Center for Individual Freedom v. Natalie H. Tennant

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CENTER FOR INDIVIDUAL FREEDOM, 
INCORPORATED; WEST
VIRGINIANS FOR LIFE,
INCORPORATED; ZANE LAWHORN,
Plaintiffs-Appellees,
v.
NATALIE H. TENNANT, Secretary of
the State of West Virginia and as
a member of the West Virginia
State Election Commission; GARY
COLLIAS; WILLIAM N. RENZELLI;
ROBERT RUPP; CINDY SMITH, in
 No. 11-1952
their official capacities as
members of the West Virginia
State Election Commission; SCOTT
ASH, Prosecuting Attorney for
Mercer County, as a representative
of the class of Prosecuting
Attorneys in the State of West
Virginia,
Defendants-Appellants,
and

2 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
WEST VIRGINIA EDUCATION 
ASSOCIATION; WEST VIRGINIA
AMERICAN FEDERATION OF
LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS; BOB
BASTRESS; MARGARET L. WORKMAN;
MENIS ELBERT KETCHUM,
Intervenors/Defendants.

BRENNAN CENTER FOR JUSTICE AT
NYU SCHOOL OF LAW; OHIO
VALLEY ENVIRONMENTAL COALITION;
WEST VIRGINIA CITIZENS FOR CLEAN
ELECTIONS; LEAGUE OF WOMEN
VOTERS OF WEST VIRGINIA; WEST
VIRGINIA CITIZEN ACTION GROUP,
Amici Supporting Appellants.

CENTER FOR INDIVIDUAL FREEDOM, 
INCORPORATED,
Plaintiff-Appellant,

and
No. 11-1993
WEST VIRGINIANS FOR LIFE,
INCORPORATED; ZANE LAWHORN,
Plaintiffs,
v.

CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 3
NATALIE H. TENNANT, Secretary of 
the State of West Virginia and as
a member of the West Virginia
State Election Commission; GARY
COLLIAS; WILLIAM N. RENZELLI;
ROBERT RUPP; CINDY SMITH, in
their official capacities as
members of the West Virginia
State Election Commission; SCOTT
ASH, Prosecuting Attorney for
Mercer County, as a representative
of the class of Prosecuting
Attorneys in the State of West
Virginia, 
Defendants-Appellees,
and
WEST VIRGINIA EDUCATION
ASSOCIATION; WEST VIRGINIA
AMERICAN FEDERATION OF
LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS; BOB
BASTRESS; MARGARET L. WORKMAN;
MENIS ELBERT KETCHUM,
Intervenors/Defendants.

4 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
BRENNAN CENTER FOR JUSTICE AT 
NYU SCHOOL OF LAW; OHIO
VALLEY ENVIRONMENTAL COALITION;

WEST VIRGINIA CITIZENS FOR CLEAN
ELECTIONS; LEAGUE OF WOMEN
VOTERS OF WEST VIRGINIA; WEST
VIRGINIA CITIZEN ACTION GROUP,
Amici Supporting Appellees.

Appeals from the United States District Court
for the Southern District of West Virginia, at Bluefield.
Thomas E. Johnston, District Judge.
(1:08-cv-00190; 1:08-cv-01133)
Argued: October 23, 2012
Decided: January 18, 2013
Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Floyd wrote the opinion, in which Judge Motz
and Judge Duncan joined.
COUNSEL
ARGUED: Anthony J. Majestro, POWELL & MAJESTRO,
PLLC, Charleston, West Virginia, for Natalie H. Tennant,
Gary Collias, William N. Renzelli, Robert Rupp, Cindy
Smith, and Scott Ash. James Bopp, Jr., THE BOPP LAW
FIRM, Terre Haute, Indiana; Thomas W. Kirby, WILEY
REIN, LLP, Washington, D.C., for Center for Individual
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 5
Freedom, Incorporated, West Virginians for Life, Incorpo-
rated, and Zane Lawhorn. ON BRIEF: Silas B. Taylor,
Senior Deputy Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Natalie H. Tennant, Gary Collias, William N.
Renzelli, Robert Rupp, and Cindy Smith; Nicholas S. Preser-
vati, Charleston, West Virginia, for Scott Ash. Andrew G.
Woodson, WILEY REIN, LLP, Washington, D.C., for Center
for Individual Freedom, Incorporated. Randy Elf, JAMES
MADISON CENTER FOR FREE SPEECH, Terre Haute,
Indiana, for West Virginians for Life, Incorporated, and Zane
Lawhorn. David S. Turetsky, Mark Walsh, J. Porter Wiseman,
DEWEY & LEBOEUF LLP, Washington, D.C.; Mark Ladov,
Mimi Marziani, Adam Skaggs, David Earley, THE BREN-
NAN CENTER FOR JUSTICE AT NYU, New York, New
York, for Amici Curiae.
OPINION
FLOYD, Circuit Judge:
The First Amendment provides that "Congress shall make
no law . . . abridging the freedom of speech." U.S. Const.
amend. I. In its now-famous Citizens United v. FEC decision,
the Supreme Court recognized that the First Amendment "has
its fullest and most urgent application to speech uttered during
a campaign for political office." 130 S. Ct. 876, 898 (2010)
(quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S.
214, 223 (1989)) (internal quotation marks omitted). How-
ever, at the same time, the Supreme Court has emphasized the
importance of providing the electorate with information about
the source of campaign spending—even when these disclo-
sure requirements burden election-related speech. See, e.g.,
McConnell v. FEC, 540 U.S. 93, 196 (2003), overruled on
other grounds by Citizens United, 130 S. Ct. 876; Buckley v.
Valeo, 424 U.S. 1, 64, 66-67 (1976) (per curiam). In this case,
6 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
we confront the delicate balance between protecting political
speech and informing the electorate about the organizations
that bankroll modern elections. Specifically, we consider
whether West Virginia’s campaign-finance reporting and dis-
claimer requirements can survive constitutional scrutiny.
Appellee and Cross-Appellant Center for Individual Free-
dom (CFIF) and Appellee West Virginians for Life (WVFL)
are § 501(c)(4) organizations that engage in election-related
speech. These organizations and Zane Lawhorn1—a West Vir-
ginia resident who wishes to receive WVFL’s communica-
tions—brought suit against West Virginia’s secretary of state,
members of the West Virginia State Election Commission,
and a class of West Virginia’s prosecuting attorneys, alleging
that West Virginia’s campaign finance statutes were constitu-
tionally impermissible. The district court struck down some of
the provisions and upheld other portions of the statutory
scheme, and both West Virginia2 and CFIF appealed. We now
affirm in part, reverse in part, and remand for further proceed-
ings consistent with this opinion.
I.
A.
Following the 2004 election, the West Virginia legislature
acted to strengthen the state’s election statutes due to an "ex-
plosion of expenditures by groups independent of candidates."
These new laws required organizations to file reports with the
West Virginia secretary of state and include disclaimers on
their communications when they made certain election-related
expenditures and engaged in campaign-related speech. CFIF
and WVFL filed separate challenges to the new laws, alleging
1
For purposes of this opinion, we refer to WVFL and Lawhorn collec-
tively as "WVFL."
2
We refer to this case’s Defendants, Appellants, and Cross-Appellees as
"West Virginia" for ease of reference.
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 7
that they feared prosecution under the statutes because they
disseminated communications that fell within the laws’ scope
but were unwilling to disclose the sources of their contribu-
tions.
CFIF’s mission "is to protect and defend individual free-
doms and individual rights guaranteed by the U.S. Constitu-
tion." CFIF plans to use broadcast media, print media, and
telephone banks "to speak to the public in the Southern Dis-
trict of West Virginia on matters of litigation reform and
related justice issues, including criminal law enforcement and
sentencing, legal reform, and judicial decision-making." To
this end, CFIF will "refer to West Virginia candidates to illus-
trate its points and ask members of the public to contact the
candidates and petition them to take or maintain certain posi-
tions." WVFL, in turn, aims "to present information upon
which individuals and the general public may make informed
decisions about such topics as fetal development, abortion and
its alternatives, and euthanasia." To further this purpose,
"WVFL has distributed candidate-comparison fliers, placed
candidate comparisons in ads for newspaper and television as
well as on the Internet, and issued petitions and mailings." In
sum, both CFIF and WVFL engage in election-related speech
to promote their organizational goals.
