Nagr v. Jeff Mangan ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL ASSOCIATION FOR GUN No. 18-35010
RIGHTS, INC.,
Plaintiff-Appellant, D.C. No.
6:16-cv-00023-
v. DLC
JEFF MANGAN, in his official
capacity as the Commissioner of OPINION
Political Practices for the State of
Montana; Timothy G. Fox, in his
official capacity as Attorney General
for the State of Montana; LEO J.
GALLAGHER, in his official capacity
as County Attorney for the County of
Lewis and Clark,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted March 5, 2019
Portland, Oregon
Filed August 12, 2019
2 NAGR V. MANGAN
Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and John R. Tunheim, * District Judge.
Opinion by Judge Berzon
SUMMARY **
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment in favor of Montana
defendants in an action brought by the National Association
of Gun Rights, a non-profit advocacy group, challenging
Montana’s electioneering disclosure laws on First
Amendment grounds.
Under Montana law, an organization that makes an
expenditure of more than $250 on a single electioneering
communication must register as a political committee,
subject to certain organizational and disclosure
requirements. An electioneering communication is, in part,
a paid communication made within 60 days of the initiation
of voting in an election, that can be received by more than
100 recipients in a voting district and that refers to
candidates, political parties or ballot issues. Mont. Code
Ann. § 13-1-101(16). Plaintiff filed suit asserting that the
State’s definition of electioneering communication was both
*
The Honorable John R. Tunheim, Chief United States District
Judge for the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NAGR V. MANGAN 3
facially overbroad in violation of the First Amendment and
unconstitutional as applied to plaintiff. Plaintiff alleged that
the First Amendment permits states to require disclosure
only of express advocacy and its functional equivalent.
Plaintiff asserted that because its proposed mailers did not
specifically advocate for or against a specific candidate, but
just provided information about a candidate’s position on
Second Amendment issues, plaintiff could not
constitutionally be required to comply with Montana’s
disclosure requirements.
The panel held that the First Amendment does not limit
states’ election disclosure requirements solely to regulating
express advocacy. The panel reasoned that requiring
disclosure of information related to subtle and indirect
communications likely to influence voters’ votes was critical
to the State’s interest in promoting transparency and
discouraging circumvention of its electioneering laws.
Applying exacting scrutiny, the panel held that like the
disclosure provisions that were approved in Human Life of
Washington Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir.
2010) and Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015),
most of Montana’s disclosure and related requirements were
substantially related to important governmental interests
connected with informing the electorate.
The panel held that only Montana’s requirement
pursuant to §§ 13-37-203, that organizations designate a
treasurer registered to vote in Montana, was constitutionally
infirm. The panel held that the registered-Montana-voter
requirement was not substantially related to any important
governmental interest. The panel also held, however, that
the registered-voter provision was severable from the rest of
the Montana disclosure regime, which could remain in force.
The panel therefore affirmed the district court’s summary
4 NAGR V. MANGAN
judgment in favor of Montana except with respect to the
treasurer provision.
COUNSEL
David Warrington (argued), Kutak Rock LLP, Washington,
D.C.; Matthew G. Monforton, Monforton Law Offices
PLLC, Bozeman, Montana; for Plaintiff-Appellant.
Jere Stuart Segrest (argued) and Matthew T. Cochenour,
Assistant Attorneys General; Timothy Fox, Attorney
General; Office of the Attorney General, Helena, Montana;
for Defendants-Appellees.
Randy Elf, Lakewood, New York, as Amicus Curiae.
OPINION
BERZON, Circuit Judge:
The National Association of Gun Rights (“NAGR” or
“the Association”), a non-profit advocacy group, challenges
Montana’s electioneering disclosure laws on First
Amendment grounds. This appeal treads on familiar
territory. In Human Life of Washington Inc. v. Brumsickle,
624 F.3d 990, 1016 (9th Cir. 2010) (“HLW”), we upheld the
State of Washington’s disclosure regime, and in Yamada v.
Snipes, 786 F.3d 1182 (9th Cir. 2015), we rejected
challenges to a similar regime in Hawaii. Montana’s
disclosure regulations closely resemble those of these other
states.
NAGR V. MANGAN 5
Like the disclosure provisions we approved in HLW and
Yamada, most of Montana’s disclosure and related
requirements are substantially related to important
governmental interests connected with informing the
electorate. Only Montana’s requirement that organizations
designate a treasurer registered to vote in Montana is
constitutionally infirm. We therefore affirm the district
court’s summary judgment in favor of Montana except with
respect to that provision.
I
A
NAGR is a tax-exempt non-profit organization under
26 U.S.C. § 501(c)(4); its principal place of business is in
Colorado. NAGR’s articulated mission is to “defend the
right to keep and bear arms, and advance that God-given
Constitutional right by educating the American people and
urging them to action in the public policy process.” NAGR
reports that it has approximately 36,000 members and
supporters in Montana and 4.5 million members nationwide.
To retain its federal tax status, NAGR cannot engage in
“direct or indirect participation or intervention in political
campaigns on behalf of or in opposition to any candidate for
public office.” 26 C.F.R. § 1.501(c)(4)–1(a)(2)(ii).
As part of its mission, NAGR seeks to “let[] the public
know where legislators and governmental officials stand on
issues related to the Second Amendment.” “[D]uring [the
2020] election cycle,” NAGR intends “to mail educational
literature to Montanans . . . describing which public officials
have supported the rights of citizens to keep and bear arms
and engage in lawful self-defense, as well as those who have
6 NAGR V. MANGAN
not done so.” 1 NAGR represents that its proposed future
mailer would cost more than $250 to distribute. The
Association does not intend to distribute the literature,
however, if the literature would be deemed an
“electioneering communication,” subjecting the
organization to disclosure requirements under Montana law.
B
In 2015, the Montana State Legislature enacted S.B. 289
(“the Statute”), covering a category of speech, denominated
“electioneering communications,” with the purpose of
“increasing transparency, informing Montanans about who
is behind the messages vying for their attention, and
decreasing circumvention” of campaign finance laws. The
Statute defines “electioneering communication” as follows:
(a) “Electioneering communication” means a
paid communication that is publicly
distributed by radio, television, cable,
satellite, internet website, newspaper,
periodical, billboard, mail, or any other
distribution of printed materials, that is made
1
The proposed literature would be similar in content to the material
NAGR mailed during a previous election cycle. In 2012, NAGR sent
several mailers to residents in Flathead County, Montana, that discussed
state Senator Bruce Tutvedt’s alleged attempts to “kill” a state bill
encouraging gun ammunition manufacturing. The mailer read: “Bruce
Tutvedt: Working Against the Flathead’s Burgeoning Small-Arms
Industry.” It further stated, “FACT: Flathead County was poised to get a
new smokeless powder plant until Bruce Tutvedt took to the Senate Floor
and demanded it be killed. (S.B. 371, 04/13/11 Audio) Now, thanks to
Bruce Tutvedt, unemployment in the Flathead is nearly 11% percent.”
