Center for Individual Freedom v. Madigan

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3693
C ENTER FOR INDIVIDUAL F REEDOM ,
Plaintiff-Appellant,
v.
L ISA M ADIGAN, Attorney General
of the State of Illinois et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-04383—William T. Hart, Judge.
A RGUED A PRIL 10, 2012—D ECIDED S EPTEMBER 10, 2012
Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. The Supreme Court’s decision
in Citizens United v. FEC, 130 S. Ct. 876 (2010), is best
known for striking down as an unconstitutional restric-
tion of free speech the federal law that bans corporations
and labor unions from running campaign-related adver-
tisements in the lead-up to an election. That holding
largely overshadowed another part of the decision up-
2 No. 11-3693
holding the same law’s campaign finance disclosure
provisions. Those provisions require any outside entity
or individual spending significant sums in a federal
election to file reports with the Federal Election Com-
mission (FEC) identifying the person or group making
the expenditure, its amount, and the names of certain
contributors. Describing disclosure requirements as a
“less restrictive alternative to more comprehensive reg-
ulations of speech,” the Citizens United Court wrote
that “prompt disclosure of expenditures can provide
shareholders and citizens with the information needed
to hold corporations and elected officials accountable
for their positions and supporters. . . . The First Amend-
ment protects political speech; and disclosure permits
citizens and shareholders to react to the speech of corpo-
rate entities in a proper way.” Id. at 916. Despite this
holding, in the aftermath of Citizens United a number
of suits have been filed challenging federal and state
disclosure regulations as facially unconstitutional. Of
the federal courts of appeals that have decided these
cases, every one has upheld the disclosure regulations
against the facial attacks.1
1
See National Org. for Marriage, Inc. v. Sec’y, No. 11-14193, 2012
WL 1758607, at *1 (11th Cir. May 17, 2012) (unpublished
opinion) (rejecting facial and as-applied challenge to Florida
disclosure laws); The Real Truth About Abortion, Inc. v. FEC, 681
F.3d 544, 546 (4th Cir. 2012) (rejecting facial and as-applied
challenge to FEC disclosure regulations pursuant to Federal
Election Campaign Act); Family PAC v. McKenna, 685 F.3d 800,
(continued...)
No. 11-3693 3
This case involves another such challenge. Plaintiff-
appellant Center for Individual Freedom (the Center)
seeks to invalidate Illinois disclosure requirements on
the grounds that they are facially vague and overbroad
restrictions of speech in violation of the First and Four-
teenth Amendments. Illinois’s disclosure law is modeled
on the federal one. It requires groups and individuals that
accept “contributions,” make “expenditures,” or sponsor
“electioneering communications” in excess of $3,000 to
make regular financial disclosures to the State Board of
Elections. See 10 ILCS 5/9-1.8. The Illinois Election Code
drew the key definitions of “contribution,” “expenditure,”
1
(...continued)
811 (9th Cir. 2012) (rejecting facial challenge to Washington
disclosure laws); National Org. for Marriage v. McKee, 649 F.3d 34,
41 (1st Cir. 2011) (rejecting facial challenge to Maine disclosure
laws); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 994-95
(9th Cir. 2010) (rejecting facial challenge to Washington disclo-
sure laws); see also Speechnow.org v. FEC, 599 F.3d 686, 696-98
(D.C. Cir. 2010) (upholding federal disclosure requirements
as applied to unincorporated nonprofit association that was
required by the FEC to register as a political committee). But cf.
Sampson v. Buescher, 625 F.3d 1247, 1249 (10th Cir. 2010) (invali-
dating Colorado campaign finance disclosure requirements
as applied to neighborhood group that had raised less than
$1,000 to oppose annexation); New Mexico Youth Organized v.
Herrera, 611 F.3d 669, 671 (10th Cir. 2010) (invalidating New
Mexico disclosure requirements as applied to two nonprofit
organizations “formed for the purpose of educating young
New Mexicans about issues such as healthcare, clean elections,
the economy and the environment”).
4 No. 11-3693
and “electioneering communication” from federal law.
The only substantive differences are that the Illinois
disclosure requirements (1) cover election activity relating
to ballot initiatives, which have no federal analog; (2) do
not exempt from regulation those groups that lack the
“major purpose” of influencing electoral campaigns; and
(3) cover campaign-related advertisements that appear
on the Internet. The Center argues that these differences,
and a few other terms in the Illinois statute, render
its disclosure regime unconstitutionally vague and
overbroad on its face.
To prevail in such a facial challenge, a plaintiff must
cross a high bar. A statute is facially overbroad only
when “it prohibits a substantial amount of protected
speech,” United States v. Williams, 553 U.S. 285, 292 (2008),
and unconstitutionally vague only when its “deterrent
effect on legitimate expression is . . . both real and sub-
stantial.” Young v. American Mini Theatres, Inc., 427 U.S.
50, 60 (1976) (internal quotation marks omitted).
The district court granted the state’s motion to dismiss,
finding that the Center could not meet these standards.
We affirm.
