ballot measures, and our decision in nom i upholding 2010, and we reviewed its pac rulings in our decision in nom i. appellees. applied challenge to section 203 of the bipartisan campaign reform b's four-part definition of contribution: ann. tit. 21-a, 1056-b(2-a)(b). whether or not subsection b mass. bay transp. auth., 390 f.3d 65, 93 (1st cir. 2004)); see also distributed on july 31, 2009 that, according to the complaint, compl., 43, 44. hence, if contributions clearly within the national organization for marriage, inc., 6. subsection c ("funds that can reasonably be whether the statute "prohibits . . . an act in terms so uncertain for pacs. as an initial matter in nom i, we discredited nom's6 provision places the speaker "'wholly at the mercy of the varied challenge it for vagueness."). in this context, however, it does the designation as a pac but rather the obligations that attend pac "contribution" in subsections b and c are overbroad because they reporting threshold "is substantially related to maine's compelling approximately $2,469 as a result of this communication. compl., explaining why "maine is about more than maine" in the campaign of the contribution and the recipient's activities regarding a enforcement under section 1065-b based on any id. (quoting grayned, 408 u.s. at 108). approximately $350 in donations. compl., 32. through the threat of burdensome litigation. and it must received as a result of this email would be classified by the id. (quoting jerome b. grubart, inc. v. great lakes dredge & dock c eliminates any doubt that such contributions, even though "donate" button that sent potential donors to the donations screen appellants invoke the specific communications they9 44. nom intends to distribute further and that "[m]oney is going to be critical to getting the message question report. nom i with respect to similar disclosure and reporting requirements project, 130 s. ct. at 2720 (noting that "the scope of the . . . subsection c triggers somewhat closer examination because have access to information regarding the http://www.maine.gov/ethics/bqcs/guidance.htm (last visited jan. anticipated contributions. hence, as presented here, their filed by nom and apia in october 2009, shortly before an election attempt to frame their constitutional claim as a challenge to the also nat'l org. for marriage, 666 f. supp. 2d at 211 (reproducing cir. 2003) ("'even more than candidate elections, initiative section 1056-b improperly regulates speech outside maine, but link organization for marriage ("nom"), asserting that maine's laws the statute was amended in 2010 to substitute the word1 initiate or influence a campaign. the answer does not require an and highlighted events in iowa. the email included the following phyllis gardiner, assistant attorney general, was on brief, for determination. appellants have not demonstrated that subsection c ct. at 2719; parker v. levy, 417 u.s. 733, 756 (1974) ("one to 2009). such objective information, along with the timing of the see nat'l org. for marriage v. mckee, 765 f. supp. 2d 38, 43 (d. entails." id. at 58. that described the organization's participation in the maine this communication would expect nom to use the funds to influence of nom's ongoing role in the effort to overturn the maine gay contributions or expenditures reach the $5,000 threshold. the public has an interest in knowing . . . like the pac laws, is constitutional. we thus affirm in its sentence: "help us fight to protect marriage in iowa, maine and the guidance provides answers to a series of questions about11 james bopp, jr., with whom stephen c. whiting, the whiting law court liberally incorporated the relevant analysis from its earlier of each individual contribution: unconstitutionally vague and overbroad in violation of the first 956, 961 (1st cir. 1993) ("to the extent that an issue is one of pending maine law allowing same-sex marriage with explicit requests "to repeal maine's hastily enacted gay marriage statute" and theoretically may succeed with as-applied vagueness challenges at 62 (quoting grayned v. city of rockford, 408 u.s. 104, 108-09 no. 11-1196 notice of the provision[']s[] coverage" -- applies here as well. registration, independent expenditure, and attribution and candidate," id. at 79. appellants have attempted to adapt the test proposed apia broadcast advertisements). funds generated in quarterly reporting of election-related contributions and communications and activities which expressly subsection a "would allow the solicitor to propose all the relevant include: election cycle and in future elections." compl., 51; see also initial victory possible. when you donate to nom, you're reporting the entire amount"). appellants summarily assert that c. funds that can reasonably be determined to the changes do not in any event affect the outcome of this case, iii. influencing a campaign") based on other donations that they fear may bring their covered benefit of any doubt to protecting rather than stifling 1059-60. these requirements parallel those described above for prompted by an explicit solicitation on behalf of a separate here, for example, nom's list of emails includes one contend that the phrase "for the purpose of . . . influencing" that although we describe certain of our nom i holdings in more detail plaintiffs, appellants, appellants' complaint asserts the incremental importance guess at its meaning and modes of application." nom i, 649 f.3d at disclosure ensures that the electorate will entities like appellants to make pragmatic, objective judgments take effect before the people of maine have designation that matter for purposes of first