The mailer called on residents to “[c]ontact Bruce Tutvedt right away
and DEMAND he apologize for killing new manufacturing for Flathead
County.”
NAGR V. MANGAN 7
within 60 days of the initiation of voting in an
election, that does not support or oppose a
candidate or ballot issue, that can be received
by more than 100 recipients in the district
voting on the candidate or ballot issue, and
that:
(i) refers to one or more clearly identified
candidates in that election;
(ii) depicts the name, image, likeness, or
voice of one or more clearly identified
candidates in that election; or
(iii) refers to a political party, ballot issue,
or other question submitted to the voters
in that election.
(b) The term does not mean:
(i) a bona fide news story, commentary,
blog, or editorial distributed through the
facilities of any broadcasting station,
newspaper, magazine, internet website,
or other periodical publication of general
circulation unless the facilities are owned
or controlled by a candidate or political
committee;
(ii) a communication by any membership
organization or corporation to its
members, stockholders, or employees;
(iii) a commercial communication that
depicts a candidate's name, image,
likeness, or voice only in the candidate’s
8 NAGR V. MANGAN
capacity as owner, operator, or employee
of a business that existed prior to the
candidacy;
(iv) a communication that constitutes a
candidate debate or forum or that solely
promotes a candidate debate or forum and
is made by or on behalf of the person
sponsoring the debate or forum; or
(v) a communication that the
commissioner determines by rule is not
an electioneering communication.
Mont. Code Ann. § 13-1-101(16). 2
An organization that makes an expenditure of more than
$250 on a single electioneering communication must register
as a “political committee.” 3 Section 13-1-101(31)(a) defines
“political committee” as:
2
Montana Administrative Rule 44.11605(2)(b) defines “the
initiation of voting” for purposes of electioneering communications to
occur “when absentee ballot packets are mailed.” The Commissioner of
Political Practices has interpreted “the initiation of voting” date to be
25 days before an election, the date when general absentee ballots are
mailed. Mont. Code Ann. § 13-13-205(1)(a)(ii). NAGR contends that the
earliest date absentee ballots are mailed is 45 days before an election,
when absentee ballots for overseas service members are sent. § 13-13-
205(2). For our purposes, we need not determine whether electioneering
communications are those made within 85 days of an election or within
105 days.
3
For clarity, we refer to any money an organization spends, whether
on advertisements or donations to a candidate, ballot issue, or another
organization, as an “expenditure.” We refer to funds an organization
receives from any source as a “contribution.”
NAGR V. MANGAN 9
[A] combination of two or more individuals
or a person other than an individual who
receives a contribution or makes an
expenditure:
(i) to support or oppose a candidate or a
committee organized to support or
oppose a candidate or a petition for
nomination;
(ii) to support or oppose a ballot issue or
a committee organized to support or
oppose a ballot issue; or
(iii) to prepare or disseminate an election
communication, an electioneering
communication, or an independent
expenditure.
Political committees ordinarily must abide by certain
organizational requirements. 4 All such organizations must
file a registration form with the Commissioner of Political
Practices containing an organizational statement and the
names and addresses of all officers, § 13-37-201(2)(b);
appoint a treasurer registered to vote in Montana, §§ 13-37-
201(1), -203; deposit all contributions received and
expenditures to be disbursed into a bank authorized to
transact business in Montana, § 13-37-205; abide by certain
4
These political committee requirements do not apply, with certain
exceptions, to political committees organized to support an issue or
campaign in a school district or other special districts comprising “a unit
of local government authorized by law to perform a single function or a
limited number of functions.” Mont. Code Ann. § 13-37-206.
10 NAGR V. MANGAN
depository requirements, § 13-37-207; and keep up-to-date
records of contributions and expenditures, § 13-37-208.
In addition to meeting these organizational requirements,
political committees are subject to disclosure requirements
depending on their level of political activity. Montana law
distinguishes among several types of political committees,
§ 13-1-101(31)(b), two of which are relevant to this case:
“incidental” committees and “independent” committees. 5
An “incidental committee” is a political committee “not
specifically organized or operating for the primary purpose
of supporting or opposing candidates or ballot issues but that
may incidentally become a political committee by receiving
a contribution or making an expenditure.” § 13-1-
101(23)(a). A prototypical incidental committee is a
business that operates continuously. If such a committee
makes an expenditure of more than $250, it is considered an
incidental political committee under S.B. 289, but only for
the election cycle in which it makes a qualifying
expenditure. An incidental committee must report to whom
it is making expenditures, but it is not required to report from
whom it is receiving contributions unless those contributions
were solicited or earmarked for a particular candidate, ballot
issue, or petition for nomination. § 13-37-232.
An incidental committee must file periodic reports of
expenditures and, if applicable, contributions during an
election cycle in which it makes an expenditure, so long as
it continues to accept qualifying contributions or make
5
Political committees also include “ballot issue committees” and
“political party committees.” Mont. Code Ann. § 13-1-101(31)(b).
NAGR V. MANGAN 11
qualifying expenditures. 6 If, however, an incidental
committee has terminated all qualifying contribution and
expenditure activity for an election cycle, it may file a
closing report at any time. § 13-37-226(9). If it does so, the
committee need not file any subsequent reports. In practice,
if an incidental committee makes only a single expenditure
in an election cycle, it can fulfill all registration, reporting,
and closing requirements in a single filing of two forms. If
an incidental committee makes multiple expenditures, it is
required to file reports at the intervals required by law.
An “independent committee” differs from an incidental
committee in purpose. It is a political committee “organized
for the primary purpose of receiving contributions and
making expenditures that is not controlled either directly or
indirectly by a candidate and that does not coordinate with a
candidate in conjunction with the making of expenditures”
except pursuant to certain provisions not relevant here. § 13-
1-101(24). An independent committee is subject to more
detailed disclosure and reporting requirements than an
incidental committee. It must report the source and amount
6
Specifically, an incidental committee making multiple
expenditures must file a report on the 90th, 35th, and 12th day preceding
the date of an election during an election cycle in which it makes an
expenditure. § 13-37-226(5)(a). If an incidental committee receives a
qualifying contribution or makes an electioneering communication
greater than or equal to $500 within 17 days of an election, the incidental
committee must file a report within 2 business days of receiving the
contribution or making the electioneering communication. § 13-37-
226(5)(b), (c). An incidental committee also must file reports within
20 days after an election and at the close of the calendar year. § 13-37-
226(5)(d), (e).