B.
CFIF filed its initial complaint against Betty Ireland3
—West Virginia’s secretary of state—and a class of West
Virginia’s prosecuting attorneys on March 21, 2008, challeng-
ing West Virginia’s reporting and disclaimer requirements for
(1) expenses associated with "advocating or opposing the
nomination, election or defeat of any candidate;" (2) expendi-
tures "in support of or opposition to the nomination or elec-
3
In 2009, Appellant and Cross-Appellee Natalie Tennant replaced for-
mer Defendant Betty Ireland as West Virginia’s secretary of state. The dis-
trict court substituted Tennant for Ireland on January 19, 2009.
8 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
tion" of a candidate; and (3) "electioneering communication."
By order, the district court permitted the West Virginia Edu-
cation Association (WVEA), the West Virginia American
Federation of Labor and Congress of Industrial Organizations
(AFL-CIO), Robert M. Bastress, Jr., Margaret L. Workman,
and Menis E. Ketchum to intervene as defendants. The West
Virginia AFL-CIO and WVEA intervened due to their "con-
crete interests, distinct from those of other parties, in uphold-
ing the West Virginia campaign finance provisions at issue."
Bastress, Workman, and Ketchum were each seeking nomina-
tion for election to a seat on the West Virginia Supreme Court
of Appeals and alleged that CFIF had targeted them through
its communications.
On April 22, 2008, the district court entered an injunction
preventing West Virginia from applying the campaign finance
statutes to "anything other than communications that
expressly advocate the election or defeat of a clearly identi-
fied candidate" and restricting the definition of "electioneer-
ing communication" to certain broadcast media. Ctr. for
Individual Freedom, Inc. v. Ireland (CFIF I), No. 1:08-00190,
2008 WL 1837324, at *7 (S.D. W. Va. Apr. 22, 2008).
Shortly thereafter, the West Virginia legislature amended the
code sections that were the subject of the injunction, and West
Virginia moved to dissolve the injunction, arguing that the
amendments rendered it moot. The district court granted West
Virginia’s motion and directed CFIF to seek a new injunction
based on the amended language.
On September 30, 2008, WVFL filed its verified complaint
and motion for a preliminary injunction raising challenges to
the amended statutory provisions. Specifically, WVFL chal-
lenged the statutory scheme’s reporting requirements and its
definitions of "electioneering communication" and "expressly
advocating." Less than a week later, CFIF filed a motion for
a preliminary injunction and challenged many of the same
provisions, and the district court consolidated the two cases:
Center for Individual Freedom, Inc. v. Ireland, No. 1:08-cv-
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 9
00190, and West Virginians for Life, Inc. v. Ireland, No. 1:08-
cv-0113. The district court issued its memorandum opinion
and order regarding the preliminary injunction motions on
October 17, 2008, and released its amended opinion and order
on February 12, 2009. Notably, the district court held that (1)
West Virginia’s definition of "expressly advocating" was
vague and (2) its definition of "electioneering communica-
tion" was overbroad because it applied to more media than the
definition that appears in the federal Bipartisan Campaign
Reform Act (BCRA), which—unlike West Virginia’s then-
existing definition—includes only broadcast media. The court
therefore granted CFIF’s and WVFL’s requests for prelimi-
nary injunctions with respect to those provisions. See Ctr. for
Individual Freedom, Inc. v. Ireland (CFIF II), 613 F. Supp.
2d 777, 790-92, 800-01 (S.D. W. Va. 2009).
After the district court ruled on their preliminary injunction
motions, both CFIF and WVFL moved for summary judg-
ment. However, due to pending petitions for rehearing en
banc and a writ of certiorari in The Real Truth About Obama,
Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009), the district court
granted WVFL’s motion to stay the case on September 16,
2009. The Supreme Court ultimately granted the certiorari
petition, vacated this Court’s decision in Real Truth, and
remanded the case in light of Citizens United, see The Real
Truth About Obama, Inc. v. FEC, 130 S. Ct. 2371 (2010),
causing the district court to dissolve the stay on May 26,
2010.
C.
In 2010, West Virginia’s legislature amended the provi-
sions at issue in this case for a second time. The amendments
went into effect on June 11, 2010, and concerned West Vir-
ginia Code section 3-8-1, which states the purposes of the
law; section 3-8-1a, which includes the definitions of "elec-
tioneering communication" and "expressly advocating"; and
section 3-8-2, which lays out the requirements for reporting
10 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
election-related spending that is not coordinated with a candi-
date or political party, also known as independent expendi-
tures. Presumably to more closely comport with the October
2008 preliminary injunction order,4 the West Virginia legisla-
ture removed direct mailings, telephone banks, and billboard
advertising from the "electioneering communication" defini-
tion. See W. Va. Code § 3-8-1a(11)(A). In relevant part, the
latest version of the statute requires individuals and organiza-
tions to (1) file reports with West Virginia’s secretary of state
if they make independent expenditures of a certain amount,
id. § 3-8-2(b)(1), (c)(1)-(2), (d)(1)-(2); (2) file reports with
West Virginia’s secretary of state if they engage in election-
eering communication, which "means any paid communica-
tion made by broadcast, cable or satellite signal, or published
in any newspaper, magazine or other periodical," id. §§ 3-8-
1a(11)(A), 3-9-2b(a)(1)-(2); and (3) include disclaimers on
electioneering communications and communications financed
by independent expenditures identifying the individuals mak-
ing the expenditure and indicating that a candidate or candi-
date’s committee did not authorize the communication, id.
§§ 3-8-2(2), 3-8-2b(e).
CFIF filed a renewed motion for summary judgment on
September 14, 2010, and WVFL filed a second motion for
summary judgment on the same day. Both organizations con-
tended that the amendments failed to remedy the constitu-
tional defects in the campaign finance regime. On August 3,
2011, the district court granted in part and denied in part their
motions for summary judgment. See Ctr. for Individual Free-
dom, Inc. v. Tennant (CFIF III), 849 F. Supp. 2d 659 (S.D.
W. Va. 2011). In its opinion, the district court came to the fol-
lowing pertinent conclusions:
4
The West Virginia legislature provides little, if any, formal legislative
history. See Ctr. for Individual Freedom v. Tennant, 849 F. Supp. 2d 659,
668 n.6 (S.D. W. Va. 2011); Appalachian Power Co. v. Sadler, 314 F.
Supp. 2d 639, 641 n.2 (S.D. W. Va. 2004).
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 11
1. The district court held that subsection (C) of the statute’s
definition of "expressly advocating"—which defines "ex-
pressly advocating" as "any communication that . . . [i]s
susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate," W. Va.
Code § 3-8-1a(12)(C)—was fatally vague. The court there-
fore severed subsection (C) from the remainder of the defi-
nition. CFIF III, 849 F. Supp. 2d at 685-87.
2. The district court held that West Virginia’s inclusion of
periodicals in its definition of "electioneering communica-
tion" rendered the definition overbroad. Id. at 697. In
reaching its conclusion, the district court emphasized the
West Virginia legislature’s failure to develop a record or
make findings that supported its inclusion of print media.
See id. at 694-97. Consequently, the court severed West
Virginia Code section 3-8-1a(11)’s reference to materials
"published in any newspaper, magazine or other periodi-
cal." Id. at 697.
3. The court determined that various exemptions to the "elec-
tioneering communication" definition were constitutional.
First, the court upheld a "grassroots lobbying" exemption,
which provides that "electioneering communication" does
not include "communication[s] made while the Legislature
is in session which, incidental to promoting or opposing a
specific piece of legislation pending before the Legislature,
urges the audience to communicate with a member or
members of the Legislature concerning that piece of legis-
lation." W. Va. Code § 3-8-1a(11)(B)(v); CFIF III, 849 F.
Supp. 2d at 700-03. Second, the court declined to address
the merits of CFIF’s challenge to an exemption for "bona
fide news account[s]," which provides:
(i) A news story, commentary or editorial dissemi-
nated through the facilities of any broadcast, cable or
satellite television or radio station, newspaper, maga-
zine or other periodical publication not owned or
12 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
controlled by a political party, political committee or
candidate: Provided, That a news story disseminated
through a medium owned or controlled by a political
party, political committee or candidate is neverthe-
less exempt if the news is:
(I) A bona fide news account communi-
cated in a publication of general circulation
or through a licensed broadcasting facili-
ty[.]
