Family Pac v. Rob McKenna , 685 F.3d 800 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAMILY PAC, 
Plaintiff-Appellee,
v.
ROB MCKENNA, in his official
capacity as Attorney General of
Washington; JIM CLEMENTS,
member of the Public Disclosure
Commission, in his official
capacity; DAVID SEABROOK, No. 10-35832
member of the Public Disclosure
Commission, in his official  D.C. No.
capacity; JANE NOLAND, member of 3:09-cv-05662-RBL
the Public Disclosure Commission,
in her official capacity; JENNIFER
JOLY, member of the Public
Disclosure Commission, in her
official capacity; BARRY SEHLIN,
member of the Public Disclosure
Commission, in his official
capacity,
Defendants-Appellants.

21519
21520 FAMILY PAC v. MCKENNA
FAMILY PAC, 
Plaintiff-Appellant,
v.
ROB MCKENNA, in his official
capacity as Attorney General of
Washington; JIM CLEMENTS,
member of the Public Disclosure
Commission, in his official
capacity; DAVID SEABROOK, No. 10-35893
member of the Public Disclosure
Commission, in his official  D.C. No.
3:09-cv-05662-RBL
capacity; JANE NOLAND, member of
OPINION
the Public Disclosure Commission,
in her official capacity; JENNIFER
JOLY, member of the Public
Disclosure Commission, in her
official capacity; BARRY SEHLIN,
member of the Public Disclosure
Commission, in his official
capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
November 16, 2011—Portland, Oregon
Filed December 29, 2011
Before: Raymond C. Fisher, Richard A. Paez and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Fisher
FAMILY PAC v. MCKENNA 21523
COUNSEL
Robert M. McKenna, Attorney General, Linda A. Dalton,
Senior Assistant Attorney General, and Nancy J. Krier
(argued), Special Assistant Attorney General, Olympia,
Washington, for the defendants-appellants-cross appellees.
James Bopp, Jr. (argued), Joseph E. La Rue and Noel John-
son, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for the
plaintiff-appellee-cross appellant.
William R. Maurer, Seattle, Washington; William H. Mellor
and Paul M. Sherman, Arlington, Virginia, for amicus curiae
Institute for Justice.
21524 FAMILY PAC v. MCKENNA
Peter S. Holmes, Seattle City Attorney, and Gary Keese,
Assistant City Attorney, for amicus curiae Seattle Ethics and
Election Commission.
OPINION
FISHER, Circuit Judge:
We address the constitutionality of three provisions of
Washington election law as applied to the political commit-
tees that support and oppose ballot measures. We hold that
Washington’s disclosure requirements, Washington Revised
Code § 42.17.090 and Washington Administrative Code
§ 390-16-034, which require these committees to disclose the
name and address of contributors giving more than $25, and
additionally to disclose the employer and occupation of con-
tributors giving more than $100, survive exacting scrutiny
because they are substantially related to the important govern-
mental interest in informing the electorate. We hold that
Washington Revised Code § 42.17.105(8), which prohibits a
political committee from accepting from any one person con-
tributions exceeding $5,000 within 21 days of a general elec-
tion, is not closely drawn to achieve the state’s important
interest in informing the electorate. Section 42.17.105(8) is
therefore unconstitutional as applied to ballot measure com-
mittees. We affirm the judgment of the district court.
I.
Family PAC is a continuing political committee organized
under Washington Revised Code § 42.17.040. Compl. ¶ 21.
According to the verified complaint, Family PAC organized
as a political committee to support “traditional family values”
by soliciting and receiving contributions and making contri-
butions and expenditures to support or oppose ballot mea-
sures. Id. ¶ 22. Family PAC’s initial project was to oppose
FAMILY PAC v. MCKENNA 21525
Washington’s domestic partnership law by urging voters to
support Referendum 71 in the 2009 election. Id.
In this action, filed in October 2009, Family PAC alleged
that three provisions of Washington election law violate the
First Amendment as applied to ballot measure committees: (1)
Washington Revised Code § 42.17.090, which requires a
political committee to report the name and address of each
person contributing more than $25 to the committee; (2)
Washington Administrative Code § 390-16-034, which adds
the requirement that a political committee report the occupa-
tion and employer of each person contributing more than
$100 to the committee; and (3) Washington Revised Code
§ 42.17.105(8), which prohibits a political committee from
accepting from any one person contributions exceeding
$5,000 within 21 days of a general election.1,2,3 Washington
1
Section 42.17.090 provides in relevant part:
Each report required under RCW 42.17.080 (1) and (2) shall dis-
close the following: . . . (b) The name and address of each person
who has made one or more contributions during the period,
together with the money value and date of such contributions and
the aggregate value of all contributions received from each such
person during the campaign or in the case of a continuing politi-
cal committee, the current calendar year: PROVIDED, That
pledges in the aggregate of less than one hundred dollars from
any one person need not be reported: PROVIDED FURTHER,
That the income which results from a fund-raising activity con-
ducted in accordance with RCW 42.17.067 may be reported as
one lump sum, with the exception of that portion of such income
which was received from persons whose names and addresses are
required to be included in the report required by RCW 42.17.067:
PROVIDED FURTHER, That contributions of no more than
twenty-five dollars in the aggregate from any one person during
the election campaign may be reported as one lump sum so long
as the campaign treasurer maintains a separate and private list of
the name, address, and amount of each such contributor: PRO-
VIDED FURTHER, That the money value of contributions of
postage shall be the face value of such postage . . . .