12 NAGR V. MANGAN
of its contributions, as well as the target and amount of its
expenditures. § 13-37-229.
An independent committee must make the required
disclosures in the same periodic intervals as an incidental
committee. § 13-37-226(4). 7 Like an incidental committee,
an independent committee may file closing reports at any
time. However, because its primary purpose is to advocate
during elections, an independent committee often does not
close after an election cycle but instead carries over from one
election cycle to the next.
C
In 2016, NAGR filed suit against several Montana
officials and agencies alleging, among other challenges, that
the State’s definition of “electioneering communication,”
§ 13-1-101(16), is both facially overbroad in violation of the
First Amendment and unconstitutional as applied to NAGR. 8
NAGR’s primary contention in district court was that the
First Amendment, as a categorical matter, permits states to
7
Both incidental and independent committees must file more
frequent reports if they receive a contribution or make an expenditure
“supporting or opposing a candidate . . . or a statewide ballot issue.”
§ 13-37-226(1)–(3). The timing of such reports depends on whether the
candidate or ballot issue in question is statewide, district, or local. Id.
8
NAGR brought two other claims: Claim 1—Declaratory and
injunctive relief preventing the Commissioner from prosecuting NAGR
for educational mailings it made in 2012; and Claim 3—Declaratory and
injunctive relief preventing the Commissioner from enforcing the
compelled-vote-reporting provision of Montana Code Annotated
section 13-35-225(3)(a). On cross-motions for summary judgment, the
district court denied NAGR’s first claim as time barred and granted
NAGR summary judgment on the third claim, holding § 13-35-225(3)(a)
unconstitutional. Neither claim is at issue in this appeal.
NAGR V. MANGAN 13
require disclosure only of express advocacy and its
functional equivalent, defined as speech “susceptible of no
reasonable interpretation other than as an appeal to vote for
or against a specific candidate.” FEC v. Wis. Right To Life,
Inc., 551 U.S. 449, 470 (2007) (“WRTL”). NAGR asserted
that because its proposed mailers did not specifically
advocate for or against a specific candidate, but just provided
information about a candidate’s position on Second
Amendment issues, the Association could not
constitutionally be required to comply with Montana’s
disclosure requirements.
The district court rejected this contention. It granted
summary judgment to Montana on NAGR’s electioneering
communication claim, holding that the “electioneering
communication” definition was not constitutionally
overbroad. The court reasoned that NAGR’s argument was
foreclosed by HLW, 642 F.3d at 1016, which, said the district
court, “reject[ed] [the] contention that . . . disclosure
requirements must be limited to speech that is the functional
equivalent of express advocacy.” Applying exacting
scrutiny, the district court held that Montana’s interests in
“increasing transparency, informing Montanans about who
is behind the messages vying for their attention, and
decreasing circumvention” are important governmental
interests, and that Montana’s disclosure requirements are
substantially related to those interests because “they are
tailored to the degree of an organization’s political activity.”
In support of its determination, the court noted that NAGR
would likely need only to register as an incidental
committee, a minimal burden, and that the Montana law’s
disclosure requirements are further tailored because the
requirements are limited to a communication that costs more
than $250 and is made within a few months before an
election.
14 NAGR V. MANGAN
This appeal followed. We review de novo the district
court’s grant of summary judgment. See Nigro v. Sears,
Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015).
II
A
The First Amendment, made applicable to the states
through the Fourteenth Amendment, forbids the enactment
of any law “abridging the freedom of speech.” U.S. Const.
amend. I. Political speech lies at the core of speech protected
by the First Amendment, as it is the means by which citizens
disseminate information, debate issues of public importance,
and hold officials to account for their decisions in our
democracy. “The right of citizens to inquire, to hear, to
speak, and to use information to reach consensus is a
precondition to enlightened self-government and a necessary
means to protect it.” Citizens United v. FEC, 558 U.S. 310,
339 (2010). Thus, “[t]he First Amendment ‘has its fullest
and most urgent application’ to speech uttered during a
campaign for political office.” Id. (quoting Eu v. S.F. Cty.
Democratic Cent. Comm., 489 U.S. 214, 223 (1989)).
Generally, “[l]aws that burden political speech are
‘subject to strict scrutiny’”—that is, they must be narrowly
tailored to further a compelling government interest.
Citizens United, 558 U.S. at 340 (quoting WRTL, 551 U.S.
at 464). But regulations directed only at disclosure of
political speech are subject to somewhat less rigorous
judicial review—“exacting scrutiny,” which requires the
government to show that the challenged laws are
“substantially related to a sufficiently important
governmental interest.” HLW, 624 F.3d at 1005.
NAGR V. MANGAN 15
This difference derives from the principle that “the
strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment
rights.” Davis v. FEC, 554 U.S. 724, 744 (2008). The two
types of regulation—expenditure and contribution
limitations on the one hand and disclosure requirements on
the other—have different effects. Expenditure and
contribution limitations “necessarily reduce[] the quantity of
expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience
reached.” Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per
curiam). By contrast, “[d]isclaimer and disclosure
requirements may burden the ability to speak, but they
‘impose no ceiling on campaign-related activities’ and ‘do
not prevent anyone from speaking.’” Citizens United,
558 U.S. at 366 (quoting Buckley, 424 U.S. at 64; McConnell
v. FEC, 540 U.S. 93, 201 (2003)). Far from restricting
speech, electioneering disclosure requirements reinforce
democratic decisionmaking by ensuring that voters have
access to information about the speakers competing for their
attention and attempting to win their support. “[T]he people
in our democracy are entrusted with the responsibility for
judging and evaluating the relative merits of conflicting
arguments. They may consider, in making their judgment,
the source and credibility of the advocate.” First Nat’l Bank
of Bos. v. Bellotti, 435 U.S. 765, 791–92 (1978) (footnote
omitted). Recognizing the important information-enhancing
role that disclosure laws play, the Supreme Court and our
court have subjected laws requiring speakers to disclose
information in the electoral context to a somewhat less
demanding standard than strict scrutiny, described as
“exacting scrutiny.” See Doe v. Reed, 561 U.S. 186, 196
(2010) (collecting cases).
