National Organization for Marriage, Inc. v. McKee , 669 F.3d 34 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1196
NATIONAL ORGANIZATION FOR MARRIAGE, INC.,
and AMERICAN PRINCIPLES IN ACTION, INC.,
Plaintiffs, Appellants,
v.
WALTER F. McKEE, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Selya, and Lipez, Circuit Judges.
James Bopp, Jr., with whom Stephen C. Whiting, The Whiting Law
Firm, Randy Elf, Jeffrey A. Gallant, Josiah S. Neeley, and James
Madison Center for Free Speech were on brief, for appellants.
Thomas A. Knowlton, Assistant Attorney General, with whom
Phyllis Gardiner, Assistant Attorney General, was on brief, for
appellees.
Mary L. Bonauto, Catherine R. Connors, and Pierce Atwood LLP
on brief for Amicus Gay & Lesbian Advocates & Defenders.
January 31, 2012
LIPEZ, Circuit Judge. 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
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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:
1
The statute was amended in 2010 to substitute the word
"campaign" for "ballot question," Me. Pub. Laws 2009, ch. 524,
§§ 8-13, and the "purpose of" phrase was streamlined in 2011 by
eliminating "promoting" and "defeating" as triggering activities in
addition to "initiating" and "influencing," Me. Pub. Laws 2011, ch.
389, § 38. Under Maine law, pending proceedings are not affected
by statutory amendments. See Me. Rev. Stat. Ann. tit. 1, § 302.
The changes do not in any event affect the outcome of this case,
and we follow the district court's lead in using the new language.
See Nat'l Org. for Marriage v. McKee, 765 F. Supp. 2d 38, 40 n.3
(D. Me. 2011).
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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.
Persons or organizations filing reports under section 1056-B must
keep detailed records for four years following the election to
which the records pertain, including "a detailed account of all
contributions made to the filer for the purpose of initiating or
influencing a campaign and all expenditures made for those
purposes." Id. § 1056-B(4)(A).
B. Procedural Background
Section 1056-B was the original target of a complaint
filed by NOM and APIA in October 2009, shortly before an election
in which Maine voters were asked in a ballot question whether a
recent law permitting same-sex marriage in Maine should be
overturned. NOM is a national nonprofit advocacy organization
"dedicated to providing 'organized opposition to same-sex marriage
in state legislatures,'" NOM I, 649 F.3d at 48, and it played a
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substantial role in Maine's same-sex marriage referendum campaign,
see Nat'l Org. for Marriage v. McKee, 765 F. Supp. 2d 38, 43 (D.
Me. 2011).2 APIA, also a nonprofit advocacy organization that
operates nationwide, is "dedicated to promoting equality of
opportunity and ordered liberty." Second Am. Compl. ("Compl."),
¶ 7. Their complaint asserted that section 1056-B should be found
unconstitutional on multiple grounds: (1) it imposes substantial
burdens on political speech and association without adequate
justification, (2) it improperly requires entities to register as
BQCs without regard to whether their major purpose is the passage
or defeat of a ballot measure, (3) its definition of "contribution"
is unconstitutionally vague and overbroad, and (4) the $100
reporting threshold is not narrowly tailored to satisfy any
compelling government interest.
After the district court denied the plaintiffs' motion
for a temporary restraining order, see Nat'l Org. for Marriage v.
McKee, 666 F. Supp. 2d 193 (D. Me. 2009), NOM amended the complaint
to add claims targeting the constitutionality of Maine's PAC
registration, independent expenditure, and attribution and
disclaimer laws, NOM I, 649 F.3d at 44. Those additional claims,
pursued only by NOM, were resolved by the district court in August
2010, and we reviewed its PAC rulings in our decision in NOM I.
2
For clarity, we use NOM's full name in citations to the
district court decisions in this case, reserving the acronym "NOM"
for citations to our own opinion.
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Although we describe certain of our NOM I holdings in more detail
below, it suffices to say for now that we rejected all of NOM's
claims on appeal and upheld the constitutionality of the challenged
PAC statutes.3
Meanwhile, the parties filed cross-motions for summary
judgment on the original claims challenging the BQC law. While the
ruling on the PAC claims was pending on appeal, the district court
issued a thoughtful decision granting the defendants' motion for
summary judgment on the BQC claims and denying the plaintiffs'
parallel motion. See Nat'l Org. for Marriage, 765 F. Supp. 2d at
53.4 It concluded that: (1) the BQC registration and reporting
requirements are not unconstitutionally burdensome and are
justified by the State's compelling interest in "provid[ing]
important information to Maine voters about the interest groups
that are attempting to influence the outcome of a ballot question,"
id. at 46; (2) the "major purpose test" adopted by the Supreme
Court in the context of federal regulations is inapplicable in
"this quite different area of state regulation of ballot
3
The district court had held unconstitutional a regulation
governing the timing of disclosures. That ruling was not appealed.