W. Va. Code § 3-8-1a(11)(B)(i). The court determined that
CFIF lacked standing to challenge this exemption because
CFIF failed to demonstrate that it intended to publish news
stories or functioned as a "political party, political committee
or candidate." CFIF III, 849 F. Supp. 2d at 707. Third, the
court upheld a provision that exempts communications by
§ 501(c)(3) organizations because federal law prohibits these
groups from engaging in express advocacy. Id. at 707-09.
4. The district court determined that the statutory scheme’s
twenty-four-hour and forty-eight-hour reporting and dis-
claimer requirements could survive exacting scrutiny.
CFIF III, 849 F. Supp. 2d at 711-15.
5. However, the district court concluded that the reporting
requirement for electioneering communications was
ambiguous insofar as it mandated disclosure of the "names
and addresses of any contributors who contributed a total
of more than one thousand dollars between the first day of
the preceding calendar year and the disclosure date and
whose contributions were used to pay for electioneering
communications." W. Va. Code § 3-8-2b(b)(5) (emphasis
added); CFIF III, 849 F. Supp. 2d at 717-19. To cure the
ambiguity of the emphasized portion, the court restricted
the reporting requirement to "individuals who respond to
a solicitation for electioneering communications or ear-
mark their contributions for such use." Id. at 719.
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 13
The district court chose not to vacate the April 2008 and
October 2008 injunctions due to the legislature’s amend-
ments, which would have allowed West Virginia to prosecute
groups for violating the enjoined portions of the statutory
scheme while the injunctions were in effect. Instead, the dis-
trict court "dissolve[ed]" the injunctions, thereby prohibiting
these prosecutions. CFIF III, 849 F. Supp. 2d at 719-20.
D.
West Virginia now appeals the district court’s determina-
tion that subsection (C) of the statute’s "expressly advocating"
definition was vague, its decision to strike periodicals from
the "electioneering communication" definition, and its deci-
sion to apply an "earmarked funds" limiting construction to
the reporting requirement for electioneering communications.
Furthermore, West Virginia contends that the district court
should have vacated the earlier injunctions as moot rather
than barring prosecutions for violations that occurred when
the injunctions were in effect. CFIF cross-appeals the court’s
conclusion that it lacked standing to challenge the "bona fide
news account" exemption and its determinations that the
"grassroots lobbying" and § 501(c)(3) exemptions were con-
stitutional. Although WVFL did not file a notice of appeal in
this case, it contends that, if we uphold the statutory scheme’s
"electioneering communication" and "expressly advocating"
definitions, we should strike down the reporting and dis-
claimer requirements due to these provisions’ alleged vague-
ness and overbreadth. We have jurisdiction pursuant to 28
U.S.C. § 1291. The WVEA, the West Virginia AFL-CIO,
Bastress, Workman, and Ketchum are not parties to this
appeal.
We affirm the district court’s decisions to (1) strike "news-
paper, magazine or other periodical" from West Virginia’s
"electioneering communication" definition; (2) uphold the
"electioneering communication" definition’s exemption for
grassroots lobbying; (3) decline to consider the merits of
14 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
CFIF’s challenge to the bona fide news accounts exemption
because the organization lacks standing; and (4) prohibit pros-
ecutions for violations that occurred while the earlier injunc-
tions were in effect. However, we reverse the district court’s
decision with respect to (1) its conclusion that subsection (C)
of the "expressly advocating" definition is unconstitutional;
(2) its choice to uphold the "electioneering communication"
definition’s § 501(c)(3) exemption; and (3) its application of
an "earmarked funds" limiting construction to the reporting
requirement for electioneering communications. Because
WVFL did not file a notice of appeal in this case, we cannot
consider its challenge to the district court’s finding that the
statutory scheme’s twenty-four- and forty-eight-hour report-
ing requirements are constitutional. We consequently affirm
in part, reverse in part, and remand for further proceedings
consistent with this opinion.
II.
A court considering a summary judgment motion must
view the facts in the light most favorable to the nonmovant.
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per
curiam). We review de novo both the district court’s decision
to grant in part and deny in part CFIF’s and WVFL’s motions
for summary judgment and its conclusions of law. Moore
Bros. Co. v. Brown & Root, Inc., 207 F.3d 717, 724 (4th Cir.
2000); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). With
respect to the district court’s decision to prohibit prosecutions
for violations that occurred while the April 2008 and October
2008 injunctions were in place, we review for abuse of discre-
tion. See Conservation Council of N.C. v. Costanzo, 528 F.2d
250, 251-52 (4th Cir. 1975).
III.
First, we consider West Virginia’s contention that the dis-
trict court erred in concluding that subsection (C) of the stat-
ute’s definition of "expressly advocating" is
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 15
unconstitutionally vague. Subsection (C) provides that "ex-
pressly advocating" includes "any communication that . . . [i]s
susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate." W. Va.
Code § 3-8-1a(12)(C). The statutory scheme incorporates the
phrase "expressly advocating" into the definition of "indepen-
dent expenditure" and does not include the phrase elsewhere.
Pursuant to the statute, an "independent expenditure" is "an
expenditure . . . [e]xpressly advocating the election or defeat
of a clearly identified candidate" and "[t]hat is not made in
concert or cooperation with or at the request or suggestion of
such candidate, his or her agents, the candidates authorized
political committee or a political party committee or its
agents." W. Va. Code § 3-8-1a(15).
Relying on FEC v. Wisconsin Right to Life, Inc., (WRTL
II), 551 U.S. 449 (2007), the district court determined that the
Supreme Court endorsed "appeal to vote" tests—such as sub-
section (C)—only within the confines of the BCRA’s "elec-
tioneering communication" definition. CFIF III, 849 F. Supp.
2d at 686-97. In other words, the district court held that, pur-
suant to WRTL II, provisions such as subsection (C) can sur-
vive vagueness challenges only when they reach
communications that (1) are disseminated via cable, broad-
cast, or satellite; (2) refer to a clearly identified candidate; (3)
are disseminated within certain time periods before an elec-
tion; and (4) are directed at the relevant electorate. The dis-
trict court declined to fully address CFIF’s and WVFL’s
overbreadth challenges because it invalidated subsection (C)
on vagueness grounds. Id. at 685. For the reasons discussed
below, we find that the district court erred in holding that sub-
section (C) is vague and decline to strike down the provision
on overbreadth grounds.
Statutory provisions are unconstitutionally vague if they
fail to "give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited." Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). When a statute "is capa-
16 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
ble of reaching expression sheltered by the First Amendment,
the [vagueness] doctrine demands a greater degree of specific-
ity than in other contexts." Smith v. Goguen, 415 U.S. 566,
573 (1974); United States v. Sun, 278 F.3d 302, 309 (4th Cir.
2002). Due to this Court’s recent decision in The Real Truth
About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012),
CFIF’s and WVFL’s vagueness arguments cannot succeed. In
Real Truth, this Court held that the federal definition of "ex-
pressly advocating" is not unconstitutionally vague. Id. at 555.
Per the federal definition—which appears in 11 C.F.R.
§ 100.22(b)—"expressly advocating" is a communication that,
[w]hen taken as a whole and with limited reference
to external events, such as the proximity to the elec-
tion, could only be interpreted by a reasonable per-
son as containing advocacy of the election or defeat
of one or more clearly identified candidate(s)
because—
(1) The electoral portion of the communication is
unmistakable, unambiguous, and suggestive of only
one meaning; and
(2) Reasonable minds could not differ as to whether
it encourages actions to elect or defeat one or more
clearly identified candidate(s) or encourages some
other kind of action.
Real Truth held that the differences between § 100.22(b) and
the WRTL II "functional equivalent" test—which specifies
that "a court should find that an ad is the functional equivalent
of express advocacy only if the ad is susceptible of no reason-
able interpretation other than as an appeal to vote for or
against a specific candidate," WRTL II, 551 U.S. at 470-
71—were "not meaningful." Real Truth, 681 F.3d at 552.