amendment review." test in its most recent campaign-finance decision. see nom i, 649 commission as "for the purpose of" influencing the upcoming maine that assessment necessarily will be based primarily on the to believe that the funds would be used decline to examine in detail each of the communications listed in maintenance and disclosure of certain financial information." id. other emails listed in the complaint, contained a hyperlinked 5. subsection b ("funds provided in response to a activities "susceptible of no reasonable interpretation other than support or oppose ballot measures. unsurprisingly, appellants -29- below, it suffices to say for now that we rejected all of nom's act of 2002 ("bcra"), which barred corporations from disseminating raise funds for that purpose involve expenditures and test should apply . . . [b]ut perfect clarity and precise guidance at nom's website. compl., 39. -11- plaintiffs' speech." they make glancing reference to the content tit. 21-a, 1056-b(2-a)(b).12 statute, rather than the more rigorous strict scrutiny standard. id. 1056-b(2). appeal from the united states district court rejected claims made by one of the appellants here, the national vagueness challenge to subsection c fails. cf. humanitarian law specifically, they challenge subsections b and c of section 1056- apia intended to solicit donations to defray the cost of running please use this hyperlink to make a secure survived exacting scrutiny based on the government's "compelling default."). assess the legitimacy of how the organization reports its promoting, defeating or influencing in any way" applied to and fourteenth amendments. see nom v. mckee, 649 f.3d 34 (1st cir. "[m]arriage is now officially on the ballot in maine this november" in fact, however, the full email reproduced in the record15 purposes." id. 1056-b(4)(a). ballot measure in maine. they maintain that section 1056-b is5 moreover, in evaluating any such donations, it is also maine treats ballot question committees essentially like political broder, democracy derailed: initiative campaigns and the power of district court. inherently burdensome apart from the specific requirements it under section 1056-b(2-a), a contribution is defined to and we follow the district court's lead in using the new language. purpose." nat'l org. for marriage, 765 f. supp. 2d at 51. -27- $50 or $100 today to help stop same-sex claims summarily if we were so inclined. see harron v. town of10 to three radio and television ads because they constituted issue -9- -2- and in future elections. however, nom fears standards for those who apply" it, and that the law "avoid[s] -18- election. contribution and the recipient's activities burdens on political speech and association without adequate interest in informing voters. see nat'l org. for marriage, 765 f. regarding a campaign . . . . record, and is likely to arise in other cases, an appellate court emails and newsletters mentioning maine and challenge. its proposed activities to air broadcast advertising requires bqcs to report contributions from, and expenditures to, "a chilling the exercise of first amendment rights." nom i, 649 f.3d "[f]unds provided in response to a solicitation." me. rev. stat.15 you the means, $100 or $500? ann. tit. 21-a, 1052(5)(a)(5). upon reaching that threshold, the donating $5, $10, or even, if god has given would lead the contributor to believe that the funds [donated] nom's prominent role in the maine campaign and the urgent tone of docket no. 114-2, at 14. nom estimated that this email produced contributions from a single source that, in the aggregate, exceed 30 (1st cir. 2009) (noting that "in certain circumstances we have does not require inquiry into what the parties in fact understood, valeo, 424 u.s. 1 (1976), where the supreme court narrowly read a the issues raised, however, and the resources expended by all major purpose of which is the nomination or election of a advocacy rather than campaign speech. in so concluding, the court firm, randy elf, jeffrey a. gallant, josiah s. neeley, and james to add claims targeting the constitutionality of maine's pac nat'l org. for marriage, 765 f. supp. 2d at 44 (describing the of subsection c -- though "clumsy," nat'l org. for marriage, 765 f. on the failure to pro rate contributions among the states mentioned first amendment because its modest disclosure and reporting you can fight back! can you help defend consideration. id. at 474 (internal quotation mark omitted). 62 (quoting united states v. councilman, 418 f.3d 67, 84 (1st cir. advocate for or against a ballot question or request from the solicitor (covered by subsection b) or express section 1056-b was the original target of a complaint chilling effect of self-censorship. appellants' br. at 24 important information to maine voters about the interest groups before the citation includes a parenthetical excepting three of the emails language of the solicitation; hence, the only relevant hearer is appellants assert that two parts of maine's definition of [i]t is your financial sacrifices which have made our on the theory that the speaker actually intended to affect an in subsection c. appeal-to-vote formulation meets the "imperative for clarity" in merits decision, we choose not to distinguish between new text and for citations to our own opinion. "contribution," our decision in nom i largely disposes of -4- we noted in nom i, the supreme court relied on the appeal-to-vote recipient's own conduct and communications, i.e., its "activities commission for section 1056-b i.e., the provision that is now -20- supp. 2d at 51 -- is clear enough: it targets contributions that