21526 FAMILY PAC v. MCKENNA
imposes no limit on contributions accepted by ballot measure
committees outside this 21-day period. Nor do the rules limit
what a ballot measure committee can spend, either before or
during the 21-day period.
The complaint asserted that Family PAC intends to accept
contributions in excess of $25 and $100, and that “[p]otential
donors to Family PAC have indicated that they are unwilling
to donate if Family PAC is required to report their name and
address pursuant to [the disclosure laws].” Compl. ¶¶ 28-30.
Family PAC also presented evidence that, but for the $5,000
contribution limit, it would have received contributions of
$60,000 and $20,000 from Focus on the Family during the
Referendum 71 campaign. Passignano Decl. ¶¶ 7-13.
Wash. Rev. Code § 42.17.090(1). The parties agree this provision requires
committees to disclose the name and address of contributors giving over
$25.
2
Section 390-16-034 states:
Pursuant to RCW 42.17.090, each report required under RCW
42.17.080 shall disclose, in addition to the name and address of
each person who has made one or more contributions in the
aggregate amount of more than one hundred dollars, the occupa-
tion and the name and address of the person’s employer.
Wash. Admin. Code § 390-16-034; see also Wash. Rev. Code
§ 42.17.090(k) (authorizing the Washington State Public Disclosure Com-
mission to issue disclosure requirements in addition to those specified in
§ 42.17.090(1) itself).
3
Section 42.17.105(8) provides:
It is a violation of this chapter for any person to make, or for any
candidate or political committee to accept from any one person,
contributions reportable under RCW 42.17.090 in the aggregate
exceeding fifty thousand dollars for any campaign for statewide
office or exceeding five thousand dollars for any other campaign
subject to the provisions of this chapter within twenty-one days
of a general election. This subsection does not apply to contribu-
tions made by, or accepted from, a bona fide political party as
defined in this chapter, excluding the county central committee or
legislative district committee.
Wash. Rev. Code § 42.17.105(8).
FAMILY PAC v. MCKENNA 21527
Family PAC sought a declaration that the three challenged
provisions violate the First Amendment and an order enjoin-
ing the state from enforcing the provisions against ballot mea-
sure committees. The defendants are the Washington State
Attorney General and the members of the Washington State
Public Disclosure Commission (PDC), which administers and
enforces the challenged provisions. We refer to the defendants
collectively as “the state.”
Family PAC moved for summary judgment, which the dis-
trict court granted in part and denied in part. The court held
that the $25 and $100 disclosure requirements survived exact-
ing scrutiny because they are substantially related to an
important governmental interest in allowing voters to “follow
the money” behind ballot measures. The court explained:
[T]hough the limits may seem low to [Family PAC],
small contributions when aggregated by organiza-
tions of people (“special interests,” as we so often
refer to them in the political debate: unions, business
interests, occupational guilds or associations) they
can have a powerful impact on the debate and voters
can benefit from the information that disclosure pro-
vides.
The court accordingly denied summary judgment with respect
to the $25 and $100 disclosure requirements. The court subse-
quently dismissed these claims with prejudice.
The court construed the 21-day contribution limit as “a ban
on political speech,” and accordingly applied strict scrutiny.
It agreed with the state that the government has a compelling
interest in allowing voters to identify contributors to ballot
measure campaigns, but concluded that the 21-day limit was
insufficiently tailored to achieve this interest:
The State focuses on the fact that all but one of
Washington counties use a vote-by-mail system and
21528 FAMILY PAC v. MCKENNA
they mail ballots 18 days before the election date.
This system is offered up as modern-day justification
for a 1970s-era law that may have needed up to 21
days to gather, organize, and distribute the informa-
tion about campaign contributions.
Now, however, campaign contributions can be
reported and made publicly available within minutes,
and certainly within 24 hours. Given that reality, a
21-day ban on large contributions cannot be viewed
as necessary or narrowly tailored to effectuate the
original purpose.
The fact that voters have access to ballots earlier
than before, and that they may choose to vote before
all the election debate is in fact over, is not a suffi-
cient reason to save this statute as it pertains to [bal-
lot measures].
The compelling State interest here is providing
access to voters to information relevant to voting
decision[s]. That information can be provided to vot-
ers without a ban on large donations lasting for as
long as 21 days prior to the election. The 21 days
prior to an election is a time when the political
debate is fully joined and the attention of voters is
most focused. . . .