Because the WRTL II test and the portion of the West Virginia
definition at issue here are identical, Real Truth’s holding
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 17
applies to this case. We therefore hold that subsection (C) is
not unconstitutionally vague.
Although CFIF and WVFL argue that this Court’s decision
in North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274
(4th Cir. 2008), necessitates finding that subsection (C) is
vague, the situation at issue in Leake is distinguishable from
the circumstances in this case for the same reasons this Court
distinguished it in Real Truth. Notably, like the provision
before this Court in Real Truth, the "expressly advocating"
definition under review in this case is a component of West
Virginia’s "independent expenditure" definition. W. Va. Code
§ 3-8-1a(15); Real Truth, 681 F.3d at 553. The Leake panel
elected to cabin the North Carolina provision at issue in that
case within the confines of the statute’s "electioneering com-
munication" definition due to concerns about the provision’s
broad applicability. Leake, 525 F.3d at 283-84. Those con-
cerns are not at play in this case because, as previously noted,
the West Virginia legislature embedded the "expressly advo-
cating" term within the "independent expenditure" definition,
thereby limiting its applicability. Consequently, Leake does
not alter our conclusion that Real Truth compels us to reverse
the district court’s determination that subsection (C) is uncon-
stitutionally vague.
Because the district court erred in invalidating subsection
(C) on vagueness grounds, we must consider whether the pro-
vision is impermissibly broad. WVFL argues in its reply brief
that subsection (C) is overbroad because it reaches beyond
express advocacy, and CFIF adopts this contention in its brief.
Real Truth again controls our decision because the federal
regulatory provision at issue in that case is comparable to sub-
section (C) of West Virginia Code section 3-8-1a(12). In Real
Truth, this Court emphasized the Supreme Court’s Citizens
United decision, which explained that regulators need not
limit disclosure requirements to "speech that is the functional
equivalent of express advocacy." Real Truth, 681 F.3d at 551-
52 (citing Citizens United, 130 S. Ct. at 890). Because regula-
18 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
tions may extend beyond speech that is the functional equiva-
lent of express advocacy and subsection (C) invokes WRTL
II’s "functional equivalent" test, subsection (C) cannot be
overbroad. Therefore, CFIF and WVFL’s overbreadth argu-
ment fails, and we hold that subsection (C) is constitutional.
IV.
Next, we consider the constitutionality of the West Virginia
Code’s definition of "electioneering communication." Section
3-8-1a(11) defines the term as
any paid communication made by broadcast, cable or
satellite signal, or published in any newspaper, mag-
azine or other periodical that:
(i) Refers to a clearly identified candidate for Gover-
nor, Secretary of State, Attorney General, Treasurer,
Auditor, Commissioner of Agriculture, Supreme
Court of Appeals or the Legislature;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election at
which the nomination for office sought by
the candidate is to be determined; or
(II) Sixty days before a general or special
election at which the office sought by the
candidate is to be filled; and
(iii) Is targeted to the relevant electorate.
CFIF challenges the definition’s inclusion of materials "pub-
lished in any newspaper, magazine or other periodical."
In Citizens United, the Supreme Court specified that courts
should apply "exacting scrutiny" to evaluate campaign
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 19
finance disclaimer and disclosure provisions, such as the
"electioneering communication" definition. 130 S. Ct. at 914.
This standard requires the government to show that the statute
bears a "substantial relation" to a "sufficiently important"
governmental interest. Id. (quoting Buckley, 424 U.S. at 64,
66). CFIF alleges that the "electioneering communication"
definition fails to survive exacting scrutiny for two reasons:
(1) the government has no interest that justifies the statute’s
application to non-broadcast media, and (2) even if the gov-
ernment could demonstrate a sufficiently important interest,
the legislature’s failure to empirically justify the statute’s
application to periodicals renders it overbroad and prevents it
from bearing a substantial relation to West Virginia’s stated
interests. As we explain below, the district court correctly
agreed with CFIF’s second contention, so we affirm the dis-
trict court’s decision to sever West Virginia Code section 3-8-
1a(11)’s reference to materials "published in any newspaper,
magazine or other periodical."
Governmental Interest
We first address CFIF’s argument that West Virginia has
no sufficiently important governmental interest that justifies
the statutory scheme’s application to non-broadcast media. In
Buckley v. Valeo, the Supreme Court highlighted three state
interests that can justify disclosure requirements: (1) "provid[-
ing] the electorate with information" about the source of
campaign-related spending, (2) "deter[ring] actual corruption
and avoid[ing] the appearance of corruption," and (3) "gather-
ing the data necessary to detect violations of . . . contribution
limitations." 424 U.S. at 66-67. The second inter-
est—preventing corruption and the appearance of corrup-
tion—does not apply to the case at hand because
"electioneering communication" does not include activity by
candidates or their committees. See W. Va. Code § 3-8-
1a(11)(B)(ii). "Electioneering communication" therefore
includes only materials that third parties finance, and the
Supreme Court has held that third-party expenditures "do not
20 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
give rise to corruption or the appearance of corruption." Citi-
zens United, 130 S. Ct. at 909; see also Leake, 525 F.3d at
292 (explaining that "independent expenditures are made
without candidate consultation, rendering it unlikely that such
expenditures would be made in exchange for ‘improper com-
mitments from the candidate’" (quoting Buckley, 424 U.S. at
47)). The third interest—gathering data to enforce more sub-
stantive electioneering restrictions—is also inapposite
because states cannot limit contributions collected to fund
independent electioneering communications or prohibit such
communications. See Citizens United, 130 S. Ct. at 913. Con-
sequently, West Virginia cannot use the second or third Buck-
ley interests to justify its "electioneering communication"
definition.
However, West Virginia can rely on the first interest: pro-
viding the electorate with election-related information.
Requiring organizations and individuals who engage in elec-
tioneering communication to file certain reports "alert[s] the
voter to the interests to which a candidate is most likely to be
responsive and thus facilitate[s] predictions of future perfor-
mance in office." Buckley, 424 U.S. at 67. Furthermore, as the
Supreme Court recognized in McConnell v. FEC, organiza-
tions such as CFIF often have "dubious and misleading
names," and "disclosure provisions require these organiza-
tions to reveal their identities so that the public is able to iden-
tify the source of the funding behind . . . advertisements
influencing certain elections." 540 U.S. at 196-97. Despite
CFIF’s argument that the public’s informational interest
extends only to broadcast media, there is no reason why the
public would not have a similar interest in knowing the source
of campaign-related spending when it takes the form of print
communication. Therefore, West Virginia can point to its
interest in informing the public to justify including print
media in its "electioneering communication" definition.
Substantial Relation
Next, West Virginia must be able to demonstrate that
including materials "published in any newspaper, magazine or
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 21
other periodical" in its "electioneering communication" defi-
nition bears a substantial relation to the state’s interest in pro-
viding information. The district court concluded that West
Virginia failed to make this showing because the state legisla-
ture neglected to make findings regarding the need to regulate
non-targeted print communications, which rendered the "elec-
tioneering communication" definition fatally overbroad. CFIF
III, 849 F. Supp. 2d at 696-97. In Turner Broadcasting Sys-
tem, Inc. v. FCC, the Supreme Court explained that, "[e]ven
in the realm of First Amendment questions," legislatures
"must base [their] conclusions on substantial evidence." 520
U.S. 180, 196 (1997). The Turner Court pointed out that
courts must defer to legislative findings because legislatures
are "far better equipped than the judiciary to amass and evalu-
ate the vast amounts of data bearing upon legislative ques-
tions." Id. at 195 (quoting Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 665-66 (1994)) (internal quotation marks omit-
ted). In another opinion, the Supreme Court clarified that the
"quantum of empirical evidence" required should "vary up or
down with the novelty and plausibility of the justification" for
the regulation. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,
391 (2000). Because West Virginia has raised a well-accepted
rationale for its electioneering communication defini-
tion—informing the electorate—its evidentiary burden falls at
the bottom of this spectrum.
Nevertheless, we find that the district court correctly deter-
mined that West Virginia failed to demonstrate a substantial
relation between its interest in informing the electorate and its
decision to include periodicals—but not other non-broadcast
materials—in its "electioneering communication" definition.