the before us. as we explained there, the commission's written $5,000, both during the current election cycle statute is unavailable because appellants concede that the that is so because the provision "do[es] not prohibit, limit, or to believe that the funds would be used expected; "[t]he mere fact that a regulation requires campaign when viewed in the context of the that assertion only to the district court's conclusion that maine appellants' contentions concerning the bqc statute. we thus and the newsletter piece from their argument -- presumably the characterize as the "onerous" requirements of bqc status -- only if b. procedural background country can recover the true meaning of 2005) (en banc)) (internal quotation marks omitted). our review is persons or organizations filing reports under section 1056-b must $50, and file quarterly and other reports. id. 1053, 1057, initiating or influencing a campaign," me. rev. stat. ann. tit. 21- donations for the above listed emails and stated: communication rather than amorphous considerations of intent and demonstrated no circumstances in which the statute fails to provide a federal statute," id. at 59 -- and concluded that the pac statute officers and all individuals who are the primary fund-raisers and hard with standformarriagemaine [a maine pac] in part, in appeal-to-vote terms -- i.e., communications and earmarking by the donor (covered by subsection a). the statute expenditures, and simple recordkeeping." id. at 56. no less than constitutional attack.7 c. due process vagueness in the context of ballot measures involving the "exacting scrutiny" standard applied to our review of the process." id. at 67. a fortiori, given that the guidance was maine may define an entity as a bqc -- thus triggering what they at 474, 468. the court acknowledged, however, that "basic14 vagueness challenge to section 1056-b, but their failure to develop solicitation that would lead the contributor activities already engaged in. activities. section 1056-b's enforcement mechanism is not the electorate -- while additional interests may justify the specifically for the purpose of initiating or thomas a. knowlton, assistant attorney general, with whom apia may not bring a due process vagueness challenge because they walter f. mckee, et al., b is unconstitutionally vague as applied to them.13 interest in identifying the speakers behind politically oriented election, no matter how compelling the [contrary] indications[.]"). -13- two other emails apparently not within nom's concession 43. depending on which, if any, of the the entity is under the control of a candidate for state or local proposed television ads (i.e., "see a[ppendix] 30-a[ppendix] 36"). $100. state's interest in "disseminating information about political guidance clarifying section 1056-b stated that the various action explicitly requested donations to help in the fight against same- that are attempting to influence the outcome of a ballot question," the greatest threats to their self-interest.'" (quoting david s. definitions of "contribution" articulated in subsections b and c of to the extent appellants claim the statute has improper issued a thoughtful decision granting the defendants' motion for challenge to the use of the word "influencing" in the pac not identify the latter with double quotation marks. the issue is thus not whether voters clamor your support today will allow us to start the a donation card and a return envelope for donations. compl., 40; for clarity, we use nom's full name in citations to the2 is unconstitutionally vague as applied to any of their actual or marriage? law burdens first amendment rights, "a more stringent vagueness noting its repetition in wisconsin right to life, appellants the discretion to overlook waiver by inadequate argument" (citation getman, 328 f.3d at 1106)). hence, like the non-major-purpose pac madison center for free speech were on brief, for appellants. reporting and disclosure requirements per se, but from the of the emails, noting that "some of nom's solicitations mentioned that persons of average intelligence would have no choice but to generated to clarify section 1056-b, our conclusion there -- that the $100 threshold in maine's independent expenditure reporting me. 2011). apia, also a nonprofit advocacy organization that2 of the bqc provision. here, as in nom i, we reject appellants' them fair warning of its reach. hence, we reject their due process decision in nom i does not govern this case because the bqc "dedicated to providing 'organized opposition to same-sex marriage contributions relative to the election, reasonably should inform funds would be used specifically for the purpose of initiating or -5- for marriage, 765 f. supp. 2d at 46; see also id. at 52 (noting after the district court denied the plaintiffs' motion not entirely, unavailing. see costa-urena v. segarra, 590 f.3d 18, influencing a campaign; emphasize that a regulation of political speech must focus on the b(2-a)(b). among those emails, for example, are two that nom 4. "influencing" standards for those who apply' the provision[] . . . and in in its february 2011 opinion on the merits, the district4 marriage maine was extremely close during the 2009 campaign. nom's b. the $100 reporting threshold responding contributor to believe that the money would be used for entirety the district court's grant of summary judgment for the argument for them. instead, we can explain the flaws in their "susceptible of no reasonable interpretation other than as an cal. pro-life council, inc. v. getman, 328 f.3d 1088, 1105-06 (9th -25- decision on the motion for a temporary restraining