I. Factual and Procedural Background
The Center is a Virginia-based § 501(c)(4) nonprofit
organization whose stated mission is “to protect and
defend individual freedoms and individual rights guaran-
teed by the U.S. Constitution.” To that end, it broad-
casts advertisements, maintains a website, publishes a
weekly e-mail newsletter, produces a bi-weekly radio
No. 11-3693 5
show, and engages in other forms of mass media com-
munications. Its tax exempt status under § 501(c)(4) is
incompatible with partisan political activity, so the
Center cannot endorse candidates or urge the public to
“vote for so-and-so.” But apart from a need to avoid
such “express advocacy,” in the lingo of campaign
finance law, the Center and other § 501(c)(4) groups
enjoy fairly wide latitude from the IRS. During election
seasons, the Center runs advertisements that refer to
the positions of candidates or to ballot issues and call
on the audience to take actions such as contacting candi-
dates.2
The Center wished to engage in similar advocacy
during the 2010 elections in Illinois and made plans to
address “legal reform and other justice-related issues” in
2
In one TV spot, for instance, the Center criticized West
Virginia Attorney General Darrell McGraw during his 2008
reelection campaign:
Announcer: They say you can’t teach an old dog new tricks.
Twenty-eight years of controversy and Darrell McGraw
is at it again, spending $10 million from a settlement meant
to help workers and the elderly — instead, divvying it up
between his trial lawyer buddies and a fund only
controlled by McGraw. The Wheeling Intelligencer said,
“Legislators should have put a leash on McGraw long ago.”
But they say you can’t teach an old dog new tricks. Call
Darrell McGraw. Tell him to return the people’s money.
Dkt. No. 73; CFIF Launches Public Education Effort in W. Va.,
Youtube, http://www.youtube.com/watch?v=vPMwR2gMNTE
(last visited Aug. 29, 2012).
6 No. 11-3693
advertisements referring to incumbent officeholders
who were candidates. But the Center feared that Illinois’s
newly-amended campaign finance laws would require it
to register as a “political committee” and to disclose
its election-related expenditures and its significant con-
tributors. According to the Center, its donors require
assurances that their identities will not be disclosed, and
this anonymity is a condition of their support. The
Center says it had no choice but to forbear from its
Illinois “issue advocacy” in 2010, so its political speech
was chilled by Illinois’s disclosure laws.
These laws are codified in Article 9 of the Illinois Elec-
tion Code. Article 9 is long and filled with the jargon
of contemporary U.S. campaign finance law — “election-
eering communications,” “independent expenditures,”
etc. — which we detail in Part IV of this opinion. But
Article 9’s basic provisions are fairly easy to summarize.
Each political committee in Illinois must register with
the Board of Elections, maintain records of every con-
tribution received and expenditure made “in connec-
tion with” an election, 10 ILCS 5/9-7, and file a report of
all such transactions each quarter, 10 ILCS 5/9-10(b).
This quarterly report must include the total sums
of contributions received and expenditures made in
the covered period; accountings of the committee’s funds
on-hand and investment assets held; and the name
and address of each contributor who gave more than
$150 that quarter. 10 ILCS 5/9-11(a). In addition to the
quarterly report, a political committee must disclose
any contribution of $1,000 or more (along with the
name and address of the contributor) within five days of
No. 11-3693 7
its receipt, or within two days if received 30 or fewer days
before an election. 10 ILCS 5/9-10(c). For reporting viola-
tions, the Board may issue civil fines of no more than
$5,000 for any one group (except in the case of “willful
and wanton” violations), or seek to enjoin violators’
campaign activities in state court. 10 ILCS 5/9-10.3
Candidates’ campaign organizations and political
parties of course must register as political committees.
10 ILCS 5/9-1.8(b), (c). But so too must outside groups
and private individuals if, within any 12-month period,
they accept contributions or make expenditures in
excess of $3,000 “on behalf of or in opposition to” any
candidate or ballot question. 10 ILCS 5/9-1.8(d), (e). Any
entity other than a natural person must also register as
a political committee if it makes “independent expendi-
tures” of more than $3,000 within one year. 10 ILCS 5/9-
8.6(b). Illinois has largely borrowed from federal law
its definition of “electioneering communication,” which
means a radio, television, or Internet broadcast that
(1) refers to a “clearly identified” candidate, political
party, or ballot issue; (2) is made within two months of
a general election or one month of a primary election,
(3) is “targeted to the relevant electorate,” and (4) is
3
The Board or any political committee may also seek injunc-
tive relief in state court to compel compliance with Board
orders or to enjoin an offending committee’s operations. 10 ILCS
5/9-23, 5/9-24. Filing false or incomplete information in a
campaign finance report may also constitute a “business
offense” under the Criminal Code punishable by criminal fine
of up to $5,000. See 10 ILCS 5/9-26.
8 No. 11-3693
unambiguously an “appeal to vote” for or against a
candidate, party, or ballot issue. 10 ILCS 5/9-1.14.4
Funds spent on electioneering communications that are
coordinated with a political committee are treated as
contributions to that committee, while uncoordinated
electioneering communications are considered independ-
ent expenditures. See 10 ILCS 5/9-1.15.
The Center argues that five of Article 9’s definitions —
“electioneering communications,” “political committee,”
“contribution,” “expenditure,” and “independent expendi-
ture” — are facially vague and overbroad. In July 2010,
the Center brought suit against the Illinois Attorney
General and members of the Illinois State Board of Elec-
tions in their official capacities, see Ex parte Young, 209
U.S. 123 (1908), seeking to invalidate and enjoin Article 9’s
disclosure requirements as unconstitutional restrictions
of free speech. After the district court denied the
Center’s motion for a preliminary injunction, 735
F. Supp. 2d 994 (N.D. Ill. 2010), and this court denied
its request for an injunction pending appeal, the Center’s
appeal was dismissed by agreement without prejudice.