See NOM I, 649 F.3d at 41 n.2.
4
In its February 2011 opinion on the merits, the district
court liberally incorporated the relevant analysis from its earlier
decision on the motion for a temporary restraining order. See
Nat'l Org. for Marriage, 765 F. Supp. 2d at 40. In quoting its
merits decision, we choose not to distinguish between new text and
portions reproduced verbatim from the earlier ruling and, hence, do
not identify the latter with double quotation marks.
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questions," id. at 49; (3) the definition of "contribution" is
neither vague nor overbroad, id. at 50-52; and (4) the $100
reporting threshold "is substantially related to Maine's compelling
interest in informing voters and narrowly tailored to avoid
unnecessary impositions on associational rights," id. at 53.
We decided NOM I in the interim between the district
court's February ruling on the BQC provision and the parties' oral
argument in this appeal. As we describe in Section II, with the
exception of appellants' challenges to the statute's definition of
"contribution," our decision in NOM I largely disposes of
appellants' contentions concerning the BQC statute. We thus
address those issues only briefly before considering appellants'
arguments concerning section 1056-B's definition of "contribution."
II.
A. First Amendment Overbreadth Challenge
Appellants argue that, under Supreme Court precedent,
Maine may define an entity as a BQC — thus triggering what they
characterize as the "onerous" requirements of BQC status — only if
the entity is under the control of a candidate for state or local
office or has as its "major purpose" the passage or defeat of a
ballot measure in Maine.5 They maintain that section 1056-B is
5
The "major purpose" test has its origins in Buckley v.
Valeo, 424 U.S. 1 (1976), where the Supreme Court narrowly read a
federal statute defining political committees to encompass only
"organizations that are under the control of a candidate or the
major purpose of which is the nomination or election of a
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unconstitutionally overbroad because it reaches entities outside
that "limited zone of permissible regulation." NOM I, 649 F.3d at
58-59.
This thesis, embracing the first two claims addressed by
the district court, is essentially the same argument we rejected in
NOM I with respect to similar disclosure and reporting requirements
for PACs.6 As an initial matter in NOM I, we discredited NOM's
assertion that its constitutional challenge did not arise from the
reporting and disclosure requirements per se, but from the
statutory definition of a PAC that determines whether a particular
entity is subject to the requirements. We noted that "[i]t is not
the designation as a PAC but rather the obligations that attend PAC
designation that matter for purposes of First Amendment review."
Id. at 56. Thus, we rejected "the claim that PAC status is somehow
candidate," id. at 79. Appellants have attempted to adapt the test
to apply to ballot question committees.
6
The provisions governing "non-major-purpose" PACs are
triggered when an entity receives contributions or makes
expenditures of more than $5,000 annually "for the purpose of
influencing" a candidate's nomination or election. Me. Rev. Stat.
Ann. tit. 21-A, § 1052(5)(A)(5). Upon reaching that threshold, the
entity must register with the Commission, maintain records of
certain expenditures and donor contributions aggregating more than
$50, and file quarterly and other reports. Id. §§ 1053, 1057,
1059-60. These requirements parallel those described above for
BQCs. Indeed, the district court noted that "plaintiffs argue that
Maine treats ballot question committees essentially like political
action committees." Nat'l Org. for Marriage, 765 F. Supp. 2d at
45.
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inherently burdensome apart from the specific requirements it
entails." Id. at 58.
Turning to the obligations themselves, we concluded that
the "exacting scrutiny" standard applied to our review of the
statute, rather than the more rigorous strict scrutiny standard.
That is so because the provision "do[es] not prohibit, limit, or
impose any onerous burdens on speech, but merely require[s] the
maintenance and disclosure of certain financial information." Id.
at 56. We rejected the relevance of the Buckley "major purpose"
test — as it was merely "an artifact of the Court's construction of
a federal statute," id. at 59 — and concluded that the PAC statute
survived exacting scrutiny based on the government's "compelling
interest in identifying the speakers behind politically oriented
messages," id. at 57, 59.
Our NOM I analysis applies with equal force to our review
of the BQC provision. Here, as in NOM I, we reject appellants'
attempt to frame their constitutional claim as a challenge to the
BQC definition rather than to the reporting and disclosure
requirements themselves. Like Maine's PAC laws, section 1056-B
"imposes three simple obligations on an entity qualifying as a
[BQC]: filing of a registration form disclosing basic information,
quarterly reporting of election-related contributions and
expenditures, and simple recordkeeping." Id. at 56. No less than
in candidate elections, citizens evaluating ballot questions must
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"rely ever more on a message's source as a proxy for reliability
and a barometer of political spin." Id. at 57; see also, e.g.,
Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1105-06 (9th
Cir. 2003) ("'Even more than candidate elections, initiative
campaigns have become a money game, where average citizens are
subjected to advertising blitzes of distortion and half-truths and
are left to figure out for themselves which interest groups pose
the greatest threats to their self-interest.'" (quoting David S.