order. see virtually inevitable appeal." in short, it must give the laws imposing registration and disclosure requirements on entities 7. their complaint asserted that section 1056-b should be found election practices, guidance on reporting as a ballot question i. eschew "the open-ended rough-and-tumble of factors," ruling on the pac claims was pending on appeal, the district court influencing" the maine campaign and similar efforts elsewhere. id. triggered when an entity receives contributions or makes proscribed cannot complain of the vagueness of the law as applied life, 551 u.s. at 468 ("[a]n intent-based test would chill core no vagueness." id. appellants assert that subsection b articulates a 58-59. offer no support for the contention that the state may regulate with $10, $25, or $100 so that maine and our parallel motion. see nat'l org. for marriage, 765 f. supp. 2d at necessarily lead to the same conclusion. to give one more example, entity is subject to the requirements. we noted that "[i]t is not bqc definition rather than to the reporting and disclosure background information" may be necessary to put a communication in flipside, hoffman estates, inc., 455 u.s. 489, 495 (1982) specification of a treasurer for the committee, any other principal portions of seven of the emails). the complaint also states that8 scrutiny in the near future" -- as one possibly relevant people like you can still make a difference! even a small donation the complaint also lists an article in a nom newsletter8 appellants' complaint to evaluate the clarity of section 1056-b's section 1056-b. requests for donations to support the campaign committee). we held that the pac provisions' use of the term11 that "receive[] contributions or make[] expenditures," other than appellants, however, do not address in their brief the against same-sex marriage in maine could only reasonably lead a docket no. 114-3, at 12. a reasonable contributor could not help c. funds that can reasonably be determined to could become "an excuse for discovery or a broader inquiry" that for advocacy concerning a ballot measure. they contend that the office or has as its "major purpose" the passage or defeat of a of political-advocacy funds thus "'enables the electorate to make provision we upheld in nom i, section 1056-b is consistent with the 1. the challenged language conduct and communications are the primary elements in the may, in the interests of justice, choose to overlook a procedural two television ads opposing gay marriage "during the current on governmental ethics and election practices ("commission"). indeed, apia appears to lack standing to bring an as-applied10 "contribution" are unconstitutionally vague and that, by extension, threshold to inflation does not render it faulty. see nom i, 649 is unconstitutionally vague because it incorporates the "appeal-to- united v. fec, 130 s. ct. 876, 916 (2010)). -28- as a threshold matter, defendants assert that nom and federal statute defining political committees to encompass only "primary decision-makers and fundraisers." nat'l org. for docket no. 114-2, at 2-3. nom estimated that it received to the conduct of others." id. at 2719 (quoting hoffman estates v. influencing" a candidate's nomination or election. me. rev. stat. heard." id. in addition, this message, like each of the twelve right to life, timing is a particularly key contextual clue that a -7- critical to the success of this effort." the newsletter included the district court had held unconstitutional a regulation3 marriage not just in maine, but in new be both objective and vague. as applied to the communications contribution and the recipient's activities signed, ensuring that the measure does not purpose of initiating or influencing a interpretation does not make it vague." id. (quoting ridley v. profession. such information could be crucial assertion that its constitutional challenge did not arise from the informed decisions.'" nom i, 649 f.3d at 57 (quoting citizens lead the solicitor to conclude that they were given with that mary l. bonauto, catherine r. connors, and pierce atwood llp in state legislatures,'" nom i, 649 f.3d at 48, and it played a decision makers for the committee." id. 1056-b. the statute questions," id. at 49; (3) the definition of "contribution" is measure is critical, especially when one considers that ballot- applications." hoffman estates, 455 u.s. at 497. although we have pac statutes.3 extend to donations beyond those expressly earmarked by donors to section 1056-b. two of those three emails are reproduced in section ii.c.5. on august 28, 2009, which drew an estimated $395 in donations, -21- committees, however, only issue advocacy is involved, and there is to resolve disputes quickly without chilling speech summary judgment on the bqc claims and denying the plaintiffs' lipez, circuit judge. this appeal presents the second substantial role in maine's same-sex marriage referendum campaign, wis. right to life, 551 u.s. at 474 n.7 (explaining that the the bqc law and is available on the commission's website at chosen to respond to appellants' as-applied challenge in part, we ensure that persons of ordinary intelligence have 'fair warning' of id. at 46; (2) the "major purpose test" adopted by the supreme maine," and query whether, as a result of those mentions, donors' statutory definition of a pac that determines whether a particular terms in the then-current version of the provision "initiating, "[a] plaintiff who engages in some conduct that is clearly the scope of subsection b "may not be clear in every application," de novo. nom i, 649 f.3d at 62. unconstitutionally overbroad because it reaches entities outside portions reproduced verbatim from the earlier ruling and, hence, do the supreme court's recent decision in holder v. humanitarian law based on the failure to index and noting that "[n]either we nor the executive committee, and he was identified as one of the pac's omitted)); cf. nat'l ass'n of social workers v. harwood, 69 f.3d regulating political action committees ("pacs") are 1056-b satisfies constitutional standards. appellants have may require "organization-wide reporting" so the commission "can measure language is typically confusing, and the long-term policy against same-sex marriage, the reader was told that "ordinary -10- recognize contributions that the commission would deem within the other than to promote or oppose the ballot a candidate for federal elected office. 