In January 2011, the Center filed an amended complaint
containing the same allegations but taking into account
changes to Article 9 that took effect on January 1, 2011.
The state moved to dismiss, and the Center moved for
4
Article 9 expressly excludes from this definition any “news
story, commentary, or editorial distributed through the
facilities of any legitimate news organization.” 10 ILCS 5/9-
1.14(b)(1). The Center does not challenge the reach or applicabil-
ity of this exemption.
No. 11-3693 9
summary judgment. The parties did not dispute any
material facts. The district court denied the Center’s
motion for summary judgment and granted the state’s
motion to dismiss. This appeal followed.
II. Standing
We begin, as we must, with the state’s argument that
the Center lacks standing to bring a constitutional chal-
lenge against Article 9. Although the state did not raise
this issue in the district court, standing is a jurisdictional
requirement that is not subject to waiver. United States
v. Hays, 515 U.S. 737, 742 (1995); National Org. for Women,
Inc. v. Scheidler, 510 U.S. 249, 255 (1994).
The standing requirement of Article III is part of the
restriction of the federal judicial power to “Cases” and
“Controversies.” U.S. Const. art. III, § 2; Arizona Christian
School Tuition Org. v. Winn, 131 S. Ct. 1436, 1441-42 (2011).
Constitutional standing imposes three core requirements:
First, the plaintiff must have suffered an “injury in
fact “— an invasion of a legally protected interest
which is (a) concrete and particularized, and
(b) “actual or imminent, not ‘conjectural’ or ‘hypotheti-
cal.’ ” Second, there must be a causal connection
between the injury and the conduct complained of —
the injury has to be “fairly . . . trace[able] to the chal-
lenged action of the defendant, and not . . . th[e] result
[of] the independent action of some third party not
before the court.” Third, it must be “likely,” as op-
posed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”
10 No. 11-3693
Id. at 1442, quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992).
On appeal, the state contends that the Center lacks
standing because it has neither been subject to any past
regulation — it has not been ordered to register as a
political committee, threatened with sanctions, or named
in a Board complaint — nor “demonstrate[d] any proba-
bility that its speech will trigger Article 9’s registration
and reporting requirements” in the future. We construe
this argument as a challenge to the Center’s injury-in-
fact showing. (The state does not question whether the
traceability and redressability prongs are satisfied here.)
It is well settled that pre-enforcement challenges to
government regulations can be Article III cases or contro-
versies. Bandt v. Village of Winnetka, 612 F.3d 647, 649
(7th Cir. 2010). A plaintiff “does not have to await the
consummation of threatened injury to obtain preventive
relief.” Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289, 298 (1979), quoting Pennsylvania v. West
Virginia, 262 U.S. 553, 593 (1923). To satisfy the in-
jury-in-fact requirement in a pre-enforcement challenge,
the plaintiff must show only that she faces “a realistic
danger of sustaining a direct injury as a result of the
statute’s operation or enforcement.” Id.5
5
See also ACLU of Illinois v. Alvarez, 679 F.3d 583, 590-91 (7th
Cir. 2012) (“To satisfy the injury-in-fact requirement in a
preenforcement action, the plaintiff must show ‘an intention
to engage in a course of conduct arguably affected with a
(continued...)
No. 11-3693 11
The injury-in-fact standard is often satisfied in pre-
enforcement challenges to limitations on speech. The
Supreme Court has recognized “self-censorship” as a
distinct “harm that can be realized even without an
actual prosecution.” Virginia v. American Booksellers Ass’n,
484 U.S. 383, 393 (1988).6 The chilling of protected speech
may thus alone qualify as a cognizable Article III
injury, provided the plaintiffs “have alleged an actual
and well-founded fear that the law will be enforced
against them.” Id.The Center has made this showing. It has a history
of broadcasting messages concerning public policy and
political candidates across the United States. It has alleged
that while it wishes to engage in similar advocacy in
Illinois, it has curtailed its speech because it fears being
(...continued)
constitutional interest, but proscribed by a statute, and
[that] there exists a credible threat of prosecution thereunder.’ ”),
quoting Babbitt, 442 U.S. at 298.
6
See also Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965)
(“Because of the sensitive nature of constitutionally protected
expression, we have not required that all of those subject to
overbroad regulations risk prosecution to test their rights. For
free expression of transcendent value to all society, and not
merely to those exercising their rights — might be the loser. . . .
We have fashioned . . . exception[s] to the usual rules gov-
erning standing . . . because of the danger of tolerating, in the
area of First Amendment freedoms, the existence of a penal
statute susceptible of sweeping and improper application.”)
(internal citations and quotation marks omitted).
12 No. 11-3693
regulated as a political committee. The Center’s President
submitted an affidavit stating that but for Article 9,
his organization would have spoken out during the
2010 Illinois elections using “the typical form of issue
ad,” that “[f]unding was available,” and that its “wish
to speak in Illinois remained live.” The Center’s
standard issue advertisements are run during election
season, identify an issue of public policy, give concrete
examples to “illustrate the policy” using candidates
with whom the public is familiar, and call on the
audience to take some “action other than voting, e.g.
contacting named candidates and encouraging them
to continue or embrace the policy.” The Center’s typical
issue ads meet enough of the statutory elements to
qualify, at least arguably, as electioneering communica-
tions under Illinois law, and the Center would easily
pass the $3,000 registration threshold. The Center’s self-
censorship was based on an objectively reasonable,
“actual[,] and well-founded fear that the law will be
enforced against” it. American Booksellers, 484 U.S. at 393.