Broder, Democracy Derailed: Initiative Campaigns and the Power of
Money 18 (2000))). The disclosure of information about the source
of political-advocacy funds thus "'enables the electorate to make
informed decisions.'" NOM I, 649 F.3d at 57 (quoting Citizens
United v. FEC, 130 S. Ct. 876, 916 (2010)).
We agree with the district court that such transparency
is a compelling objective "in a climate where the number of ballot
questions Maine voters face is steadily increasing." Nat'l Org.
for Marriage, 765 F. Supp. 2d at 46; see also id. at 52 (noting
that "'[k]nowing which interested parties back or oppose a ballot
measure is critical, especially when one considers that ballot-
measure language is typically confusing, and the long-term policy
ramifications of the ballot measure are often unknown'" (quoting
Getman, 328 F.3d at 1106)). Hence, like the non-major-purpose PAC
provision we upheld in NOM I, section 1056-B is consistent with the
First Amendment because its modest disclosure and reporting
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requirements are substantially related to "Maine's interest in
disseminating information about political funding to the
electorate." NOM I, 649 F.3d at 57.
In so concluding, we reject appellants' argument that our
decision in NOM I does not govern this case because the BQC
regulation is supported by only a single state interest — informing
the electorate — while additional interests may justify the
regulation of PACs. Our decision in NOM I rested solely on the
State's interest in "disseminating information about political
funding to the electorate," id. at 57-58 & n.34 — an interest
equally applicable to the BQC setting.
B. The $100 Reporting Threshold
Given the importance of transparency in the public
dialogue about ballot measures, and our decision in NOM I upholding
the $100 threshold in Maine's independent expenditure reporting
provision, see id. at 59-61, we can easily reject appellants'
challenge to section 1056-B's reporting requirement for
contributions from a single source that, in the aggregate, exceed
$100.
The applicable inquiry is whether the legislature's
judgment to set a $100 reporting threshold is "wholly without
rationality." Id. at 60. Our analysis in NOM I confirms that it
is not, see id. at 59-61, and the district court's clear
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articulation reveals why the $100 threshold is narrowly tailored to
meet Maine's compelling interest in informing voters:
The public has an interest in knowing . . .
that a ballot measure has been supported by a
multitude of gifts, even small gifts, from a
particular state or from a specific
profession. Such information could be crucial
in the context of ballot measures involving
public works projects or regulatory reform.
The issue is thus not whether voters clamor
for information about each "Hank Jones" who
gave $100 to support an initiative. Rather,
the issue is whether the "cumulative effect of
disclosure ensures that the electorate will
have access to information regarding the
driving forces backing and opposing each
bill."
Nat'l Org. for Marriage, 765 F. Supp. 2d at 52 (quoting
ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1197, 1211 (E.D. Cal.
2009)). Hence, the $100 threshold survives appellants'
constitutional attack.7
C. Due Process Vagueness
1. The Challenged Language
Appellants assert that two parts of Maine's definition of
"contribution" are unconstitutionally vague and that, by extension,
the BQC definition relying on that term also is flawed.
7
Contrary to appellants' assertion, the failure to index the
threshold to inflation does not render it faulty. See NOM I, 649
F.3d at 61 (rejecting NOM's challenge to the $100 PAC threshold
based on the failure to index and noting that "[n]either we nor the
Supreme Court has ever second-guessed a legislative decision not to
index a reporting requirement to inflation").
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Specifically, they challenge subsections B and C of section 1056-
B's four-part definition of contribution:
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 . . . .
Me. Rev. Stat. Ann. tit. 21-A, § 1056-B(2-A)(B), (C). Appellants
contend that the phrase "for the purpose of . . . influencing" that
appears in both subsections is vague, and they also argue that each
subsection is flawed by its reliance on a subjective factor (the
contributor's belief in subsection B and the contributor's purpose
in subsection C). They further challenge the invocation of context
in subsection C.
2. Standing
As a threshold matter, defendants assert that NOM and
APIA may not bring a Due Process vagueness challenge because they
undertook activities clearly covered by the statute. They rely on
the Supreme Court's recent decision in Holder v. Humanitarian Law
Project, 130 S. Ct. 2705 (2010), where the Court reaffirmed 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." Id. at 2719 (quoting Hoffman Estates v.
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Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)
(alteration in original)). The principle extends to the First
Amendment context, even though "a heightened vagueness standard
applies." Id.
