The Gaspee Project v. Mederos

United States Court of Appeals
For the First Circuit
No. 20-1944
GASPEE PROJECT and ILLINOIS OPPORTUNITY PROJECT,
Plaintiffs, Appellants,
v.
DIANE C. MEDEROS, in her official capacity as member of the
Rhode Island State Board of Elections, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary S. McElroy, U.S. District Judge]
Before
Barron and Selya, Circuit Judges,
and Delgado-Hernández,* District Judge.
Daniel R. Suhr, with whom Jeffrey M. Schwab, Liberty Justice
Center, Joseph S. Larisa, Jr., and Larisa Law were on brief, for
appellants.
Katherine Connolly Sadeck, Special Assistant Attorney
General, with whom Peter F. Neronha, Attorney General of Rhode
Island, was on brief, for appellees.
Megan P. McAllen, Tara Malloy, Austin Graham, and Campaign
Legal Center on brief for Campaign Legal Center, Common Cause Rhode
Island, and League of Women Voters of Rhode Island, amici curiae.
* Of the District of Puerto Rico, sitting by designation.
September 14, 2021
SELYA, Circuit Judge. The Rhode Island General Assembly
has enacted a comprehensive statutory scheme designed to increase
transparency in regard to election-related spending. The law
requires limited disclosure of funding sources responsible for
certain independent expenditures and electioneering communications
(as defined). The appellants — two organizations that fall within
the statutory sweep — challenge particular disclosure and
disclaimer provisions, positing that those provisions do not
withstand the requisite degree of scrutiny and, in any event, that
they infringe constitutionally protected privacy, associational,
and free-speech rights. The district court, in a comprehensive
rescript, rejected the appellants' multifaceted facial challenge.
See Gaspee Project v. Mederos, 482 F. Supp. 3d 11, 13 (D.R.I.
2020). After careful consideration, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. The Rhode Island State Board of Elections is the state
agency chiefly responsible for administering and enforcing the
Independent Expenditures and Electioneering Communications Act
(the Act). See R.I. Gen. Laws § 17-25.3-4(b). The plaintiffs
(appellants here) are the Gaspee Project and the Illinois
Opportunity Project. Both entities are not-for-profit
organizations that engage in issue advocacy related to matters of
public policy. They have sued the seven members of the Board of
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Elections in their official capacities (and we henceforth refer to
the defendants, collectively, as "the Board").
At a high level of generality, the appellants allege
that various aspects of Rhode Island law compelling disclosure of
the identities of certain donors and certain disclaimers
transgress their rights under the First Amendment. See U.S. Const.
amend. I. The regulatory scheme that they challenge came into
effect in 2012, when the Rhode Island General Assembly passed the
Act. See R.I. Gen. Laws § 17-25.3. This legislative initiative
followed closely on the heels of a landmark Supreme Court decision
that invalidated certain restrictions on corporations' independent
expenditures while upholding various disclosure and disclaimer
requirements imposed under federal law. See Citizens United v.
FEC, 558 U.S. 310, 372 (2010).
The Act's disclosure and disclaimer requirements relate
to persons or entities that spend $1,000 or more in any calendar
year for either of two types of defined activities: "independent
expenditures" or "electioneering communications." R.I. Gen. Laws
§ 17-25.3-1. Those disclosure requirements, though, are not
absolute. They provide, for instance, that covered organizations
need not disclose any donor who elects not to have his donation
used in the funding of independent expenditures or electioneering
communications. See id. § 17-25.3-1(i).
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The Act defines an "independent expenditure" as an
expenditure that, when taken in context, "expressly advocates the
election or defeat of a clearly identified candidate, or the
passage or defeat of a referendum."1 Id. § 17-25-3(17). It exempts
from the definition of independent expenditures, however, "news
stor[ies], commentar[ies], or editorial[s]," "candidate debate[s]
or forum[s]," or "communications made by any business entity to
its members, owners, stockholders, or employees" as well as most
"internet communications." Id. § 17-25-3(17)(i)(A)-(D). An
"electioneering communication" is a communication that
"unambiguously identifies a candidate or referendum" and which is
made within sixty days of a general election or referendum or
within thirty days of a primary election. Id. § 17-25-3(16).
The appellants challenge three requirements that the Act
imposes on organizations (including the appellants) that cross the
$1,000 threshold. First, they challenge the requirement that the
organization must file a report with the Board disclosing all
donors who contributed $1,000 or more to the organization's general
fund if the general fund was used to finance qualifying
expenditures. See id. § 17-25.3-1(h). Second, they challenge the
requirement that covered organizations must register with the
The Act incorporates definitions found in an earlier
1
statute, namely, the Rhode Island Campaign Contributions and
Expenditures Reporting Act, R.I. Gen. Laws § 17-25-3.
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Board and furnish their names and mailing addresses. See id.
§ 17-25.3-1(f). Third, they challenge the requirement that
covered organizations must include their own names and list their
five largest donors from the previous year on the electioneering
communication itself (subject, however, to several exceptions).
See id. § 17-25.3-3. In all cases — regardless of whether it
appears in television, mail, radio, or internet advertising — the
list of donors is limited to those who are required to be disclosed
in such a report. See id. § 17-25.3-3(a), (c)(3), (d)(3)(A), (e).
And with respect to printed communications, the requirement does
not apply to news editorials, campaign paraphernalia (such as
campaign buttons and bumper stickers), or signage measuring under
thirty-two square feet. See id. § 17-25.3-3(b).