The state asserts that Wisconsin Right to Life, Inc. v.
Paradise, 138 F.3d 1183 (7th Cir. 1998), shows that the
Center lacks a sufficiently well-founded fear of being
subject to regulation. In that case, we held that the
plaintiff did not have standing to challenge Wisconsin’s
political committee registration requirements because
successive advisory opinions of the Wisconsin Attorney
General and regulations promulgated by the state
election board already established that the definition of
political committee did not apply to groups like the
plaintiff. Id. at 1185. These formal determinations by
No. 11-3693 13
the state authorities meant that the plaintiff’s fear of
prosecution under the law was not “objectively ‘well-
founded,’ ” id., quoting American Booksellers, 484 U.S. at 393,
that the lawsuit was an attempt “to resolve a con-
troversy that has not yet arisen and may never arise,”id.
at 1187-88, and that the plaintiff therefore lacked standing.7
This case is quite different for there has been no
determination by any Illinois official that the Center and
other such groups do not qualify as political committees
under Article 9. The named defendants are the Illinois
Attorney General and members of the Board of Elections.
They have not denied that the Center’s past out-of-state
“issue ads” could qualify as electioneering communica-
tions under the Illinois disclosure laws. Unlike Paradise,
there is a sufficiently realistic possibility that the Center
would be subject to Article 9’s registration and reporting
requirements if it engages in the type of political
advocacy it often does and wishes to in Illinois. That is
7
Technically, the Paradise holding was on the redressability
prong rather than the injury-in-fact prong of the standing rule.
The only real potential threat of injury to the plaintiff came
from private actors, whom the Wisconsin statute empowered
to bring enforcement suits in state court against unregistered
organizations that ran illegal campaign advertising. A
potential injury from a decision by a state court in private
litigation was not redressable by a federal court order
because a state court is not required to accept an inferior
federal court’s determination that a statute is unconstitu-
tionally overbroad. We therefore held that the third prong
of Article III standing (redressability) was not met. Id. at 1187.
14 No. 11-3693
enough to establish that the Center has an objectively
reasonable fear of being subject to Illinois’s registration
and reporting requirements if it engages in its intended
speech, and that the Center chose to avoid those
alleged burdens. “Such self-censorship in the face of
possible legal repercussions suffices to show Article III
injury.” National Org. for Marriage v. McKee, 649 F.3d 34, 48-
49 (1st Cir. 2011) (finding that nonprofit group had stand-
ing to challenge state disclosure laws in pre-enforce-
ment action); accord, Human Life of Wash. Inc. v. Brumsickle,
624 F.3d 990, 1001 (9th Cir. 2010) (same). We find that
the Center has Article III standing to challenge the con-
stitutionality of Illinois’s disclosure law.
III. Scope of Review: Facial Challenge
Next we must clarify the scope of the legal challenge
before us. The Center describes its suit as both a facial and
an as-applied challenge, arguing that Article 9 is uncon-
stitutionally vague and overbroad “both facially and as
applied to independent issue advocacy groups such
as CFIF.” It is true that facial challenges and as-applied
challenges can overlap conceptually. See Doe v. Reed, 130
S. Ct. 2811, 2817 (2010) (acknowledging that plaintiffs’
claim “has characteristics of both” as-applied and facial
challenge); Richard Fallon, As-Applied and Facial Challenges
and Third-Party Standing, 113 Harv. L. Rev. 1321, 1341
(2000) (“[F]acial challenges are less categorically distinct
from as-applied challenges than is often thought.”). But
there is a difference: Where the “claim and the relief that
would follow . . . reach beyond the particular circum-
No. 11-3693 15
stances of the[] plaintiffs,” “[t]hey must . . . satisfy [the]
standards for a facial challenge to the extent of that reach.”
Doe v. Reed, 130 S. Ct. at 2817 (2010).
This is not a case where a group has actually engaged
in a particular form of speech that is subject to regulation
and seeks to challenge the applicability of the law to
itself and other groups who have engaged in similar
expressive activity. Cf. FEC v. Wisconsin Right to Life,
551 U.S. 449 (2007) (as-applied challenge to federal statute
banning electioneering communications brought by
advocacy group that had run TV advertisements it
believed would be covered by the statute if group con-
tinued to run them during 60-day pre-election blackout
period). Here, the Center has not broadcast any communi-
cations in Illinois, so it would be impossible for this
court to fashion a remedy tailored to its own particular
speech activities and those of similar groups, for we
have only a general idea of what its hypothetical broad-
casts would say. The Center has not laid the foundation
for an as-applied challenge here. We analyze its claims
under the standards governing facial challenges.
Those standards set a high bar. In reversing a decision
striking down a state election law in a facial challenge,
the Supreme Court explained:
Facial challenges are disfavored for several reasons.
Claims of facial invalidity often rest on speculation.
As a consequence, they raise the risk of premature
interpretation of statutes on the basis of factually
barebones records. Facial challenges also run contrary
to the fundamental principle of judicial restraint
16 No. 11-3693
that courts should neither “’anticipate a question of
constitutional law in advance of the necessity of
deciding it’ ” nor “formulate a rule of constitutional
law broader than is required by the precise facts to
which it is to be applied.” Ashwander v. TVA, 297 U.S.
288, 347 (1936) (Brandeis, J., concurring). Finally,
facial challenges threaten to short circuit the demo-
cratic process by preventing laws embodying the
will of the people from being implemented in a
manner consistent with the Constitution.