16 NAGR V. MANGAN
B
NAGR’s primary argument—that the First Amendment,
as a categorical matter, permits states to require disclosure
only with respect to express advocacy—has been rejected by
both the Supreme Court and this court. 9 In Wisconsin Right
To Life, the Supreme Court limited federal restrictions on
independent campaign expenditures to express advocacy
and its functional equivalent. WRTL, 551 U.S. at 469–70.
But Citizens United declined to impose the same categorical
limitation on disclosure requirements. 558 U.S. at 369.
There, the Court upheld a federal law requiring certain
electioneering communications to include a disclaimer by
the organization that funded the communication.
The electioneering communications at issue in Citizens
United were television advertisements promoting a movie
about then-presidential candidate Hillary Clinton. The
advertisements were not the functional equivalent of express
advocacy. “They referred to then-Senator Clinton by name
shortly before a primary and contained pejorative references
9
Neither party contests that NAGR’s intended electioneering
materials are likely electioneering communications covered by Montana
law, subjecting NAGR to prosecution if it does not comply with
Montana’s requirements. NAGR’s decision—not to distribute for fear of
prosecution, election material it would have distributed if the challenged
laws had not been enacted—is sufficient to establish standing. In the
First Amendment context, “self-censorship” is “a harm that can be
realized even without an actual prosecution.” Virginia v. Am. Booksellers
Ass’n, 484 U.S. 383, 393 (1988). So long as the “intended speech
arguably falls within the [challenged] statute’s reach,” refraining from
that speech to avoid disclosure requirements, where speaking without
disclosure could lead to prosecution, is a constitutionally sufficient
injury. HLW, 624 F.3d at 1000–01 (quoting Cal. Pro-Life Council Inc.
v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)).
NAGR V. MANGAN 17
to her candidacy,” but they did not expressly advocate
support or opposition for her candidacy. Id. at 368. 10
Nonetheless, the Court upheld the disclaimer requirements.
Rather than rely on a rigid distinction between express
advocacy and issue advocacy, the Court reasoned that the
“[t]he disclaimers . . . provide the electorate with
information and insure that the voters are fully informed
about the person or group who is speaking” Id.(citations and
alterations omitted).
We relied on this holding in HLW. 624 F.3d at 1016.
Citing Citizens United, we declined to recognize “a bright-
line rule distinguishing express and issue advocacy” and
“reject[ed] [the] contention that the disclosure requirements
must be limited to speech that is the functional equivalent of
express advocacy.” Id. (quoting Citizens United, 558 U.S. at
369).
NAGR cites the Seventh Circuit’s decision in Wisconsin
Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014)
(“Barland”), to support its contention that electioneering
disclosure laws may constitutionally apply only to express
advocacy. We necessarily rejected that proposition in HLW.
Other circuits agree with HLW on this point. “Citizens
United made clear that the wooden distinction between
express advocacy and issue discussion does not apply in the
disclosure context.” Ctr. for Individual Freedom v.
Madigan, 697 F.3d 464, 484 (7th Cir. 2012); accord Vt.
Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 132 (2d
10
The Court held that the film itself constituted express advocacy,
558 U.S. at 325, but did not so determine with respect to the
advertisements for the film.
18 NAGR V. MANGAN
Cir. 2014); Nat’l Org. for Marriage v. McKee, 649 F.3d 34,
54 (1st Cir. 2011).
Considered as a whole, Barland’s reading of Citizens
United is not to the contrary. That decision asserted that the
Court’s holding in Citizens United regarding disclosure
requirements did not “suggest[] that the Court was tossing
out the express-advocacy limitation for all disclosure
systems” and cautioned that “it’s a mistake to read Citizens
United as giving the government a green light to impose
political-committee status on every person or group that
makes a communication about a political issue that also
refers to a candidate.” Barland, 751 F.3d at 836–37. In
context, when Barland stated that Citizens United “applies
only to the specifics of the disclosure requirement at issue
there,” id. at 836, it was offering a contrast between narrowly
tailored and sweeping disclosure requirements, id. at 837,
not determining that even appropriately tailored disclosure
laws, such as the one considered in Citizens United, may
apply only to express advocacy.
Montana’s disclosure requirements for political speech
that mentions a candidate or ballot initiative in the days
leading up to an election reflect the unremarkable reality that
such speech—express advocacy or not—is often intended to
influence the electorate regarding the upcoming election.
That NAGR intends specifically to send out its mailers
“during this election cycle” reveals its own belief that such
communications are more relevant to voters in the days
before an election. To paraphrase HLW, “[f]or the same
reasons that [NAGR] had a heightened interest in speaking
about [Second Amendment rights] during the run-up to the
. . . vote, [Montanans] had a heightened interest in knowing
who was trying to sway their views on the topic and how
much they were willing to spend to achieve that goal.”
NAGR V. MANGAN 19
624F.3d at 1019. Requiring disclosure of information related
to subtle and indirect communications likely to influence
voters’ votes is critical to the State’s interest in promoting
transparency and discouraging circumvention of its
electioneering laws.
In sum, the First Amendment does not limit states’
election disclosure requirements solely to regulating express
advocacy. Rather, we apply exacting scrutiny in determining
the validity of election disclosure requirements covering
electioneering communications.
C
NAGR also submits that, even if exacting scrutiny
applies, 11 Montana’s disclosure regime for electioneering
communications cannot stand. 12 Not so.
This is not the first time we have addressed the
constitutionality of electioneering communication
disclosure requirements under exacting scrutiny. Both HLW
and Yamada upheld disclosure regimes similar to the one at
11
NAGR acknowledges that, if electioneering communication
disclosure requirements for issue advocacy are permitted at all, exacting
scrutiny—not strict scrutiny—applies. Before HLW, there was some
confusion in this circuit as to whether electioneering disclosure laws are
subject to exacting scrutiny or strict scrutiny. See HLW, 624 F.3d
at 1003–05. HLW clarified that exacting scrutiny is the correct standard.
Id.
12
NAGR maintains that it is challenging only the overbreadth of the
term “electioneering communications” and not the accompanying
disclosure requirements. This attempt at delicately parsing NAGR’s
claim is of no help. The constitutionally permissible scope of the term
“electioneering communications” depends on the disclosure burdens that
attach when a speaker makes such a communication.
20 NAGR V. MANGAN
issue in this case. With one exception, Montana’s
requirements are sufficiently parallel to those in HLW and
Yamada that those precedents control here.
HLW addressed a challenge to the State of Washington’s
laws requiring public disclosures for organizations engaging
in various types of political speech. Under Washington law,
an organization engaged in limited political advocacy is
required to disclose only its “independent expenditures” and
“political advertising.” Id. at 998. Such an organization must
identify the target of its expenditures on a monthly basis so
long as it continues to make expenditures, but generally need
not disclose the source of its contributions. Id. at 998–99.