Such a ban may pass constitutional muster if lim-
ited to a time more carefully calculated to reflect the
current time necessary to gather and organize and
disseminate the relevant information about contribu-
tions and contributors that the government legiti-
mately seeks to convey.
The court accordingly granted Family PAC’s motion for sum-
mary judgment with respect to the 21-day contribution limit,
FAMILY PAC v. MCKENNA 21529
declaring the $5,000 limit unconstitutional as applied to ballot
measure committees.
The court entered judgment, and both parties appealed. We
have jurisdiction under 28 U.S.C. § 1291, we review de novo,
see City of L.A. v. San Pedro Boat Works, 635 F.3d 440, 446
(9th Cir. 2011), and we affirm.
II.
We begin by addressing Family PAC’s argument that the
disclosure requirements, Washington Revised Code
§ 42.17.090(1)(b) and Washington Administrative Code
§ 390-16-34, are unconstitutional as applied to ballot measure
committees. Disclosure requirements are subject to exacting
scrutiny. See Human Life of Wash. Inc. v. Brumsickle, 624
F.3d 990, 1005 (9th Cir. 2010). To survive such scrutiny, the
disclosure requirements must be “substantially related to a
sufficiently important governmental interest.” Id.A. Important Governmental Interest
Family PAC argues that requiring disclosure of contribu-
tions to ballot measure committees serves no important gov-
ernmental interest. Family PAC acknowledges that courts
have often held that states have an important informational
interest in requiring such disclosures, but points out that the
Tenth Circuit called that interest into question in Sampson v.
Buescher, 625 F.3d 1247, 1256 (10th Cir. 2010).
[1] Sampson did not ultimately reject the longstanding
principle that the public has an interest in learning who sup-
ports and opposes ballot measures. See id. at 1259. Even if
Sampson had done so, however, Family PAC’s argument
would be foreclosed by circuit precedent. We have repeatedly
recognized an important (and even compelling) informational
interest in requiring ballot measure committees to disclose
information about contributions. See Human Life, 624 F.3d at
21530 FAMILY PAC v. MCKENNA
1005-06; Canyon Ferry Rd. Baptist Church of E. Helena, Inc.
v. Unsworth, 556 F.3d 1021, 1031-32 (9th Cir. 2009); Cal.
Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1178-79
& n.8 (9th Cir. 2007), abrogation on other grounds recog-
nized in Human Life, 624 F.3d at 1013; Cal. Pro-Life Council,
Inc. v. Getman, 328 F.3d 1088, 1104-07 (9th Cir. 2003).
Washington therefore has an important governmental interest
— informing the voting public — in requiring the disclosure
of contributions made to ballot measure committees. Family
PAC’s argument to the contrary is without merit.
B. Substantial Relation
We turn to whether the state has shown that the $25 and
$100 disclosure requirements are substantially related to the
state’s informational interest. To survive exacting scrutiny,
“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).
1. The Actual Burden on First Amendment Rights
As relevant here, Washington’s disclosure requirements
can burden First Amendment rights in two ways. First, they
can deter individuals who would prefer to remain anonymous
from contributing to a ballot measure committee. See Buckley
v. Valeo, 424 U.S. 1, 68 (1976) (“It is undoubtedly true that
public disclosure of contributions to candidates and political
parties will deter some individuals who otherwise might con-
tribute.”); id. at 83 (“[S]trict [disclosure] requirements may
well discourage participation by some citizens in the political
process.”); Canyon Ferry, 556 F.3d at 1036 (Noonan, J., con-
curring) (observing that “[f]or business or social reasons, a
small contributor may wish not to be publicly identified with
one side of a controversial public issue. The required report
strips this contributor of his chosen anonymity,” which may
discourage him from contributing).
FAMILY PAC v. MCKENNA 21531
[2] This burden, however, is modest. Disclosure require-
ments “may burden the ability to speak, but they impose no
ceiling on campaign-related activities, and do not prevent
anyone from speaking.” Citizens United v. FEC, 130 S. Ct.
876, 914 (2010) (citations and internal quotation marks omit-
ted). Here, although Family PAC cites a survey conducted in
six states (not including Washington) purporting to show that
people may “think twice” about contributing to ballot measure
committees if their names and addresses are to be publicly
disclosed, Family PAC has not presented evidence suggesting
that Washington’s disclosure laws actually and meaningfully
deter contributors.4 The Washington requirements accordingly
serve as only a modest deterrent to contributors.