It is undisputed that NOM received contributions clearly
governed by section 1056-B and that APIA stated its intention to
solicit such contributions. Appellants' complaint lists thirteen
emails distributed by NOM between May and September 2009, most of
which referenced the Maine referendum effort and some of which
explicitly requested donations to help in the fight against same-
sex marriage in Maine and elsewhere. See Compl., ¶¶ 26-38; see
also Nat'l Org. for Marriage, 666 F. Supp. 2d at 211 (reproducing
portions of seven of the emails).8 The complaint also states that
APIA intended to solicit donations to defray the cost of running
two television ads opposing gay marriage "during the current
election cycle and in future elections." Compl., ¶ 51; see also
Nat'l Org. for Marriage, 765 F. Supp. 2d at 44 (describing the
proposed APIA broadcast advertisements). Funds generated in
response to explicit solicitations clearly would fall within the
definitions of "contribution" articulated in subsections B and C of
8
The complaint also lists an article in a NOM newsletter
that described the organization's participation in the Maine
ballot-measure campaign, and stated: "Your support [for] NOM is
critical to the success of this effort." The newsletter included
a donation card and a return envelope for donations. Compl., ¶ 40;
see also Docket No. 114-4, at 4.
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section 1056-B. Requests for donations to support the campaign
against same-sex marriage in Maine could only reasonably lead a
responding contributor to believe that the money would be used for
that purpose (triggering subsection B) and also would reasonably
lead the solicitor to conclude that they were given with that
purpose in mind (triggering subsection C). Indeed, appellants
acknowledge that the contribution definition is not vague as
applied to all of their speech.
Given the statute's acknowledged clear application to
"some" of appellants' activities, defendants are correct insofar as
they insist that appellants may not bring a facial vagueness
challenge to section 1056-B. See Humanitarian Law Project, 130 S.
Ct. at 2719; Parker v. Levy, 417 U.S. 733, 756 (1974) ("One to
whose conduct a statute clearly applies may not successfully
challenge it for vagueness."). In this context, however, it does
not necessarily follow that the statute's undisputed application to
some of appellants' financial dealings means that they cannot
succeed with an as-applied vagueness challenge focused on other
activities. Section 1056-B's enforcement mechanism is not
necessarily triggered when entities engage in one or more instances
of financial activity within the scope of the statute. The
disclosure and reporting obligations do not attach until
contributions or expenditures reach the $5,000 threshold.
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Appellants' complaint asserts the incremental importance
of each individual contribution:
43. Depending on which, if any, of the
donations for the above listed emails and
newsletters are considered "contributions" for
purposes of section 1056-B, NOM is either near
or has already exceeded the $5,000 threshold
for ballot question committee status.
44. NOM intends to distribute further
emails and newsletters mentioning Maine and
soliciting donations, which will exceed
$5,000, both during the current election cycle
and in future elections. However, NOM fears
enforcement under section 1065-B based on any
such future activities, as well as for
activities already engaged in.
Compl., ¶¶ 43, 44. Hence, if contributions clearly within the
statute's scope fall short of the $5,000 mark, appellants
theoretically may succeed with as-applied vagueness challenges
based on other donations that they fear may bring their covered
funds up to $5,000.
Appellants, however, do not address in their brief the
vagueness problem with respect to donations received following any
specific communication they distributed or proposed. Rather, they
assert in conclusory language that subsections B and C of
section 1056-B "are unconstitutionally vague as applied to most of
Plaintiffs' speech." They make glancing reference to the content
of the emails, noting that "some of NOM's solicitations mentioned
Maine," and query whether, as a result of those mentions, donors'
knowledge of the Maine ballot measure would be enough to make their
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donations covered "contributions" and NOM a BQC. They do not
explain why they were unable, or would be unable, to link
particular contributions received to their advocacy efforts on the
Maine referendum, focusing their arguments instead on the language
of the statute generally.9
Thus, appellants are not only unable to bring a facial
vagueness challenge to section 1056-B, but their failure to develop
their as-applied challenges also would allow us to reject those
claims summarily if we were so inclined.10 See Harron v. Town of
Franklin, 660 F.3d 531, 535 n.2 (1st Cir. 2011); United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Given the importance of
the issues raised, however, and the resources expended by all
parties in this extensive litigation, we choose to explain why
their vagueness contentions would in any event be substantially, if
not entirely, unavailing. See Costa-Urena v. Segarra, 590 F.3d 18,
30 (1st Cir. 2009) (noting that "in certain circumstances we have
9
Appellants invoke the specific communications they
disseminated merely by citing to the paragraphs of their complaint
describing NOM's email messages and newsletter article, and APIA's
proposed television ads (i.e., "See A[ppendix] 30-A[ppendix] 36").
The citation includes a parenthetical excepting three of the emails
and the newsletter piece from their argument — presumably the
speech that they concede elicited contributions clearly covered by
section 1056-B. Two of those three emails are reproduced in
section II.C.5.
10
Indeed, APIA appears to lack standing to bring an as-applied
challenge. Its proposed activities – to air broadcast advertising
plainly aimed at influencing the ballot question campaign and to
raise funds for that purpose – involve expenditures and
contributions clearly covered by section 1056-B.