However, recognizing that we may "affirm the district court
on any ground that would support the judgment in favor of the
party prevailing below," Everett v. Pitt Cnty. Bd. of Educ.,
678 F.3d 281, 291 (4th Cir. 2012) (quoting Crosby v. City of
Gastonia, 635 F.3d 634, 643 n.10 (4th Cir. 2011)) (internal
quotation marks omitted), we reach our conclusion using a
different logical path than the district court. The district court
22 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
based its ruling on the "conclusory" and "anecdotal" nature of
the affidavits that West Virginia used to establish the need to
regulate periodicals, stating that "[a]lthough several of the
affidavits illustrate the potential of non-broadcast media as an
effective electioneering tool, none of them presents anything
more than anecdotal claims." CFIF III, 849 F. Supp. 2d at
694. However, in Nixon v. Shrink Missouri Government PAC,
the Supreme Court credited an affidavit that noted that "large
contributions have ‘the real potential to buy votes’" and found
that the quoted language and several newspaper articles pro-
vided sufficient justification for the campaign finance law at
issue in that case. 528 U.S. at 393-94. In fact, the Supreme
Court noted that the case did not even "present a close call."
Id. at 393. In light of Nixon, the district court mistakenly dis-
counted affidavits supporting the inclusion of periodicals in
the "electioneering communication" definition.
When combined with other materials in the record, the affi-
davits discussed above provide ample support for including
newspapers, magazines, and other periodicals in West Virgin-
ia’s "electioneering communication" definition. The West
Virginia Code specifies that the West Virginia legislature
enacted the campaign finance regime to "serve[ ] a substantial
governmental interest in informing the electorate." W. Va
Code. § 3-8-1(a)(5). Furthermore, the statute explicitly men-
tions the legislature’s fear that "[f]ailing to regulate non-
broadcast media messages would permit those desiring to
influence elections to avoid the principles and policies that are
embodied in existing state law." Id. § 3-8-1(a)(7). The affida-
vits explain that including non-broadcast media—such as
periodicals—in the "electioneering communication" definition
addresses these concerns. David H. Gold, the president of a
direct mailing company, attested that "[t]he use of direct mail
and other forms of non-broadcast media is and has been
increasing" and that limiting disclosure rules to broadcast
media causes "entities seeking to hide the source of their
funds [to] shift their expenditures into direct mail and other
cost effective non-broadcast media." In fact, as Pamela M.
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 23
Van Horn—the executive director of the West Virginia Dem-
ocratic Legislative Council—highlighted in her affidavit,
CFIF itself shifted its spending from broadcast media to
newspaper advertisements so it did not have to comply with
West Virginia’s reporting requirements. These affidavits
clearly support the informational purpose that the West Vir-
ginia legislature enunciated in the statutory text, especially in
light of our duty to defer to legislative judgments.
In addition to downplaying the relevance of these affida-
vits, the district court also discredited a spreadsheet that Nich-
olas Casey—the chairman of the West Virginia State
Democratic Party—compiled and submitted. The spreadsheet
details third-party spending during select 2006 and 2008 West
Virginia elections. Because the spreadsheet specifies that only
"a minuscule 0.4% of third-party spending" financed
"print/newspaper" communications, the district court deter-
mined that (1) including periodicals in the "electioneering
communication" definition did not bear a substantial relation
to the state’s interests and (2) the law is "severely underinclu-
sive" because it neglects to include other, more prevalent
forms of print media, such as direct mail. CFIF III, 849 F.
Supp. 2d at 695. However, independent groups’ current
eschewal of periodical advertising says nothing regarding the
legislature’s fear that these organizations will shift from
broadcast to print media to avoid the reporting and disclaimer
requirements, thereby preventing the electorate from receiv-
ing valuable information about the source of campaign-related
spending. Consequently, regardless of how little electioneer-
ing communication appears in periodicals, regulating this
form of communication furthers the state’s interest in inform-
ing the electorate.
The district court’s uneasiness about the "electioneering
communication" definition’s underinclusivity more closely
approximates our concern with that provision. We recognize
the Supreme Court’s admonition that "a statute is not invalid
under the Constitution because it might have gone farther than
24 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
it did, . . . a legislature need not strike at all evils at the same
time, and . . . reform may take one step at a time." Buckley,
424 U.S. at 105 (citations omitted) (internal quotation marks
omitted). However, a state legislature must provide some
rationale for electing to proceed one step at a time. See Tur-
ner, 520 U.S. at 196. Although the affidavits that West Vir-
ginia submitted sufficiently support its decision to regulate
periodicals and other non-broadcast media, they do not justify
the legislature’s decision to regulate periodicals to the exclu-
sion of other non-broadcast media, such as direct mailings.
We recognize that the West Virginia legislature likely elim-
inated direct mailings, telephone banks, and billboard adver-
tising from its "electioneering communication" definition to
comply with the district court’s October 2008 decision—a
decision we now see as erroneous because it found that West
Virginia could not regulate non-broadcast media as a general
matter. See CFIF II, 613 F. Supp. 2d at 800-01. However, we
must "err on the side of protecting political speech rather than
suppressing it," WRTL II, 551 U.S. at 457, and limiting the
campaign finance regime’s applicability to only broadcast
media causes it to burden fewer election-related communica-
tions. We consequently affirm the district court’s decision to
strike "newspaper, magazine or other periodical" from West
Virginia’s "electioneering communication" definition.
V.
Next, we consider CFIF’s argument that the district court
erred in its decisions regarding three exemptions to West Vir-
ginia’s "electioneering communication" definition. For the
reasons we outline below, we find that the district court cor-
rectly upheld the definition’s "grassroots lobbying" exemption
and properly determined that CFIF lacked standing to chal-
lenge the "bona fide news account" exemption. However, we
conclude that the district court erred in finding that the
§ 501(c)(3) exemption could survive constitutional scrutiny.
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 25
A.
CFIF raises two challenges to West Virginia’s "grassroots
lobbying" exemption, which specifies that "electioneering
communication" does not include "communication[s] made
while the Legislature is in session which, incidental to pro-
moting or opposing a specific piece of legislation pending
before the legislature, urges the audience to communicate
with a member or members of the Legislature concerning that
piece of legislation." W. Va. Code § 3-8-1a(11)(B)(v). CFIF
argues (1) that the phrase "promoting or opposing" and the
word "incidental" are vague and (2) that the provision dis-
criminates based on content and viewpoint. However, as dis-
cussed below, CFIF’s contentions lack merit.
Vagueness Challenge
As noted above, statutes are unconstitutionally vague when
they fail to "give the person of ordinary intelligence a reason-
able opportunity to know what is prohibited." Grayned, 408
U.S. at 108. CFIF relies upon this Court’s decision in North
Carolina Right to Life, Inc. v. Bartlett to support its vagueness
argument. 168 F.3d 705 (4th Cir. 1999). The relevant portion
of the statute at issue in Bartlett defined a political committee
as a group whose "primary or incidental purpose . . . is to sup-
port or oppose any candidate or to influence or attempt to
influence the result of an election." Id. at 712. The plaintiff in
that case similarly argued that the provision was unconstitu-
tionally vague, and this Court agreed. Id. at 713. However,
differences between the circumstances at issue in Bartlett and
the situation at hand counsel against adopting Bartlett’s rea-
soning in this case.
As the district court correctly pointed out, the North Caro-
lina statute at issue in Bartlett and the statute under consider-
ation in this case use the word "incidental" in different
manners. In Bartlett, this Court implied that "incidental"
could mean "accidental" or "unplanned" in the context of the
26 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
North Carolina statute when it explained that the word "ex-
pressly sweeps within [the statute’s] ambit those groups that
only incidentally engage in express advocacy." 168 F.3d at
712; see also The American Heritage College Dictionary 700
(4th ed. 2002) (defining "incidental" as "[o]ccurring or likely
to occur as an unpredictable or minor accompaniment"). This
reading of the statute essentially requires organizations seek-
ing to comply with its requirements to discern when their
communications unintentionally promote or oppose a candi-
date or accidentally influence an election, which, understand-
ably, a person of ordinary intelligence would find difficult. By
contrast, the district court properly recognized that the West
Virginia statute’s language—"incidental to promoting or
opposing a specific piece of legislation"—clearly invokes the
phrase "incident to" despite its inapt use of the word "inciden-
tal." CFIF III, 849 F. Supp. 2d at 701. Black’s Law Dictio-
nary defines "incident" as "[d]ependent upon, subordinate to,
arising out of, or otherwise connected with." Black’s Law
Dictionary 830 (9th ed. 2009). In light of the wording of West
Virginia’s statute, it is clear that the legislature intended this
meaning rather than the definition that this Court held to be
vague in Bartlett. Consequently, the exemption’s incorpora-
tion of the word "incidental" does not prevent a person of
ordinary intelligence from understanding its import.