4
In the survey cited by Family PAC, 82% of respondents agreed that the
government should require that the identities of those who contribute to
ballot issue campaigns be available to the public. See Dick M. Carpenter
II, Disclosure Costs: Unintended Consequences of Campaign Finance
Reform, Institute for Justice, 7 (Mar. 2007), available at http://www.ij.org/
images/pdf_folder/other_pubs/DisclosureCosts.pdf. When asked whether
public disclosure would impact their own decisions to contribute, how-
ever, respondents suggested that they might “think twice” before contrib-
uting. Almost 60% of respondents agreed with the following statement: “If
by contributing to a ballot issue campaign my name and address were
released to the public by the state, I would think twice before donating
money.” Id. Almost 50% agreed with the following statement: “If by con-
tributing to a ballot issue campaign my employer’s name were released to
the public by the state, I would think twice before donating money.” Id.The state properly points out that Carpenter was not presented as an expert
witness, and his survey was neither presented as evidence nor tested by the
evidentiary rigors that apply to expert reports. We therefore decline to give
it evidentiary weight. In any event, a survey purporting to show that
respondents in six states other than Washington would “think twice”
before contributing to a ballot measure campaign offers little insight into
the deterrent effect of Washington’s disclosure requirements on individu-
als’ actual decisionmaking. We do not doubt that disclosure requirements
have some deterrent effect on contributions, see Buckley, 424 U.S. at 68,
83, but the evidence in this case does not show that this burden is substan-
tial. Notably, notwithstanding the state’s disclosure requirements, Wash-
ington’s ballot measure committees have been able to raise a great deal of
money. In 2008, 12 statewide ballot measure committees reported $9.5
million in contributions and expenditures; 89 local ballot measure commit-
21532 FAMILY PAC v. MCKENNA
[3] Second, “disclosure requirements can chill donations to
an organization by exposing donors to retaliation.” Citizens
United, 130 S. Ct. at 916. Here, however, Family PAC has
made no showing that Washington’s disclosure requirements
expose contributors to a significant or systemic risk of harass-
ment or retaliation. In Doe v. Reed, 130 S. Ct. 2811 (2010),
the Supreme Court considered whether disclosure of referen-
dum petitions — containing the names and addresses of
signers — violates the First Amendment. The Court acknowl-
edged that in the case of “particularly controversial petitions,”
public disclosure could lead to harassment or intimidation of
petition signers. See id. at 2820-21. There was, however, “no
reason to assume that any burdens imposed by disclosure of
typical referendum petitions would be remotely like th[ose]
burdens.” Id. at 2821. Thus, notwithstanding the possibility of
harassment and retaliation in an isolated case, the disclosure
rules as a general matter imposed only modest First Amend-
ment burdens. See id. The Court explained that in an atypical
case presenting a bona fide threat of harassment or retaliation,
an aggrieved party could seek an exemption from compelled
disclosure by making a sufficient evidentiary showing in an
as-applied challenge. See id. at 2820-21.
[4] This same reasoning applies here. Family PAC has
made no showing that §§ 42.17.090 and 390-16-034, as a gen-
eral matter, expose contributors to harassment, intimidation or
retaliation. In the unusual case presenting a genuine threat of
harassment or retaliation, the affected party can challenge
these disclosure requirements as applied. See Citizens United,
130 S. Ct. at 914 (“[A]s-applied challenges would be avail-
able if a group could show a ‘reasonable probability’ that dis-
tees reported another $3.7 million in contributions and expenditures. Ellis
Decl. ¶ 23. In 2005, expenditures on a single statewide initiative reached
more than $15.6 million. Id. ¶ 24. And in the 2008 Washington election
as a whole, more than $1.4 million was contributed by persons giving
between $25.01 and $30 in 54,502 contributions. Id. ¶ 44.
FAMILY PAC v. MCKENNA 21533
closure of its contributors’ names ‘will subject them to
threats, harassment, or reprisals from either Government offi-
cials or private parties.’ ” (quoting McConnell v. FEC, 540
U.S. 93, 198 (2003))). Here, Family PAC has not asserted an
as-applied challenge or attempted to make the particularized
showing required by Supreme Court precedent.5 Thus, as in
Doe, the challenged disclosure requirements impose only a
modest burden on First Amendment rights.6
2. The Strength of the Governmental Interest
[5] We next consider whether the strength of the govern-
mental interest in disclosure justifies these modest burdens.
The governmental interest in informing the electorate about
who is financing ballot measure committees is of great impor-
tance. Disclosure enables the electorate to “give proper
weight to different speakers and messages,” Citizens United,
130 S. Ct. at 916, by “providing the voting public with the
information with which to assess the various messages vying
5
Family PAC challenges §§ 42.17.090 and 390-16-034 on their face, but
only as applied to ballot measure committees. For the reasons given in
Doe, we treat this as a facial challenge:
The claim is “as applied” in the sense that it does not seek to
strike the [regulation] in all its applications, but only to the extent
it covers referendum petitions. The claim is “facial” in that it is
not limited to plaintiffs’ particular case, but challenges applica-
tion of the law more broadly to all referendum petitions.
The label is not what matters. The important point is that plain-
tiffs’ claim and the relief that would follow . . . reach beyond the
particular circumstances of these plaintiffs. They must therefore
satisfy our standards for a facial challenge to the extent of that
reach.