Invoking 42 U.S.C. § 1983, the appellants repaired to
the United States District Court for the District of Rhode Island
and filed suit against the Board. In their amended complaint,
they sought a declaration that the challenged provisions violated
their privacy, associational, and free-speech rights under the
First Amendment. The amended complaint alleged — and we take as
true — that the appellants come within the purview of the Act
because they each intended to spend over $1,000 in connection with
"paid issue-advocacy communications" regarding the impact of local
referenda on property taxes. The appellants also alleged — and we
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take as true — that these communications would not include any
"express ballot-advocacy."
The Board moved to dismiss the amended complaint for
failure to state a cognizable claim. See Fed. R. Civ. P. 12(b)(6).
At a hearing held on July 21, 2020, the appellants represented
that they were mounting only a facial challenge to the
constitutionality of the Act. The district court reserved decision
and later granted the motion to dismiss. See Gaspee, 482 F. Supp.
3d at 13. Applying exacting scrutiny, the court determined that
the challenged provisions of the Act passed constitutional muster.
See id. at 16-20. Pertinently, the court held that the Board's
interest in an informed electorate with respect to the funding of
political speech was sufficiently important to justify the
challenged provisions of the Act. See id. at 17-18. It further
held that those provisions were substantially related to that
important governmental interest. See id. at 18-20. Finally, the
court rejected the appellants' counter-arguments as to why, all
else aside, the challenged provisions violated their privacy,
associational, and/or free-speech rights. See id. at 20-22. This
timely appeal followed.
II
A matter of jurisdictional dimension demands our
immediate attention. The dispute between the parties first
surfaced in the context of the 2020 election cycle, which now has
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run its course. Even though the parties have proceeded on the
assumption that the dispute is still velivolant, we have an
independent obligation to determine whether it is moot. See
Weaver's Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589
F.3d 458, 467 (1st Cir. 2009).
A dispute is moot only "when the issues presented are no
longer live or the parties lack a legally cognizable interest in
the outcome." Town of Portsmouth v. Lewis, 813 F.3d 54, 58 (1st
Cir. 2016) (internal citation omitted). Withal, there is a well-
established exception to the mootness doctrine for cases
presenting issues that are "capable of repetition, yet evading
review." Barr v. Galvin, 626 F.3d 99, 105 (1st Cir. 2010) (quoting
S. Pac. Terminal Co. v. Interstate Com. Comm'n, 219 U.S. 498, 515
(1911)). Cases in the election context are not moot simply because
the election is over, at least when the allegedly aggrieved parties
are likely to be subject to the challenged regulation in the
future. See FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 462
(2007); Barr, 626 F.3d at 106. That is the situation here: the
Act is still on the books, and the appellants assert — without
contradiction — that they plan to engage in similar advocacy during
future election cycles. The dispute, therefore, is not moot. See
Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) (holding challenge
to election regulation not moot despite election being "long over"
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because regulation remained in effect and applied to "future
elections").
III
With the specter of mootness laid to rest, we review the
district court's grant of the Board's motion to dismiss de novo.
See Maloy v. Ballori-Lage, 744 F.3d 250, 252 (1st Cir. 2014); SEC
v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (en banc). "In the
process, we accept as true all well-pleaded facts set out in the
complaint and indulge all reasonable inferences in favor of the
pleader." Tambone, 597 F.3d at 441.
The appellants argue that the challenged provisions of
the Act cannot withstand the requisite degree of constitutional
scrutiny. And even if they do, the appellants say, three
additional lines of argument operate to invalidate the challenged
provisions. The first such line of argument posits that the
challenged provisions violate the appellants' right to engage
anonymously in political speech. Their second line of argument
posits that the challenged provisions violate their right to
associational privacy. Their third line of argument posits that
the Act's on-ad disclaimer requirement forces the appellants to
engage in an unconstitutional species of compelled speech.
Our analysis proceeds in two main parts, each with
subparts. First, we establish the appropriate level of
constitutional scrutiny — here, exacting scrutiny — and then
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explain why the Act survives that level of scrutiny. We thereafter
proceed to address the appellants' trio of counter-arguments.
A
Regulations that burden political speech must typically
withstand strict scrutiny. See Citizens United, 558 U.S. at 340.
This baseline rule applies to many aspects of election law. See,
e.g., id. at 339; Wis. Right to Life, 551 U.S. at 465-66. Even
so, disclosure and disclaimer regimes are cut from different cloth.
See, e.g., Citizens United, 558 U.S. at 366; McConnell v. FEC, 540
U.S. 93, 201 (2003); Buckley v. Valeo, 424 U.S. 1, 75-76 (1976);
Nat'l Org. for Marriage v. McKee (NOM), 649 F.3d 34, 55 (1st Cir.
2012); cf. Ams. for Prosp. Found. v. Bonta, 141 S. Ct. 2373, 2382-
83 (2021) (explaining unique context of laws compelling
disclosure).
This distinction arises because — unlike limits on
election-related spending — election-related disclosure and
disclaimer requirements "impose no ceiling on campaign-related
activities." Citizens United, 558 U.S. at 366 (quoting Buckley
424 U.S. at 64). Nor do they "prevent anyone from speaking." Id.(quoting McConnell, 540 U.S. at 201 (internal quotation marks and
brackets omitted)). Against this backdrop, the Supreme Court has
described disclosure and disclaimer regimes, in the election-law
context, as "less restrictive alternative[s] to more comprehensive
regulations of speech." Id. at 369.