Next, CFIF alleges that the phrase "promoting or opposing"
is impermissibly vague because it "turn[s] on the speaker’s
perceived intent" and requires speculation regarding the "po-
tential effect of the speech on listeners." To support its argu-
ment, CFIF relies on Buckley v. Valeo, which held that the
D.C. Circuit failed to cure an election statute’s vagueness
when that circuit construed the statute to apply only to speech
"advocating the election or defeat of" a candidate. 424 U.S.
at 42-43. In Buckley, the Supreme Court determined that the
D.C. Circuit’s clarification remained vague because it consti-
tuted an impermissible "intent-and-effect" test that put speak-
ers "at the mercy of the varied understanding of [their] hearers
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 27
and consequently of whatever inference may be drawn as to
[their] intent and meaning." Id.
The district court countered CFIF’s argument by citing
footnote 64 of McConnell v. FEC, which explicitly held that
the words "promote" and "oppose" were not unconstitution-
ally vague. 540 U.S. at 170 n.64. In McConnell, the Supreme
Court held that campaign finance statutes featuring the words
"promote" and "oppose" "give the person of ordinary intelli-
gence a reasonable opportunity to know what is prohibited."
Id. Although the Court recognized that "[t]his is particularly
the case here, since actions taken by political parties are pre-
sumed to be in connection with election campaigns," it did not
limit its holding to situations involving political parties. Id.
Despite CFIF’s arguments that this Court’s decision in
Leake "flatly rejected the notion that footnote 64 in McCon-
nell applies to speech beyond that by political parties," Leake
merely held that a statutory scheme incorporating the phrase
"support or oppose" was unconstitutionally vague due to addi-
tional language that does not appear in West Virginia’s stat-
ute. 525 F.3d at 280-81, 285-86 (concluding that the statute
was vague because it "determine[d] whether speech [was]
regulable based on how a ‘reasonable person’ interpret[ed] the
speech’s ‘essential nature’ in light of four ‘contextual fac-
tors’"). Additionally, WRTL II does not require us to strike
down the exemption because—contrary to CFIF’s asser-
tions—that case has no effect on McConnell’s conclusion
regarding "promote and oppose"; WRTL II simply reiterated
that intent-and-effect tests were impermissible while passing
no judgment regarding McConnell’s vagueness holding. 551
U.S. at 465. Consequently, pursuant to McConnell, the words
"promote" and "oppose" do not render the grassroots lobbying
exemption vague, allowing the exemption to survive CFIF’s
vagueness challenge.5
5
CFIF also argues that the phrase "urges the audience" is vague in its
reply brief. However, in its renewed motion for summary judgment, CFIF
28 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
Content and Viewpoint Discrimination Challenge
In addition to arguing that the grassroots lobbying exemp-
tion is impermissibly vague, CFIF contends that the provision
unconstitutionally discriminates based on communications’
content and viewpoint. In particular, CFIF points out that the
provision (1) exempts speech that occurs while the legislature
is in session but burdens speech that takes place at other
times, (2) exempts communications that concern specific,
pending legislation but burdens speech regarding other legis-
lation, (3) exempts speech urging contact with legislators but
burdens communications that encourage reaching out to non-
incumbents or executive branch officials, and (4) exempts
communications that support or oppose legislation but bur-
dens speech that requests other action, such as recommending
that a nominee be confirmed. Although the Supreme Court
typically applies strict scrutiny to content-based speech
restrictions, see Brown v. Entm’t Merchants Ass’n, 131 S. Ct.
2729, 2738 (2011), disclosure and disclaimer requirements
are subject to exacting scrutiny. Citizens United, 130 S. Ct. at
914. Therefore, the grassroots lobbying exemption is constitu-
tionally permissible if, in its absence, the "electioneering
communication" definition would not bear a "substantial rela-
tion" to a "sufficiently important" governmental interest. Id.
For the reasons we outline below, the exemption survives
exacting scrutiny.
As explained above, the only sufficiently important interest
at stake in this case is informing the electorate about the
source of campaign-related spending. Thus, the "electioneer-
ing communication" definition must bear a substantial relation
failed to raise this vagueness challenge, and the district court did not
address it. We therefore decline to discuss this argument. See Lovelace v.
Lee, 472 F.3d 174, 202 n.10 (4th Cir. 2006); see also 10A Charles Alan
Wright et al., Federal Practice & Procedure § 2716 (3d ed. 1998)
(explaining that a party appealing a denial of its motion for summary judg-
ment cannot "advance new theories or raise new issues in order to secure
a reversal of the lower court’s determination").
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 29
to that interest to withstand exacting scrutiny; in other words,
we will uphold the grassroots lobbying exemption if the com-
munications that it encompasses do not bear a substantial rela-
tion to providing the public with information. The district
court reasoned that communications that relate to pending leg-
islation and take place while the legislature is in session are
more likely to be true issue advocacy—the regulation of
which the Supreme Court has been loath to endorse—rather
than express advocacy masquerading as issue advocacy.
WRTL II, 551 U.S. at 455-57; CFIF III, 849 F. Supp. 2d at
703. The court therefore held that the exemption was neces-
sary because the statutory scheme "imposes reporting require-
ments on communications more likely to be ‘sham issue ads’
and because the exemption spares from reporting require-
ments those communications least likely to be ‘sham issue
ads.’" Id.
Although West Virginia offers weak evidentiary support
for its argument that the legislature crafted this exemption to
avoid burdening pure issue advocacy, considering the type of
speech the legislature chose to exempt makes the legislature’s
aim abundantly clear. Furthermore, the statute itself recog-
nizes the importance of distinguishing issue advocacy from
express advocacy by explaining that "[d]isclosure by persons
and entities that make expenditures for communications that
expressly advocate the election or defeat of clearly identified
candidates" is a "reasonable and minimally restrictive method
of furthering First Amendment values by public exposure."
W. Va. Code § 3-8-1(a)(6). In all likelihood, if West Virginia
had not included this exemption, CFIF would have challenged
the regulatory scheme as overbroad due to its applicability to
issue advocacy. Therefore, the district court correctly found
that the grassroots lobbying exemption allows the "election-
eering communication" definition to survive exacting scru-
tiny, and the exemption does not impermissibly discriminate
on the basis of communications’ content and viewpoint.
30 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
B.
Next, CFIF alleges that the statute’s exemption for news
accounts is unconstitutionally vague due to its inclusion of the
phrase "bona fide news account." Under the exemption, "bona
fide news account[s]" that a speaker "disseminate[s] through
a medium owned or controlled by a political party, political
committee or candidate" are not electioneering communica-
tions. W. Va. § 3-8-1a(11)(B)(i). The district court held that
CFIF lacked standing to challenge this provision because
CFIF (1) does not publish or intend to publish news stories
and (2) does not function as a political party, political com-
mittee, or candidate. CFIF III, 849 F. Supp. 2d at 706-07.
Although CFIF correctly points out that it need not be a politi-
cal party, political committee, or candidate to disseminate a
news story through a medium that such an entity owns or con-
trols, it has never averred that it has published a news story
through one of these media outlets or that it plans to do so.
Furthermore, contrary to CFIF’s assertions, the fact that CFIF
is "an entity subject to West Virginia’s campaign finance
laws" does not give it carte blanche to challenge laws that are
inapplicable to its activities. Members of City Council v. Tax-
payers for Vincent, 466 U.S. 789, 797 (1984) (explaining that
the doctrine allowing facial challenges to overbroad statutes
"did not create any exception from the general rule that con-
stitutional adjudication requires a review of the application of
a statute to the conduct of the party before the Court"). There-
fore, the district court properly held that CFIF lacks standing
to challenge the "bona fide news account" exemption.