551 u.s. at 455-56. the which clearly identify a ballot question by vagueness claim. the provision's $100 reporting threshold is 389, 38. under maine law, pending proceedings are not affected "this quite different area of state regulation of ballot [bqc]: filing of a registration form disclosing basic information, extraordinary 100,000 signatures to overturn gay marriage.'" an ad describes a legislative issue that is either currently the of financial activity within the scope of the statute. the see nat'l org. for marriage v. mckee, 765 f. supp. 2d 38, 40 n.3 the guidance is unclear because it describes the regulated conduct, regarding a campaign; and b. funds provided in response to a of the statute generally.9 address those issues only briefly before considering appellants' readers to donate to stand for marriage maine. although we think information." nat'l org. for marriage, 765 f. supp. 2d at 49 n.76. which referenced the maine referendum effort and some of which in subsection c). they further challenge the invocation of context see also docket no. 114-4, at 4. 2009)). hence, the $100 threshold survives appellants' -26- for the first circuit to life, inc., 551 u.s. 449, 469-70 (2007) (articulating the 1056-b(2-a)(c); compl., 34. informed electorate. the statute is not overbroad in violation of and american principles in action, inc., index a reporting requirement to inflation"). district court decisions in this case, reserving the acronym "nom" the district court, is essentially the same argument we rejected in contentions about the statute's constitutionality by reviewing a to make this happen. but it could not have thus, appellants are not only unable to bring a facial (d. me. 2011). and argue that they cannot know "for sure" whether solicitations plainly aimed at influencing the ballot question campaign and to project, 130 s. ct. 2705 (2010), where the court reaffirmed that at 56. we rejected the relevance of the buckley "major purpose" or has already exceeded the $5,000 threshold influencing a campaign; we agree with the district court that such transparency "some" of appellants' activities, defendants are correct insofar as particular contributions received to their advocacy efforts on the but believe that donations made in response to these and similar the message, nom reasonably could predict that donations it appears to concede do not raise vagueness problems. the first of whose conduct a statute clearly applies may not successfully that a reasonable contributor who sent money to nom in response to a bqc within seven days of reaching the $5,000 threshold, and the and included the following solicitation, in boldface type: extraterritorial impact, the argument is undeveloped and, hence, only explicitly earmarked funds. such a limitation would allow have never been required even of regulations that restrict creating the next round of good news! can you give $5, online donation today. docket no. 114-3, at 4. later in the email, after a paragraph treasury of an organization filing a ballot subsection is flawed by its reliance on a subjective factor (the court's february ruling on the bqc provision and the parties' oral inquiry that could turn on the hearer's education, culture, or in sum, we see no constitutional problem with expecting which the records pertain, including "a detailed account of all -12- the narrowed formulation "succeeds both in 'provid[ing] explicit questions maine voters face is steadily increasing." nat'l org. 8-13, and the "purpose of" phrase was streamlined in 2011 by information provided on the registration form "must include january 31, 2012 nom i, 649 f.3d at 66 (quoting me. comm'n on governmental ethics & chapter of a lawsuit challenging the constitutionality of maine their as-applied challenges also would allow us to reject those 53. it concluded that: (1) the bqc registration and reporting4 susceptible of no reasonable interpretation justification, (2) it improperly requires entities to register as electorate." nom i, 649 f.3d at 57. funding to the electorate," id. at 57-58 & n.34 -- an interest is not, see id. at 59-61, and the district court's clear nat'l org. for marriage, 765 f. supp. 2d at 52 (quoting nom and apia can be fairly required by maine law to determine understood to cover issue advocacy as well as express advocacy for narrowly tailored to meet maine's compelling interest in an campaign") recipient would reasonably understand to be "for the purpose of moreover, as the district court recognized, the phrase messages," id. at 57, 59. hampshire, iowa, and other states as well? (alteration in original)). the principle extends to the first "contribution" in section 1056-b -- we conclude that the bqc law, single source aggregating in excess of $100 in any election." a. funds that the contributor specified were rationality." id. at 60. our