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Given this taxonomy, it is unsurprising that such
disclosure and disclaimer requirements are subject to a less
intense standard of constitutional review. That standard bears
the label of "exacting scrutiny." Id. at 366; NOM, 649 F.3d at
55; cf. Ams. for Prosp., 141 S. Ct. at 2883 (applying exacting
scrutiny to disclosure laws outside the election context). Such
a level of scrutiny has been infused in the Court's approach to
disclosure and disclaimer regimes for decades. See Buckley, 424
U.S. at 64-65 (considering compelled disclosure of election-
related spending).
To withstand exacting scrutiny, a law or regulation must
be narrowly tailored to serve a sufficiently important
governmental interest. See Ams. for Prosp., 141 S. Ct. at 2383.
Prior to the Court's recent decision in Americans for Prosperity,
exacting scrutiny was widely understood to require only a
"substantial relation" between the challenged regulation and the
governmental interest. NOM, 649 F.3d at 55. In refining its
articulation of exacting scrutiny, the Americans for Prosperity
Court heightened this requirement, emphasizing that "[i]n the
First Amendment context, fit matters." 141 S. Ct. at 2384 (quoting
McCutcheon v. FEC, 572 U.S. 185, 218 (2014)). The Court went on
to say that exacting scrutiny "require[s] a fit that is not
necessarily perfect, but reasonable." Id. (quoting McCutcheon,
572 U.S. at 218). A "[s]ubstantial relation is necessary but not
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sufficient" for a challenged requirement to survive exacting
scrutiny. Id. And in addition, "the challenged requirement must
be narrowly tailored to the interest it promotes." Id.
1
Before applying this more muscular test for exacting
scrutiny, we first must resolve a threshold matter. That matter
concerns the import, if any, of the appellants' ipse dixit that
express advocacy and issue advocacy trigger different degrees of
scrutiny. Specifically, the appellants argue that cases such as
Buckley, McConnell, and Citizens United are inapposite because
those cases deal primarily with express advocacy (that is,
candidates and political action committees (PACs)), not with issue
advocacy (that is, the mere conveying of information and
education), which is the appellants' avowed stock and trade.
For present purposes, the distinction that the
appellants draw does not make a difference. In the election
context, the Supreme Court has rejected the attempt to distinguish
between express advocacy and issue advocacy when evaluating
disclosure laws — even though the Court has deemed such a
distinction relevant when evaluating limits on expenditures. See
Citizens United, 558 U.S. at 368-69. This makes perfect sense.
As we explained in NOM, the Court has cabined the application of
limits on expenditures to express advocacy in part because it was
concerned that such laws impermissibly regulated a substantial
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amount of constitutionally protected speech. See 649 F.3d at 54.
Unlike limits on expenditures (which place a brake on political
speech), disclosure regimes do not limit political speech at all.
A disclosure regime is, therefore, "a less restrictive alternative
to more comprehensive regulations of speech." Citizens United,
558 U.S. at 369.
Seen in this light, there is no principled basis for us
to distinguish between express advocacy and issue advocacy with
respect to election-law disclosure regimes. The distinction is
viable solely in the context of limits on independent expenditures,
see NOM, 649 F.3d at 54, and it is irrelevant in the
disclosure/disclaimer context.2 Our sister circuits have, with
conspicuous consistency, rejected the appellants' proposed
distinction, see, e.g., Del. Strong Fams. v. Denn, 793 F.3d 304,
308 (3d Cir. 2015); Human Life of Wash. Inc. v. Brumsickle, 624
F.3d 990, 1016 (9th Cir. 2010), and so do we.
2We take no view on the appellants' attempt to categorize
their mailings as nothing more than informational materials.
Although the appellants' proposed mailings do not expressly
advocate how voters should vote on the referenda to which they
refer, they identify the particular referenda and forecast the
negative consequences that will supposedly flow from certain
outcomes. Communications such as these, which subtly advocate for
a position even though not including explicit directives on how to
vote, illustrate why federal courts regularly have spurned rigid
distinctions between express advocacy and issue advocacy in the
election-law disclosure context.
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2
Having set the appellants' proposed distinction to one
side, we turn to the question of whether the Board's proffered
justification is sufficiently important to support the Act's
disclosure and disclaimer regime. See Ams. for Prosp., 141 S. Ct.
at 2383. To this end, the Board submits that its interest in
promoting an informed electorate is adequate to support the Act's
disclosure and disclaimer requirements. The amici, whose insights
we appreciate, echo this refrain. The appellants rejoin that the
Board's informational interest is weak and, thus, insufficient to
justify the compelled disclosure and disclaimer regime.
The case law makes pellucid that the Board's interest in
an informed electorate vis-à-vis the source of election-related
spending is sufficiently important to support reasonable
disclosure and disclaimer regulations. See Buckley, 424 U.S. at
14-15 ("In a republic where the people are sovereign, the ability
of the citizenry to make informed choices . . . is essential.").
The Buckley Court, for example, upheld disclosure requirements for
independent expenditures. See id. at 75-76. It explained that
"provid[ing] the electorate with information as to where political
campaign money comes from," id. at 66 (internal quotations
omitted), is sufficient to outweigh the possibility of
infringement on First Amendment freedoms because it concerns "the
free functioning of our national institutions," id. (quoting
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Communist Party v. Subversive Activities Control Bd., 367 U.S. 1,
97 (1961)).