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the discretion to overlook waiver by inadequate argument" (citation
omitted)); cf. Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d
622, 628 (1st Cir. 1995) (noting that the presence of a
constitutional issue is "a factor that favors review
notwithstanding . . . procedural default"); In re Two Appeals
Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d
956, 961 (1st Cir. 1993) ("To the extent that an issue is one of
law rather than fact, can be resolved without doubt on the existing
record, and is likely to arise in other cases, an appellate court
may, in the interests of justice, choose to overlook a procedural
default.").
3. Standard of Review
Our task when evaluating a due process vagueness
challenge to a statute affecting First Amendment freedoms is "to
ensure that persons of ordinary intelligence have 'fair warning' of
what [the] law prohibits," that the law "provide[s] explicit
standards for those who apply" it, and that the law "avoid[s]
chilling the exercise of First Amendment rights." NOM I, 649 F.3d
at 62 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972) (internal quotation mark omitted)). Precision is not
expected; "[t]he mere fact that a regulation requires
interpretation does not make it vague." Id. (quoting Ridley v.
Mass. Bay Transp. Auth., 390 F.3d 65, 93 (1st Cir. 2004)); see also
Humanitarian Law Project, 130 S. Ct. at 2719 (noting that, when a
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law burdens First Amendment rights, "a more stringent vagueness
test should apply . . . [b]ut perfect clarity and precise guidance
have never been required even of regulations that restrict
expressive activity" (quoting Hoffman Estates, 455 U.S. at 499;
United States v. Williams, 553 U.S. 285, 304 (2008) (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 794 (1989)))). The test is
whether the statute "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." NOM I, 649 F.3d at
62 (quoting United States v. Councilman, 418 F.3d 67, 84 (1st Cir.
2005) (en banc)) (internal quotation marks omitted). Our review is
de novo. NOM I, 649 F.3d at 62.
4. "Influencing"
In NOM I, where we faced essentially the same vagueness
challenge to the use of the word "influencing" in the PAC
provisions, we relied on a narrowing construction adopted by the
Commission for section 1056-B – i.e., the provision that is now
before us. As we explained there, the Commission's written
Guidance clarifying section 1056-B stated that the various action
terms in the then-current version of the provision – "initiating,
promoting, defeating or influencing in any way" – applied to
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
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other than to promote or oppose the ballot
question.
NOM I, 649 F.3d at 66 (quoting Me. Comm'n on Governmental Ethics &
Election Practices, Guidance on Reporting as a Ballot Question
Committee).11 We held that the PAC provisions' use of the term
"influencing," "so limited, is not so vague as to offend due
process." Id. at 67. A fortiori, given that the Guidance was
generated to clarify section 1056-B, our conclusion there — that
the narrowed formulation "succeeds both in 'provid[ing] explicit
standards for those who apply' the provision[] . . . and in
ensuring that persons of average intelligence will have reasonable
notice of the provision[']s[] coverage" — applies here as well.
Id. (quoting Grayned, 408 U.S. at 108).
In their reply brief, appellants assert that the Guidance
is unconstitutionally vague because it incorporates the "appeal-to-
vote" test, which they claim is itself unconstitutionally vague.
We rejected this unfavorable view of the appeal-to-vote test in NOM
I. See id. We likewise reject appellants' contention here that
the Guidance is unclear because it describes the regulated conduct,
in part, in appeal-to-vote terms — i.e., communications and
activities "susceptible of no reasonable interpretation other than
11
The Guidance provides answers to a series of questions about
the BQC law and is available on the Commission's website at
http://www.maine.gov/ethics/bqcs/guidance.htm (last visited Jan.
25, 2012). The Guidance has been revised in accordance with the
current statutory language and no longer includes the words
"promoting" or "defeating" in its explanation.
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to promote or oppose [a] ballot question." See FEC v. Wis. Right
to Life, Inc., 551 U.S. 449, 469-70 (2007) (articulating the
appeal-to-vote test in holding that an advertisement could be
regulated without triggering overbreadth concerns if it were
"susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate"). Indeed, as
we noted in NOM I, the Supreme Court relied on the appeal-to-vote
test in its most recent campaign-finance decision. See NOM I, 649
F.3d at 69 (citing Citizens United, 130 S. Ct. at 889-90); 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).
Moreover, as the district court recognized, the phrase
"for the purpose of influencing" was of concern in the context of
candidate elections because of the possibility that it would be
understood to cover issue advocacy as well as express advocacy for
the election or defeat of a candidate. See Nat'l Org. for
Marriage, 765 F. Supp. 2d at 53 n.86. "For state ballot question
committees, however, only issue advocacy is involved, and there is
no vagueness." Id.
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5. Subsection 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")
Appellants assert that subsection B articulates a
standard that "focus[es] on what those who hear speech understand,"
and argue that they cannot know "for sure" whether solicitations
"would lead the contributor to believe" that funds would be used
for advocacy concerning a ballot measure. They contend that the
provision places the speaker "'wholly at the mercy of the varied
understanding[s] of [their] hearers,'" which has the impermissible
chilling effect of self-censorship. Appellants' Br. at 24
(quoting Buckley, 424 U.S. at 43) (second alteration in original).