130 S. Ct. at 2817.
6
These disclosure requirements also impose administrative burdens on
ballot committees, which are responsible for compiling and filing required
disclosure reports. See, e.g., Canyon Ferry, 556 F.3d at 1034 (discussing
“the burden of reporting”). These burdens too, however, are generally
modest, and Family PAC does not challenge them on an as-applied basis.
21534 FAMILY PAC v. MCKENNA
for their attention in the marketplace of ideas,” Human Life,
624 F.3d at 1008. The money in ballot measure campaigns
“produces a cacophony of political communications through
which . . . voters must pick out meaningful and accurate mes-
sages.” Getman, 328 F.3d at 1105. “Given the complexity of
the issues and the unwillingness of much of the electorate to
independently study the propriety of individual ballot mea-
sures, we think being able to evaluate who is doing the talking
is of great importance.” Id. Disclosure also gives voters
insight into the actual policy ramifications of a ballot mea-
sure. “Knowing which interested parties back or oppose a bal-
lot 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.” Id. at 1106. “At least by knowing who backs or
opposes a given initiative, voters will have a pretty good idea
of who stands to benefit from the legislation.” Id. In addition,
“mandating disclosure of the financiers of a ballot initiative
may prevent ‘the wolf from masquerading in sheep’s cloth-
ing.’ ” Canyon Ferry, 556 F.3d at 1032 (quoting Getman, 328
F.3d at 1106 n.24); see also Human Life, 624 F.3d at 1017;
Randolph, 507 F.3d at 1179 n.8 (observing that the names
groups give themselves for disclosure purposes are frequently
ambiguous or misleading). Washington’s disclosure require-
ments therefore serve a strong governmental interest.
[6] Balancing the aforementioned burdens against the gov-
ernmental interest, we have little trouble in holding that
Washington’s disclosure requirements are, as a general mat-
ter, substantially related to an important governmental inter-
est. The requirements impose only modest burdens on First
Amendment rights, while serving a governmental interest in
an informed electorate that is of the utmost importance. We
therefore reject Family PAC’s broad challenge to Washington
Revised Code § 42.17.090 and Washington Administrative
Code § 390-16-034.
That is not the end of the inquiry, however, because, even
if §§ 42.17.090 and 390-16-034 are permissible as a general
FAMILY PAC v. MCKENNA 21535
matter, Family PAC argues that the $25 and $100 thresholds
themselves are too low to survive exacting scrutiny.
Family PAC’s argument rests on a generally sound premise
— that the informational interest in disclosure applies with
greater force to large contributions than to small ones. We
explained in Canyon Ferry that, “[a]s a matter of common
sense, the value of this financial information to the voters
declines drastically as the value of the expenditure or contri-
bution sinks to a negligible level.” 556 F.3d at 1033 (empha-
sis omitted).7 The informational interest weakens as the size
of the contributions decrease, and at some point contributions
are so small that disclosure may provide voters with little rele-
vant information.8 When that point is reached, a court presum-
7
As the size of the contribution falls, and the informational value of dis-
closure thereby declines, the deterrent effect of disclosure may actually
increase. See Buckley, 424 U.S. at 83 (“Contributors of relatively small
amounts are likely to be especially sensitive to recording or disclosure of
their political preferences.”). If this is the case, then applying disclosure
requirements to smaller and smaller contributions eventually risks tipping
the constitutional balance against disclosure. It is far from clear, however,
that even a zero-dollar disclosure threshold would succumb to exacting
scrutiny. See Citizens Against Rent Control v. City of Berkeley, 454 U.S.
290, 300 (1981) (“[I]f it is thought wise, legislation can outlaw anony-
mous contributions.”); Canyon Ferry, 556 F.3d at 1034 (“It may very well
be that . . . all monetary contributions convey sufficiently valuable infor-
mation about the supporters of an initiative to justify the burden of disclo-
sure.”). We need not confront that question here, because Washington has
not chosen a zero-dollar threshold, and, as we explain in text, the informa-
tion disclosed at the $25 and $100 levels established by Washington law
is sufficiently important to the electorate that the thresholds withstand
exacting scrutiny.
8
See, e.g., Elizabeth Garrett, Voting with Cues, 37 U. Rich. L. Rev.
1011, 1042 (2003) (“The source and amount of small contributions and
expenditures are not generally informative to voters . . . .”); William
McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of Political Con-
tribution Disclosure, 6 U. Pa. J. Const. L. 1, 47 (2003) (“[D]iffuse and
hard-to-digest data, concerning modest-sized individual contributions
made for various unknowable reasons, adds little ‘relevant information’ to
a voter’s decision-making process.”); Richard Briffault, Issue Advocacy:
Redrawing the Elections/Politics Line, 77 Tex. L. Rev. 1751, 1789-90
(1999) (“Knowing about [small contributions] provides the voters with lit-
tle in the way of useful information.”).