analysis in nom i confirms that it observed, rejecting subsection b as a lawful complement to application to subsequently received donations. appellants did not in so concluding, we reject appellants' argument that our united states v. williams, 553 u.s. 285, 304 (2008) (quoting ward are left to figure out for themselves which interest groups pose overturned. nom is a national nonprofit advocacy organization concerning the law applicable to ballot question committees the hypothetical "reasonable person." some of appellants' financial dealings means that they cannot "campaign" for "ballot question," me. pub. laws 2009, ch. 524, 2. standing drawing on the language quoted above from buckley and money 18 (2000))). the disclosure of information about the source limitations and conditions could not be characterized as to excuse the deficiencies in their briefing by developing the humanitarian law project, 130 s. ct. at 2720, but appellants have contained multiple requests for donations. after noting nom's does not say it is it would be fulfilled by subsection b. the assessment of what a reasonable recipient would have concluded, and courts against examining background information where such scrutiny argument in this appeal. as we describe in section ii, with the appellants also appear to argue that the definitions of13 donations covered "contributions" and nom a bqc. they do not bqcs. indeed, the district court noted that "plaintiffs argue that to apply to ballot question committees. speech that they concede elicited contributions clearly covered by rather, the statute's applicability turns on an objective me. rev. stat. ann. tit. 21-a, 1056-b(2-a)(b), (c). appellants subject of legislative scrutiny or likely to be the subject of such that "'[k]nowing which interested parties back or oppose a ballot on brief for amicus gay & lesbian advocates & defenders. funds up to $5,000. assuming the supreme court's caution regarding the use of a. first amendment overbreadth challenge (1972) (internal quotation mark omitted)). precision is not content of donors' messages, defeating the state's compelling court held that the statute was unconstitutional in its application understanding[s] of [their] hearers,'" which has the impermissible which "invit[es] complex argument in a trial court and a regulation of political speech). such future activities, as well as for significant that the relationship between nom and stand for -19- bill." recent law permitting same-sex marriage in maine should be the first amendment. accordingly, we affirm the judgment of the purpose of initiating or influencing a b. funds provided in response to a the national organization for marriage worked challenge to section 1056-b. see humanitarian law project, 130 s. for ballot question committee status. "the context of the contribution." me. rev. stat. ann. tit. 21-a, would understand as intended for use in ballot campaigns because of had their say. can you afford a gift of $35, docket no. 114-2, at 4. nom estimated receiving about $1,055 in humanitarian law project, 130 s. ct. at 2719 (noting that, when a -24- speech. have been provided by the contributor for the efforts in the maine signature drive, the july 31 email stated: in which maine voters were asked in a ballot question whether a arising out of san juan dupont plaza hotel fire litig., 994 f.2d "would lead the contributor to believe" that funds would be used [ballot-measure] campaign." see me. rev. stat. ann. tit. 21-a, provisions, we relied on a narrowing construction adopted by the to promote or oppose [a] ballot question." see fec v. wis. right described above, however, there is nothing imprecise about the a, 1056-b(2-a)(c), in circumstances where there is no explicit mentioned that 'standformarriagemaine.com has turned in an in wisconsin right to life, the court addressed an as-14 organization, would fall within the scope of section 1056-b. given bqcs without regard to whether their major purpose is the passage law rather than fact, can be resolved without doubt on the existing compelling government interest. who made this happen . . . and we need you to that finance election-related advocacy. in a recent decision, we omitted). would lead a contributor to believe that the funds will be used to the issue is whether the "cumulative effect of maine's bqc law, section 1056-b, imposes disclosure and claims on appeal and upheld the constitutionality of the challenged disseminated merely by citing to the paragraphs of their complaint supp. 2d at 51. we reject any such argument out of hand. statute's scope fall short of the $5,000 mark, appellants expressive activity" (quoting hoffman estates, 455 u.s. at 499; i. see id. we likewise reject appellants' contention here that interest in informing voters and narrowly tailored to avoid permissible background information cited by the court in wisconsin selection of the nom emails identified in the complaint. question. -23- id. 1001(1), 1056-b. they must register with the commission as present similar messages. an email sent on may 8, 2009 described 2011) ("nom i"). we now consider similar contentions raised by nom amendment context, even though "a heightened vagueness standard judgment on the original claims challenging the bqc law. while the not necessarily follow that the statute's undisputed application to we rejected this unfavorable view of the appeal-to-vote test in nom undertook activities clearly covered by the statute. they rely on purpose are required to file periodic reports with the commission language or the target of the provision. subsection a, which is at least half of nom's thirteen listed emails paired marriage, 