As we have explained, a facial vagueness challenge to the
statute is unavailable because appellants concede that the
contribution definition is not "impermissibly vague in all of its
applications." Hoffman Estates, 455 U.S. at 497. Although we have
chosen to respond to appellants' as-applied challenge in part, we
decline to examine in detail each of the communications listed in
appellants' complaint to evaluate the clarity of section 1056-B's
application to subsequently received donations. Appellants did not
undertake such a particularized analysis, and we are unwilling to
excuse the deficiencies in their briefing by developing the
argument for them. Instead, we can explain the flaws in their
contentions about the statute's constitutionality by reviewing a
selection of the NOM emails identified in the complaint.
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At least half of NOM's thirteen listed emails paired
information about the organization's efforts to overturn the
pending Maine law allowing same-sex marriage with explicit requests
for financial support – clearly constituting "solicitation[s] that
would lead the contributor to believe that the funds [donated]
would be used specifically for the purpose of initiating or
influencing a campaign." Me. Rev. Stat. Ann. tit. 21-A, § 1056-
B(2-A)(B). Among those emails, for example, are two that NOM
appears to concede do not raise vagueness problems. The first of
those, sent on May 6, 2009, stated:
Your support today will allow us to start the
referendum process immediately when the law is
signed, ensuring that the measure does not
take effect before the people of Maine have
had their say. Can you afford a gift of $35,
$50 or $100 today to help stop same-sex
marriage not just in Maine, but in New
Hampshire, Iowa, and other states as well?
Please use this hyperlink to make a secure
online donation today.
Docket No. 114-2, at 2-3. NOM estimated that it received
approximately $2,469 as a result of this communication. Compl.,
¶ 26. The second of the pair, sent on July 10, described efforts
"to repeal Maine's hastily enacted gay marriage statute" and
stated:
The National Organization for Marriage worked
hard with StandforMarriageMaine [a Maine PAC]
to make this happen. But it could not have
happened without your help! You are the ones
who made this happen . . . and we need you to
help secure this victory. Can you help us
with $10, $25, or $100 so that Maine – and our
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country – can recover the true meaning of
marriage?
Docket No. 114-2, at 14. NOM estimated that this email produced
approximately $350 in donations. Compl., ¶ 32.
Two other emails apparently not within NOM's concession
present similar messages. An email sent on May 8, 2009 described
activities in the District of Columbia, Maine, and New Hampshire
and included the following solicitation, in boldface type:
You can fight back! Can you help defend
marriage in Maine and across the country, by
donating $5, $10, or even, if God has given
you the means, $100 or $500?
Docket No. 114-2, at 4. NOM estimated receiving about $1,055 in
donations in response to the email. Compl., ¶ 27. Another email
on August 28, 2009, which drew an estimated $395 in donations,
described a recent article about NOM executive director Brian Brown
and highlighted events in Iowa. The email included the following
sentence: "Help us fight to protect marriage in Iowa, Maine and
everywhere across this great land – donate today!" Compl., ¶ 37;
Docket No. 114-3, at 12. A reasonable contributor could not help
but believe that donations made in response to these and similar
solicitations "would be used specifically for the purpose of
initiating or influencing a [Maine] campaign." Me. Rev. Stat. Ann.
tit. 21-A, § 1056-B(2-A)(B).12
12
Appellants have not challenged the statute on appeal based
on the failure to pro rate contributions among the states mentioned
in the solicitations. See Nat'l Org. for Marriage, 666 F. Supp. 2d
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Drawing on the language quoted above from Buckley and
noting its repetition in Wisconsin Right to Life, appellants
emphasize that a regulation of political speech must focus on the
content of the message itself and not on the hearer's
understanding. Even if that requirement were categorical – and NOM
does not say it is – it would be fulfilled by subsection B. The
question asked is whether the words spoken – the "solicitation" –
would lead a contributor to believe that the funds will be used to
initiate or influence a campaign. The answer does not require an
assessment of what any particular contributor actually believed, an
inquiry that could turn on the hearer's education, culture, or
other background factors. Rather, whether a communication is
covered depends on the objectively reasonable meaning of the
language of the solicitation; hence, the only relevant hearer is
the hypothetical "reasonable person."
We acknowledge, as appellants argue, that a standard may
be both objective and vague. As applied to the communications
described above, however, there is nothing imprecise about the
at 212 (noting that "[t]he clear language of the statute requires
reporting the entire amount"). Appellants summarily assert that
section 1056-B improperly regulates speech outside Maine, but link
that assertion only to the district court's conclusion that Maine
may require "organization-wide reporting" so the Commission "can
assess the legitimacy of how the organization reports its
information." Nat'l Org. for Marriage, 765 F. Supp. 2d at 49 n.76.