21536 FAMILY PAC v. MCKENNA
ably should ask whether the burdens imposed by disclosure
outweigh the informational interests served by it.
[7] We are not persuaded, however, that the tipping point
has been reached in the case of Washington’s $25 and $100
thresholds. Critically, we do not agree with Family PAC’s
contention that disclosure of small contributors does not pro-
vide information that enables the electorate to evaluate cam-
paign messages and make informed decisions. It is true that
the public disclosure of a single $25.01 contribution to a bal-
lot measure campaign may provide little relevant information
to voters. As the district court recognized, however, small
contributions may provide useful information to voters when
considered in the aggregate. On the PDC’s website, voters
can conduct detailed searches and sort ballot measure contri-
bution data by city, state and zip code.9 Voters can use this
geographical information to determine, for example, whether
statewide ballot measures are financed by out-of-state contrib-
utors, or to determine whether county-wide ballot measures
are financed by out-of-county interests. With respect to con-
tributions exceeding $100, voters can also aggregate the data
by employer and occupation to determine whether particular
economic interests stand to benefit from the legislation. This
type of information may not be as critical as knowing that
XYZ Corporation gave $10 million to the campaign, but it is
nonetheless useful and relevant. We therefore hold that the
$25 and $100 thresholds are substantially related to the state’s
informational interest.
Our holding is reinforced by several additional consider-
ations. First, we are not aware of any judicial decision invali-
dating a contribution disclosure requirement, or holding that
a contribution disclosure threshold was impermissibly low.10
9
According to the state’s evidence, the PDC website received 40,423
unique visitors and 596,223 web pages were viewed during fiscal year
2009. Ellis Decl. ¶ 14.
10
In both Canyon Ferry and Sampson, the courts invalidated reporting
requirements — i.e., when an organization is required to file contribution
FAMILY PAC v. MCKENNA 21537
Second, in Citizens Against Rent Control v. City of Berke-
ley, 454 U.S. 290, 294 n.4, 298, 299-300 (1981), the Supreme
Court spoke approvingly of a city ordinance requiring politi-
cal committees to disclose the names and addresses of persons
contributing $50 or more to a ballot measure campaign, a
threshold roughly comparable to the $25 and $100 disclosure
thresholds at issue here. The disclosure requirement was not
challenged in Citizens Against Rent Control, so the Court’s
language is dictum. Nevertheless, the decision certainly sug-
gests that the Court would have upheld the requirement had
the question been raised. See also Randolph, 507 F.3d at 1182(upholding contribution disclosure requirements covering
contributions totaling $100 or more and requiring disclosure
of the contributor’s name, address, occupation and employer);
Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n, 761
F.2d 509, 512 (8th Cir. 1985) (per curiam) (upholding a Min-
nesota law requiring disclosure of the name, address and
employer of each person who contributes $50 or more in one
year for legislative races or $100 or more per year for state-
wide races or ballot questions).
Third, disclosure thresholds, like contribution limits, are
inherently inexact; courts therefore owe substantial deference
and expenditure reports with state election regulators — rather than contri-
bution disclosure requirements — i.e., assuming an organization is subject
to a reporting requirement, what contributions must be disclosed in the
reports. See Canyon Ferry, 556 F.3d at 1033-34 (granting the plaintiff’s
challenge to Montana’s “zero-dollar” reporting threshold as applied to the
plaintiff’s in-kind, de minimis expenditures in support of a statewide bal-
lot measure); Sampson, 625 F.3d at 1249, 1259-61 (granting the plaintiffs’
challenge — to a Colorado law requiring any group of two or more per-
sons that has accepted or made contributions or expenditures exceeding
$200 to support or oppose a ballot issue to register as an issue committee
and report the names and addresses of contributors — as applied to the
plaintiffs, who opposed the annexation of their neighborhood into the
adjacent town, and who had raised less than $1,000 in monetary and in-
kind contributions for their cause). By contrast, we are not aware of any
decision invalidating a contribution disclosure requirement, either facially
or as applied to a particular actor.
21538 FAMILY PAC v. MCKENNA
to legislative judgments fixing these amounts. As the
Supreme Court explained in Buckley:
[W]e cannot require Congress to establish that it has
chosen the highest reasonable threshold. The line is
necessarily a judgmental decision, best left in the
context of this complex legislation to congressional
discretion. We cannot say, on this bare record, that
the limits designated are wholly without rationality.
424 U.S. at 83.11 This deference is not absolute, see Randall
v. Sorrell, 548 U.S. 230, 248-49 (2006) (plurality opinion);
Canyon Ferry, 556 F.3d at 1034, but it strongly reinforces our
conclusion that Washington has chosen thresholds within a
permissible range. This deference is all the more appropriate
when, as here, the state’s thresholds are comparable to those
in other states.12
[8] In sum, §§ 42.17.090 and 390-16-34 are, as applied to
ballot measure committees, “substantially related to a suffi-
ciently important governmental interest.” Human Life, 624
F.3d at 1005. They therefore survive exacting scrutiny.