C.
Finally, CFIF contends that the statute’s exemption for
"communication[s] paid for by any organization operating
under § 501(c)(3) of the Internal Revenue Code" unconstitu-
tionally discriminates against § 501(c)(4) organizations such
as CFIF. W. Va. Code § 3-8-1a(11)(B)(iv). Once again, we
apply exacting scrutiny to determine if the exemption is con-
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 31
stitutionally permissible, Citizens United, 130 S. Ct. at 914,
and, as explained above, the only sufficiently important gov-
ernmental interest at stake in this case is providing the elector-
ate with information about the source of campaign-related
spending. Consequently, because we are evaluating an
exemption to the campaign finance regime, West Virginia
must demonstrate that regulating communications that fall
within the exemption does not bear a substantial relation to
this governmental interest. For the reasons we outline below,
West Virginia has failed to make this showing.
The Internal Revenue Code prohibits § 501(c)(3) organiza-
tions from "participat[ing] in, or interven[ing] in (including
the publishing or distributing of statements), any political
campaign on behalf of (or in opposition to) any candidate for
public office." 26 U.S.C. § 501(c)(3). As noted above, West
Virginia exempts these organizations from complying with
reporting and disclaimer requirements that other organizations
engaging in electioneering communication must satisfy. West
Virginia’s § 501(c)(3) exemption is identical to a since-
repealed regulatory provision that the FEC promulgated to
enforce the BCRA. 11 C.F.R. § 100.29(c)(6) (repealed Jan.
19, 2006). In light the fact that the Internal Revenue Code
prohibits § 501(c)(3) organizations from engaging in express
advocacy, the FEC noted that commentators had concluded
that the "‘BCRA’s application to 501(c)(3)s [would] prohib-
it[ ] activity that is already forbidden,’ and the activities the
Internal Revenue Service permits 501(c)(3) organizations to
engage in are activities ‘that BCRA was not intended to
reach.’" 67 Fed. Reg. 65,190-01, 65,199 (Oct. 23, 2002)
(alteration in original). The district court relied on this logic
when upholding the West Virginia exemption. See CFIF III,
849 F. Supp. 2d at 707-08.
However, the district court erred in finding that the
§ 501(c)(3) exemption could withstand exacting scrutiny for
at least two reasons. First, exemptions such as the one at issue
in this case assume that campaign finance laws and
32 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
§ 501(c)(3) are coextensive in terms of the electioneering
communication that they prohibit, which may not be the case.
See Shays v. FEC, 337 F. Supp. 2d 28, 126-28 (D.D.C. 2004).
Therefore, by exempting communications by § 501(c)(3)
organizations from the definition of "electioneering communi-
cation," West Virginia likely deprived the electorate of infor-
mation about these organizations’ election-related activities.
Second, the district court recognized that "the West Virginia
Legislature has not set forth comprehensive findings for
enacting such an exemption" and implied that the legislature
must have relied on the logic behind the defunct FEC regula-
tion. See CFIF III, 849 F. Supp. 2d at 708. The FEC rescinded
this regulation in 2006 after a district court held that the
exception lacked "reasoned analysis" to support it. See Shays,
337 F. Supp. 2d at 127-28. As discussed in detail above, legis-
latures must base their conclusions on substantial evidence.
See Turner, 520 U.S. at 196. In light of the federal regula-
tion’s history and the lack of other support for the exemption,
we are unable to find that the "electioneering communication"
definition bears a substantial relation to the government’s
interest in informing the electorate with the § 501(c)(3)
exemption in place.
CFIF contends that, if any of the exemptions is constitu-
tionally impermissible, we must invalidate the entire regula-
tory scheme affecting electioneering communications because
striking the exemption would burden more speech than the
legislature intended to restrict. Although CFIF correctly sug-
gests that "when a section of a statute is declared void, the
statute cannot be given effect as though the legislature had not
enacted the conditions limiting its operation," Quinn v.
Comm’r, 524 F.2d 617, 626 (7th Cir. 1975), this drastic rem-
edy is unnecessary in this case. In McCorkle v. United States,
this Court explained that, "[u]nless it is evident that the legis-
lature would not have enacted those provisions which are
within its power, independently of that which is not, the
invalid part may be dropped if what is left is fully operative
as a law." 559 F.2d 1258, 1261 (4th Cir. 1977). It is hard to
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 33
believe that West Virginia would have foregone regulating
electioneering communications if it had to subject § 501(c)(3)
organizations to the statutory requirements. We therefore
invalidate the § 501(c)(3) exemption while leaving the rest of
the "electioneering communication" definition intact.
VI.
In addition to challenging the definitional portions of West
Virginia’s campaign finance laws, CFIF also challenges one
of the statutory scheme’s substantive requirements. In rele-
vant part, the West Virginia Code requires individuals who
engage in electioneering communication to comply with the
following reporting requirements:
1. Every person who spends a total of $5,000 or more during
any calendar year on electioneering communication must
file reports with West Virginia’s secretary of state within
twenty-four hours of the "disclosure date," which is the
date when the individual spends $5,000 on electioneering
communication in a calendar year. Individuals must file
these reports each time they spend $5,000. W. Va. Code
§§ 3-8-1a(9), 3-8-2b(a)(1).
2. Every person who spends a total of $1,000 or more dur-
ing the two weeks immediately preceding an election
must file a report with West Virginia’s secretary of state.
Individuals must file these reports within twenty-four
hours of the "disclosure date," which West Virginia
defines in the same manner for both electioneering com-
munication reporting requirements. Id. §§ 3-8-1a(9), 3-8-
2b(a)(2).
West Virginia also requires electioneering communications to
feature certain disclaimers. The disclaimers must (1) clearly
indicate that a candidate or candidate’s committee did not
authorize the communication and (2) clearly identify the per-
son making the expenditure. Id. § 3-8-2b(e). CFIF’s challenge
34 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
focuses on the reporting requirements for electioneering com-
munications rather than the disclaimer requirements.
CFIF specifically contends that West Virginia Code section
3-8-2b(b)(5) is ambiguous. That provision mandates disclo-
sure of the "names and addresses of any contributors who
contributed a total of more than one thousand dollars between
the first day of the preceding calendar year and the disclosure
date whose contributions were used to pay for electioneering
communications" but provides no clear guide for determining
when an organization "used" a contribution "to pay for elec-
tioneering communications." See W. Va. Code § 3-8-2b(b)(5).
In light of this alleged ambiguity, CFIF argues that the provi-
sion requires cautious organizations to disclose the names and
addresses of all contributors who donate more than $1,000
within the applicable timeframe, even when they contributed
to the organization’s general treasury. CFIF then maintains
that requiring organizations to file reports regarding their gen-
eral treasury contributions does not serve West Virginia’s
interest in informing the electorate, precluding the reporting
requirement from surviving exacting scrutiny. West Virginia,
in turn, asserts that section 3-8-2b(b)(5) is not ambiguous and
that the provision can survive exacting scrutiny even if we
accept CFIF’s broad interpretation.
Like all campaign finance-related disclosure requirements,
West Virginia Code section 3-8-2b(b)(5) is subject to exacting
scrutiny. Citizens United, 130 S. Ct. at 914. As previously
noted, this standard requires regulatory provisions to bear a
"substantial relation" to a "sufficiently important" governmen-
tal interest. Id. (quoting Buckley, 424 U.S. at 64, 66). For the
reasons we outline above, the only governmental interest at
stake in this case is West Virginia’s interest in providing the
electorate with information about the source of campaign-
related spending. Consequently, West Virginia Code section
3-8-2b(b)(5) must bear a substantial relation to this interest to
pass constitutional muster.