On the other hand, the Washington disclosure statute
requires an organization that has as its “‘primary or one of
the primary purposes’ to ‘affect, directly or indirectly,
governmental decision making by supporting or opposing
candidates or ballot propositions’” to fulfill more significant
requirements by registering as a “political committee.” Id.
at 997 (quoting Evergreen Freedom Found. v. Wash. Educ.
Ass’n, 49 P.3d 894, 903 (Wash. Ct. App. 2002)). A political
committee must file ongoing reports disclosing the sources
of its expenditures and contributions. Id. at 998. The
frequency of reporting for both types of organizations in
Washington is pegged to fixed intervals before an election.
Id. at 998–99.
In HLW, a non-profit organization, Human Life of
Washington Inc., sought to distribute material opposing
physician-assisted suicide shortly before a state ballot
initiative vote to legalize such conduct in Washington. Id. at
995, 1014. Applying exacting scrutiny, we determined that
Washington’s interest in “[p]roviding information to the
electorate” is a sufficiently important interest to justify
Washington’s disclosure requirements, because the
NAGR V. MANGAN 21
requirements “help[ed] ensure that voters have the facts they
need to evaluate the various messages competing for their
attention” and make informed electoral choices. Id. at 1005.
HLW went on to hold that the State’s disclosure
requirements are substantially related to that important
interest. Id. at 1012, 1018. With respect to the political
committee requirements, we reasoned that Washington’s
disclosure requirements are appropriately scaled to the level
of political advocacy in which an organization engages. The
scaling “ensures that the electorate has information about
groups that make political advocacy a priority, without
sweeping into its purview groups that only incidentally
engage in such advocacy.” Id. at 1011. HLW also determined
that Washington’s political committee disclosure
requirements are not overly burdensome relative to the
government’s interests. Id. at 1013. Such requirements are
triggered only if a committee spends above a certain annual
threshold and involve only a two-page registration form,
along with three additional reports pegged to the election in
which the organization is engaging. Id. And, with respect to
the independent expenditures and political advertising
requirements, HLW concluded that those requirements are
substantially related to the interest in informing the
electorate, because they (1) “target only those expenditures
and advertisements made in conjunction with an ongoing
election or vote,” and (2) “once the initial two-page
registration form is filed, the filing of additional special
reports is pegged to the dates of the upcoming election.” Id.
at 1018.
Yamada addressed issues closely similar to those in
HLW, this time rejecting an as-applied challenge to election
disclosure laws in Hawaii. While doing so, Yamada
22 NAGR V. MANGAN
reaffirmed the First Amendment principles established in
HLW. 786 F.3d 1182.
Under Hawaii law, an organization with “‘the purpose’
of making or receiving contributions, or making
expenditures, for communications or activities that
constitute express advocacy or its functional equivalent” that
receives contributions or makes certain expenditures in
excess of $1000 over a two-year election period must
register as a “noncandidate committee.” Id. at 1194–95. A
noncandidate committee must provide identifying
information about its organization, maintain records for five
years, and keep a segregated bank account for the
committee’s contributions. Id. at 1195. In addition, a
noncandidate committee is required to disclose its
contributions and expenditures at intervals tied to each
election cycle and to file annual reports. Id. Organizations
that do not qualify as noncandidate committees in Hawaii
need only include disclosures in certain “electioneering
communications,” such as advertising that identifies a
candidate and advocates or opposes the election of that
candidate. Id. at 1202.
Yamada upheld both Hawaii’s noncandidate committee
disclosure requirements and its electioneering
communication disclosure requirements. With respect to the
noncandidate committee requirements, Yamada held that the
requirements are “materially indistinguishable” from the
disclosure requirements at issue in HLW. In so holding,
Yamada reasoned that, because the requirements do not
apply to organizations engaged in incidental advocacy and
trigger reporting requirements only at a $1,000 threshold,
they are adequately tailored to the governmental interests
underlying them. Id. at 1195, 1198–99. With respect to
electioneering communications, Yamada noted that
NAGR V. MANGAN 23
Hawaii’s disclaimer requirements track the federal
disclaimer requirements upheld in Citizens United. Id. at
1201–03.
Taken together, HLW and Yamada indicate that
electioneering disclosure laws that survive exacting scrutiny
under the First Amendment exhibit certain broad features.
These features are apparent in all but one component of
Montana’s disclosure requirements.
First, such laws further the “important” interests of
“providing the electorate with information, deterring actual
corruption and avoiding any appearance thereof, and
gathering the data necessary to enforce more substantive
electioneering restrictions.” Yamada, 786 F.3d at 1197
(quoting Canyon Ferry Rd. Baptist Church of E. Helena, Inc.
v. Unsworth, 556 F.3d 1021, 1031 (9th Cir. 2009)); see also
Citizens United, 558 U.S. at 369; McConnell, 540 U.S. at
196; HLW, 624 F.3d at 1008. Knowing shortly before an
election who is speaking and how much they are spending
“enables the electorate to make informed decisions and give
proper weight to different speakers and messages.” Citizens
United, 558 U.S. at 371.
Montana’s disclosure regime furthers identical interests.
Montana’s interests in “increasing transparency, informing
Montanans about who is behind the messages vying for their
attention, and decreasing circumvention” of campaign
finance laws are sufficiently important to justify election
disclosure requirements. See Citizens United, 558 U.S.
at 369; McConnell, 540 U.S. at 196; Yamada, 786 F.3d at
1197; HLW, 624 F.3d at 1008.
Second, the substantive information organizations must
disclose under valid electioneering laws usually varies with
the type and level of an organization’s political advocacy.
24 NAGR V. MANGAN
Organizations that frequently engage in political speech can
be required to disclose more information than organizations
that do so only occasionally. When measuring an
organization’s level of political advocacy, these statutes
often use purpose as a proxy. For example, the Washington
disclosure laws upheld in HLW require organizations with “a
primary purpose of political advocacy” to disclose the source
and amount of both contributions and expenditures;
organizations without such a purpose must disclose only the
source and amount of expenditures. 624 F.3d at 998–99.
Similarly, the Hawaii laws upheld in Yamada require
organizations with “‘the purpose’ of . . . [engaging in]
express advocacy or its functional equivalent” to disclose
information about both contributions and expenditures,
786 F.3d at 1194–95; organizations having no such purpose
but engaging in occasional political advertising are required
to include only a disclaimer within the advertisement itself,
concerning whether a candidate endorsed the particular
advertisement, id. at 1202. Variance in substantive reporting
requirements for different levels of political advocacy
activity “ensures that the electorate has information about
groups that make political advocacy a priority, without
sweeping into its purview groups that only incidentally
engage in such advocacy.” HLW, 624 F.3d at 1011.