Washington State Grange v. Wash. State Republican Party,
552 U.S. 442, 450-51 (2008) (some citations, brackets, and
internal quotation marks omitted). In determining whether
a law is unconstitutional on its face, then, “we must
be careful not to go beyond the statute’s facial require-
ments and speculate about ‘hypothetical’ or ‘imaginary’
cases.” Id. at 450, citing United States v. Raines, 362 U.S. 17,
22 (1960). With these principles in view, we turn to the
merits of the Center’s facial challenge to Article 9. We
review de novo the district court’s treatment of the con-
stitutional questions presented. E.g., Anderson v. Milwaukee
County, 433 F.3d 975, 978 (7th Cir. 2006).
IV. Overbreadth and Void-for-Vagueness Claims
The Supreme Court has recognized a particular type
of facial challenge in the First Amendment context
under which a law may be struck down entirely as
impermissibly overbroad. Under this overbreadth
doctrine, “a statute is facially invalid if it prohibits a
No. 11-3693 17
substantial amount of protected speech.” United States v.
Williams, 553 U.S. 285, 292 (2008). The overbreadth doctrine
is “’strong medicine’ ” that should be “employed . . . with
hesitation, and then ‘only as a last resort.’ ” New York v.
Ferber, 458 U.S. 747, 769 (1982), quoting Broadrick v.
Oklahoma, 413 U.S. 601, 613 (1973). Accordingly, courts
“vigorously enforce[ ] the requirement that a statute’s
overbreadth be substantial, not only in an absolute
sense, but also relative to the statute’s plainly legitimate
sweep.” Williams, 553 U.S. at 292.
Since its seminal modern campaign finance decision
in Buckley v. Valeo, 424 U.S. 1, 19 (1976), the Supreme
Court has consistently distinguished between laws that
restrict the amount of money a person or group can
spend on political communication and laws that simply
require disclosure of information by those who spend
substantial sums on political speech affecting elections.8
8
See, e.g., Citizens United, 130 S. Ct. 876 (striking down federal
ban on electioneering communications by corporations and
labor unions but upholding disclosure requirements as applied
to such entities); McConnell v. FEC, 540 U.S. 93 (2003) (striking
down federal ban on political donations by minors but up-
holding law’s disclosure provisions), overruled in part on
other grounds, Citizens United, 130 S. Ct. at 913; FEC v. Massachu-
setts Citizens for Life, 479 U.S. 238, 262 (1986) (striking down
requirement that corporations set up segregated fund for
independent expenditures in connection with any federal
election as applied to nonprofit advocacy group while
pointing approvingly to “disclosure provisions” that will
(continued...)
18 No. 11-3693
Unlike contribution and expenditure limits, disclosure
laws “impose no ceiling on campaign-related activities,”
id. at 64, and “do not prevent anyone from speaking.”
Citizens United, 130 S. Ct. at 914, quoting McConnell v.
FEC, 540 U.S. 93, 124 (2003), overruled in part on other
grounds, Citizens United, 130 S. Ct. at 913. Disclosure
laws are thus a “less restrictive alternative to more com-
prehensive regulations of speech.” Citizens United,
130 S. Ct. at 915. For that reason, the Court does not
subject disclosure requirements to the same standard of
(...continued)
“provide precisely the information necessary to monitor
MCFL’s independent spending activity and its receipt of
contributions”); Citizens Against Rent Control v. City of Berkeley,
454 U.S. 290, 298 (1981) (striking down ordinance capping
contributions to ballot initiative committees while noting
that the ordinance’s disclosure requirements were alone
adequate to fulfill the city’s informational interest in knowing
“whose money supports or opposes a given ballot measure”);
First National Bank of Boston v. Bellotti, 435 U.S. 765, 790 n.29
(1978) (striking down Massachusetts law prohibiting corpora-
tions from making contributions or expenditures to influence
the outcome of initiatives and referenda but noting: “Identifica-
tion of the source of advertising may be required as a means
of disclosure, so that the people will be able to evaluate
the arguments to which they are being subjected.”); Buckley,
424 U.S. at 68 (invalidating federal expenditure limits
but upholding disclosure requirements, which “certainly in
most applications appear to be the least restrictive means of
curbing the evils of campaign ignorance and corruption
that Congress found to exist”).
No. 11-3693 19
strict scrutiny that applies to contribution and expendi-
ture limits but rather to “exacting scrutiny,” which
requires only “a ‘substantial relation’ between the dis-
closure requirement and a ‘sufficiently important’ gov-
ernmental interest.” Citizens United, 130 S. Ct. at 914,
quoting Buckley, 424 U.S. at 64, 66.9 We apply exacting
scrutiny to the Center’s facial challenges to Article 9,
examining whether the disclosure requirements are
substantially related to a sufficiently important govern-
mental interest.
In this case, the state interest at stake is that of
“provid[ing] the electorate with information as to
where political campaign money comes from and how it
is spent.” Buckley, 424 U.S. at 66 (internal quotation
marks omitted). This “informational interest” is suf-
ficiently important to support disclosure requirements.
See, e.g., id. at 66-67. In Buckley, the Court recognized
that campaign finance disclosure was a critical tool for
maintaining transparency in the political marketplace:
“In a republic where the people are sovereign, the
ability of the citizenry to make informed choices among
candidates for office is essential, for the identities of those
9
See also Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) (“We have a
series of precedents considering First Amendment challenges
to disclosure requirements in the electoral context. These
precedents have reviewed such challenges under what has
been termed ‘exacting scrutiny.’ ”); Buckley v. American Con-
stitutional Law Foundation, Inc., 525 U.S. 182, 202 (1999) (“’exact-
ing scrutiny’ is necessary when compelled disclosure of cam-
paign-related payments is at issue”).
20 No. 11-3693
who are elected will inevitably shape the course that
we follow as a nation.” Id. at 14-15.1 0 Disclosure require-
ments advance the public’s interest in information
by “allow[ing] voters to place each candidate in the
political spectrum more precisely than is often possible
solely on the basis of party labels and campaign
speeches.” Id. at 67. By revealing “the sources of a candi-
date’s financial support,” disclosure laws “alert the
voter to the interests to which a candidate is most likely
to be responsive and thus facilitate predictions of future
performance in office.” Id.
The Supreme Court has repeatedly recognized this
informational interest and the unique role that disclosure
plays in furthering it.1 1 Our court, too, has acknowledged
the importance of disclosure regulations in providing
“additional information useful to the consumer” of politi-
cal messaging. Majors v. Abell, 361 F.3d 349, 352 (7th Cir.
2004). In Majors, we upheld an Indiana law requiring
political ads to identify the persons who paid for them:
The avidity with which candidates for public office
seek endorsements is evidence (as if any were needed)
10
See also Letter from James Madison to W.T. Barry (Aug. 4,
1822), in 9 Writings of James Madison 103 (Gaillard Hunt, ed.
1910) (“A popular Government, without popular information, or
the means of acquiring it, is but a prologue to a Farce or a
Tragedy; or perhaps, both. Knowledge will forever govern
ignorance: And a people who means to be their own Governors,
must arm themselves with the power which knowledge gives.”).
11
See, e.g., cases cited above in note 8.
No. 11-3693 21
that the identity of a candidate’s supporters — and
opponents — is information that the voting public
values highly. In areas of inquiry where logic or
exact observation is unavailing, a speaker’s credibility
often depends crucially on who he is. As Aristotle
said, “persuasion is achieved by the speaker’s
personal character when the speech is so spoken as
to make us think him credible. We believe good men
more fully and more readily than others: this is true
generally whatever the question is, and absolutely
true where exact certainty is impossible and
opinions are divided.”
Id., quoting Aristotle, Rhetoric, in 2 The Complete Works
of Aristotle 2152, 2155 (Jonathan Barnes ed. 1984); see also
Abrams v. United States, 250 U.S. 616, 630 (Holmes, J.,
dissenting) (“Of course, the identity of the source is
helpful to evaluating ideas.”). We agree that this is a
sufficiently important governmental interest to support
Illinois’s disclosure requirements, and we proceed
below under the exacting-scrutiny framework to examine
whether there is a substantial relation between
Illinois’s informational interest and the features of
Article 9 that the Center contends are overbroad.1 2
12
The state also invokes two other interests in support of Article
9, stating that disclosure laws both prevent corruption and its
appearance and enable enforcement of other campaign
finance laws, such as those imposing dollar limits on direct
contributions to campaigns. Buckley recognized that disclosure
requirements can advance these substantial interests, as
(continued...)
22 No. 11-3693
Before doing so, however, we briefly describe the Cen-
ter’s alternative theory, that certain provisions of Article 9
are unconstitutionally vague. Like the overbreadth doc-
trine, the void-for-vagueness doctrine protects against
the ills of a law that “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement.” FCC v. Fox Television
Stations, Inc., 132 S. Ct. 2307, 2317 (2012), quoting
Williams, 553 U.S. at 304. The “vagueness doctrine ad-
dresses at least two connected but discrete due process
concerns: first, that regulated parties should know what
is required of them so they may act accordingly;
second, precision and guidance are necessary so that
those enforcing the law do not act in an arbitrary or
discriminatory way.” Id., citing Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972). In cases where the
“statute abuts upon sensitive areas of basic First Amend-
ment freedoms,” Grayned, 408 U.S. at 108-09 (brackets
omitted), “rigorous adherence to those requirements is
(...continued)
well. See 424 U.S. at 67-68 (concluding that “disclosure require-
ments deter actual corruption and avoid the appearance of
corruption by exposing large contributions and expenditures
to the light of publicity” and that “recordkeeping, reporting, and
disclosure requirements are an essential means of gathering
the data necessary to detect violations of the contribution
limitations described above”). Because the informational
interest is sufficient to support Illinois’s laws, we do not
reach whether these other interests also support Article 9.
No. 11-3693 23
necessary to ensure that ambiguity does not chill pro-
tected speech.” Fox Television Stations, 132 S. Ct. at 2317.
Even under the heightened standard for the First Amend-
ment, though, the potential chilling effect on protected
expression must be both “real and substantial” to invali-
date a statute as void for vagueness in a facial challenge.
Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975).
In addition, a “plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vague-
ness of the law as applied to the conduct of others.” Village
of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S.
489, 495 (1982).
In sum, both the vagueness and overbreadth questions
involve the same preliminary inquiry into whether the
statute will have a substantial effect on constitutionally
protected activity: “In a facial challenge to the over-
breadth and vagueness of a law, a court’s first task is
to determine whether the enactment reaches a sub-
stantial amount of constitutionally protected conduct.”
Flipside, 455 U.S. at 494 (footnote omitted). If it does not,
then under either theory the facial challenge must fail.