The Supreme Court built on this foundation when
addressing challenges to the Bipartisan Campaign Reform Act
(BCRA). See Pub. L. No. 107-155 (2002). The McConnell Court
accepted the informational interest articulated in Buckley as
sufficiently important to justify a new set of disclosure
requirements encompassed within Title II of the BCRA. See 540
U.S. at 196. It concluded that Buckley "foreclose[d] a facial
attack" on the BCRA's requirement that entities meeting a spending
threshold on electioneering communications must disclose a certain
subset of donors.3 Id. at 197.
In Citizens United, the Supreme Court reaffirmed its
view that the government's interest in an informed electorate is
sufficient to justify reasonable disclosure and disclaimer
provisions. See 558 U.S. at 368-69. There, the Court considered
(among other things) challenges to the BCRA's disclosure and
disclaimer requirements as applied both to a film attacking a
3 The McConnell Court's conclusion was reached with respect
to section 201 of the BCRA, which amended the law considered in
Buckley. Section 201 requires a corporation or labor union that
spends $10,000 or more on qualifying communications to file a
disclosure identifying any donors of $1,000 or more. See Pub. L.
No. 107-155, § 201. There is a marked similarity between section
201 of the BCRA and the Rhode Island regulations that are
challenged here: the Act requires a comparable disclosure if the
covered organization spends $1,000 or more on qualifying
communications. See R.I. Gen. Laws § 17-25.3-1(h).
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presidential candidate and to advertisements for that film. See
id. Citing Buckley and McConnell, the Court reiterated the value
of an electorate with knowledge about those responsible for speech
during the period shortly before an election. See id. at 369.
The law in this circuit is of a piece with the Supreme
Court's approach. In NOM, we held that Maine's interest in an
informed electorate was sufficiently important to justify
reasonable disclosure and disclaimer requirements.4 See 649 F.3d
at 56-58. We added that the government's interest in an informed
electorate extends beyond the dissemination of information
concerning candidates for office. See id. at 57. Rather, "there
is an equally compelling interest in identifying the speakers
behind politically oriented messages." Id. This is especially
true in the age of new media, given the proliferation of speakers
in the marketplace of ideas. See id. Consequently, reasonable
disclosure regimes "enable[] the electorate to make informed
decisions and give proper weight to different speakers and
messages." Citizens United, 558 U.S. at 371.
Justice Brandeis famously observed that "public
discussion is a political duty." Whitney v. California, 274 U.S.
4On the same day, we upheld the constitutionality of Rhode
Island's previous campaign finance scheme. See Nat'l Org. for
Marriage v. Daluz, 654 F.3d 115, 116 (1st Cir. 2011). We found
that Rhode Island's interest in an informed electorate was
sufficient to justify a disclosure and disclaimer regime. See id.
at 118.
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357, 375-76 (Brandeis, J., concurring). Through the "discovery
and spread of political truth," public discussion allows us to
apply our "power of reason." Id. The failure to uphold that duty
in the sphere of elections would be most devasting to our
democracy. And yet, in this setting, the public faces an uphill
battle of identifying whether and how money is talking. Given
these concerns, we hold that Rhode Island's interest in an informed
electorate is sufficiently important to satisfy the first
imperative of exacting scrutiny. And with this holding in place,
we turn to the Act's specific requirements.
3
The next question is whether the Act's disclosure and
disclaimer requirements are narrowly tailored to the Board's
informational interest. See Ams. for Prosp., 141 S. Ct. at 2383.
Those requirements need not reflect the least restrictive means
available to achieve the Board's goals, but they need to achieve
a reasonable fit. See id. at 2384. Here, the appellants train
their fire on three provisions of the Act: the requirement that
covered organizations disclose donors of over $1,000; the
requirement that covered organizations disclose their own identity
to the Board; and the requirement that covered organizations
identify themselves and their five largest donors on certain
electioneering communications. As we explain below, we think that
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both the disclosure and disclaimer requirements are narrowly
tailored to further the Board's interest in an informed electorate.
We start with the first two challenged provisions, which
require certain organizations to disclose particular information
to the Board. The provisions of the Act (including the disclosure
and disclaimer requirements) apply only to organizations that
satisfy a series of criteria. The first criterion is a spending
threshold: the Act applies if an organization spends $1,000 or
more on independent expenditures or electioneering communications
within one calendar year. See R.I. Gen. Laws § 17-25.3-1(b). The
Supreme Court upheld similar disclosure requirements in Citizens
United, focusing on the close relationship between the
requirements and the public's interest in knowing who is speaking
as an election approached. See 558 U.S. at 369. Consistent with
this focus, the spending threshold tailors the Act to reach only
larger spenders in the election arena and at the same time shapes
the Act's coverage to capture organizations involved in election-
related spending as opposed to those engaged in more general
political speech. With respect to covered organizations, this
spending threshold helps to ensure that the electorate can
understand who is speaking and, thus, to "give proper weight to
different speakers and messages" when deciding how to vote. Id.
at 371.
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In addition to the spending threshold, the Act contains
temporal limitations that tether the Act's disclosure requirements
to the Board's informational interest. The fact that the Act only
applies when an organization crosses the spending threshold and
spends that money in a particular time frame — within one year of
an election for independent expenditures and, for electioneering
communications, within either thirty or sixty days of an election
(depending on the type) — links the challenged requirements neatly
to the Board's objective of securing an informed electorate. See
Nat'l Ass'n for Gun Rights, Inc. v. Mangan, 933 F.3d 1102, 1118
(9th Cir. 2019); Del. Strong Fams., 793 F.3d at 311; Vt. Right to
Life Comm., Inc. v. Sorrell, 758 F.3d 118, 134 (2d Cir. 2014).
The Act's time frames for disclosure are no longer than either
those in the Maine statute discussed in NOM, see 649 F.3d at 42-
43, or those in the BCRA, see Citizens United, 558 U.S. at 366-67(describing BCRA § 201, currently codified at 52 U.S.C. § 30104).
The Act is narrowed further by another aspect of the way
in which it defines "electioneering communication." Such a
communication must be "targeted to the relevant electorate." R.I.
Gen. Laws § 17-25-3(16). An electioneering communication
satisfies this targeting requirement only if it "can be received
by two thousand . . . or more persons in the district the candidate
seeks to represent or the constituency voting on the referendum."
See id. This limitation further ties the Act's coverage (in the
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case of electioneering communications) to the Board's
informational interest by requiring disclosure only when the
relevant electorate receives the communication. Notwithstanding
the Act's other requirements, covered organizations are free to
speak without disclosure when addressing audiences disconnected
from the upcoming election.
The appellants make much of the fact that the Act's
disclosure and disclaimer provisions apply to general funds, even
though other regimes (such as the BCRA) require that organizations
subject to disclosure requirements establish segregated bank
accounts to avoid disclosure of individual names. See 52 U.S.C.
§ 30104(f)(2)(E)-(F). The application of the Act to general funds
is problematic, the appellants suggest, because many general-fund
donors may not endorse all of an organization's election-related
expenditures. This suggestion, though, fails to take into account
the fact that — unlike the BCRA — the Act provides ample
opportunity for donors to opt out from having their donations used
for independent expenditures or electioneering communications,
even if the entity to which they contribute has not created a
segregated fund.
Importantly, the Act provides off-ramps for individuals
who wish to engage in some form of political speech but prefer to
avoid attribution. To begin, such an individual may choose to
contribute less than $1,000; covered organizations need only
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disclose donors who contribute $1,000 or more during the relevant
time frame. See R.I. Gen. Laws § 17-25.3-1(h). This readily
available means of avoiding disclosure punches a sizable hole in
the appellants' insistence that the Act's disclosure requirements
are tantamount to the compelled disclosure of membership lists.
Nor does the Act require disclosure of individuals who meet the
$1,000 threshold but opt out of having their monies used for
independent expenditures or electioneering communications. See
id. § 17-25.3-1(i).
Taken together, these limitations on the Act's reach
only require disclosure of relatively large donors who choose to
engage in election-related speech. The Act simply does not apply
to others, including those who engage in political speech outside
the election context. Given this circumscription and given the
continuing force of the Court's rulings in Citizens United and our
rulings in NOM, the challenged provisions are narrowly tailored to
enable "the citizenry to make informed choices" at the polls about
issues of public import. Buckley, 424 U.S. at 14-15. Indeed,
Rhode Island's $1,000 trigger point for disclosure of donors is
higher than the trigger point upheld in NOM for reporting PAC
contributors. See NOM, 649 F.3d at 42 ("A major-purpose PAC must
report any contribution to the PAC of more than $50 (including the
name, address, occupation, and place of business of the
contributor)."). It is also no lower than the contributor trigger
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point upheld in Citizens United. See Citizens United, 558 U.S. at
366-67; 52 U.S.C. § 30104(f)(2) (providing that a disclosure
statement identify contributors who "contributed an aggregate
amount of $1,000 or more").
In view of the number of criteria that an organization
must satisfy before being required to file, the appellants' claim
that the Act's disclosure requirements are "expansive" is an
exercise in hyperbole. Both the circumscribed scope of the Act's
requirements and the rather modest quantity of information
demanded by the Board argue to the contrary. In combination, these
facts bolster our conclusion that the Act's disclosure
requirements are narrowly tailored enough to avoid any First
Amendment infirmity. We uphold those requirements against the
appellants' facial challenge.
4
This brings us to the appellants' remonstrance
concerning the Act's on-ad disclaimer requirement. See R.I. Gen.
Laws § 17-25.3-3. The Act's spending and temporal thresholds
coalesce to render the disclaimer requirement applicable in only
a limited set of circumstances. That set of circumstances shrinks
even further in view of the fact that donors need not be listed if
they have opted out of election-related spending. See, e.g., id.
§ 17-25.3-3(a).
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Disclaimer requirements are reviewed under exacting
scrutiny (not strict scrutiny, as the appellants assert). See
Citizens United, 558 U.S. at 368. In NOM, we upheld aspects of
Maine's campaign finance law, including an on-ad disclaimer
requirement that bore a family resemblance to the requirement
challenged here. See NOM, 649 F.3d at 58-61. The Maine law
demanded that a communication identify the "person who made or
financed the expenditure for the communication." See Me. Rev.
Stat. Ann. tit. 21-A, § 1014(1)-(2). The Act goes a step further;
it demands not only identification of the funding organization
itself but also identification of its five largest donors. See
R.I. Gen. Laws § 17-25.3-3. Put another way, the Act requires
that the on-ad disclaimer both disclose the relevant speaker and
some donors to that speaker.
Although the NOM Court was not obliged to apply a narrow-
tailoring test to requirements like the ones before us, we
nonetheless find that court's reasoning instructive. Here, as in
Maine, the Act's disclaimer requirement has "a close relation to
[the Board's] interest in dissemination of information regarding
the financing of political messages." NOM, 649 F.3d at 58-61.
To be sure, the appellants labor to distinguish NOM and
consign it to the scrap heap. The distinctions upon which the
appellants rely, however, cannot carry the weight that the
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appellants pile upon them. We explain briefly and then turn
directly to the top-five-donor mandate.
At the outset, the appellants point out that the
plaintiffs in NOM advanced only vagueness and overbreadth
challenges. That is true as far as it goes — but it does not take
the appellants very far. Because the NOM court applied exacting
scrutiny to analogous election-law requirements, some of its
reasoning can usefully be transplanted to the case at hand.
The appellants next note that the Maine statute has an
"escape hatch" for avoiding the state's disclosure and disclaimer
requirements, whereas the Act contains none. Placing reliance on
this distinction, though, is too much of a stretch. The "escape
hatch" to which the appellants allude — which, at any rate, was
not deemed essential by the NOM court — is a provision in the Maine
statute that allows for a hearing to rebut a presumption of
applicability. See id. at 49. Rhode Island law offers a
functionally equivalent mechanism: it allows a party to seek an
advisory opinion from the Board regarding the Act's applicability
to a communication. See R.I. Gen. Laws § 17-25-5(c)(1). Though
not identical, any discrepancy between these approaches does not
throw shade on the persuasive reasoning of NOM.
The appellants also note that Maine's law — unlike the
Act — applies only to communications concerning candidates'
elections rather than referenda and suggest that the government's
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interest in regulating the latter is weaker. But there is nothing
in NOM that indicates that we predicated our decision on the Maine
statute's exclusive focus on candidates. The well-established
interest articulated in NOM pertains to the ability of "the
electorate to make informed decisions and give proper weight to
different speakers and messages." 649 F.3d at 57 (quoting Citizens
United, 558 U.S. at 371). This interest applies to the passage of
referenda in the same way in which it applies to the election of
candidates. And in the last analysis, disclaimer requirements —
like the requirement challenged here — help to ensure a well-
informed electorate by preventing those who advocate for either
candidates or issues from hiding their identities from the gaze of
the public. See McConnell, 540 U.S. at 198.
This brings us to the appellants' contention that the
requirement to identify in a disclaimer the top five donors to the
entity that places the advertisement cannot withstand exacting
scrutiny. Such a requirement, the appellants assert, serves no
informational interest and is essentially redundant of the
disclosure requirement. We are not persuaded.
There is plainly an informational interest served by an
on-ad disclaimer that identifies some of the speaker’s donors, as
both Citizens United and NOM recognized in upholding disclosure
requirements for equivalent funders. The on-ad donor disclaimer,
moreover, is not entirely redundant to the donor information
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revealed by public disclosures. The appellants cannot plausibly
dispute that on-ad donor information is a more efficient tool for
a member of the public who wishes to know the identity of the
donors backing the speaker. As we have explained, "[c]itizens
rely ever more on a message's source as a proxy for reliability
and a barometer of political spin." NOM, 649 F.3d at 57. And
even though citizens have become reliant on such cues, they may be
too easily overlooked or obscured. The public is "flooded with a
profusion of information and political messages," id., and the on-
ad donor disclaimer provides an instantaneous heuristic by which
to evaluate generic or uninformative speaker names.
And even beyond increased efficiency, the form of
disclosure — an on-ad disclaimer — may be more effective in
generating discourse that facilitates the ability of the public to
make informed choices in the specialized electoral context. The
donor disclosure alerts viewers that the speaker has donors and,
thus, may elicit debate as to both the extent of donor influence
on the message and the extent to which the top five donors are
representative of the speaker’s donor base — questions that the
appellants seem to think the citizenry too dull to ask. Citizens
United gives us reason to believe that the appellants' view is
myopic. There, the Court recognized that the disclaimers at issue
were intended to "insure that the voters are fully informed," 558
U.S. at 368 (quoting Buckley, 424 U.S. at 76), and it nowhere
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indicated that the state interest in "provid[ing] the electorate
with information" has force only when such disclaimers can be said
to facilitate disclosure requirements, id. (quoting McConnell, 540
U.S. at 196).
The appellants also contend that the on-ad donor
disclaimer furnishes potentially irrelevant information while
unduly burdening their speech. But even though the degree of
relevancy may vary, the identification of top donors is relevant
in all cases. To illustrate this point, we take one of the
appellants' proffered hypotheticals. A top-five-donor disclaimer
may be less helpful than a top-six-donor disclaimer, if an entity's
sixth-largest donor is somehow directly connected to the
advertisement. But this line-drawing exercise — which asks, at
bottom, whether to mandate a list of five top donors or some
greater or lesser number — is a task best left to the legislature.
Cf. Buckley, 424 U.S. at 83 (observing that the level at which to
set monetary thresholds for reporting and disclosure is
"necessarily a judgmental decision, best left . . . to
congressional discretion"). What matters is that the disclaimer
includes a limited set of data points, readily available to the
speaker, that is directly tied to educating voters on the message's
source.
Additionally, the appellants say that they worry that
the top-five-donor list might mislead a viewer either as to the
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makeup of a speaker's contributor base or as to a donor's
endorsement of the message. They also worry that the donor list
could elicit threats or harassment. But the on-ad donor disclaimer
is subject to the same off-ramps that apply to the disclosure
requirement. See, e.g., R.I. Gen. Laws § 17-25.3-3(a) ("[N]o donor
shall be listed who is not required to be disclosed in a report to
the board of elections by the person, business entity, or political
action committee."). These off-ramps serve to mitigate the
appellants' stated concerns, which do not necessarily arise in all
cases, and ensure the disclaimer provision is narrowly tailored.
An organization could, of course, raise any concerns particular to
its circumstances by means of an as-applied challenge.
We cut to the chase. In the election-related context,
it is clear beyond hope of contradiction that the state can require
speakers to self-identify through disclosures and disclaimers.
Beyond self-identification, though, the state does not have
limitless power to require more from a speaker, such as
identification of its donors. Our task today, however, does not
involve setting the outer constitutional bounds of what a state
might demand in terms of election-related disclaimers. It suffices
to say that Rhode Island's disclaimer requirement, including its
top-five-donor provision, survives exacting scrutiny when faced
with a facial challenge.
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5
In a Rumpelstiltskin-like effort to turn dross into
gold, the appellants beseech us to consider the potential effects
that the Act — and particularly, its disclaimer requirement — will
have on their own organizations and memberships. We are aware
that the Supreme Court has left open the possibility of as-applied
challenges to disclosure and disclaimer requirements if a threat
of retaliation looms. See Citizens United, 558 U.S. at 370;
McConnell, 540 U.S. at 98. To mount this type of challenge,
though, a party must show "a reasonable probability that the
compelled disclosure . . . will subject [donors] to threats,
harassment, or reprisals." Buckley, 424 U.S. at 74.
The appellants' amended complaint is bereft of any such
factual allegations. And to cinch the matter, the appellants
concede that they have mounted only a facial challenge to the Act.
Generally speaking, facial challenges leave no room for
particularized considerations and must fail as long as the
challenged regulation has any legitimate application. See Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 449
(2008); Hightower v. City of Bos., 693 F.3d 61, 77-78 (1st Cir.
2012). That is the case here: the appellants have wholly failed
to demonstrate that the alleged lack of tailoring is "categorical"
and present in every application of the challenged requirements.
Ams. for Prosp., 141 S. Ct. at 2387. There is no "dramatic
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mismatch . . . between the interest that [Rhode Island] seeks to
promote and the [disclosure and disclaimer] regime that [it] has
implemented in service of that end." Id. at 2386. It bears
emphasis that the disclaimer requirement, for example, applies to
a small number of donors, based on a reasonable assessment of their
likely roles in financing the particular electioneering
communication. And it does so predicated on a sensible concern
that — without this information being readily
accessible — "independent groups [could run] election-related
advertisements 'while hiding behind dubious and misleading
names.'" Citizens United, 558 U.S. at 367 (quoting McConnell, 540
U.S. at 197).
Nor is it evident on this record that "a substantial
number of [the Act's] applications are unconstitutional, judged in
relation to the statute's plainly legitimate sweep." Ams. for
Prosp., 141 S. Ct. at 2387 (quoting United States v. Stevens, 559
U.S. 460, 473 (2010)). Indeed, the parties have made it evident,
both before the district court and in their briefs on appeal, that
they do not contend that the Act is overbroad. See Gaspee, 482 F.
Supp. 3d at 19. Needless to say, any individual challenges,
including those alleging that the requirements impose an unusual
burden in particular circumstances (such as a chilling effect on
speech resulting from harassment), may be brought in the form of
as-applied challenges.
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B
The appellants attempt to move the goalposts. They say
that even if the challenged provisions of the Act withstand
exacting scrutiny, we should still strike down those provisions on
other grounds. To this end, they offer three counter-arguments as
to why the challenged provisions infringe their First Amendment
rights. We turn next to these counter-arguments.
1
The appellants argue that the Act's disclosure and
disclaimer requirements transgress the First Amendment's
protection of anonymous political speech. Their argument relies
primarily on the Supreme Court's decision in McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995). In that case, the Court
invalidated a blanket ban on anonymous campaign literature under
which an individual pamphleteer had been charged, convicted, and
fined. See id. at 357.
The threshold question is whether the Court's later
decision in Citizens United pretermits this argument. Although
the Citizens United Court did not directly address McIntyre, the
appellants in Citizens United made a McIntyre-based argument in
their brief. See Citizens United, Appellants' Br. at 44. The
fact that the Court did not adopt the McIntyre framework in the
election-law context speaks eloquently to its inapplicability.
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The Ohio statute at issue in McIntyre constituted an
outright ban on anonymous literature. See 514 U.S. at 336. That
is at a considerable remove from a disclosure requirement in the
election-law context. We deem this to be a dispositive difference
because — in contrast to the broad sweep of the Ohio statute — the
Act's disclosure regime applies only to a small subset of campaign
finance spending. See Worley v. Fla. Sec. of State, 717 F.3d 1238,
1247 (11th Cir. 2013) (finding McIntyre inapplicable for similar
reasons).
Indeed, the McIntyre Court itself distinguished between
election-related disclosures and political pamphlets, emphasizing
the more robust interest in protecting the latter. See 514 U.S.
at 355. In the Court's words, mandatory campaign finance
disclosures are "a far cry from compelled self-identification on
all election related writings." Id. Money, the Court wrote, is
"less specific, less personal, and less provocative than a
handbill." Id. Given these salient differences, we conclude that
the appellants' McIntyre-based "speaker privacy" argument lacks
force.