To the extent appellants claim the statute has improper
extraterritorial impact, the argument is undeveloped and, hence,
forfeited.
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language or the target of the provision. Subsection A, which is
not challenged here, governs contributions that "the contributor
specified were given in connection with a campaign" – i.e.,
earmarked donations. Subsection B governs contributions that, in
effect, are earmarked by the solicitor – those that the contributor
would understand as intended for use in ballot campaigns because of
the solicitor's "earmarking" words. As the district court
observed, rejecting subsection B as a lawful complement to
subsection A "would allow the solicitor to propose all the relevant
limitations and conditions in the solicitation, then argue unfairly
that the resulting gift that did not expressly repeat those
limitations and conditions could not be characterized as to
purpose." Nat'l Org. for Marriage, 765 F. Supp. 2d at 51.
We have no difficulty concluding that organizations like
NOM and APIA can be fairly required by Maine law to determine
whether a reasonable listener would understand their advocacy as an
invitation to contribute to a specific ballot question campaign.
The scope of subsection B "may not be clear in every application,"
Humanitarian Law Project, 130 S. Ct. at 2720, but appellants have
identified no circumstances in which they would be unable to
recognize contributions that the Commission would deem within the
statute's scope based on the perspective of a reasonable
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contributor. Hence, we reject appellants' argument that subsection
B is unconstitutionally vague as applied to them.13
6. Subsection 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")
Subsection C triggers somewhat closer examination because
it relies by its terms not only on words spoken by the solicitor or
donor, but also on context. In addressing an as-applied challenge
to campaign finance regulations, the Supreme Court cautioned lower
courts against examining background information where such scrutiny
could become "an excuse for discovery or a broader inquiry" that
might chill "core political speech." Wis. Right to Life, 551 U.S.
at 474, 468.14 The Court acknowledged, however, that "basic
13
Appellants also appear to argue that the definitions of
"contribution" in subsections B and C are overbroad because they
extend to donations beyond those expressly earmarked by donors to
support or oppose ballot measures. Unsurprisingly, appellants
offer no support for the contention that the State may regulate
only explicitly earmarked funds. Such a limitation would allow
entities to easily evade disclosure requirements by guiding the
content of donors' messages, defeating the State's compelling
interest in informing voters. See Nat'l Org. for Marriage, 765 F.
Supp. 2d at 51. We reject any such argument out of hand.
14
In Wisconsin Right to Life, the Court addressed an as-
applied challenge to Section 203 of the Bipartisan Campaign Reform
Act of 2002 ("BCRA"), which barred corporations from disseminating
communications via broadcast media that targeted voters and named
a candidate for federal elected office. 551 U.S. at 455-56. The
Court held that the statute was unconstitutional in its application
to three radio and television ads because they constituted issue
advocacy rather than campaign speech. In so concluding, the Court
held that "the proper standard for an as-applied challenge to [the
statute] must be objective, focusing on the substance of the
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background information" may be necessary to put a communication in
context, and it mentioned the factor of timing — "such as whether
an ad describes a legislative issue that is either currently the
subject of legislative scrutiny or likely to be the subject of such
scrutiny in the near future" — as one possibly relevant
consideration. Id. at 474 (internal quotation mark omitted).
Assuming the Supreme Court's caution regarding the use of
background facts may be imported from its setting involving a
content restriction on speech to this vagueness challenge to a
disclosure law, that limitation does not concern us. The language
of subsection C — though "clumsy," Nat'l Org. for Marriage, 765 F.
Supp. 2d at 51 — is clear enough: it targets contributions that the
recipient would reasonably understand to be "for the purpose of
initiating or influencing a campaign," Me. Rev. Stat. Ann. tit. 21-
A, § 1056-B(2-A)(C), in circumstances where there is no explicit
request from the solicitor (covered by subsection B) or express
communication rather than amorphous considerations of intent and
effect." Id. at 469. The Court then elaborated:
It must entail minimal if any discovery, to allow parties
to resolve disputes quickly without chilling speech
through the threat of burdensome litigation. And it must
eschew "the open-ended rough-and-tumble of factors,"
which "invit[es] complex argument in a trial court and a
virtually inevitable appeal." In short, it must give the
benefit of any doubt to protecting rather than stifling
speech.
Id. (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 513 U.S. 527, 547 (1995)) (alteration in original) (citations
omitted).
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earmarking by the donor (covered by subsection A). The statute
does not require inquiry into what the parties in fact understood,
avoiding the pitfalls of subjective standards. Cf. Wis. Right to
Life, 551 U.S. at 468 ("[A]n intent-based test would chill core
political speech by opening the door to a trial on every ad . . .
on the theory that the speaker actually intended to affect an
election, no matter how compelling the [contrary] indications[.]").
Rather, the statute's applicability turns on an objective
assessment of what a reasonable recipient would have concluded, and
that assessment necessarily will be based primarily on the
recipient's own conduct and communications, i.e., its "activities
regarding a campaign."