666 f. supp. 2d at 200. nom provided a total of $1.6 it is undisputed that nom received contributions clearly ("bqcs"). see me. rev. stat. ann. tit. 21-a, 1056-b. our given the statute's acknowledged clear application to other similarly inexplicit emails in nom's list would 3. standard of review ensuring that persons of average intelligence will have reasonable defendants, appellees. purpose in mind (triggering subsection c). indeed, appellants everywhere across this great land donate today!" compl., 37; unnecessary impositions on associational rights," id. at 53. disseminating information about political funding to the ramifications of the ballot measure are often unknown'" (quoting disclosure law, that limitation does not concern us. the language supreme court has ever second-guessed a legislative decision not to that a ballot measure has been supported by a the election or defeat of a candidate. see nat'l org. for as we have explained, a facial vagueness challenge to the happened without your help! you are the ones -14- whether a reasonable listener would understand their advocacy as an content restriction on speech to this vagueness challenge to a apparent and unambiguous reference and are what [the] law prohibits," that the law "provide[s] explicit governed by section 1056-b and that apia stated its intention to it relies by its terms not only on words spoken by the solicitor or parties in this extensive litigation, we choose to explain why those, sent on may 6, 2009, stated: impose any onerous burdens on speech, but merely require[s] the determined to have been provided by the contributor for the purpose reporting threshold is not narrowly tailored to satisfy any have been provided by the contributor for the covered depends on the objectively reasonable meaning of the the referendum campaign thus triggering subsection b subsection solicitation that would lead the contributor to believe that the purposes of section 1056-b, nom is either near influencing a campaign and all expenditures made for those information about the organization's efforts to overturn the regulated without triggering overbreadth concerns if it were for a temporary restraining order, see nat'l org. for marriage v. succeed with an as-applied vagueness challenge focused on other our nom i analysis applies with equal force to our review other background factors. rather, whether a communication is -- maybe a monthly pledge of just $10 -- can help us make your voice -3- describing nom's email messages and newsletter article, and apia's regarding a campaign." $25, or even $100 today to win the next victory for eliminating "promoting" and "defeating" as triggering activities in -31- undertake such a particularized analysis, and we are unwilling to distinct issue -- the constitutionality of the definition of specified were given in connection with a campaign" i.e., we have no difficulty concluding that organizations like challenges to maine's bqc requirements. on the only substantively challenge to a statute affecting first amendment freedoms is "to appears in both subsections is vague, and they also argue that each entity must register with the commission, maintain records of in nom i, where we faced essentially the same vagueness justified by the state's compelling interest in "provid[ing] for information about each "hank jones" who referendum process immediately when the law is requirements themselves. like maine's pac laws, section 1056-b requirements are substantially related to "maine's interest in nat'l org. for marriage, 765 f. supp. 2d at 40. in quoting its context, and it mentioned the factor of timing -- "such as whether influencing a campaign." me. rev. stat. ann. tit. 21-a, 1056- to campaign finance regulations, the supreme court cautioned lower the provisions governing "non-major-purpose" pacs are6 specifically for the purpose of initiating or the "major purpose" test has its origins in buckley v.5 their vagueness contentions would in any event be substantially, if neither vague nor overbroad, id. at 50-52; and (4) the $100 turning to the obligations themselves, we concluded that the bqc definition relying on that term also is flawed. activities in the district of columbia, maine, and new hampshire disclosure and reporting obligations do not attach until addition to "initiating" and "influencing," me. pub. laws 2011, ch. contributor's belief in subsection b and the contributor's purpose "focused on events related to same-sex marriage in maine, and ballot-measure campaign, and stated: "your support [for] nom is solicitations "would be used specifically for the purpose of united states court of appeals action committees." nat'l org. for marriage, 765 f. supp. 2d at their application to plaintiffs' proposed conduct"). contribution definition is not "impermissibly vague in all of its held that "the proper standard for an as-applied challenge to [the id. at 56. thus, we rejected "the claim that pac status is somehow we acknowledge, as appellants argue, that a standard may assessment of what any particular contributor actually believed, an at 212 (noting that "[t]he clear language of the statute requires decision in nom i effectively disposes of most of appellants' for the reasons set forth above, we conclude that section regulation is supported by only a single state interest -- informing attributed to the email could only "reasonably be determined to this thesis, embracing the first two claims addressed by in their reply brief, appellants assert that the guidance given the importance of transparency in the public f.3d at 69 (citing citizens united, 130 s. ct. at 889-90); see also "influencing," "so limited, is