Montana’s disclosure regime similarly imposes
reporting burdens commensurate with an organization’s
level of political advocacy. Montana has a two-tiered
reporting structure, like the Washington regime affirmed in
HLW. Id. Independent committees, which have the “primary
purpose of receiving contributions and making
expenditures” to support a candidate or ballot initiative, or
make electioneering communications, Mont. Code Ann.
§ 13-1-101(24), are subject to more substantial requirements
than incidental committees, which do not have such a
NAGR V. MANGAN 25
primary purpose, § 13-1-101(23)(a). Independent
committees must report both contributions received and
expenditures made, § 13-37-229; incidental committees
need only report expenditures, unless their contributions
were solicited or earmarked for a particular candidate, ballot
issue, or petition for nomination, § 13-37-232. 13
Third, in valid electioneering disclosure laws, the
frequency of required reporting does not extend indefinitely
to all advocacy conducted at any time but is tied to election
periods or to continued political spending. During an
election period, reporting is for the most part limited to
reasonable intervals in the days leading up to an election and
shortly thereafter. Yamada upheld a requirement to file
reports ten days before any election, twenty days after a
primary election, and thirty days after a general election.
786 F.3d at 1195. Similarly, HLW upheld a requirement to
file reports on the twenty-first day before an election, the
seventh day before an election, and the tenth day of the first
month after an election. 624 F.3d at 998, 1013.
Less extensive reporting requirements are imposed on
organizations that receive contributions or make
expenditures outside an election period, see Yamada,
786 F.4d at 1195; HLW, 624 F.3d at 1013, or on
13
In this respect, Montana’s disclosure regime is distinguishable
from the Wisconsin regime invalidated in Barland, the Seventh Circuit
case that NAGR cites to support its position. 751 F.3d 804. The
disclosure requirements there did not vary with an organization’s level
of political advocacy. Groups engaged in express advocacy and those
engaged in issue advocacy were subject to the same reporting
requirements. Id. at 837. So were organizations with a major purpose of
political advocacy and those that incidentally engaged in such advocacy.
Id. at 841–42.
26 NAGR V. MANGAN
organizations that stop making expenditures in the middle of
an election period, see Yamada, 786 F.3d at 1195; HLW,
624 F.3d at 1018–19. 14 These requirements reflect “the
unique importance of the temporal window immediately
preceding a vote,” when speech is more likely to be
perceived as related to an election and the public is more
likely to pay attention to and be affected by such speech.
HLW, 624 F.3d at 1019.
Montana’s reporting requirements are similarly tied with
precision to specific election periods. For organizations that
make electioneering communications, such as NAGR, only
a communication made “within 60 days of the initiation of
voting in an election” triggers the requirement to register as
a political committee. § 13-1-101(16). Once an organization
registers as a political committee, it usually must file
disclosure reports at intervals preceding and shortly after an
election, as well as at the end of the calendar year. § 13-37-
226(4), (5). Committees that receive contributions or make
expenditures “supporting or opposing a candidate . . . or
ballot issue” must file more frequent reports. § 13-37-
226(1)-(3). If a committee terminates qualifying
contributions and expenditure activity for an election cycle,
it may file a “closing report” at any time, relieving it of
subsequent reporting obligations. § 13-37-226(9). A
committee making a single expenditure in an election cycle
14
Other circuits have struck down reporting requirements that
mandate reporting after an organization stops making expenditures in the
middle of an election period. See Minn. Citizens Concerned for Life, Inc.
v. Swanson, 692 F.3d 864, 873–74 (8th Cir. 2012) (en banc) (enjoining
Minnesota’s reporting requirements, which continued to apply after an
organization ceased further expenditures); Iowa Right to Life Comm.,
Inc. v. Tooker, 717 F.3d 576, 596–98 (8th Cir. 2013) (striking down
Iowa’s ongoing reporting requirements, which were not tethered to any
future political spending).
NAGR V. MANGAN 27
can thus fulfill all registration, reporting, and closing
requirements in one filing of two forms. Montana’s reporting
requirements are therefore carefully tailored to pertinent
circumstances, distinguishing them from one-size-fits-all
disclosure regimes that other circuits have invalidated. See
Swanson, 692 F.3d at 873–74; Tooker, 717 F.3d at 596–98.
Fourth, disclosure laws specifying a monetary threshold
at which contributions or expenditures trigger reporting
requirements ensure that the government does not burden
minimal political advocacy. The acceptable threshold for
triggering reporting requirements need not be high. In
Hawaii, the threshold was raising or spending more than
$1,000 during a two-year election cycle. Yamada, 786 F.3d
at 1195. In Washington, the threshold was raising or
spending more than $5,000, or raising more than $500 from
a single donor. HLW, 624 F.3d at 1013.
Once reporting requirements are triggered, states may
constitutionally mandate disclosure of even small
contributions. Family PAC v. McKenna, 685 F.3d 800, 809
(9th Cir. 2012), for example, upheld requirements that
organizations disclose the names and addresses of
contributors donating more than $25 and reveal the employer
and occupation of contributors giving more than $100.
“[K]nowing the source of even small donations is
informative in the aggregate and prevents evasion of
disclosure.” Worley v. Fla. Sec’y of State, 717 F.3d 1238,
1251 (11th Cir. 2013); see also Buckley, 424 U.S. at 82–84
(upholding a requirement that organizations keep records of
all contributions in excess of $10 and report contributions in
excess of $100).
Montana’s disclosure regime imposes requirements only
on organizations that make an expenditure of more than
$250 to disseminate a single electioneering communication,
28 NAGR V. MANGAN
§ 13-1-101(31)(d), ensuring that disclosure requirements do
not burden minimal political activity. This threshold is
within the range of constitutionally acceptable reporting
thresholds. See. e.g., McKee, 649 F.3d at 59–60 (upholding
a $100 contribution threshold); Yamada, 786 F.3d at 1195
(upholding a threshold of $1,000 during a two-year election
cycle); HLW, 624 F.3d at 1013 (upholding a threshold of
$5,000 during an election cycle or $500 from a single donor).