III.
The state argues that the district court erred by invalidating
Washington Revised Code § 42.17.105(8) as applied to ballot
11
In Buckley, the Court upheld a federal law requiring disclosure of con-
tributions exceeding $100. The Court expressly declined to “reach the
question whether information concerning gifts [between $10 and $100]
can be made available to the public without trespassing impermissibly on
First Amendment rights.” Buckley, 424 U.S. at 84.
12
Washington’s $25 and $100 thresholds are within the range of disclo-
sure requirements in other states. See McGeveran, Mrs. McIntyre’s Check-
book, 6 U. Pa. J. Const. L. at 10 (“Almost all [states] require campaigns
to itemize contributions below the federal threshold of $200. Eight states
set thresholds as low as $20 or $25, and several others require reporting
of all contributions, no matter what their size.” (footnote omitted)).
FAMILY PAC v. MCKENNA 21539
measure committees. This provision imposes a $5,000 limit
on contributions during the 21 days preceding a general elec-
tion. All parties agree that the $5,000 limit would be unconsti-
tutional if it applied without temporal restriction. See Citizens
Against Rent Control, 454 U.S. at 299-300 (invalidating a city
ordinance placing a $250 limitation on contributions to com-
mittees formed to support or oppose ballot measures). The
only question, therefore, is whether Washington’s contribu-
tion limit can survive constitutional scrutiny because it is lim-
ited to a 21-day period.
[9] The district court construed the 21-day contribution
limit as a “ban on large contributions” and therefore applied
strict scrutiny. Contribution limits, however, are not subject to
strict scrutiny. They are constitutionally valid “if the State
demonstrates a sufficiently important interest and employs
means closely drawn to avoid unnecessary abridgment of
associational freedoms.” Buckley, 424 U.S. at 25; see also
Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647,
652 (9th Cir. 2007) (noting that limits on contributions to can-
didates and ballot measure committees are subject to the same
level of scrutiny). We therefore ask whether § 42.17.105(8) is
“ ‘closely drawn’ to match a sufficiently important interest.”
Thalheimer v. City of San Diego, 645 F.3d 1109, 1117 (9th
Cir. 2011) (quoting Randall, 548 U.S. at 247).
A. Sufficiently Important Interest
As noted, the state has an important interest in giving vot-
ers access to contributor information. The only question is
whether the 21-day limit is closely drawn to advance that
interest.
B. Closely Drawn
The state argues that the rule is closely drawn because it is
designed to force big-money contributors to identify them-
selves by the time the state mails ballots to voters — which
21540 FAMILY PAC v. MCKENNA
takes place 18 days before the general election. The theory is
that all voters should know who is paying for ballot measure
campaigns by the time they cast their votes, and because vot-
ers have the option of voting before election day, this infor-
mational interest cannot be adequately protected unless large
contributors make themselves known 21 days in advance of
the election: “Given the timing of Washington’s vote-by-mail
system, which encompasses the vast majority of voters in the
state, and the timing of Wash. Rev. Code § 42.17.105(8),
there is a substantial relation between the governmental inter-
est and the timing of this disclosure provision.” First Brief on
Cross-Appeal 25.
[10] We disagree. As a threshold matter, we note that
§ 42.17.105(8) imposes a significant burden on First Amend-
ment rights. In Citizens Against Rent Control, the Supreme
Court recognized that contribution limits imposed on ballot
measure committees burden both the freedom of association,
by making it harder for individuals to “band together to
advance their views on a ballot measure,” and the freedom of
speech, because a limit on contributions affects expenditures,
“and limits on expenditures operate as a direct restraint on
freedom of expression of a group or committee desiring to
engage in political dialogue concerning a ballot measure.”
454 U.S. at 296, 299. Washington’s temporal limit is less bur-
densome than the permanent limit at issue in Citizens Against
Rent Control, because ballot measure committees can arrange
their fundraising around the 21-day limit with respect to
planned contributions. See Thalheimer, 645 F.3d at 1122.
Washington’s limit nonetheless imposes a significant burden,
because it limits contributions during the critical three-week
period before the election, when political committees may
want to respond to developing events. See Human Life, 624
F.3d at 1019 (recognizing “the unique importance of the tem-
poral window immediately preceding a vote”); cf. Anderson
v. Celebrezze, 460 U.S. 780, 786 (1983) (observing that early
candidate filing deadlines prevent independent candidates
FAMILY PAC v. MCKENNA 21541
from seizing “unanticipated political opportunities”).13 Section
42.17.105(8) therefore imposes a significant burden on pro-
tected activity.
13
In decisions upholding temporal restrictions on otherwise protected
political activities, the restrictions at issue generally did not apply to the
period immediately preceding the election. In North Carolina Right to
Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999), the Fourth Circuit
upheld a North Carolina law prohibiting political committees employing
lobbyists from contributing to elected officials while the legislature was in
session. See id. at 709. The court said that “North Carolina’s restrictions
do nothing more than place a temporary hold on appellees’ ability to con-
tribute during the General Assembly session, leaving them free to contrib-
ute during the rest of the calendar year and to engage in political speech
for the entire year.” Id. at 715. The rules advanced a compelling interest
by preventing corruption and the appearance of corruption, and the restric-
tions were narrowly tailored because “they last only during the legislative
session, which typically, though not invariably, has covered just a few
months in an election year,” and “cover only that period during which the
risk of an actual quid pro quo or the appearance of one runs highest.” Id.
at 715-16. In Thalheimer, we upheld a San Diego ordinance making it
unlawful for a candidate to solicit or accept contributions until the 12
months preceding the primary election for the office sought. See 645 F.3d
at 1113-14. The rule did not impose a serious burden because candidates
could concentrate their fundraising activities during the 12 months leading
up to the election. See id. at 1122. In addition, the ban served an important
governmental interest in the prevention of actual and perceived corruption
“because those contributions made near an election are clearer expressions
of political speech, whereas off-year contributions are more likely linked
to business the donor has before the city, thus creating the appearance of
quid pro quo ‘corruption by the sale of influence.’ ” Id. at 1121. The rule
was therefore closely drawn to a sufficiently important state anti-
corruption interest. See id. at 1123. Both N.C. Right to Life and Thal-
heimer are distinguishable from this case because the temporal restrictions
did not cover the final phase of the election.
In Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), by contrast, the Sixth
Circuit upheld a Kentucky rule prohibiting gubernatorial candidates not
participating in the state’s public financing system from accepting contri-
butions during the 28 days preceding a primary or general election. See id.
at 944. That temporal restriction applied to the critical pre-election period.
The court upheld the provision, however, because it was necessary to the
state’s implementation of its public funding system. See id. at 949-50.
Here, Washington has not shown that § 42.17.105(8) is closely drawn to
achieve the state’s informational interest, as we explain in text.
21542 FAMILY PAC v. MCKENNA
[11] We hold that § 42.17.105(8) is not closely drawn to
provide voters with information they need to make informed
choices. The limit is not reasonably necessary to inform vot-
ers about large contributions made in the final three weeks of
the election. As the district court found, “campaign contribu-
tions can be reported and made publicly available within min-
utes, and certainly within 24 hours.” In fact, Washington
already has in place a system requiring committees, during the
21 days preceding the election, to disclose contributions from
large contributors within 48 or 24 hours of receiving them.14
It is true that some voters may choose to vote early, and
they may not learn of some large contributions until they have
already voted. The state certainly has an interest in assuring
that all voters, including those who vote early, have the infor-
mation they need to make informed choices. Voters who cast
their ballots while the campaigning is still in full swing, how-
ever, make a voluntary choice to forgo relevant information
that may come to light in the final weeks of the campaign.
The state’s interest in ensuring that these voters — the num-
ber of whom has not been identified — are maximally
informed is therefore a weak one. It is outweighed by counter-
vailing interests, including the right of ballot measure com-
mittees to raise and spend funds, the right of individuals to
contribute funds to ballot measure committees and the interest
of the voting public in the messages that those committees
may convey in the final weeks of the election. Thus, as the
district court said, “[t]he fact that voters have access to ballots
earlier than before, and that they may choose to vote before
all the election debate is in fact over, is not a sufficient reason
to save th[e] statute.”
14
Washington’s disclosure law requires committees making and receiv-
ing contributions in excess of $1,000 during a “special reporting period”
to file reports within 48 hours. See Wash. Rev. Stat. § 42.17.105(3). If a
committee has already filed a “special report,” any subsequent contribu-
tions from the same contributor must be filed within 24 hours, regardless
of the subsequent contribution’s size. See id. The 21 days before the elec-
tion is a “special reporting period.” See id. § 42.17.105(1)(a).
FAMILY PAC v. MCKENNA 21543
Like the district court, we do not imply that a narrower
restriction would suffer from the same infirmity. As the dis-
trict court noted: “Such a [restriction] may pass constitutional
muster if limited to a time more carefully calculated to reflect
the current time necessary to gather and organize and dissemi-
nate the relevant information about contributions and contrib-
utors that the government legitimately seeks to convey.”
IV.
[12] The district court properly concluded that Washington
Revised Code § 42.17.090 and Washington Administrative
Code § 390-16-034, the state’s $25 and $100 disclosure
requirements, are, as applied to ballot measure committees,
substantially related to the important governmental interest in
informing the electorate about the people and entities financ-
ing ballot measure committees. The court also properly invali-
dated Washington Revised Code § 42.17.105(8), the state’s
$5,000 contribution limit applicable to ballot measure com-
mittees during the 21 days preceding a general election. This
provision is not closely drawn to match the state’s important
informational interest. The judgment of the district court
accordingly is affirmed. Each party shall bear its own costs of
appeal.
AFFIRMED.