Here, for example, NOM's list of emails includes one
distributed on July 31, 2009 that, according to the complaint,
"focused on events related to same-sex marriage in Maine, and
mentioned that 'StandforMarriageMaine.com has turned in an
extraordinary 100,000 signatures to overturn gay marriage.'"
Compl., ¶ 34. As described in the complaint, this communication
did not include an explicit solicitation and, hence, might be
thought to fall outside the scope of subsection B's coverage of
"[f]unds provided in response to a solicitation."15 Me. Rev. Stat.
15
In fact, however, the full email reproduced in the record
contained multiple requests for donations. After noting NOM's
efforts in the Maine signature drive, the July 31 email stated:
[I]t is your financial sacrifices which have made our
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Ann. tit. 21-A, § 1056-B(2-A)(B). Whether or not subsection B
applies, subsection C plainly does. In "context" — i.e., in light
of NOM's ongoing role in the effort to overturn the Maine gay
marriage law by referendum — the $255 in donations that NOM
attributed to the email could only "reasonably be determined to
have been provided by the contributor for the purpose of . . .
influencing" the Maine campaign and similar efforts elsewhere. Id.
§ 1056-B(2-A)(C); Compl., ¶ 34.
Other similarly inexplicit emails in NOM's list would
necessarily lead to the same conclusion. To give one more example,
NOM distributed a communication on September 4, 2009 stating that
"[m]arriage is now officially on the ballot in Maine this November"
and that "[m]oney is going to be critical to getting the message
out." Compl., ¶ 38; Docket No. 114-3, at 14. The email asked
readers to donate to Stand for Marriage Maine. Although we think
that a reasonable contributor who sent money to NOM in response to
initial victory possible. When you donate to NOM, you're
creating the next round of good news! Can you give $5,
$25, or even $100 today to win the next victory for
marriage?
Docket No. 114-3, at 4. Later in the email, after a paragraph
explaining why "Maine is about more than Maine" in the campaign
against same-sex marriage, the reader was told that "ordinary
people like you can still make a difference! Even a small donation
— maybe a monthly pledge of just $10 — can help us make your voice
heard." Id. In addition, this message, like each of the twelve
other emails listed in the complaint, contained a hyperlinked
"Donate" button that sent potential donors to the donations screen
at NOM's website. Compl., ¶ 39.
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this communication would expect NOM to use the funds to influence
the referendum campaign – thus triggering subsection B – subsection
C eliminates any doubt that such contributions, even though
prompted by an explicit solicitation on behalf of a separate
organization, would fall within the scope of section 1056-B. Given
NOM's prominent role in the Maine campaign and the urgent tone of
the message, NOM reasonably could predict that donations it
received as a result of this email would be classified by the
Commission as "for the purpose of" influencing the upcoming Maine
election.
Moreover, in evaluating any such donations, it is also
significant that the relationship between NOM and Stand for
Marriage Maine was extremely close during the 2009 campaign. NOM's
executive director was a member of Stand for Marriage Maine's
executive committee, and he was identified as one of the PAC's
"primary decision-makers and fundraisers." Nat'l Org. for
Marriage, 666 F. Supp. 2d at 200. NOM provided a total of $1.6
million to the PAC as of October 20, 2009. Id.; see also NOM I,
649 F.3d at 48 (noting that NOM spent $1.8 million in Maine in
2009). Such objective information, along with the timing of the
contributions relative to the election, reasonably should inform
"the context of the contribution." Me. Rev. Stat. Ann. tit. 21-A,
§ 1056-B(2-A)(C). Indeed, in keeping with the illustrative
permissible background information cited by the Court in Wisconsin
-31-
Right to Life, timing is a particularly key contextual clue that a
contribution should be deemed within the scope of subsection C.
In sum, we see no constitutional problem with expecting
entities like appellants to make pragmatic, objective judgments
about the nature of the contributions they receive where their own
conduct and communications are the primary elements in the
determination. Appellants have not demonstrated that subsection C
is unconstitutionally vague as applied to any of their actual or
anticipated contributions. Hence, as presented here, their
vagueness challenge to subsection C fails. Cf. Humanitarian Law
Project, 130 S. Ct. at 2720 (noting that "the scope of the . . .
statute may not be clear in every application[,] [b]ut the
dispositive point here is that the statutory terms are clear in
their application to plaintiffs' proposed conduct").
III.
For the reasons set forth above, we conclude that section
1056-B satisfies constitutional standards. Appellants have
demonstrated no circumstances in which the statute fails to provide
them fair warning of its reach. Hence, we reject their due process
vagueness claim. The provision's $100 reporting threshold is
narrowly tailored to meet Maine's compelling interest in an
informed electorate. The statute is not overbroad in violation of
the First Amendment. Accordingly, we affirm the judgment of the
district court.
So ordered.
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