Finally, disclosure laws may impose certain adjunct
requirements on political speakers, to enable “gathering the
data necessary to enforce more substantive electioneering
restrictions.” Yamada, 786 F.3d at 1197 (quoting Canyon,
556 F.3d at 1031). An organization may be required to
“designate officers, disclose its bank account information,
and designate a treasurer responsible for recording
contributions and expenditures and maintaining records for
five years,” id. at 1195, as well as to file a short registration
form containing “the organization’s name, relationship with
other organizations, and persons with authority over the
organization’s finances,” HLW, 624 F.3d at 1013.
Most of Montana’s disclosure-related registration
requirements are similar to, and no more onerous than, those
we upheld in HLW, 624 F.3d at 1013, and in Yamada,
786 F.3d at 1195. Qualifying political committees need to
file a two-page registration form with the State containing
basic identification information, § 13-37-201(3), appoint a
treasurer, § 13-37-201(1), abide by certain bank depository
requirements, §§ 13-37-205, -207, and keep current records
of contributions and expenditures, § 13-37-208. See, e.g.,
HLW, 624 F.3d at 997 (noting bank and treasurer
requirements). Like the obligations in HLW and Yamada,
these obligations “require little more if anything than a
prudent person or group would do in these circumstances
NAGR V. MANGAN 29
anyway.” Worley, 717 F.3d at 1250; see also SpeechNow.org
v. FEC, 599 F.3d 686, 697 (D.C. Cir. 2010) (en banc)
(upholding “organizational requirements . . . such as
designating a treasurer and retaining records”).
In short, almost all of Montana’s disclosure requirements
share the features that HLW and Yamada have highlighted as
markers of valid disclosure laws and so withstand exacting
scrutiny. Yamada, 786 F.3d at 1195. 15
D
NAGR suggests that, even if HLW and Yamada
otherwise support upholding Montana’s electioneering
disclosure requirements, Montana’s requirements governing
the disclosure of issue advocacy during candidate elections
are inconsistent with HLW.
HLW did note that “there is less of a danger of a
regulation sweeping too broadly in the context of a ballot
measure than in a candidate election,” because “the only
issue advocacy that could potentially be regulated is
15
We do not suggest that disclosure laws with different features than
those described above would not survive exacting scrutiny. Rather, these
are features of statutes that do survive such scrutiny. Election disclosure
schemes are often varied and complex, imposing different requirements
on different categories of speakers.
For example, an election disclosure regime could embody these
broad principles but, in its details, impose overly onerous requirements.
Conversely, legislatures have some discretion to define the precise
details of each scheme—for example the specific dollar threshold that
triggers disclosure requirements. “[D]isclosure thresholds . . . are
inherently inexact; courts therefore owe substantial deference to
legislative judgments fixing these amounts.” Family PAC, 685 F.3d
at 811.
30 NAGR V. MANGAN
advocacy regarding the single issue put before the public.”
HLW, 624 F.3d at 1018 (emphasis omitted) (internal
quotation marks omitted). In making that distinction, HLW
reasoned that, “[i]n the ballot initiative context, . . . where
express and issue advocacy are arguably ‘one and the same,’
any incidental regulation of issue advocacy imposes more
limited burdens that are more likely to be substantially
related to the government’s interests.” Id.
HLW’s discussion was of relevant differences between
ballot initiatives and candidate elections that could matter in
some—but not all—circumstances. In the end, though, HLW
rejected both a facial and an as-applied challenge to
Washington’s disclosure requirements generally. Id. at 994–
95. Those requirements covered both candidate and ballot
initiative elections. Id. at 997–99. We observed in HLW that
the “disclosure obligations do not apply absent a pending
election or ballot initiative campaign,” id. at 1018 (emphasis
added), and thus concluded that Washington’s tailored
disclosure regulations were not overbroad as applied to
candidate elections.
Yamada, decided after HLW, upheld Hawaii’s election
disclosure regime as applied to a corporation that contributed
money to candidate campaigns and bought advertisements
criticizing a candidate. Examining Hawaii’s carefully
tailored disclosure requirements for electioneering
communications, Yamada suggested no distinction between
candidate and ballot initiative elections for First Amendment
purposes. See 786 F.3d at 1185–86.
Similarly, Montana’s tailored disclosure regime for
electioneering communications does not violate the First
Amendment simply because it covers candidate elections.
As explained, the components of Montana’s disclosure
regime are—with the exception we next discuss—closely
NAGR V. MANGAN 31
parallel to those upheld in HLW and Yamada. And, like the
disclosure regulations in those cases, Montana’s
requirements are substantially related to important
governmental interests as applied both to candidate and to
ballot initiative elections.
III
One of Montana’s registration requirements does raise
serious First Amendment concerns. In addition to imposing
the registration requirements already mentioned, Montana
mandates that a political committee’s designated treasurer be
a registered Montana voter. § 13-37-203. To register as a
Montana voter, an individual must be at least 18 years of age,
a resident of Montana for at least 30 days, a United States
citizen, not currently incarcerated for a felony, and of sound
mind. § 13-1-111. This registered-Montana-voter
requirement is not, we hold, substantially related to any
important governmental interest.
Montana’s registered-voter requirement is subject to
exacting scrutiny, not strict scrutiny. True, the requirement
does not, on its own, mandate registration or disclosure.
Rather than require that a speaker provide particular
information about itself or its activities, it imposes a
requirement on how an organization engaged in
electioneering communication must be structured. The
requirement is, however, a predicate to enforcement of a
broader disclosure regime.
Our precedents addressing the constitutionality of state
electioneering disclosure regimes have subjected to exacting
rather than strict scrutiny the entire disclosure regime,
including provisions that do not themselves require
registration or disclosure. Yamada, for example, analyzed
under exacting scrutiny, and upheld, laws requiring covered
32 NAGR V. MANGAN
entities to maintain records of their contributions and
expenditures. 786 F.3d at 1195. HLW approved the
requirement that political committees open bank accounts in
the state in which they are speaking. 624 F.3d at 997. Our
sister circuits have similarly so held. See Worley, 717 F.3d
at 1249 (upholding under exacting scrutiny “[o]ther
requirements, such as requiring a treasurer, segregated
funds, and record-keeping” (internal quotation marks
omitted)); Sorrell, 758 F.3d at 137 (characterizing
“registration, recordkeeping necessary for reporting, and
reporting requirements” as a single “disclosure regime”
subject to exacting scrutiny); SpeechNow.org, 599 F.3d
at 697–98 (upholding under exacting scrutiny
“organizational requirements . . . such as designating a
treasurer and retaining records” ). Montana’s registered
voter requirement resembles the types of organizational
requirements that we and other circuits have analyzed under
exacting scrutiny.