2
The appellants next strive to draw an analogy between
the Act's disclosure requirements and the compelled disclosure of
membership lists invalidated by the Court in NAACP v. Alabama, ex
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rel. Patterson, 357 U.S. 449 (1958). This analogy does not hold
water.
In NAACP, the Court was confronted with a challenge to
a state court order requiring disclosure of the NAACP’s membership
rolls to the Alabama state attorney general. See id. at 451. The
state’s asserted interest in the membership information was to
address business registration fraud, see id. at 464, but the proof
revealed that the state was motivated by a desire to drive out the
organization and its racial integration efforts during the Jim
Crow era. The Court rejected the state's bid. See id.In contrast, the challenge mounted by the appellants is
a purely facial challenge to a disclosure regime designed to
increase transparency with respect to election-related spending.
As Citizens United and NOM evince, the election-law context is a
breed apart, implicating the government's substantial interest in
transparent elections — the bedrock of our democracy.
If more is needed — and we do not think that it is — we
note that NAACP involved what amounted to an as-applied challenge
based on a developed record. There, the plaintiffs had made an
"uncontroverted showing that on past occasions revelation of the
identity of its rank-and-file members has exposed these members to
economic reprisal, loss of employment, threat of physical
coercion, and other manifestations of physical hostility." Id. at
462. This stands in sharp contradistinction to the case at hand
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— a case in which the appellants have made no faintly comparable
showing.
That ends this aspect of the matter. Equating the
production order invalidated in NAACP with the disclosure
requirements of the Act is like equating aardvarks with alligators.
Consequently, we reject the appellants’ attempt to place this case
under the carapace of NAACP.
By a similar token, there is no parallel between the
Act's narrowly tailored disclosure regime, focused on election-
related spending, and the general donor-disclosure requirements
struck down in Americans for Prosperity (a decision that traced
its reasoning back to NAACP). See Ams. for Prosp., 141 S. Ct. at
2382. In Americans for Prosperity, the government's asserted
interest was to prevent the mismanagement of charitable
contributions. See id. at 2385-86. The Court focused on "the
dramatic mismatch" between this asserted interest and an overbroad
disclosure regime, striking down the challenged provisions because
the information collected played little to no part in assisting
the government's anti-fraud efforts. See id. at 2386. That
reasoning does not assist the appellants, given that the fit
between the Act and the state's informational interest is
reasonable.
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3
The appellants' third counter-argument attempts to
characterize the Act's on-ad disclaimer requirement as a form of
unconstitutionally compelled speech. They say that forcing an
organization to identify itself and its five largest donors in a
disclaimer on certain types of electioneering communications
violates their First Amendment right to refrain from expressing
particular viewpoints. See Wooley v. Maynard, 430 U.S. 705, 714
(1977) (holding that First Amendment protects "both the right to
speak freely and the right to refrain from speaking at all").
In support, the appellants rely on the Supreme Court's
decision in National Institute of Family and Life Advocates v.
Becerra (NIFLA), 138 S. Ct. 2361 (2018). There, a group of pro-
life pregnancy centers challenged a state statute requiring such
facilities both to advise women that California provides free or
low-cost abortions and to furnish a telephone number that could be
called. See id. at 2368. The Court determined that the California
statute was content-based because it commanded the centers to
"speak a particular message." Id. at 2371. In that regard, the
Court emphasized that the statute required pregnancy centers to
communicate information about abortion accessibility, which is
"the very practice that [the centers] are devoted to opposing."
Id. In those circumstances, the Court found that the statute
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likely abridged the centers' First Amendment rights. See id. at
2378.
The appellants assert that the Act's on-ad disclaimer
requirement is equally vulnerable because it compels a covered
organization to recite a "government-drafted script," id., when
announcing itself and its five largest donors. The appellants
submit that because they are organizations that value privacy,
such a compelled disclosure is fairly analogous to the mandatory
abortion announcement considered in NIFLA.
On-ad disclaimer regimes concerning funding sources in
election-related contexts are simply not comparable to requiring
pro-life clinics to explain to patients that they may seek free
abortion services from the government. Disclaimers — in the unique
election-related context — serve the salutary purpose of helping
the public to understand where "money comes from." Buckley, 424
U.S. at 66. The election-related context implicated here is alone
sufficient to distinguish NIFLA.
Other facets of the attempted comparison underscore the
infirmity of the appellants’ position. The on-ad disclaimer
requirement burdens speech modestly and does not require any
organization to convey a message antithetic to its own principles.
The speaker can for the most part control the content of any
particular communication and must disclose only some of the funding
sources undergirding that communication. This arrangement imposes
- 36 -
no obligation to annunciate something inimical either to the
message of the communication itself or to the fundamental beliefs
of the speaker. So viewed, the appellants' attempt to analogize
this challenge to other compelled speech cases poses no obstacle
here, and we hold that the challenged provision of the Act does
not unconstitutionally require compelled speech.
IV
Mindful that a well-informed electorate is as vital to
the survival of a democracy as air is to the survival of human
life, we hold that the challenged provisions of the Act bear a
substantial relation to a sufficiently important governmental
interest and are narrowly tailored enough to withstand exacting
scrutiny. We also hold that those provisions overcome the
appellants' facial challenge and their array of counter-arguments.
We need go no further. For the reasons elucidated above,
we uphold the challenged aspects of Rhode Island's disclosure and
disclaimer regime. Accordingly, the district court's entry of
judgment in favor of the Board must be
Affirmed.
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