not so vague as to offend due arguments concerning section 1056-b's definition of "contribution." statute] must be objective, focusing on the substance of the meanwhile, the parties filed cross-motions for summary meet maine's compelling interest in informing voters: -22- 1056-b(2-a)(c). indeed, in keeping with the illustrative gave $100 to support an initiative. rather, that purpose (triggering subsection b) and also would reasonably -17- constitutional issue is "a factor that favors review about the nature of the contributions they receive where their own executive director was a member of stand for marriage maine's the applicable inquiry is whether the legislature's "organizations that are under the control of a candidate or the subjected to advertising blitzes of distortion and half-truths and appellants argue that, under supreme court precedent, statute's scope based on the perspective of a reasonable solicitation that would lead the contributor driving forces backing and opposing each marriage? expenditures of more than $5,000 annually "for the purpose of soliciting donations, which will exceed they insist that appellants may not bring a facial vagueness provision, see id. at 59-61, we can easily reject appellants' vote" test, which they claim is itself unconstitutionally vague. nom distributed a communication on september 4, 2009 stating that vagueness problem with respect to donations received following any for the district of maine operates nationwide, is "dedicated to promoting equality of contribution should be deemed within the scope of subsection c. necessarily triggered when entities engage in one or more instances not challenged here, governs contributions that "the contributor see nom i, 649 f.3d at 41 n.2. earmarked donations. subsection b governs contributions that, in marriage law by referendum -- the $255 in donations that nom 45. for financial support clearly constituting "solicitation[s] that described a recent article about nom executive director brian brown sex marriage in maine and elsewhere. see compl., 26-38; see protectmarriage.com v. bowen, 599 f. supp. 2d 1197, 1211 (e.d. cal. that "limited zone of permissible regulation." nom i, 649 f.3d at understanding. even if that requirement were categorical and nom communications via broadcast media that targeted voters and named unconstitutional on multiple grounds: (1) it imposes substantial challenge to section 1056-b's reporting requirement for ii. effect, are earmarked by the solicitor those that the contributor through pacs, "for the purpose of initiating or influencing a -32- donor, but also on context. in addressing an as-applied challenge equally applicable to the bqc setting. dispositive point here is that the statutory terms are clear in contributor. hence, we reject appellants' argument that subsection campaigns have become a money game, where average citizens are forfeited. current statutory language and no longer includes the words a. the bqc law: section 1056-b donations in response to the email. compl., 27. another email assert in conclusory language that subsections b and c of in candidate elections, citizens evaluating ballot questions must our task when evaluating a due process vagueness million to the pac as of october 20, 2009. id.; see also nom i, might chill "core political speech." wis. right to life, 551 u.s. avoiding the pitfalls of subjective standards. cf. wis. right to keep detailed records for four years following the election to statute may not be clear in every application[,] [b]ut the the solicitor's "earmarking" words. as the district court particular state or from a specific 622, 628 (1st cir. 1995) (noting that the presence of a 25, 2012). the guidance has been revised in accordance with the newsletters are considered "contributions" for given in connection with a campaign; acknowledge that the contribution definition is not vague as (quoting buckley, 424 u.s. at 43) (second alteration in original). is a compelling objective "in a climate where the number of ballot "rely ever more on a message's source as a proxy for reliability contrary to appellants' assertion, the failure to index the7 -30- 26. the second of the pair, sent on july 10, described efforts applies, subsection c plainly does. in "context" -- i.e., in light [hon. d. brock hornby, u.s. district judge] and co-appellant american principles in action, inc. ("apia") by statutory amendments. see me. rev. stat. ann. tit. 1, 302. exception of appellants' challenges to the statute's definition of certain expenditures and donor contributions aggregating more than reporting requirements on certain individuals and organizations is unconstitutionally vague and overbroad, and (4) the $100 content of the message itself and not on the hearer's we decided nom i in the interim between the district background facts may be imported from its setting involving a response to explicit solicitations clearly would fall within the marriage, 765 f. supp. 2d at 53 n.86. "for state ballot question contributions clearly covered by section 1056-b. standard that "focus[es] on what those who hear speech understand," d. funds or transfers from the general question asked is whether the words spoken the "solicitation" candidate elections because of the possibility that it would be governing the timing of disclosures. that ruling was not appealed. effect." id. at 469. the court then elaborated: -15- -6- identified no circumstances in which they would be unable to limitations and conditions in the solicitation, then argue unfairly court in the context of federal regulations is inapplicable in


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