Reviewing Montana’s registered voting requirement
under exacting scrutiny is consistent with precedents in
which strict scrutiny was applied. Nader v. Brewer, 531 F.3d
1028 (9th Cir. 2008), for example, reviewed an Arizona
requirement that circulators of candidate nomination
petitions be residents of that state, id. at 1036, concluding
that strict scrutiny was compelled by the Supreme Court’s
decision in Buckley v. Am. Constitutional Law Found., Inc.,
525 U.S. 182, 194–95 (1999). Buckley invalidated a
Colorado law requiring that circulators of ballot initiative
petitions be registered voters. As Nader noted, “[t]he Court
held in Buckley that significantly reducing the number of
potential circulators imposed a severe burden on rights of
political expression.” Nader, 531 F.3d at 1036. Inferring
from Buckley that laws severely burdening speech rights
must be subject to strict scrutiny, Nader concluded that the
NAGR V. MANGAN 33
Arizona residency requirement was subject to strict scrutiny
because it “exclude[d] from eligibility all persons who
support the candidate but who . . . live outside the state of
Arizona.” Id.
Montana’s registered-voter requirement is significantly
less burdensome than the requirements at issue in Buckley
and Nader. The particular First Amendment harm that
restrictions on petition circulators pose is that they “limit the
number of voices who will convey the initiative proponents’
message and, consequently, cut down the size of the
audience proponents can reach.” Buckley, 525 U.S. at 194–
95 (alterations and citations omitted). No similar limitation
on the audience reached is here at issue: Montana requires
only that a single individual be a registered Montana voter—
a political committee’s treasurer. So long as an organization
can find one such treasurer, the size of the audience it can
reach will not be limited.
So, given the limited burden on a political committee’s
speech imposed by Montana’s registered-voter requirement,
we apply exacting rather than strict scrutiny to determine its
validity. But we conclude anyway that the registered voter
requirement does not significantly forward the interests it is
said to advance and so violates the First Amendment.
Addressing the connection between the registered-voter
requirement and the goals of its disclosure scheme, Montana
asserts that the registered voter requirement is “shorthand”
for the prerequisites that being a registered Montana voter
entails—being at least 18, of sound mind, a Montana
resident, and not an incarcerated felon. Such types of
prerequisites can be substantially related to Montana’s
important interest in identifying representatives of political
committees who can be held accountable for violations of
34 NAGR V. MANGAN
electioneering laws. 16 For example, the State has a strong
interest in assuring that it can subpoena treasurers of political
committees, and only individuals within the state can be
subpoenaed. Mont. Code. Ann. § 46-15-107.
But an individual can meet all the prerequisites for
registering to vote yet not register. Montana could have
made appropriate prerequisites for registration the
conditions for serving as treasurer without requiring
registration itself. Montana identifies no interest served by
excluding potential treasurers who are not registered voters
but could be if they chose. We cannot identify any such
interest either. And none of the disclosure regimes we have
upheld have included such a registration requirement.
Yamada, 786 F.3d at 1195 (citing Haw. Rev. Stat. § 11-324);
HLW, 624 F.3d at 997 (citing Wash. Rev. Code
§ 42.17.050(1)).
An out-of-state organization like NAGR, which has its
principal place of business in Colorado, may not have any
members qualified to be designated as a treasurer and
registered to vote in Montana. By imposing the voter
registration qualification that it does, the state burdens the
speech rights of such organizations without any justification
and so violates the First Amendment.
But that single invalid provision certainly does not mean
that the entire disclosure statute falls. The registered-voter
provision is definitely severable from the rest of the Montana
disclosure regime.
16
We do not address whether the details of Montana’s prerequisites
for voter registration—such as the 30-day Montana residency
requirement—are permissible conditions for being a treasurer of a
political committee.
NAGR V. MANGAN 35
“Severability is a matter of state law.” Sam Francis
Found. v. Christies, Inc., 784 F.3d 1320, 1325 (9th Cir.
2015) (en banc) (alterations and quotations omitted). Under
Montana law:
[I]f a statute contains both constitutional and
unconstitutional provisions, we examine the
legislation to determine if there is a
severability clause. The inclusion of a
severability clause in a statute is an indication
that the drafters desired a policy of judicial
severability to apply to the enactment. If a
statute does not contain a severability clause,
we still may sever an unconstitutional
provision. In doing so, we must determine
whether the unconstitutional provisions are
necessary for the integrity of the law or were
an inducement for its enactment. In order to
sever an unconstitutional provision, the
remainder of the statute must be complete in
itself and capable of being executed in
accordance with the apparent legislative
intent. That is, if severing the offending
provisions will not frustrate the purpose or
disrupt the integrity of the law, we will strike
only those provisions of the statute that are
unconstitutional.
State v. Theeler, 385 P.3d 551, 553–54 (Mont. 2016)
(citations and internal quotation marks omitted).
The statute that first enacted the requirement that
committee treasurers must be registered Montana voters
contained a severability provision, see 1975 Mont. Laws
1250, 1265, but a later amendment did not, see 1977 Mont.
36 NAGR V. MANGAN
Laws 108. But “[w]ith or without severability clauses in each
amendment since the statute’s enactment, we conclude that
the unconstitutional provision is unnecessary for the
integrity of the law.” Theeler, 385 Mont. at 474 (quotation
marks omitted). Without the registered voter requirement, a
political committee would still be required to designate a
committee treasurer, fulfill registration requirements, and
keep records of its contributions and expenditures. Mont.
Code Ann. §§ 13-37-201, -208. Montana would still be able
to gather the identifying information necessary to enforce its
substantive campaign finance laws, as evidenced by other
state electioneering disclosure regimes that do not require
treasurers to register in their state. See Yamada, 786 F.3d
at 1195; HLW, 624 F.3d at 997.
In short, the remainder of the electioneering disclosure
regime could still be “executed in accordance with the
apparent legislative intent” of the law. Theeler, 385 P.3d
at 554 (internal quotation marks omitted). We hold that,
despite the invalidity of the registered voter provision, the
rest of Montana’s disclosure scheme remains in force.
IV
In sum, the First Amendment does not limit Montana to
regulating only express advocacy. With the exception of its
designated-treasurer requirement, all of the other
components of Montana’s disclosure regime survive
exacting scrutiny. Like the disclosure regimes upheld in
HLW and Yamada, Montana’s scheme is sufficiently tailored
to Montana’s interest in informing its electorate of who
competes for the electorate’s attention and preventing the
circumvention of Montana’s election laws.
NAGR V. MANGAN 37
We AFFIRM in part and REVERSE and REMAND in
part the district court’s summary judgment order. The parties
shall bear their own costs on appeal.