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 35
The district court agreed with CFIF’s contention that West
Virginia code section 3-8-2b(b)(5)’s ambiguity prevented it
from surviving exacting scrutiny. The court determined that
compelling expansive disclosure of treasury contributions
would result in a "flood of information" about donors who
may not have directly financed electioneering communica-
tions. The court reasoned that, rather than furthering West
Virginia’s interest in informing the electorate, providing
information about corporate treasury donations could hinder
West Virginia’s goal by inundating the public with marginally
relevant information. The district court also feared that a
broad disclosure requirement would be so administratively
onerous for organizations such as CFIF that it would discour-
age them from speaking at all. To avoid overwhelming the
public with information and unduly burdening groups who
engage in electioneering communication, the district court
restricted the reporting requirement to contributions from "in-
dividuals who respond to a solicitation for electioneering
communications or earmark their contributions for such use,"
a solution that it drew from an FEC regulation. CFIF III, 849
F. Supp. 2d at 717-19 (citing 72 Fed. Reg. 72,899, 72,910
(Dec. 26, 2007)). As discussed below, we find that the court
erred in determining that West Virginia code section 3-8-
2b(b)(5) could not survive exacting scrutiny and in circum-
scribing its scope via the "earmarked funds" limiting con-
struction.
To combat CFIF’s argument that West Virginia code sec-
tion 3-8-2b(b)(5) is unconstitutional, West Virginia points to
McConnell, in which the Supreme Court upheld a similar stat-
ute that imposed reporting requirements on "[e]very person
who makes a disbursement for the direct costs of producing
and airing electioneering communications." 2 U.S.C.
§ 434(f)(1); McConnell, 540 U.S. at 196. Specifically, the
McConnell Court found that the state interests that Buckley
enumerated—including providing the public with informa-
tion—"amply support[ed]" imposing reporting requirements
on organizations that engaged in electioneering communica-
36 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
tion. McConnell, 540 U.S. at 196. As the below analysis illus-
trates, we find that McConnell controls this case and
necessitates reversing the district court’s conclusion that West
Virginia’s electioneering communication reporting require-
ments cannot survive exacting scrutiny.
At the time the Supreme Court decided McConnell, the
BCRA barred corporations from using general treasury funds
to finance electioneering communications and required them
to establish a "separate segregated fund" for such expendi-
tures. 2 U.S.C. § 441b(b)(2), invalidated by Citizens United,
130 S. Ct. 876; McConnell, 540 U.S. at 195 & n.79. Conse-
quently, when the Supreme Court decided McConnell,
§ 434(f)(1) could not suffer from the same purported ambigu-
ity that allegedly prevents West Virginia Code section 3-8-
2b(b)(5) from surviving exacting scrutiny, even though aver-
age individuals could just as easily interpret § 434(f)(1) to
encompass general treasury donations absent the "separate
segregated fund" requirement. However, in Citizens United,
the Supreme Court ruled that federal law’s ban on using cor-
porate treasury funds to engage in express advocacy was
unconstitutional while simultaneously approving of McCon-
nell’s conclusion that 2 U.S.C. § 434(f)(1) was facially valid.
See Citizens United, 130 S. Ct. at 913-14. Citizens United
therefore demonstrates that the Supreme Court’s conclusion
regarding § 434(f)(1)’s constitutionality was not tied to the
prohibition regarding corporate treasury funds. Accordingly,
even if we assume for the sake of argument that section 3-8-
2b(b)(5) is ambiguous, McConnell compels us to find that the
provision is constitutional. We therefore reverse the district
court’s conclusion that section 3-8-2b(b)(5) cannot survive
exacting scrutiny and its decision to impose an "earmarked
funds" limiting construction to cure the provision’s alleged
unconstitutionality.
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 37
VII.
Like CFIF, WVFL also raises certain challenges to the stat-
utory scheme’s substantive requirements. Specifically, WVFL
contends in its reply brief that the electioneering communica-
tion reporting and disclaimer requirements described above
and the similar reporting and disclaimer requirements for
groups that make independent expenditures6 are "patently
unreasonable" and "severely burden First Amendment rights."
However, we cannot consider this issue because WVFL did
not file an appeal in this case. See Fed. R. App. P. 4(a)(3);
Thurston v. United States, 810 F.2d 438, 447 (4th Cir. 1987).
The district court’s conclusion that the reporting and dis-
claimer requirements are constitutional therefore remains
undisturbed. See CFIF III, 849 F. Supp. 2d at 711-15.
6
Organizations that make independent expenditures must comply with
the following requirements:
1. A person who makes independent expenditures totaling more than
$1,000 during a calendar year must file a report with West Virginia’s
secretary of state. W. Va. Code § 3-8-2(b)(1).
2. Any person who makes or contracts to make independent expenditures
aggregating $10,000 or more at any time before an election must file
a report with West Virginia’s secretary of state within forty-eight
hours. Id. § 3-8-2(d)(1). Thereafter, the person must file an additional
report for each aggregate $10,000 he or she spends within forty-eight
hours of the expenditure. Id. § 3-8-2(d)(2).
3. Any person who makes or contracts to make independent expenditures
within the two weeks before an election aggregating either $1,000 (for
multi-county or statewide elections) or $500 (for single-county or
municipal elections) must file a report describing the expenditure with
West Virginia’s secretary of state within twenty-four hours. Id. § 3-8-
2(c)(1). The person must file an additional report for each aggregate
$1,000 or $500 he or she spends within twenty-four hours of the expen-
diture. Id. § 3-8-2(c)(2).
Finally, West Virginia imposes the same disclaimer requirements on both
independent expenditures and electioneering communications. As noted
above, these disclaimers must (1) clearly indicate that a candidate or can-
didate’s committee did not authorize the communication and (2) clearly
identify the person making the expenditure. Id. §§ 3-8-2(e), 3-8-2b(e).
38 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT
VIII.
Finally, West Virginia contends that the district court
should have vacated as moot its earlier injunctions because
West Virginia had repealed the statutory provisions that were
subject to the injunctions. Instead of vacating the injunctions,
the court reiterated the decision it made when it dissolved the
April 2008 injunction: "‘dissolution of this court’s prelimi-
nary injunction order . . . does not mean that either the new
or old versions of West Virginia’s Election Code may be
applied to violations that are alleged to have occurred prior to’
the date of dissolution." CFIF III, 849 F. Supp. 2d at 719-20
(alteration in original) (quoting Ctr. for Individual Freedom,
Inc. v. Ireland, No. 1:08-00190, 2008 WL 4452659, at *2 n.2
(S.D. W. Va. Sept. 29, 2008)). Hence, under the district
court’s ruling, West Virginia cannot punish offenders for vio-
lating the provisions that were subject to the injunctions while
the injunctions were in effect.
Under West Virginia law, the state can enforce a repealed
law after the repeal becomes effective as long as the offense
occurred while the statute was in effect. W. Va. Code § 2-2-
8. Therefore, if we vacate the injunctions as moot, West Vir-
ginia will have the power to punish organizations for earlier
violations of the statute. In Jacobus v. Alaska, on which CFIF
relies, the Ninth Circuit explained that, "[d]espite superseding
events, an issue is not moot if there are present effects that are
legally significant." 338 F.3d 1095, 1104 (9th Cir. 2003). The
Ninth Circuit found that the plaintiffs’ claims were not moot
because the state was "likely" to prosecute, citing a letter from
the relevant regulatory body reserving the right to prosecute
past violations. Jacobus, 338 F.3d at 1104.
In this case, West Virginia’s secretary of state attested that
her "office will not seek to enforce those provisions of said
Articles that have been repealed." CFIF relies primarily on a
statement that another official made during a radio broadcast
in 2008 and an election law complaint that West Virginia’s
CENTER FOR INDIVIDUAL FREEDOM v. TENNANT 39
attorney general filed over three years ago to support its argu-
ment. We admit that this evidence does not overwhelmingly
demonstrate that the repealed provisions remain "legally sig-
nificant," especially in light of the secretary of state’s affida-
vit. However, as discussed above, we review the district
court’s decision regarding the preliminary injunction for
abuse of discretion. See Conservation Council of N.C., 528
F.2d at 251-52. Despite the weakness of the evidence in favor
of CFIF’s argument, we decline to go so far as to find that the
district court abused its discretion when it decided to dissolve
the injunctions rather than vacating them as moot. We there-
fore affirm the district court’s decision to prohibit West Vir-
ginia from prosecuting individuals who violated the enjoined
campaign finance provisions while the injunctions were in
effect.
IX.
For the foregoing reasons, we affirm in part, reverse in part,
and remand for further proceedings consistent with this opin-
ion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED