Human Life of Washington, Inc. v. Chair Bill Brumsickle , 624 F.3d 990 ( 2010 )

FILED
FOR PUBLICATION OCT 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUMAN LIFE OF WASHINGTON INC., No. 09-35128
Plaintiff - Appellant, D.C. No. 2:08-cv-00590-JCC
v.
OPINION
CHAIR BILL BRUMSICKLE; VICE
CHAIR KEN SCHELLBERG;
SECRETARY DAVE SEABROOK;
JANE NOLAND; JIM CLEMENTS, in
their Official Capacities as Officers and
Members of the Washington State Public
Disclosure Commission; ROB
MCKENNA, in His Official Capacity as
Washington Attorney General,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted May 7, 2010
Seattle, Washington
Filed October 12, 2010
Before: WARDLAW and GOULD, Circuit Judges, and WARE, District Judge. *
Opinion by Judge WARDLAW, Circuit Judge:
“[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 National Bank v. Bellotti, 435 U.S. 765, 791–92
(1978) (footnotes omitted)
Human Life of Washington (“Human Life”), a nonprofit, pro-life advocacy
corporation, appeals the district court’s denial of summary judgment in its suit
against various Washington state officials.1 Human Life challenges, on First
Amendment grounds, Washington state’s Public Disclosure Law (“Disclosure
Law”), enacted as part of its campaign finance regulation. The Supreme Court
recently concluded that the government “may regulate corporate political speech
through disclaimer and disclosure requirements, but it may not suppress that
speech altogether.” Citizens United v. FEC, 130 S. Ct. 876, 886 (2010). Based on
*
The Honorable James Ware, United States District Judge for the Northern
District of California, sitting by designation.
1
The named officials are Bill Brumsickle, Ken Schellberg, Dave Seabrook,
Jane Noland, and Jim Clements, in their official capacities as officers and members
of the Washington State Public Disclosure Commission, and Rob McKenna, in his
official capacity as Washington Attorney General (collectively, with the state of
Washington, “Washington State”).
2
this principle, and for many of the same reasons articulated by the well-reasoned
opinion of the district court, we too conclude that Washington State’s disclosure
requirements do not violate the First Amendment, either facially or as applied to
Human Life and its proposed campaign to educate voters about the dangers of
physician-assisted suicide in connection with a ballot measure that would legalize
the practice.
I. BACKGROUND
A. Human Life of Washington and Initiative 1000
In 2008, Washington voters were asked to consider a ballot initiative,
Initiative 1000, which would “permit terminally ill, competent, adult Washington
residents medically predicted to die within six months to request and
self-administer lethal medication prescribed by a physician.” Wash. Initiative
Measure No. 1000 (2008). The measure quickly spawned an “emotionally charged
battle” between its advocates and its opponents. Associated Press, Washington
State Battles over Vote to Allow Lethal Meds for Dying Patients, Oct. 11, 2008; see
also John Iwasaki, “Playing God” or Dignified Death? Faith Based Groups
Taking Crucial Role in Initiative Battle, Seattle Post-Intelligencer, Oct. 13, 2008
(“On their respective Web sites, the campaigns for and against Initiative 1000
include point-by-point attempts to debunk the other side in the debate over
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physician-assisted suicide, the contentious end-of-life issue facing Washington
voters in the general election.”).
Human Life opposed Initiative 1000, consistent with its mission to
“reestablish throughout our culture, the recognition that all beings of human origin
are persons endowed with intrinsic dignity and the inalienable right to life from
conception to natural death.” In pursuit of this goal, Human Life engages in
“educational, legislative, and judicial efforts” to “seek reform in our culture’s
understanding.” Over the years, Human Life has expended considerable time and
resources opposing efforts to legalize physician-assisted suicide in Washington.
For example, in 1991, Human Life and its affiliated political action committee,
HLPAC, actively participated in the successful campaign to defeat Initiative 119,
which would have amended Washington’s constitution to legalize
physician-assisted suicide. In 2008, on the day that Initiative 1000 was filed,
Human Life issued a “special report” in an attempt to prevent the initiative from
receiving a sufficient number of signatures to qualify for the ballot. Urging readers
to “ENCOURAGE OTHERS NOT TO SIGN THE INITIATIVE,” the report
stated: “One would hope that it would deeply trouble the conscience of anyone
inclined to sign this initiative petition, knowing they are signing some else’s death
warrant.”
4
With physician-assisted suicide back on the ballot in 2008, Human Life
undertook plans to solicit funds for and launch a public education campaign. As
Human Life explained in its verified complaint, filed April 16, 2008,
The year 2008 is an especially vital time for HLW to
address the physician-assisted suicide issue because people
again will be unusually attentive as it swirls to the forefront
of public attention. . . . The physician-assisted suicide issue
is in people’s focus because former Governor Booth
Gardner filed the proposed I-1000 with the Secretary of
State on January 9, 2008, with qualifying signatures due by
July 3, 2008.
Human Life’s planned educational campaign consisted of three proposed public
communications, as well as “substantially similar activities” that had not yet been
identified.
First, Human Life would distribute a solicitation letter via email, regular
mail, and its website. The proposed letter, which did not expressly mention
Initiative 1000, opened: “The assisted suicide issue just won’t go away. But
neither will we. We are here to argue the prolife side on your behalf. However, as
this grisly issue heats up again in 2008, Human Life of Washington needs your
help to pay for some radio ads to educate the public.” It went on to recount the
defeat of the 1991 ballot initiative, to draw parallels between mid-19th century
slavery abolitionists and modern-day pro-life advocates, and to discuss a study by a
5
palliative-care specialist in Scotland, which it asserted “shows that problems with
Oregon’s assisted suicide scheme are real.” In closing, the letter requested a
donation to fund Human Life’s public education campaign, stating that “[t]he
public needs to receive this sort of information as assisted suicide advocates once
again offer biased, inaccurate, and rosy depictions of this grisly practice.”
Second, in addition to sending letters, Human Life intended to target
individual voters by telephone. After introducing themselves as callers on behalf
of Human Life, callers would read from a proposed script, alluding to Initiative
1000. The scripts read:
Right now we are trying to reach every pro-life household
in Washington with an urgent update. As you’ve probably
heard, former Governor Booth Gardner is trying to get an
initiative on the ballot this fall that would legalize
physician-assisted suicide in the State of Washington. We
fear that many Washingtonians do not know the grisly facts
about physician-assisted-suicide and its devastating effect
on a culture of life.
Callers then would solicit financial contributions to Human Life’s public education
and advocacy activities.
Finally, Human Life intended to broadcast radio advertisements. It
developed four proposed scripts for thirty-second radio spots. In one, a male voice
would say, “Some people think that persons with disabilities don’t have lives worth
6
living,” to which a female voice would respond, “Like Nazi docs!” In another
proposed radio spot, the speaker would note that “[a]ssisted suicide is back in the
news” and would go on to summarize results from a study about assisted suicide in
Oregon. A third proposed advertisement would feature a male voice warning that
physician-assisted suicide is a “slippery slope” because “people who can’t consent
– like babies – are being killed.” Finally, in a fourth proposed radio spot, a speaker
would warn that assisted suicide “turns doctors into killers.” None of the proposed
advertisements would expressly mention Initiative 1000, and each would end with
a disclosure that the advertisement was sponsored by Human Life.
Human Life’s educational campaign never got off the ground, however,
because Human Life feared that its proposed communications would subject it to
the requirements of Washington’s Disclosure Law, a law that Human Life contends
violates its First Amendment rights.
B. Washington’s Public Disclosure Law
The Disclosure Law was enacted by ballot initiative in 1972, with the
support of 72% of the voting public. It declares as Washington state’s public
policy “[t]hat political campaign and lobbying contributions and expenditures be
fully disclosed to the public and that secrecy is to be avoided.” Wash. Rev. Code
§ 42.17.010(1). It also states as Washington’s public policy that “full access to
7
information concerning the conduct of government on every level must be assured
as a fundamental and necessary precondition to the sound governance of a free
society.” Id. § 42.17.010(11). Under the Disclosure Law, this policy is
implemented through detailed reporting, registration, and disclosure requirements
(collectively, “disclosure requirements”), which are administered and enforced by
Washington’s Public Disclosure Commission (the “Commission”), a bipartisan
citizen’s commission whose five members are appointed by the governor and
confirmed by the state senate.
According to the Commission’s Executive Director, the Disclosure Law
“enables the public to ‘follow the money’ with respect to campaigns and lobbying”
by providing for the collection of informational forms, which become public
record. These forms are now electronically available in searchable format through
the Commission’s website. The Commission’s Chief Technology Officer reports
that its website receives approximately 14,000 visitors per month. In addition, the
media uses financial data in its reporting. See, e.g., Richard Roesler, I-1000
Advocates Raking It In, Spokesman-Review, Apr. 30, 2008; Susan Gilmore, How
Money Talks on Initiatives, Seattle Times, Nov. 22, 2004. As well as gathering
data and reports, the Commission provides the public with aggregate data, analysis,
and summaries in its biennial “Election Financing Fact Book.”
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At issue in this appeal are two aspects of the Disclosure Law: (1) the
requirements imposed on “political committees” and (2) the requirements for
“independent expenditures” and “political advertising.” These provisions do not
place a limit on expenditures for advocacy; rather, they require only that covered
entities make certain public disclosures.
1. Political Committees
The Disclosure Law defines a “political committee” as “any person (except a
candidate or individual dealing with his or her own funds or property) having the
expectation of receiving contributions or making expenditures in support of, or
opposition to, any candidate or any ballot proposition.” Wash. Rev. Code
§ 42.17.020(39). As construed by Washington courts, this definition “sets forth
two alternative prongs under which an individual or organization may become a
political committee and subject to the Act’s reporting requirements.” Evergreen
Freedom Found. v. Wash. Educ. Ass’n, 49 P.3d 894, 902 (Wash. Ct. App. 2002).
Under the prong at issue here – the “expenditures” prong – “a person or
organization may become a political committee by . . . expecting to make or
making expenditures to further electoral political goals.” Id. at 902–03. This
definition has been narrowed by judicial construction to cover only an organization
that has as its “primary or one of the primary purposes” to “affect, directly or
9
indirectly, governmental decision making by supporting or opposing candidates or
ballot propositions.” Id. at 903 (quoting State v. Dan J. Evans Campaign Comm.,
546 P.2d 75, 79 (Wash. 1976)).
A group’s designation as a “political committee” triggers various disclosure
requirements. First, all political committees must appoint a treasurer and open a
bank account in the state of Washington. See Wash. Rev. Code § 42.17.050(1). In
addition, they must register with the Commission by filing a two-page Political
Committee Registration Form, which contains information required by the
Disclosure Law. This information includes the committee’s name and address; the
names and addresses of related and affiliated committees and persons; the names,
addresses, and titles of the committee’s officers and any persons authorized to
make expenditures for the committee; a statement of whether the organization is a
continuing one (i.e., whether it was established in anticipation of any election
campaign in particular); the ballot proposition or candidate that the committee
supports or opposes; how surplus funds will be distributed in the event of
dissolution; and the name, address, and title of anyone who works for the
committee to perform ministerial functions. See id. § 42.17.040.
Filing the registration form is the sole requirement imposed on political
committees that raise or spend less than $5,000 in a year and that raise no more
10
than $500 from any single donor. Wash. Admin. Code § 390-16-105(2); see also
Wash. Rev. Code § 42.17.370(8) (authorizing the Commission to relieve political
committees of certain reporting obligations). Political committees that exceed
these limits must submit various additional reports to the Commission. See Wash.
Rev. Code §§ 42.17.080, 42.17.090. First, monthly reports are required if the
political committee “has received a contribution or made an expenditure in the
preceding calendar month and either the total contributions received or total
expenditures made since the last such report exceeds two thousand dollars.” Id.§ 42.17.080(2)(c). Second, a political committee must file periodic reports on
certain dates relative to the election at issue: (1) the twenty-first day before an
election, (2) the seventh day before an election, and (3) the tenth day of the first
month after an election. Id. § 42.17.080(2)(a)–(b). Each periodic report must
include an accounting of the political committee’s “funds on hand” at the
beginning of the reporting period, including “[t]he surplus or deficit of
contributions over expenditures”; the source and amount of contributions received;
the source and amount of any loans to be used for the political committee’s benefit;
and the identity of “each candidate or political committee to which any transfer of
funds was made, together with the amounts and dates of such transfers.” Id.
§ 42.17.090(1).
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2. Independent Expenditures and Political Advertising
An entity not subject to the disclosure requirements governing political
committees may be required nonetheless to disclose certain information about its
“independent expenditures” and “political advertising.” For example, a
corporation that does not qualify as a political committee because of its relatively
limited involvement in political advocacy might, prior to a particular election,
decide to spend money on a series of radio advertisements criticizing a candidate
whose views the corporation considers inimical to its business interests. See
Citizens United, 130 S. Ct. at 913 (holding that corporations have a First
Amendment right to make independent expenditures). Under the Disclosure Law,
the corporation might be subject to disclosure requirements associated with this
activity even though the corporation does not qualify as a political committee.
An “independent expenditure” is “any expenditure that is made in support of
or in opposition to any candidate or ballot proposition and is not otherwise
required to be reported.” Wash. Rev. Code § 42.17.100(1). Disclosure
requirements are triggered if, in a given election, such an expenditure equals more
than $100 or if its value cannot reasonably be estimated. Id. § 42.17.100(2). If an
expenditure crosses this valuation threshold, an entity must submit “an initial
report of all independent expenditures made during the campaign” up until that
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point in time. Id. The required two-page report must include the name and address
of the person filing the report; the name and address of each person to whom an
independent expenditure was made in the aggregate amount of more than fifty
dollars; the amount, date, and purpose of each such expenditure; and the total sum
of all independent expenditures made during the campaign. Id. § 42.17.100(5).
After submitting the initial report, the regulated entity must submit monthly update
reports, but this requirement applies only if “the reporting person has made an
independent expenditure since the date of the last previous report filed.” Id.
§ 42.17.100(3)(c). Finally, three updates to the initial report are required on certain
dates pegged to the election at issue: (1) the twenty-first day before the election,
(2) the seventh day before the election, and (3) the tenth day of the month after the
election. Id. § 42.17.100(3). The entity’s reporting obligations cease after the
post-election report is filed. Id.
In addition to disclosures for independent expenditures, the Disclosure Law
sets forth requirements for “political advertising,” defined as “any advertising
displays, newspaper ads, billboards, signs, brochures, articles, tabloids, flyers,
letters, radio or television presentations, or other means of mass communication,
used for the purpose of appealing, directly or indirectly, for votes or for financial
or other support or opposition in any election campaign.” Id. § 42.17.020(38). An
13
advertisement must identify its sponsor: written political advertising must include
the sponsor’s name and address; radio and television ads must state the sponsor’s
name; and advertising undertaken as an independent expenditure must state that the
advertisement was not approved by any candidate. See id. § 42.17.510(1)–(4).
The Disclosure Law requires special reports for political advertising made
twenty-one days before an election and that has a fair market value of $1,000 or
more. Id. § 42.17.103(1). Such special reports must include the name and address
of the person making the expenditure; the name and address of the person to whom
the expenditure was made; a detailed description of the expenditure; the date that
the expenditure was made and that the advertising was presented to the public; the
amount of the expenditure; and the name of the candidate or ballot proposition
supported or opposed by the expenditure. Id. § 42.17.103(3).
These disclosure requirements do not apply to a “news item, feature,
commentary, or editorial in a regularly scheduled news medium that is of primary
interest to the general public, that is in a news medium controlled by a person
whose business is that news medium, and that is not controlled by a candidate or a
political committee.” Id. § 42.17.020(15)(b)(iv) (listing news media exceptions to
the definition of “contribution”); Wash. Admin. Code § 390-16-206 (exempting
news media from independent expenditure disclosure requirements). Nor do they
14
apply to “letters to the editor, news or feature articles, editorial comment or replies
thereto in a regularly published newspaper, periodical, or on a radio or television
broadcast where payment for the printed space or broadcast time is not normally
required.” Wash. Admin. Code § 390-05-290 (listing exceptions to the definition
of “political advertising”); id. § 390-16-206 (exempting the foregoing from
political advertising disclosure requirements).
C. Procedural History
On April 16, 2008, Human Life filed this lawsuit, seeking a declaration that
Washington’s Disclosure Law is unconstitutional and an injunction against its
enforcement. On August 7, 2008, Human Life moved for summary judgment. It
submitted no evidence in support of its motion, instead stating that all relevant
facts were set forth in its verified complaint. In opposition, the Commission
submitted declarations and other documents containing information about the
Commission’s operations and the public’s use of the disclosure data it had
compiled. In reply, Human Life submitted excerpts of its CEO Dan Kennedy’s
deposition.
While Human Life’s summary judgment motion remained pending,
Washington voters approved Initiative 1000 on Election Day, November 4, 2008,
effectively legalizing physician-assisted suicide. Thereafter, on January 8, 2009,
15
the district court denied Human Life’s summary judgment motion. After ruling
that Initiative 1000’s passage did not moot Human Life’s lawsuit, the district court
rejected Human Life’s contention that the Disclosure Law’s requirements for
“political committees,” “independent expenditures,” and “political advertising” are
unconstitutional. Final judgment was entered on January 23, 2009. We have
jurisdiction over the district court’s final judgment pursuant to 28 U.S.C. § 1291,
and “[w]e review the constitutionality of a statute de novo.” United States v.
Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).
II. DISCUSSION
A. Justiciability
“[T]he Constitution mandates that prior to our exercise of jurisdiction there
exist a constitutional ‘case or controversy,’ that the issues presented are ‘definite
and concrete, not hypothetical or abstract.’” Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (quoting Ry. Mail Ass’n v.
Corsi, 326 U.S. 88, 93 (1945)). Thus, before reaching the merits of Human Life’s
constitutional claims, we must determine whether this appeal is justiciable. See
Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 689
(9th Cir. 2010). We agree with the district court’s reasoning and conclude that the
appeal presents a case or controversy even though Human Life refrained from
16
engaging in its planned public education campaign, and we find that the
controversy remains live even after the passage of Initiative 1000 almost two years
ago.
1. Standing and Ripeness
To satisfy Article III’s case or controversy requirement, Human Life must
establish standing to sue. “[T]he irreducible constitutional minimum of standing
contains three elements”: the plaintiff must demonstrate (1) an injury-in-fact, (2)
causation, and (3) a likelihood that the injury will be redressed by a decision in the
plaintiff’s favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Because the court’s role is “neither to issue advisory opinions nor to declare rights
in hypothetical cases,” the case or controversy standard also requires that a claim
be ripe for review. Thomas, 220 F.3d at 1138 (“The constitutional component of
the ripeness inquiry is often treated under the rubric of standing . . . .”). In the
context of pre-enforcement constitutional challenges, where the plaintiff has not
yet been penalized for violating the challenged statute, we have held that “neither
the mere existence of a proscriptive statute nor a generalized threat of prosecution
satisfies the ‘case or controversy’ requirement.” Id. at 1139. Rather, in general, a
case or controversy exists only if the plaintiff faces a “genuine threat of imminent
prosecution.” Id.17
However, when a challenged statute risks chilling the exercise of First
Amendment rights, “the Supreme Court has dispensed with rigid standing
requirements,” Cal. Pro-Life Council, Inc. v. Getman (CPLC–I), 328 F.3d 1088,
1094 (9th Cir. 2003), and recognized “self-censorship” as “a harm that can be
realized even without an actual prosecution,” Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 393 (1988); see also Dombrowski v. Pfister, 380 U.S. 479, 486
(1965) (“Because of the sensitive nature of constitutionally protected expression,
we have not required that all of those subject to overbroad regulations risk
prosecution to test their rights.”). As we have held, where a plaintiff has refrained
from engaging in expressive activity for fear of prosecution under the challenged
statute, such self-censorship is a “constitutionally sufficient injury” as long as it is
based on “an actual and well-founded fear” that the challenged statute will be
enforced. CPLC–I, 328 F.3d at 1093, 1095; see also Ariz. Right to Life PAC v.
Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (finding that an entity that was
“forced to modify its speech and behavior to comply with the statute” had suffered
injury even though it had “neither violated the statute nor been subject to penalties
for doing so”). Such fear exists if the “intended speech arguably falls within the
statute’s reach.” CPLC–I, 328 F.3d at 1095.
18
The present appeal is indistinguishable from CPLC–I, where we found that
the California Pro-Life Council (“CPLC”) had established standing even though it
had not been subject to prosecution under the statute it challenged. The statute
required disclosures for any communication that “unambiguously urges a particular
result in an election.” Id. at 1096 (emphasis omitted). Because CPLC “feared
enforcement proceedings might be initiated,” id. at 1094, CPLC refrained from
spending money to distribute voter guides that advocated pro-life positions
implicated by pending ballot initiatives, id. at 1092–93. Even though CPLC’s
voter guides did not use “explicit words of advocacy,” we concluded that they
arguably fell within the statute’s provisions. Id. at 1095. Thus, although we
cautioned that “[t]he self-censorship door to standing does not open for every
plaintiff,” we concluded that CPLC’s self-censorship was based on a reasonable
fear of prosecution and was therefore a “constitutionally recognized injury.” Id.Because Human Life’s decision to refrain from implementing its educational
program was based on a reasonable fear of enforcement of the Disclosure Law, we
conclude that Human Life has established a case or controversy. Human Life
produced evidence of planned communications that arguably fall within the ambit
of the statute it is challenging. The Disclosure Law imposes obligations on an
entity when one of its “primary purposes” is “to affect, directly or indirectly,
19
governmental decision making by supporting or opposing candidates or ballot
propositions.” Evergreen, 49 P.3d at 903 (quoting Evans, 546 P.2d at 79)
(interpreting the definition of “political committee”). Disclosure obligations also
apply to political advertising “used for the purpose of appealing, directly or
indirectly, for votes,” Wash. Rev. Code § 42.17.020(38), and to expenditures
“made in support of or in opposition to any candidate or ballot proposition” that
meet certain monetary thresholds, id. § 42.17.100. Given the Disclosure Law’s
apparent coverage, Human Life’s fear of being subject to its enforcement is well
founded, and Human Life “does not have to await the consummation of threatened
injury to obtain preventive relief.” Ariz. Right to Life PAC, 320 F.3d at 1006(quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 143 (1974)).
2. Mootness
The passage of Initiative 1000 in 2008 does not alter the justiciability of
Human Life’s constitutional challenge because that challenge falls squarely within
the class of cases “capable of repetition, yet evading review.” See, e.g., Davis v.
FEC, 128 S. Ct. 2759, 2770 (2008); FEC v. Wis. Right to Life, Inc. (WRTL), 551
U.S. 449, 462 (2007); Bellotti, 435 U.S. at 774. This “established exception” to the
mootness doctrine applies where “(1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration; and (2) there is a
20
reasonable expectation that the same complaining party will be subject to the same
action again.” Davis, 128 S. Ct. at 2769 (quoting WRTL, 551 U.S. at 462). As we
have recognized, the exception frequently arises in election cases “because the
inherently brief duration of an election is almost invariably too short to enable full
litigation on the merits.” Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003); see
also, e.g., WRTL, 551 U.S. at 462 (reviewing a challenge to federal limits on
corporate electioneering expenditures after the relevant primary election); Norman
v. Reed, 502 U.S. 279, 287–88 (1992) (reviewing a challenge to state requirements
governing the use of a name by a new political party after the relevant county
election); Bellotti, 435 U.S. at 774 (reviewing a challenge to a state ban on
corporate expenditures to influence votes on referendum proposals after the
relevant referendum vote); Alaska Right to Life Comm. v. Miles (ARTLC), 441 F.3d
773, 779 (9th Cir. 2006) (reviewing a challenge to state disclosure provisions after
the relevant ballot initiative vote); CPLC–I, 328 F.3d at 1095 n.4 (same); Reich v.
Local 396, Int’l Bhd. of Teamsters, 97 F.3d 1269, 1272 n.5 (9th Cir. 1996)
(reviewing a challenge to withholding information from a candidate after the
candidate’s opportunity to be elected had passed).
The present appeal is a case in point. Although Human Life filed suit almost
seven months before the November 2008 vote on Initiative 1000, complete
21
litigation of Human Life’s claim requires a considerably longer period of time.
Indeed, this litigation continues nearly two years after the Initiative 1000 vote has
come and gone. As with most election cases, we have little difficulty concluding
that the duration element of the “capable of repetition, yet evading review”
exception applies to the circumstances here.
As for the reasonable expectation requirement, we conclude there is a
reasonable expectation that Human Life again will be subject to self-censorship if
the Disclosure Law’s constitutionality remains in doubt. Human Life is a
politically active organization that has been heavily involved in public debates
about pro-life issues in the past and intends to undertake future communications
like those it wished to make in conjunction with the Initiative 1000 vote. This is
sufficient to establish a reasonable expectation that Human Life will face the
prospect of enforcement of the Disclosure Law again. See, e.g., WRTL, 551 U.S. at
463 (rejecting a mootness argument in a suit by an ideological advocacy
corporation, stating that it “credibly claimed that it planned on running ‘materially
similar’ future targeted broadcast ads mentioning a candidate within the blackout
period and there is no reason to believe that the FEC will ‘refrain from prosecuting
violations’ of BCRA” (citations omitted)); ARTLC, 441 F.3d at 779 (rejecting a
mootness argument where nonprofit AKRTL planned to engage in a routine,
22
ideological telemarketing campaign when “the provisions of Alaska law
challenged by AKRTL remain in place”); CPLC–I, 328 F.3d at 1095 n.4 (rejecting
a mootness argument where an issue advocacy corporation planned to distribute
voter guides as it had in the past in the face of state disclosure requirements).
B. Facial Challenges to the Disclosure Law
At the heart of Human Life’s appeal is its contention that certain aspects of
the Disclosure Law are facially unconstitutional. In particular, Human Life argues
that the Disclosure Law’s definitions of “political committee,” “independent
expenditure,” and “political advertising” impose burdens that cannot be justified by
Washington State’s interest in disclosure and are therefore unconstitutional. We
begin by identifying the applicable level of judicial scrutiny. We then discuss the
governmental interest supporting the Disclosure Law’s requirements. Finally, we
turn to Human Life’s arguments that certain Disclosure Law provisions are not
sufficiently tailored to that interest.
1. Standard of Review
The parties dispute the level of judicial scrutiny applicable to Washington
State’s disclosure requirements, and indeed, there has been room for debate on this
issue given this circuit’s wrestling with the standard of review appropriate in
disclosure cases. The Supreme Court’s seminal campaign finance decision,
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Buckley v. Valeo, mapped the basic distinction between financial limitations, which
“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,” and
disclosure requirements, which “impose no ceiling on campaign-related activities.”
Buckley v. Valeo, 424 U.S. 1, 19, 64 (1976) (per curiam). It noted that, in contrast
to expenditure and contribution limitations, “disclosure requirements – certainly in
most applications – appear to be the least restrictive means of curbing the evils of
campaign ignorance and corruption that Congress found to exist.” Id. at 68.
However, the Court also recognized that “significant encroachments on First
Amendment rights of the sort that compelled disclosure imposes cannot be justified
by a mere showing of some legitimate governmental interest.” Id. at 64. Rather,
the Buckley Court applied “exacting scrutiny” to the disclosure requirements and
“insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the
governmental interest and the information required to be disclosed.” Id. at 68(footnotes omitted).
Despite the Buckley Court’s clear endorsement of “exacting scrutiny,”
confusion emerged in our circuit as to the level of judicial scrutiny applicable to
constitutional challenges to campaign finance disclosure requirements. Much of
the confusion can be traced to our initial interpretation of the Supreme Court’s
24
decision in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238(1986). In MCFL, the Court considered the constitutionally of a federal
prohibition on corporate independent expenditures as applied to MCFL, a
nonprofit, non-stock, ideological corporation not unlike Human Life. Id. at
241–42. Although MCFL did not qualify as a “political committee” under the
federal statute, then-existing law prohibited any corporation from making
independent expenditures unless the corporation established a separate, segregated
fund containing monies specifically earmarked for campaign spending. Id. at 253.
This separate fund would be subject to “political committee” requirements,
including “[d]etailed record keeping and disclosure obligations, along with the
duty to appoint a treasurer and custodian of the records,” thus essentially requiring
MCFL “to assume a more sophisticated organizational form.” Id. at 254; see also
ARTLC, 441 F.3d at 791 (distinguishing the provisions at issue in MCFL because
they “require structural changes”). The Court found that the “practical effect” of
imposing such requirements on organizations like MCFL was to make “engaging
in protected speech a severely demanding task,” MCFL, 479 U.S. at 256, thereby
“directly limiting the ability of such organizations to engage in core political
speech,” id. at 254. Considering the as-applied challenge, the MCFL Court
25
subjected the federal provision to strict scrutiny review and concluded that it was
unconstitutional as applied to MCFL. Id. at 256.
That MCFL involved a financial limitation rather than a disclosure
requirement is an arguable basis for distinguishing the rationale for applying the
strict scrutiny standard in MCFL from the application of the exacting scrutiny
standard in the disclosure context in Buckley. However, because the MCFL Court
discussed its application of strict scrutiny in terms of the onerous disclosure
requirements imposed upon segregated funds (rather than in terms of the financial
limitations imposed on corporations), we read the two cases as being in tension
with one another.
Our analysis in CPLC–I reflects this interpretation of Buckley and MCFL as
inconsistent. In CPLC–I, an ideological advocacy corporation challenged
California’s requirement that “political committees” disclose information about
financial activities undertaken to “expressly advocate the passage or defeat of a
ballot measure.” CPLC–I, 328 F.3d at 1092. In light of the differing standards of
review applied in Buckley and MCFL, we stated that “the Supreme Court has been
less than clear as to the proper level of judicial scrutiny we must apply in deciding
the constitutionality of disclosure regulations.” Id. at 1101 n.16. We reasoned,
“Given that the MCFL Court considered FECA’s disclosure requirements to be a
26
severe burden on political speech for multi-purpose organizations, we must analyze
the California statute under strict scrutiny.” Id. “Notwithstanding Buckley,” we
therefore held that the strict scrutiny standard applies to disclosure requirements,
and we remanded to the district court to apply that test. Id.Following our decision in CPLC–I, the waters of the applicable standard of
review were further muddied by the Supreme Court’s decision in McConnell v.
FEC, 540 U.S. 93 (2003). Considering a federal campaign finance disclosure law,
McConnell upheld the requirement that any person making disbursements of
$10,000 or more in a calendar year for electioneering communications must file a
statement with the FEC identifying the pertinent election and all persons sharing
the costs of the disbursements. Id. at 194. The McConnell Court did not explicitly
describe the level of scrutiny applied to the disclosure requirements, stating only
that the requirements were supported by “important state interests.” Id. at 196. In
its analysis, the McConnell Court appeared to endorse Buckley’s use of exacting
scrutiny, stating that Buckley “amply supports application of [the] disclosure
requirements” at issue. Id. However, it did not distinguish MCFL or its
application of the strict scrutiny standard. Id.After McConnell augmented the confusion regarding the applicable standard
of review in disclosure cases, our circuit began to avoid the issue rather than
27
stating the appropriate level of scrutiny in any given context. For example, in
ARTLC, rather than attempting to untangle the conflicting doctrine, we first
acknowledged that the applicable standard of review was “somewhat unclear,”
ARTLC, 441 F.3d at 787, and then we resolved to “assume without deciding that
strict scrutiny applies to all of the challenged disclosure requirements,” id. at 788.
The following year in California Pro-Life Council, Inc. v. Randolph (CPLC–II),
507 F.3d 1172 (9th Cir. 2007), we again avoided deciding the standard of review
issue, concluding that the law of the case, as established in CPLC–I, required
application of the strict scrutiny standard. Id. at 1177 n.5 (“We need not resolve
any potential conflict because we are bound by the ‘law of the case’ to apply strict
scrutiny.”). Finally, in Canyon Ferry Road Baptist Church v. Unsworth, 556 F.3d
1021 (9th Cir. 2009), after lamenting that the degree of scrutiny applicable to
disclosure requirements “is somewhat unclear, due in part to arguably inconsistent
precedent,” we stated, “We do not need to decide this complex question to
adjudicate this case.” Id. at 1031.
Recent Supreme Court decisions have eliminated the apparent confusion as
to the standard of review applicable in disclosure cases. The Court has clarified
that a campaign finance disclosure requirement is constitutional if it survives
exacting scrutiny, meaning that it is substantially related to a sufficiently important
28
governmental interest. In Doe v. Reed, 130 S. Ct. 2811 (2010), the Supreme Court
examined a statute authorizing public disclosure of the signatories to a ballot
initiative. In explaining why disclosure requirements were subject to the less
demanding standard of review of exacting scrutiny, the Reed Court emphasized
that the statute at issue was “not a prohibition on speech, but instead a disclosure
requirement.” Id. at 2818. As the Court held in Citizens United, “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, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64; McConnell, 540 U.S. at
201). The Reed Court continued:
We have a series of precedents considering First
Amendment challenges to disclosure requirements in the
electoral context. These precedents have reviewed such
challenges under what has been termed “exacting scrutiny.”
That standard requires a substantial relation between the
disclosure requirement and a sufficiently important
governmental interest.
Reed, 130 S. Ct. at 2818 (citations and internal quotation marks omitted). As the
latest in a trilogy of recent Supreme Court cases, Reed confirmed that exacting
scrutiny applies in the campaign finance disclosure context. See Citizens United,
130 S. Ct. at 914; Davis, 128 S. Ct. at 2765–66. We therefore apply exacting
scrutiny to Human Life’s facial challenges to the Disclosure Law and examine
29
whether the law’s requirements are substantially related to a sufficiently important
governmental interest.
2. Governmental Interest
Providing information to the electorate is vital to the efficient functioning of
the marketplace of ideas, and thus to advancing the democratic objectives
underlying the First Amendment. As the Supreme Court explained in Buckley, “In
a republic where the people are sovereign, the ability of the citizenry to make
informed choices among candidates for office is essential.” Buckley, 424 U.S. at14–15; see also McConnell, 540 U.S. at 197 (recognizing the “First Amendment
interests of individual citizens seeking to make informed choices in the political
marketplace” (quoting McConnell v. FEC, 251 F. Supp. 2d 176, 237 (D.D.C.
2003))). Thus, by revealing information about the contributors to and participants
in public discourse and debate, disclosure laws help ensure that voters have the
facts they need to evaluate the various messages competing for their attention.
This vital provision of information repeatedly has been recognized as a
sufficiently important, if not compelling, governmental interest. As the Court first
articulated in Buckley,
[D]isclosure provides the electorate with information “as to
where political campaign money comes from and how it is
spent by the candidate” in order to aid the voters in
30
evaluating those who seek federal office. It allows voters
to place each candidate in the political spectrum more
precisely than is often possible solely on the basis of party
labels and campaign speeches. The sources of a
candidate’s financial support also alert the voter to the
interests to which a candidate is most likely to be
responsive and thus facilitate predictions of future
performance in office.
Buckley, 424 U.S. at 66–67. Buckley recognized this informational interest as
substantial, and in its campaign finance jurisprudence, the Supreme Court
consistently has acknowledged the important role played by disclosure
requirements in political discourse. See Citizens United, 130 S. Ct. at 915–16
(recognizing the government’s informational interest as substantial and stating that
the “First Amendment protects political speech; and disclosure permits citizens and
shareholders to react to the speech of corporate entities in a proper way”);
McConnell, 540 U.S. at 197 (upholding BCRA’s disclosure requirements, while
striking down its segregated fund requirement); MCFL, 479 U.S. at 262 (relying on
the existence of disclosure requirements in rejecting the government’s argument
that failure to apply the more onerous segregated fund requirement to MCFL
would result in dangerous amounts of spending by nonprofits on behalf of
corporations and unions). Similarly, we have frequently reiterated what we
recognized in CPLC–I: that in the “cacophony of political communications through
31
which California voters must pick out meaningful and accurate messages . . . being
able to evaluate who is doing the talking is of great importance.” CPLC–I, 328
F.3d at 1105; see also Canyon Ferry, 556 F.3d at 1032 (“[W]e have little trouble
concluding that Montana’s informational interest is generally ‘important’ in the
context of Montana’s statewide ballot issues.”); CPLC–II, 507 F.3d at 1179 n.8
(“[I]n the context of disclosure requirements, the government’s interest in
providing the electorate with information related to election and ballot issues is
well-established.”); ARTLC, 441 F.3d at 793 (recognizing that “[i]ndividual
citizens seeking to make informed choices in the political marketplace . . . need to
know what entity is funding a communication” (citation and internal quotation
marks omitted)).
We have observed that these considerations “apply just as forcefully, if not
more so, for voter-decided ballot measures.” CPLC–I, 328 F.3d at 1105. In the
ballot initiative context, where voters are responsible for taking positions on some
of the day’s most contentious and technical issues, “[v]oters act as legislators,”
while “interest groups and individuals advocating a measure’s defeat or passage act
as lobbyists.” Id. at 1106. As a result of this process, “average citizens are
subjected to advertising blitzes of distortion and half-truths and are left to figure
out for themselves which interest groups pose the greatest threats to their
32
self-interest.” Id. at 1105–06 (quoting David S. Broder, Democracy Derailed:
Initiative Campaigns and the Power of Money 18 (2000)). Thus, the high stakes of
the ballot context only amplify the crucial need to inform the electorate that is well
recognized in the context of candidate elections.
Notably, in the lobbying context, the Supreme Court has upheld disclosure
requirements enabling lawmakers “to know who is being hired, who is putting up
the money, and how much.” United States v. Harriss, 347 U.S. 612, 625 (1956).
The Court found these requirements necessary because “legislative complexities
are such that individual members of Congress cannot be expected to explore the
myriad pressures to which they are regularly subjected. Yet full realization of the
American ideal of government by elected representatives depends to no small
extent on their ability to properly evaluate such pressures.” Id.In a similar manner, citizens, acting “as lawmakers, have an interest in
knowing who is lobbying for their vote, just as members of Congress may require
lobbyists to disclose who is paying for the lobbyists’ services and how much.”
CPLC–I, 328 F.3d at 1106; see also Citizens Against Rent Control v. City of
Berkeley, 454 U.S. 290, 298 (1981) (recognizing in the ballot initiative context the
interest of voters in knowing “the identity of those whose money supports or
opposes a given ballot measure”). Indeed, the provision of this information is
33
particularly critical in the ballot measure context, “especially when one considers
that ballot-measure language is typically confusing, and the long-term policy
ramifications of the ballot measure are often unknown.” CPLC–I, 328 F.3d at
1106. If nothing else, “knowing who backs or opposes a given initiative” will give
voters “a pretty good idea of who stands to benefit from the legislation.” Id.Access to reliable information becomes even more important as more
speakers, more speech – and thus more spending – enter the marketplace, which is
precisely what has occurred in recent years. Like campaigns for elected office,
ballot initiatives are the subject of intense debate and, accordingly, greater
expenditures to ensure that messages reach voters. As we noted in CPLC–I,
“initiative campaigns have become a money game.” Id. at 1105 (quoting Broder at
18). By one account, spending on political campaigns reached $5.3 billion in
2008, a 27% increase over 2004 spending. See Jeanne Cummings, 2008 Campaign
Costliest in U.S. History, Politico, Nov. 5, 2008. The Commission’s own data
reveal that independent expenditures in Washington elections and ballot initiative
contests increased from $269,275 in 1994 to nearly $8 million in 2004. According
to the Commission, committees reported receiving more than $12.5 million in
contributions and making more than $12 million in expenditures for ballot
initiatives in 2006, and expenditures for and against a single ballot measure have
34
reached more than $15.5 million. As one journalist has observed, “Money does not
always prevail in initiative fights, but it is almost always a major – even dominant
– factor.” Broder at 7; see also Daniel Smith, Campaign Financing of Ballot
Initiatives in the American States 71 (2001) (“[C]ampaign financing . . . play[s] a
central role in ballot measures.”).
The district court noted the particular importance of the government’s
informational interest in this case given the nature of ballot initiative campaigns
across the country: “The state’s interest in informing the electorate about ‘where
political campaign money comes from and how it is spent’ is only amplified in the
ballot initiative context as more and more money is poured into ballot measures
nationwide.” Human Life of Wash., Inc. v. Brumsickle, No. C08-0590-JCC, 2009
WL 62144, at *13 (W.D. Wash. Jan. 8, 2009) (citation omitted). The district court
concluded that the “state therefore retains an extremely compelling interest in
‘following the money’ in the ballot initiative context so that the electorate’s
decision may be an informed one.” Id. As trends in campaign finance
jurisprudence have opened the door to even more political expenditures in the
35
future, the magnitude of the state’s interest is only likely to increase.2 See, e.g.,
Citizens United, 130 S. Ct. at 911 (holding unconstitutional a prohibition on
corporate independent expenditures and stating that “it is our law and our tradition
that more speech, not less, is the governing rule” under the First Amendment);
Long Beach Area Chamber of Commerce, 603 F.3d at 695–99 (following Citizens
United to deem limitations on contributions to and expenditures by independent
expenditure committees violative of the First Amendment).
Campaign finance disclosure requirements thus advance the important and
well-recognized governmental interest of providing the voting public with the
information with which to assess the various messages vying for their attention in
the marketplace of ideas. An appeal to cast one’s vote a particular way might
prove persuasive when made or financed by one source, but the same argument
might fall on deaf ears when made or financed by another. The increased
“transparency” engendered by disclosure laws “enables the electorate to make
informed decisions and give proper weight to different speakers and messages.”
2
Alarmingly, as levels in political spending rise dramatically, the
percentage of independent entities disclosing information about where that political
spending comes from has sharply declined. See Editorial, The Secret Election,
N.Y. Times, Sept. 18, 2010 (reporting that the rate of disclosure by independent
groups receiving electioneering donations dropped from almost 100% in 2004 and
2006, to less than 50% in 2008, to only 32% in 2010).
36
Citizens United, 130 S. Ct. at 916. As the Supreme Court has stated: “[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.” Bellotti, 435 U.S. at 791–92.
Disclosure requirements, like those in Washington’s Disclosure Law, allow the
people in our democracy to do just that.
3. Tailoring Analysis
To survive exacting scrutiny, the Disclosure Law’s challenged provisions
must bear a substantial relationship to Washington State’s sufficiently important
interest in providing the electorate with source and financial information to inform
their decisionmaking at the ballot box. See Reed, 130 S. Ct. at 2818. Human Life
contends that three aspects of the Disclosure Law are insufficiently related to
Washington’s interest in ensuring an informed electorate: (a) the definition of
“political committee”; (b) the disclosure requirements imposed on political
committees; and (c) the definitions of “independent expenditure” and “political
advertising.”
37
a. Definition of “Political Committee”
An organization qualifies as a “political committee” if its “primary or one of
the primary purposes” is “to affect, directly or indirectly, governmental decision
making by supporting or opposing candidates or ballot propositions.” Evergreen
Freedom Found., 49 P.3d at 903 (quoting Evans, 546 P.2d at 79). Human Life
contends that this definition sweeps too broadly, and thus is not substantially
related to the government’s informational interest, because it covers groups with
“a” primary purpose of political advocacy, instead of being limited to groups with
“the” primary purpose of political advocacy. Human Life argues that the First
Amendment categorically prohibits the government from designating a group as a
“political committee” unless the group’s sole, primary purpose is political
advocacy, and it argues that this result is compelled by the Supreme Court’s
decision in Buckley. Thus, Human Life contends that the breadth of the Disclosure
Law’s definition of “political committee” renders it per se facially unconstitutional.
We disagree with Human Life’s premise regarding the scope of constitutionally
permissible political committee regulation and with its conclusion that the
Disclosure Law’s definition of “political committee” is too broad to be
substantially related to the government’s important informational interest.
38
To support its proposed bright-line prohibition on regulating groups with
only “a” primary purpose of political advocacy, Human Life relies on Buckley.
There, the Supreme Court narrowly construed the definition of “political
committee” under federal campaign finance law.3 The Court noted that FECA’s
definition of “political committee” referred only to a monetary threshold, and thus
could be construed as reaching large amounts of pure issue advocacy – in which
case the burdens imposed on speech would outstrip the governmental interests
furthered by the Act. To avoid this unconstitutional result, the Buckley Court
adopted the lower court’s narrowing construction of the definition of “political
committees”:
To fulfill the purposes of the Act they need only encompass
organizations that are under the control of a candidate or
the major purpose of which is the nomination or election of
a candidate. Expenditures of candidates and of “political
committees” so construed can be assumed to fall within the
core area sought to be addressed by Congress. They are, by
definition, campaign related.
Buckley, 424 U.S. at 79. Thus, by limiting the definition of which entities were
subject to FECA’s requirements, the Court ensured that those requirements were
substantially related to the purposes of the Act.
3
Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3 (1972),
amended by Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, 2
U.S.C. § 431 et seq.
39
Seizing upon the phrase “the major purpose,” Human Life insists that a
statute is unconstitutional under Buckley if it imposes disclosure requirements on
groups with multiple “major purposes,” even if one of the group’s major purposes
happens to be political advocacy. Put differently, Human Life argues that Buckley
establishes a bright-line rule that, unless the sole major purpose of a group is
political advocacy, any regulation of that group will automatically be too
burdensome to be justified by the state’s informational interest. The Fourth Circuit
has adopted Humans Life’s view, reading Buckley as a statement of “the Supreme
Court’s insistence that political committees can only be regulated if they have the
support or opposition of candidates as their primary purpose.” N.C. Right to Life,
Inc. v. Leake, 525 F.3d 274, 289 (4th Cir. 2008).
We disagree with Human Life’s reading of Buckley, and we reject its
invitation to adopt a bright-line rule prohibiting all regulation of groups with “a”
primary purpose of political advocacy. The Buckley Court’s statement that a
narrow definition of political committee “can be assumed to fall within the core
area sought to be addressed by Congress” is most reasonably read to mean exactly
what it says – that it was clear and uncontroversial that the burdens imposed by the
disclosure requirements in that case were “by definition” substantially related to
the government’s interests when applied to organizations whose single major
40
purpose was political advocacy. Nothing in Buckley suggests, however, that
disclosure requirements are constitutional only when so applied. Contrary to
Human Life’s interpretation, Buckley’s statement – that defining groups with “the
major purpose” of political advocacy as political committees is sufficient “[t]o
fulfill the purposes of the Act,” Buckley 424 U.S. at 79 – does not indicate that an
entity must have that major purpose to be deemed constitutionally a political
committee. See, e.g., CPLC–II, 507 F.3d at 1180 n.11 (“[T]his Court has held that
irrespective of the major purpose of an organization, disclosure requirements may
be imposed.”); Canyon Ferry, 556 F.3d at 1026 (discussing Montana regulations of
“incidental political committees,” which are subject to disclosure requirements if
they make contributions or expenditures, regardless of their primary purpose).
Rather, in stating that disclosure requirements “(1) cannot cover ‘groups engaged
purely in issue discussion’ and (2) can cover ‘groups the major purpose of which is
the nomination or election of a candidate,’” the Buckley Court “defined the outer
limits of permissible political committee regulation.” Leake, 525 F.3d at 327(Michael, J., dissenting). What is permissible within these outer limits depends on
whether the burdens imposed by the disclosure requirements are substantially
related to the government’s important informational interest.
41
Human Life argues that our reading of Buckley is inconsistent with the
Supreme Court’s decision in MCFL, which it claims “reaffirmed Buckley’s
major-purpose test.” MCFL did no such thing. MCFL considered whether the
burden of a corporate campaign expenditure limitation was unconstitutional as
applied to an ideological nonprofit; it did not consider a facial challenge to a
disclosure requirement imposed on entities engaging in political advocacy. See
MCFL, 479 U.S. at 241. Not only did MCFL involve a higher standard of review
than is appropriate here, but it also dealt with significantly more severe burdens on
First Amendment rights. As the Supreme Court has made clear, financial
limitations are subject to a different constitutional analysis than are disclosure
requirements. See, e.g., Reed, 130 S. Ct. at 2813; Citizens United, 130 S. Ct. at
914. Limitations on expenditures entail the application of strict scrutiny rather
than exacting scrutiny, and they are uniformly recognized as implicating the most
central First Amendment interests. As the Court in MCFL stated, independent
expenditures lie at “the core of our electoral process and of First Amendment
freedoms,” MCFL, 479 U.S. at 251 (quoting Buckely, 424 U.S. at 39)), and their
limitation must be justified by a compelling state interest. The Court also
recognized the significant burden imposed by such limitations, which have the
effect of “directly limiting” some entities’ ability to “engage in core political
42
speech,” id. at 255, whereas disclosure requirements are “less restrictive,” id. at
262. Furthermore, in MCFL, political advocacy was not “a” major purpose – much
less “the” major purpose – of MCFL, which the Court noted only “occasionally
engages in activities on behalf of political candidates,” and whose “central
organizational purpose is issue advocacy.” Id. at 253 n.6.
Thus, the proposed bright-line prohibition that Human Life argues is
established by Buckley was not at issue in MCFL and is not supported by its
reasoning. The Court stated that, “should MCFL’s independent spending become
so extensive that the organization’s major purpose may be regarded as campaign
activity,” it would be classified as a political committee under the existing statute.
MCFL, 479 U.S. at 262. But this statement that MCFL’s increased campaign
spending could render it a political committee under the statute in no way
forecloses the government’s ability to affirmatively designate as “political
committees” groups with “a” major purpose of political advocacy.
Having rejected the notion that the First Amendment categorically prohibits
the government from imposing disclosure requirements on groups with more than
one “major purpose,” we turn to the crux of the applicable constitutional analysis –
whether there is a substantial relationship between Washington State’s
informational interest and its decision to impose disclosure requirements on
43
organizations with a primary purpose of political advocacy. We conclude that
there is.
The Disclosure Law does not extend to all groups with “a purpose” of
political advocacy, but instead is tailored to reach only those groups with a
“primary” purpose of political activity. This limitation 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.
Under this statutory scheme, the word “primary” – not the words “a” or “the” – is
what is constitutionally significant. See Leake, 525 F.3d at 328 (Michael, J.,
dissenting) (“The key word providing guidance to both speakers and regulators in
‘the major purpose’ test or ‘a major purpose’ test is the word ‘major,’ not the
article before it.”). While we do not hold that the word “primary” or its equivalent
is constitutionally necessary, we do hold that it is sufficient in this case to ensure
that the Disclosure Law is appropriately tailored to the government’s informational
interest.
Furthermore, the Disclosure Law’s definition of “political committee” is
“tailored to address a fundamental organizational reality” that most organizations
“do not have just one major purpose.” Id. at 330. Human Life concedes, as it
must, that there is a substantial relationship between the government’s
44
informational interest and the disclosure requirements it may impose on groups
whose single primary purpose is political advocacy. We fail to see how that
relationship changes so materially as to render the relationship insubstantial once
the groups engage in several primary purposes including political advocacy.
Indeed, in some circumstances, the latter relationship may be stronger than the
former. Consider, for instance, two otherwise identical groups: One spends 40%
of its time and resources on political advocacy, 30% of its time and resources
producing merchandise, and 30% of its time and resources overseeing academic
research. The other group spends 45% of its time and resources on political
advocacy, 45% of its time and resources producing merchandise, and 10% of its
time and resources overseeing academic research. Political advocacy is “the”
major purpose for the former group (because political advocacy commands the
largest share of the group’s time and resources), but it is just “a” major purpose of
the latter (because the group expends equal time and resources on political
advocacy and merchandise production). Under Human Life’s interpretation of
Buckley, the government may constitutionally regulate the former group and not
the latter, even though in absolute terms the latter group spends more time and
resources than the former on political advocacy. The manner in which the
Disclosure Law’s definition of “political committee” interacts with the nuances of
45
entities’ organizational structure reinforces the conclusion that the definition is
substantially related to the government’s informational interest.
In addition, the Disclosure Law addresses the “hard lesson of
circumvention” that has historically plagued the campaign finance context.
McConnell, 540 U.S. at 165; see also Citizens United, 130 S. Ct. at 912 (“Political
speech is so ingrained in our culture that speakers find ways to circumvent [these]
campaign finance laws.”); McConnell, 540 U.S. at 176 (“Experience under the
current law demonstrates that Congress’ concerns about circumvention are not
merely hypothetical.”). If the Disclosure Law exempted groups with only “a”
primary purpose of political advocacy, a group like Human Life’s affiliated
political action committee, HLPAC (which unmistakably qualifies as a political
committee under the Disclosure Law), could evade political committee status
simply by merging with its affiliated organization, and thus diluting the newly
created organization’s relative share of advocacy activity. See Leake, 525 F.3d at
332 (Michael, J., dissenting) (warning that such a standard “effectively encourages
advocacy groups to circumvent the law by not creating political action committees
and instead to hide their electoral advocacy from view by pulling it into the fold of
their larger organizational structure”). Washington’s Disclosure Law minimizes
this risk of circumvention by tailoring its definition of “political committee” to
46
cover groups with a primary purpose of political advocacy, while still exempting
those that are primarily devoted to issue advocacy.
Thus, the Disclosure Law’s definition of “political committee” is
substantially related to the government’s sufficiently important informational
interest. By applying the disclosure requirements attached to political committee
status to organizations with a primary purpose of political advocacy, its coverage
vindicates the government’s interest in an informed electorate without imposing on
nonpolitical organizations unnecessarily. We therefore conclude that the definition
of “political committee” does not violate the First Amendment.
b. Political Committee Disclosure Requirements
Human Life argues that, even if the definition of “political committee” is
constitutionally permissible and groups with a primary purpose of political
advocacy may be regulated, the requirements the Disclosure Law imposes on
groups satisfying that definition are unconstitutionally onerous. Human Life relies
on our decision in CPLC–II, in which we held that California’s “political action
committee–like” disclosure requirements were unconstitutional as applied to a
“nonprofit, nonsectarian, educational organization dedicated to educating the
public on abortion, infanticide, and euthanasia.” CPLC–II, 507 F.3d at 1174, 1187.
Applying strict scrutiny, the CPLC–II panel cited MCFL’s holding that a
47
segregated fund financial requirement was not narrowly tailored to the
government’s interest in regulating an ideological nonprofit,4 and it concluded that
the disclosure requirements at issue were not narrowly tailored. The panel noted
the Court’s conclusion in MCFL that the state’s informational interest could be
achieved “in a manner less restrictive than imposing the full panoply of regulations
that accompany status as a political committee.” Id. at 1189 (quoting MCFL, 479
U.S. at 262). Arguing that CPLC–II controls the outcome of this case, Human Life
characterizes the issue before us as “whether Washington may do what this Court
said California may not do” – namely, require political committees to appoint a
treasurer, open a bank account in the state, and file certain reports.
We reject Human Life’s contention that CPLC–II governs the issue of
whether Washington State’s political committee disclosure requirements are
unconstitutionally onerous because we apply a different standard of review than
that applied in CPLC–II. Though we are bound to follow circuit precedent, an
exception to this rule exists: “[I]n the face of intervening Supreme Court and en
4
We note that because Human Life already has a political action committee,
HLPAC, the effect of the Disclosure Law on Human Life differs from the effect
the federal law had on the nonprofit in MCFL. There, the corporation would have
been required to engage in major bureaucratic restructuring due to incidental
political advocacy. Here, the structural requirements imposed by the Disclosure
Law already exist.
48
banc opinions, ‘a three-judge panel of this court and district courts should consider
themselves bound by the intervening higher authority and reject the prior opinion
of this court as having been effectively overruled.’” United States v. Broussard,
611 F.3d 1069, 1072 (9th Cir. 2010) (quoting Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc)). Since CPLC–II was decided, the Supreme Court has
made clear that exacting scrutiny, not strict scrutiny, is applicable to campaign
finance disclosure requirements. See Reed, 130 S. Ct. at 1288; Citizens United,
130 S. Ct. at 914. In light of this intervening Supreme Court authority, it is clear
that CPLC–II set the bar too high in applying strict scrutiny. The government need
not, as we suggested in CPLC–II, employ the least restrictive means to satisfy its
interest in providing the electorate with information; it need only ensure that its
means are substantially related to that interest. Washington State’s disclosure
scheme passes that test.
Indeed, it is the Supreme Court’s decision in Citizens United, rather than the
panel decision in CPLC–II, that provides the best guidance regarding the
constitutionality of the Disclosure Law’s requirements. The Citizens United Court
underscored the fundamental distinction between the burdens imposed by financial
regulations, see Citizens United, 130 S. Ct. at 897, and those imposed by
disclaimer and disclosure requirements, see id. at 915–16. Recounting the series of
49
Supreme Court cases that had upheld disclosure requirements while simultaneously
striking down other regulations on campaign speech, the Court affirmed and
reiterated the importance of disclosure requirements – even requirements that apply
to issue advocacy – to the government’s interest in informing the electorate. Id.Like the requirements in Citizens United, Washington State’s political
committee disclosure requirements are not unconstitutionally burdensome relative
to the government’s informational interest. Rather, they are narrowly tailored such
that the required disclosure increases as a political committee more actively
engages in campaign spending and as an election nears. First, the registration form
required of all political committees is two pages long and elicits basic information
about the organization’s name, relationship with other organizations, and persons
with authority over the organization’s finances. Only entities that expect to raise or
spend more than $5,000 in a year or receive more than $500 from a single donor
are required to submit additional reports. See Wash. Admin. Code § 390-16-105 et
seq. (limiting the requirements imposed on political committees that meet the
enumerated criteria). These comparatively active political committees submit three
additional reports, the timing of which is pegged to the election in which they are
engaging. See Wash. Rev. Code § 42.17.080. Only if a political committee subject
to post-registration reporting raises or spends more than $200 in a given month
50
must it file a further report providing an update of its financial activities. See id.§ 42.17.080. These disclosure requirements are not unduly onerous, and their
timing and particular informational requirements are substantially related to the
government’s informational interest.
Our conclusion here is compelled by our decision in ARTLC, in which we
held that Alaska’s materially identical political committee disclosure requirements
survive strict scrutiny. See ARTLC, 441 F.3d at 791. If Alaska’s disclosure
requirements survive strict scrutiny, then, a fortiori, Washington State’s disclosure
requirements (which promote the same important governmental interest) survive
exacting scrutiny. Our ARTLC decision was based on three grounds, each of which
is equally applicable here. First, we explained that the provisions at issue were not
a financial limitation and required “only reporting of contributions to, and of
contributions and expenditures by,” regulated entities. Id. Second, we observed
that there was “no allegation in this case that the reporting provisions limit the
fundraising ability” of regulated entities. Id. (distinguishing MCFL). Finally, we
noted that, unlike the provisions in MCFL, which essentially required major
structural changes to an organization, the disclosure provisions applied to ARTLC
imposed minimal, if any, organizational burdens. Id. We concluded that “[i]n
light of the nature of the burdens imposed” by the registration and reporting
51
requirements, the challenged disclosure provisions passed muster under the First
Amendment. Id. at 792. Here, too, because the Disclosure Law’s somewhat
modest political committee disclosure requirements are substantially related to the
government’s interest in informing the electorate, they survive exacting scrutiny.
c. “Independent Expenditure” and “Political Advertising” Definitions
We next turn to Human Life’s contention that the Disclosure Law’s
definitions for “independent expenditure” and “political advertising” are too
expansive to be substantially related to the government’s important interest. The
Disclosure Law defines “independent expenditure” in terms of money spent “in
support of or opposition to” a candidate or ballot initiative, Wash. Rev. Code
§ 42.17.100, and it defines “political advertising” as mass communications “used
for the purpose of appealing, directly or indirectly,” for support in any election
campaign, id. § 42.17.020(38). Human Life argues that these definitions are
facially unconstitutional because they encompass issue advocacy instead of
extending only to express advocacy or its functional equivalent. Human Life
concedes that the government may impose disclosure requirements on a radio
advertisement that expressly urges Washingtonians to vote for or against a
particular ballot initiative, but it argues that the government may not impose
disclosure requirements on advertisements that avoid references to particular ballot
52
initiatives, and instead speak only about the issues involved in pending ballot
initiatives. In other words, Human Life argues that there is a constitutionally
significant distinction between an advertisement saying, “physician-assisted
suicide is bad policy,” at a time when a measure like Initiative 1000 is on the ballot
and an advertisement saying, “vote against Initiative 1000.” Human Life’s
position is that the latter advertisement, which is express advocacy, may be subject
to disclosure requirements, whereas the former advertisement is constitutionally
sacrosanct issue advocacy that may not be regulated. On this basis, it argues that
the burdens imposed by the Disclosure Law’s political committee obligations are
categorically unconstitutional.5
Arguing that Buckley established a distinction between the ability to regulate
express and issue advocacy, Human Life cites WRTL. In WRTL, the Supreme
Court considered the constitutionality of a federal limitation on campaign speech
that prohibited “electioneering communications” during certain “blackout dates”
leading up to an election as applied to three advertisements that WRTL wished to
pursue. WRTL, 551 U.S. at 464. Although the ads were clearly prohibited by the
federal statute, they did not contain “magic words of express advocacy” as
5
Although the Fourth Circuit adopted this position in Leake, 525 F.3d at281–83, its decision predates Citizens United and Reed and therefore is
unpersuasive in the disclosure context.
53
identified in Buckley. The Court had already determined in McConnell that such
magic words were not a prerequisite to regulation and that, as long as the
communications were the “functional equivalent” of express advocacy, they fell
within the definition of communications constitutionally subject to disclosure.
McConnell, 540 U.S. at 193–94. Thus, the question before the WRTL Court was the
scope of the definition of “functional equivalent.”
The Court defined “express advocacy or its functional equivalent” as
communications “susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate.” WRTL, 551 U.S. at 469–70.
The Court concluded that WRTL’s ads – which did not discuss an issue in an
upcoming election, did not urge their audience to vote for or against any candidate
or measure, and merely encouraged citizens to contact their senators and urge them
to oppose an ongoing filibuster – were neither express advocacy nor “susceptible
of no reasonable interpretation other than as an appeal for a vote.” Id. at 458–60,
470. Because they did not fall within the express advocacy category that was
automatically constitutionally permissible, the Court subjected the regulations to
strict scrutiny. Concluding that it had “never recognized a compelling interest in
regulating ads, like WRTL’s, that are neither express advocacy nor its functional
54
equivalent,” id. at 464–65, the Court held that the ads could not constitutionally be
subject to the federal prohibition on electioneering communications, id. at 466.
As a preliminary matter, we could arguably dispose of Human Life’s
challenge to the disclosure requirements by concluding that its communications
constitute the functional equivalent of express advocacy under WRTL. Human
Life’s proposed communications, even if they do not mention Initiative 1000 by
name, are susceptible of no reasonable interpretation other than as an urgent appeal
to vote down the measure. The communications explicitly state that physician-
assisted suicide has reentered the realm of public debate and that the situation
demands action. Even if the communications were less obvious, the WRTL Court
noted that certain background information may be relevant in determining whether
a communication can reasonably be interpreted only as relating to a specific
election or vote. Id. at 473–74. For example, the Court mentioned as a
consideration the timing element – that is, if an ad “describes a legislative issue
that is either currently the subject of legislative scrutiny or likely to be the subject
of scrutiny in the near future,” it is more likely it should be interpreted as appealing
for a vote. Id. at 474 (quoting Wis. Right to Life, Inc. v. FEC, 466 F. Supp. 2d 195,
207 (D.D.C. 2006)). Human Life itself admits that timing is particularly relevant
to its proposed communications; in elaborating on the burden imposed by the
55
Disclosure Law, it stated in its verified complaint that “2008 is an especially vital
time for HLW to address the physician-assisted suicide issue because people will
again be unusually attentive as it swirls to the forefront of public attention.” Given
their detailed language and unique timing, the communications proposed by
Human Life are certainly express advocacy or its functional equivalent. Moreover,
the ads cannot be compared with the communications at issue in WRTL, which did
not involve an issue that was the subject of an election and merely encouraged
voters to engage in communication with their representatives.
However, even if Human Life’s proposed communications constitute
unadulterated issue advocacy, its argument has been foreclosed by the Supreme
Court’s opinion in Citizens United. Considering the possibility of a bright-line rule
distinguishing express and issue advocacy, the Court stated, “[W]e reject Citizen
United’s contention that the disclosure requirements must be limited to speech that
is the functional equivalent of express advocacy.” Citizens United, 130 S. Ct. at
915. Citing Buckley, MCFL, and McConnell, the Court emphasized the established
principle that “disclosure is a less restrictive alternative to more comprehensive
regulations of speech,” and it recited the list of decisions in which the Court had
upheld disclosure requirements under the same principles it used to strike down
financial limitations. Id. In addition, the Court explained that the distinction
56
between express and issue advocacy that was established by the narrowly
construed statutory definitions in cases like WRTL did not translate into the
disclosure context. The Court explained:
Citizens United claims that . . . [t]he principal opinion in
WRTL limited [BCRA’s] restrictions on independent
expenditures to express advocacy and its functional
equivalent. Citizens United seeks to import a similar
distinction into BCRA’s disclosure requirements. We
reject this contention. The Court has explained that
disclosure is a less restrictive alternative to more
comprehensive regulations of speech.
Id. (citations omitted). Given the Court’s analysis in Citizens United, and its
holding that the government may impose disclosure requirements on speech, the
position that disclosure requirements cannot constitutionally reach issue advocacy
is unsupportable.
In advocating that position, Human Life does no more than reiterate
arguments that have been rejected by the Supreme Court. First, in upholding the
application of disclosure requirements to electioneering communications, the
McConnell Court rejected the notion that Buckley establishes “a constitutionally
mandated line between express advocacy and so-called issue advocacy, and that
speakers possess an inviolable First Amendment right to engage in the latter
category of speech.” McConnell, 540 U.S. at 190; see also id. at 193 (rejecting the
57
notion “that the First Amendment erects a rigid barrier between express advocacy
and so-called issue advocacy”). The Court found that this notion “misapprehends
our prior decisions” because “a plain reading of Buckley makes clear that the
express advocacy limitation, in both the expenditure and the disclosure contexts,
was the product of statutory interpretation rather than a constitutional command.”
Id. at 190–91. Also, Human Life’s expansive reading of WRTL as concluding that
issue advocacy cannot be subject to disclosure requirements was rejected in
Citizens United. Thus, imposing disclosure obligations on communicators engaged
in issue advocacy is not per se unconstitutional; instead, the constitutionality of the
obligations is determined by whether they are substantially related to a sufficiently
important governmental interest.
Having dispensed with the idea that only express advocacy and its functional
equivalent are subject to government regulation, and that any government
regulation of issue advocacy is therefore unconstitutional, we turn to the operative
question: whether the Disclosure Law’s requirements for “independent
expenditures” and “political advertising” are substantially related to Washington
State’s informational interest. We conclude that they are.
In Citizens United, the Supreme Court unreservedly affirmed the public’s
interest “in knowing who is speaking about a candidate shortly before an election,”
58
and it concluded that “the informational interest alone” was sufficient to support
federal campaign finance disclosure requirements.6 Citizens United, 130 S. Ct. at915–16. Upholding the line of cases that recognize the importance of the
government’s informational interest, the Court reasoned:
The First Amendment protects political speech; and
disclosure permits citizens and shareholders to react to the
speech of corporate entities in a proper way. This
transparency enables the electorate to make informed
decisions and give proper weight to different speakers and
messages.
Id. at 916.
As in Citizens United, Washington voters’ interest in knowing who is
speaking about physician-assisted suicide shortly before the vote on a ballot
6
Indeed, the Citizens United Court recognized not only the public’s interest
in knowing who is speaking about a candidate, and which donors might wield
influence over a candidate, but also the interest of shareholders in determining
“whether their corporation’s political speech advances the corporation’s interest in
making profits.” Citizens United, 130 S. Ct. at 916. The Court recognized that the
value of the information generated by disclosure was not limited to informing
voters how to vote, but included providing citizens with the ability “to hold
corporations and elected officials accountable for their positions and supporters”
and “to react to the speech of corporate entities in a proper way.” Id.
The reality of this corporate accountability function is illustrated by the
public’s reaction in August 2010 to a political contribution by Target to an anti-gay
gubernatorial candidate. See Jia Lynn Yang & Dan Eggen, Campaign Spending
Puts Target in Bull’s-Eye, Wash. Post, Aug. 19, 2010. After disclosure of the
contribution sparked an outcry from the gay community, one campaign finance
expert suggested that major corporations “are now likely to think twice before
giving corporate money to groups that may later prove controversial.” Id.
59
initiative that proposes to legalize that practice is sufficient to support the
Disclosure Law’s requirements. Under these circumstances, where the “[v]oters
act as legislators,” CPLC–I, 328 F.3d at 1106, the government has a vital interest in
providing the public with information about who is trying to sway its opinion. The
ability of voters to determine who is behind the advertisements seeking to shape
their views is integral to the “full realization of the American ideal of government.”
Harriss, 347 U.S. at 625. Given the complex detail involved in ballot initiatives,
and the sheer volume of relevant information confronting voters, voters cannot be
expected to make such a determination on their own. Thus, to prevent the public
from being misled by special interest groups “masquerading as proponents of the
public weal,” the voters who passed Washington’s Disclosure Law “merely
provided for a modicum of information from those” who wish to influence the
public’s vote. Id.; see also McConnell, 540 U.S. at 196–97 (noting that groups
sometimes use “dubious and misleading names,” like “Citizens for Better
Medicare,” a group funded by the pharmaceutical industry); Editorial, The Secret
Election, N.Y. Times, Sept. 18, 2010 (noting the ability of 501(c)(4) organizations
“with disingenuously innocuous names like American Crossroads and the
American Action Network” to serve as “a funnel for anonymous campaign
60
donations”). We have no trouble concluding that Washington’s interest in
informing the electorate through the Disclosure Law is sufficiently important.
Before analyzing the relationship between the particular burdens imposed by
the Disclosure Law and the government interests it furthers, we note that there is
less danger of a regulation sweeping too broadly in the context of a ballot measure
than in a candidate election. As the district court noted, where a disclosure
requirement regulates issue advocacy, the scope of that regulation is naturally
“more targeted and limited” when the relevant vote involves a ballot initiative.
Human Life, 2009 WL 62144, at *18. “Ballot initiatives present a single issue for
public referendum,” and thus the only relevant campaign speech that a disclosure
requirement could reach is “speech intended to influence the voter’s opinion as to
the merits of this single issue – in other words, it is ‘issue advocacy,’ plain and
simple.” Id. Whereas the broadly defined regulation of campaign speech in the
candidate election context “threatens to burden debate on a broad range of issues –
indeed, any issue that is arguably ‘pertinent’ to the election,” broadly defined
speech regulation in the ballot measure context poses a much less significant
burden; in the ballot context, the only issue advocacy that could potentially be
regulated is advocacy regarding “the single issue put before the public.” Id. Thus,
the potential of the Disclosure Law to incidentally regulate issue advocacy, to
61
which Human Life objects, would engender far more concern if the relevant
election involved a candidate. In the ballot initiative context, on the other hand,
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. Because regulation of issue
advocacy in the ballot context is virtually indistinguishable from regulation of
express advocacy (an admittedly appropriate enterprise), such regulation is more
closely related to the government’s interest in informing the electorate. We agree
with the district court’s reasoning that “[f]rom the perspective of the state’s
compelling interest,” it makes little difference whether speech urges the public to
vote for or against a ballot measure implicating a particular issue or whether it
advocates or attacks that particular issue while the ballot measure is pending.7
The particular requirements of Washington’s Disclosure Law are
substantially related to the government’s informational interest in that they target
only those expenditures and advertisements made in conjunction with an ongoing
election or vote. Reporting requirements do not extend indiscriminately to all issue
7
Compare this to a candidate election, where there is a greater distance
between speech urging a vote for or against a particular candidate and advocating
or attacking one of a “broad range of issues” on which the candidate may have a
particular view.
62
advocacy conducted at any time – regulating, for example, an advertisement about
physician-assisted suicide placed at a time when no related ballot measure is
pending. Rather, by definition, disclosure obligations do not apply absent a
pending election or ballot initiative campaign. See Wash. Rev. Code
§ 42.17.100(1) (defining “independent expenditure” as an expenditure made to
support or oppose a “candidate or ballot proposition”); id. § 42.17.020(38)
(defining “political advertising” as communications that support or oppose an
“election campaign”). Moreover, once the initial two-page registration form is
filed, the filing of additional special reports is pegged to the dates of the upcoming
election. For independent expenditures, an initial financial disclosure report is
required only if certain financial thresholds are passed “during the . . . election
campaign,” and subsequent reporting requirements, which become due as the date
of the vote approaches, arise only if additional expenditures have been made
during the campaign period. Id. § 42.17.100(2)–(3). Similarly, special reports for
political advertising are required only if the advertisement has a fair market value
of more than $1,000 and the advertisement is run during the three-week run-up to
the vote. See id. § 42.17.103(1). All disclosure obligations cease shortly after the
relevant vote has taken place. Id. § 42.17.100(3).
63
Thus, under the Disclosure Law, an organization engaging in issue advocacy
like Human Life may avoid disclosure requirements any time that the issue about
which it is speaking is not the subject of a ballot initiative or other public vote.
Once the issue becomes the subject of a ballot initiative campaign, Human Life
may continue to advocate all it wants; the only difference is that it must provide
certain disclosures at times tied to the date of the vote. Human Life itself
recognizes the unique importance of the temporal window immediately preceding a
vote. As it stated in its complaint, the year 2008 was “a special opportunity” and
“an especially vital time” for it to discuss physician-assisted suicide. It explained
that “[b]ecause physician-assisted suicide is now especially in the public awareness
and debate, people will be particularly receptive to arguments about the physician-
assisted suicide issue.” For the same reasons that Human Life had a heightened
interest in speaking about physician-assisted suicide during the run-up to the
Initiative 1000 vote, Washingtonians 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. We conclude that the Disclosure Law’s requirements
for independent expenditures and political advertising are substantially related to
64
that interest.8
C. Vagueness Challenges
“A law is unconstitutionally vague if it fails to provide a reasonable
opportunity to know what conduct is prohibited, or is so indefinite as to allow
arbitrary and discriminatory enforcement.” Tucson Woman’s Clinic v. Eden, 379
F.3d 531, 555 (9th Cir. 2004) (citations omitted); see also Canyon Ferry, 556 F.3d
at 1030 (finding unconstitutional vagueness where an entity “had no way of
knowing ex ante” that its conduct would be covered by the challenged statute).
“Nevertheless, perfect clarity is not required even when a law regulates protected
speech,” Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir.
2001), and “we can never expect mathematical certainty from our language,”
8
Human Life also challenges the constitutionality of a separate Washington
regulation providing that “[a]ny person making a measurable expenditure of funds
to communicate a rating, evaluation, endorsement or recommendation for or
against a candidate or ballot proposition shall report such expenditure including all
costs of preparation and distribution in accordance with chapter 42.17 RCW.”
Wash. Admin. Code § 390-16-206. Human Life argues that this regulation is
unconstitutional because it uses the phrase “for or against” instead of “expressly
for or against.” We already have rejected Human Life’s argument that issue
advocacy is not subject to disclosure requirements. In any event, this regulation
does not create new disclosure requirements, but rather clarifies that certain
communications – including newspaper editorials and news commentaries – are
exempt from the Disclosure Law’s requirements. See id. (cross-referencing Wash.
Rev. Code § 42.17.020(15)(b)(iv), (21)(c); Wash. Admin. Code §§ 390-16-313(2)(b), 390-05-290).
65
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). Human Life argues that
two terms in the Disclosure Law are unconstitutionally vague: “expectation” as
used in the definition of “political committee,” and “mass communication” as used
in the definition of “political advertising.”9 Although vagueness challenges based
on a statute’s failure to provide the “reasonable opportunity to know what conduct
is prohibited” are generally brought where criminal sanctions may be imposed, see
Buckley, 424 U.S. at 40–41, the Supreme Court has also held that “[b]ecause First
Amendment freedoms need breathing space to survive, government may regulate
in the area only with narrow specificity,” NAACP v. Button, 371 U.S. 415, 433
(1963) (considering a vagueness challenge to a state supreme court’s declaratory
9
Throughout its briefs, Human Life argues that various Disclosure Law
provisions are “vague and overbroad.” With the exception of the two terms
discussed in this section (i.e., “expectation” and “mass communication”), Human
Life’s arguments center on the asserted overbreadth of the Disclosure Law’s
provisions, not their vagueness. This approach is not unusual. See Kolender v.
Lawson, 461 U.S. 352, 358 n.8 (1983) (“[W]e have traditionally viewed vagueness
and overbreadth as logically related and similar doctrines.”); Cal. Teachers Ass’n,
271 F.3d at 1151 (“A statute’s vagueness exceeds constitutional limits if its
deterrent effect on legitimate expression is both real and substantial, and if the
statute is not readily subject to a narrowing construction by the state courts.”
(alterations and internal quotation marks omitted)). We already have addressed
Human Life’s “overbreadth” arguments above insofar as we have held that the
definitions of “independent expenditure” and “political advertising” do not burden
more speech than is constitutionally permissible under exacting scrutiny. In this
section, we address the two statutory terms that Human Life specifically challenges
on vagueness grounds.
66
judgment, which defined the purview of state laws prohibiting certain solicitations
of legal business); see also Grayned, 408 U.S. at 109 (considering a vagueness
challenge where the appellant was fined $25 for violations of antipicketing and
antinoise ordinances, and stating that “where a vague statute ‘abut[s] upon
sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the
exercise of [those] freedoms’” (alterations in original) (footnotes and citations
omitted)).10
1. “Expectation”
An entity qualifies as a “political committee” if it has “the expectation” of
spending or receiving money to support or oppose a candidate or ballot initiative.
Wash. Rev. Code § 42.17.010. Human Life argues that the word “expectation” is
unconstitutionally vague, as it could be interpreted to mean anything from a “hope”
to a “contract.” We disagree. The meaning of the word “expectation” for the
purposes of the Disclosure Law’s definition of “political committee” has been
clarified through judicial interpretation. First, as discussed above, an entity
becomes a political committee under the Disclosure Law’s “expenditures” prong if
one of its primary purposes is political advocacy. See Evergreen Freedom Found.,
10
The Disclosure Law imposes civil penalties for violations, Wash. Rev.
Code § 42.17.390, and does not preclude criminal sanctions where appropriate, see
State v. Conte, 154 P.3d 194, 198 (Wash. 2007).
67
49 P.3d at 902–03. Once an entity demonstrates sufficient political activity to
qualify under this standard, there can be little doubt that it will “expect” to make
expenditures related to that political activity. Second, an entity becomes a political
committee under the “contributions” prong if the entity has given the public “actual
or constructive knowledge that the organization is setting aside funds to support or
oppose a candidate or ballot proposition.” Id. at 904. Arguably, an organization
would not notify the public that funds would be used for political advocacy if the
organization did not expect to receive funds for that purpose. Because the
“primary purpose” test and “actual or constructive knowledge” test graft into the
word “expectation” the concrete, discernible criteria necessary to prevent arbitrary
and discriminatory enforcement, we conclude that the term “expectation” is not
unconstitutionally vague.
2. “Mass Communication”
“Political advertising” for purposes of the Disclosure Law encompasses
newspaper advertisements, billboards, signs, letters, “or other means of mass
communication.” Wash. Rev. Code § 42.17.020(38). Human Life argues that the
phrase “other means of mass communication” is unconstitutionally vague because
it is impossible to determine how broadly distributed a communication must be to
fall within the ambit of the statute.
68
However, “speculation about possible vagueness in hypothetical situations
not before the Court will not support a facial attack on a statute when it is surely
valid ‘in the vast majority of its intended applications.’” Hill v. Colorado, 530
U.S. 703, 733 (2000) (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).
Moreover, “otherwise imprecise terms may avoid vagueness problems when used
in combination with terms that provide sufficient clarity,” Gammoh v. City of La
Habra, 395 F.3d 1114, 1120 (9th Cir. 2005), and vagueness challenges will be
rejected when it is “clear what the ordinance as a whole prohibits,” Grayned, 408
U.S. at 110.
“When Congress does not define a term in a statute, we construe that term
according to its ordinary, contemporary, common meaning.” United States v.
Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009) (quoting United States v. W.R.
Grace, 504 F.3d 745, 755 (9th Cir. 2007)). “Mass” is defined as “[d]irected at or
reaching a large number of people.” Webster’s II New Riverside Dictionary
(1984). “Communication” is defined as “[t]he exchange of ideas, messages, or
information, as by speech, signals, or writing” or “[a] system for sending and
receiving messages, as by mail, telephone, or television.” Id. The only
communication proposed by Human Life not expressly covered by the definition of
69
“political advertising” is its planned telemarketing campaign.11 We conclude that
this campaign clearly falls within the ordinary meaning of “mass communication”
and that there is no reason to believe that the scope of that term will be overly
vague “in the vast majority of its intended applications.” Moreover, given the
lengthy list of other similar covered communications, as well as the clear purposes
of the Disclosure Law, we find that it is sufficiently evident which communications
will be subject to the Disclosure Law’s requirements for political advertising. For
these reasons, we reject Human Life’s contention that “mass communication” is
unconstitutionally vague.
D. As-Applied Challenges
In addition to its facial challenges, Human Life challenges the Disclosure
Law as applied to Human Life and its proposed advocacy activities. However, it
does so in name only. Human Life does not provide any evidence to support an as-
applied challenge, and it does not distinguish between its facial and as-applied
claims in its briefs. It does not, for example, explain how the Disclosure Law
impinges upon its associational freedoms. See, e.g., Citizens United, 130 S. Ct. at914 (citing Buckley, 424 U.S. at 74) (recognizing that the reasonable probability of
11
Human Life’s proposed letters and radio ads are clearly covered by the
statute’s enumeration of “letters” and “radio or television presentations” as
political advertisements. See Wash. Rev. Code § 42.17.020(38).
70
harassment as a result of disclosure may be an undue burden on First Amendment
rights). Nor does it offer any support for its assertion that Human Life, by its
nature, is unable to comply with the Disclosure Law’s requirements. See, e.g.,
MCFL, 479 U.S. at 255 (noting that compliance with the federal corporate
segregated fund requirements would essentially require MCFL “to assume a more
sophisticated organizational form”). Also, as noted above, some of Human Life’s
proposed communications, which explicitly reference Initiative 1000, constitute
“express advocacy” that would be subject to disclosure requirements even if we
accepted all of Human Life’s constitutional theories.
The factual basis for Human Life’s as-applied challenge is to be found, if
anywhere, in Human Life’s “verified complaint” – its only evidentiary submission.
Not only is the complaint devoid of information from which we could conclude
that the Disclosure Law is unconstitutional as applied to Human Life, it is not clear
from the record that the complaint was verified by a Human Life official with
personal knowledge of the facts alleged therein. See CPLC–II, 507 F.3d at 1176(explaining that a verified complaint may serve as an affidavit for purposes of
summary judgment if it is based on personal knowledge and sets forth the requisite
facts with specificity). Insofar as there is any evidence at all to support an as-
applied challenge, that evidence is disputed given the Commission’s evidentiary
71
submissions, which show that Human Life already has in place many of the
organizational features required of political committees under the Disclosure Law,
and that the reporting requirements imposed by the Disclosure Law are quite
modest. The Commission also points out that it has in place procedures by which
organizations may obtain guidance on their obligations under the Disclosure Law
and that Human Life has not sought any assistance. Any conflicts in the evidence
as to Human Life’s activities or the severity of the burden imposed on them
preclude summary judgment in Human Life’s favor. See Fed. R. Civ. P. 56.
In essence, Human Life’s as-applied argument goes to the relief requested:
We understand Human Life’s position to be that, if we conclude that the Disclosure
Law is unconstitutional on its face, then we should require the district court to
enter an injunction specifying that its disclosure requirements cannot be enforced
against Human Life or its proposed advocacy activities. Because we conclude that
the Disclosure Law is constitutional on its face, we decline to do so.
CONCLUSION
In his first inaugural address, Thomas Jefferson argued that information is a
precondition for public debate, which, in turn, is a precondition for democratic
self-governance: “The diffusion of information and the arraignment of all abuses
at the bar of public reason, I deem [one of] the essential principles of our
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government, and consequently [one of] those which ought to shape its
administration.” Thomas Jefferson, First Inaugural Address, 1801; see also Nixon
v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 411 (2000) (Thomas, J. dissenting) (“Our
Founders sought to protect the rights of individuals to engage in political speech
because a self-governing people depends upon the free exchange of political
information.”). Consistent with Jefferson’s vision, disclosure requirements have
become an important part of our First Amendment tradition. See, e.g., Reed, 130
S. Ct. at 2818; Citizens United, 130 S. Ct. at 908; Harriss, 347 U.S. at 625. The
Disclosure Law represents Washingtonians’ considered judgment that “full access
to information concerning the conduct of government on every level must be
assured as a fundamental and necessary precondition to the sound governance of a
free society.” Wash. Rev. Code § 42.17.010(11). There is a substantial
relationship between Washington State’s interest in informing the electorate and
the definitions and disclosure requirements it employs to advance that interest.
Accordingly, the judgment of the district court is AFFIRMED.
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Counsel
John J. White, Jr. of Livengood, Fitzgerald & Alskog, PLLC (Kirkland, WA) for
the Appellant.
James Bopp, Jr. (argued), Richard E. Coleson, Jeffrey P. Gallant, and Clayton J.
Callen of Bopp, Coleson & Bostrom (Terre Haute, IN) for the Appellant.
Robert M. McKenna, Linda A. Dalton, Gordon P. Karg, and Nancy J. Krier
(argued) of the State of Washington (Olympia, WA) for the Appellee.
J. Gerald Hebert, Paul S. Ryan, and Tara Malloy of the Campaign Legal Center
(Washington, DC) as Amicus Curiae.
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