In the First Amendment context, vagueness and over-
breadth are two sides of the same coin, and the two sorts
of challenges are often conceived of as “alternative and
often overlapping” theories for relief on the same claim.
Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005)
(McConnell, J.).13
13
See also Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983) (“[W]e
have traditionally viewed vagueness and overbreadth as
(continued...)
24 No. 11-3693
The Center has presented its overbreadth and
vagueness claims as one undifferentiated argument,
asserting that Article 9’s provisions are both “vague and
overbroad.” This is not unusual, see Human Life, 624 F.3d
at 1020, and does not call for criticism. This case does not
require us to parse fine distinctions between the two
theories. Whether the argument is styled as overbreadth
or vagueness, the central question in this facial challenge
is whether the provisions at issue potentially reach a
“substantial” amount of protected speech.
Campaign finance disclosure requirements have
existed at the federal level since 1910. See Campaign
Expenses Publicity Act of 1910, Pub. L. No. 274, 36 Stat.
822. The modern federal disclosure regime was part of the
(...continued)
logically related and similar doctrines.”); Entertainment Produc-
tions, Inc. v. Shelby Cnty., 588 F.3d 372, 379 (6th Cir. 2009) (“When
a law implicates First Amendment freedoms, vagueness poses
the same risk as overbreadth, as vague laws may chill citizens
from exercising their protected rights.”); Richard H. Fallon, Jr.,
Making Sense of Overbreadth, 100 Yale L.J. 853, 904 (1991) (“First
Amendment vagueness doctrine — as distinct from ordinary
or non-First Amendment vagueness doctrine — is best conceptu-
alized as a subpart of First Amendment overbreadth doctrine.”);
Note, The First Amendment Overbreadth Doctrine, 83 Harv. L.
Rev. 844, 873 (1970) (“when the Supreme Court has spoken
of the facial vagueness of statutes touching first amendment
rights, it has seldom if ever been referring to a constitu-
tional vice different from the latent vagueness of an over-
broad law”).
No. 11-3693 25
Federal Election Campaign Act of 1971 (FECA), Pub. L.
No. 92-225, 86 Stat. 3, as amended by the Bipartisan
Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155,
116 Stat. 81 (2002) (codified as amended at 2 U.S.C. §§ 431-
34). Because the Supreme Court has upheld FECA’s
disclosure requirements, we need not invent the wheel
in this case. Instead, we identify the ways in which Illi-
nois’s disclosure law is broader or more vague than
FECA and then consider whether each difference is
constitutionally permissible. Article 9 differs from fed-
eral disclosure provisions in two significant respects.
First, Article 9 extends the disclosure of expenditures
and contributions to ballot initiative campaigns. Second,
Article 9 regulates as a political committee any organiza-
tion that exceeds the dollar-limit spending thresholds,
while under federal law only those groups with the
“major purpose” of influencing elections must register as
political committees. In addition to these substan-
tive differences, Article 9’s definitions of several key
terms — “electioneering communication,” “expenditure,”
“contribution,” and “independent expenditure” — differ
slightly from their federal law analogs. We first
analyze the two broader questions on ballot initiatives
and the major-purpose test before turning to the
statutory details.
A. Disclosures for Ballot Issue Campaigns
1. Contributions and Expenditures
In Illinois, individuals and groups must register as
“ballot initiative committees” when they accept contribu-
26 No. 11-3693
tions or make expenditures in support of or in opposition
to any question of public policy in amounts exceeding
$3,000 in a 12-month period. 10 ILCS 5/9-1.8(e). Federal
law does not provide for ballot initiatives and referenda,
so FECA contains no corresponding requirements. The
issue here is whether this additional feature of Article 9’s
disclosure regime is substantially related to Illinois’s
interest in maintaining an informed electorate.
Educating voters is at least as important, if not more
so, in the context of initiatives and referenda as in candi-
date elections. In direct democracy, where citizens are
“responsible for taking positions on some of the day’s
most contentious and technical issues, ‘[v]oters act as
legislators,’ while ‘interest groups and individuals ad-
vocating a measure’s defeat or passage act as lobbyists.’ ”
Human Life, 624 F.3d at 1006, quoting California Pro-Life
Council, Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir. 2003);
see also Doe v. Reed, 130 S. Ct. at 2833 (Scalia, J., concurring)
(“When a . . . voter signs a referendum petition . . ., he
is acting as a legislator.”). In an initiative campaign,
“average citizens are subjected to advertising blitzes of
distortion and half-truths and are left to figure out for
themselves which interest groups pose the greatest
threats to their self-interest.” Human Life, 624 F.3d at 1006,
quoting David S. Broder, Democracy Derailed: Initiative
Campaigns and the Power of Money 18 (2000). Because
the issues can be complex and the public debate con-
fusing, voters’ interest in knowing the source of messages
promoting or opposing ballot measures is especially
salient in such campaigns.
No. 11-3693 27
Disclosure laws are substantially related to the public’s
interest in information during ballot initiative cam-
paigns. Research shows that one of the most useful heuris-
tic cues influencing voter behavior in initiatives
and referenda is knowing who favors or opposes a mea-
sure. See Elizabeth Garret & Daniel A. Smith, Veiled
Political Actors and Campaign Disclosure Laws in Direct
Democracy, 4 Election L.J. 295, 296-98 (2005); Michael S.
Kang, Democratizing Direct Democracy: Restoring Voter
Competence Through Heuristic Cues and “Disclosure Plus”, 50
UCLA L. Rev. 1141,1157 (2003). 1 4 Because nominally
independent political operations can hide behind “mis-
leading names to conceal their identity,” McConnell, 540
U.S. at 128, often only disclosure of the sources of their
14
A classic study of voting on insurance-related ballot
initiatives compared three groups of voters: (1) voters who
knew nothing about the initiatives’ details but knew the
insurance industry’s preference, (2) highly informed voters
who consistently gave correct answers to detailed questions
about the subject matter, and (3) voters who knew nothing
about the ballot question or about the insurance industry’s
preferences. The first two groups of voters demonstrated
similar voting patterns, while the third group that was com-
pletely in the dark had very different voting patterns. The
study author concluded that the position of an economic group
with known preferences on an issue can serve as an effective
shortcut for ordinary voters, substituting for encyclopedic
information about the electoral choice. See Arthur Lupia,
Shortcuts Versus Encyclopedias: Information and Voting Behavior
in California Insurance Reform Elections, 88 Am. Pol. Sci. Rev.
63, 71-72 (1994).
28 No. 11-3693
funding may enable the electorate to ascertain the identi-
ties of the real speakers. See Citizens Against Rent Control
v. City of Berkeley, 454 U.S. 290, 298 (1981) (in ballot mea-
sure campaigns, “when individuals or corporations
speak through committees, they often adopt seductive
names that tend to conceal the true identity of the
source”).15
The Supreme Court long ago approved Congress’s
authority to require federal lobbyists to make financial
disclosures because “full realization of the American
ideal of government by elected representatives depends
to no small extent on [Congress’s] ability to properly
evaluate [the] pressures” to which it is regularly sub-
jected. See United States v. Harriss, 347 U.S. 612, 625 (1954).
15
The McConnell Court gave examples of a few such stealthily-
named groups, including “Citizens for Better Medicare,” which
“was not a grassroots organization of citizens, as its name
might suggest, but was instead a platform for an association of
drug manufacturers.” 540 U.S. at 128. Since the rise of the
super PAC in the wake of Citizens United, the use of nondescript
names by PACs acting as proxies for specific candidates has
become commonplace. From their names alone, who could
guess that “Priorities USA Action” and “Restore Our Future”
were each formed to support one of the major candidates for
president this year? Or that “Americans for a Better Tomorrow,
Tomorrow” is a super PAC formed by political satirist
Stephen Colbert to mock the current state of American
campaign finance law? See Colbert Super PAC SHH! — 501c4
Disclosure, The Colbert Report (Apr. 3, 2012), available at
http://www.colbertnation.com/the-colbert-report-videos/4116
73/april-03-2012/colbert-super-pac-shh----501c4-disclosure.
No. 11-3693 29
For the same reasons, when Illinois citizens “act[ ] as
legislators” during initiative campaigns, see Doe v.
Reed, 130 S. Ct. at 2833 (Scalia, J., concurring in the judg-
ment), the State requires those who “attempt to influence
legislation” being considered on the ballot to disclose
a “modicum of information from those who for hire
attempt to influence legislation or who collect or spend
funds for that purpose” — namely, “who is putting up
the money, and how much.” See Harriss, 347 U.S. at 625.
This “enables the electorate to make informed decisions
and give proper weight to different speakers and mes-
sages.” Citizens United, 130 S. Ct. at 916. Such regulation
is substantially related to Illinois’s interest in preserving
an informed electorate. Accord, Family PAC v. McKenna,
685 F.3d at 811; Human Life, 624 F.3d at 1008.
Although the Supreme Court has not directly passed
on state disclosure requirements for ballot initiatives, it
has discussed such laws approvingly. See Citizens
Against Rent Control v. City of Berkeley, 454 U.S. at 298(striking down cap on contributions but noting that law’s
disclosure requirements adequately fulfilled need for
information in ballot measure contests); First Nat’l Bank
of Boston v. Bellotti, 435 U.S. 765, 792 n.32 (1978) (striking
down state law prohibiting corporate contributions or
expenditures to influence referenda: “Identification of the
source of advertising may be required as a means of
disclosure, so that the people will be able to evaluate the
arguments to which they are being subjected.”); Buckley v.
American Constitutional Law Foundation, Inc., 525 U.S. 182,
202-03 (1999) (striking down state law requiring propo-
nents of initiatives to report the names, addresses, and
30 No. 11-3693
earnings of all paid circulators, who had to wear name
badges while gathering signatures; disclosure require-
ments remained in effect to aid voters in evaluating
messages). These three cases strongly suggest that disclo-
sure laws are substantially related to the state’s infor-
mational interest in the context of ballot initiative cam-
paigns.
To be sure, requiring disclosure in the ballot initiative
context may burden First Amendment rights in two
ways. First, disclosure requirements may deter contribu-
tions or expenditures by some individuals and groups
who would prefer to remain anonymous. See Buckley v.
Valeo, 424 U.S. at 68. Second, “disclosure requirements
can chill donations to an organization by exposing donors
to retaliation.” Citizens United, 130 S. Ct. at 916; see, e.g.,
Brown v. Socialist Workers ‘74 Campaign Comm. (Ohio), 459
U.S. 87, 100 (1982) (First Amendment prohibits states
from compelling disclosures of campaign finance infor-
mation from minor political party where there is a “rea-
sonable probability” that identified persons would be
subject to “threats, harassment, and reprisals”).
On the record in this facial challenge, however, we
must treat these burdens as modest. “[D]isclosure re-
quirements may burden the ability to speak, but they
impose no ceiling on campaign-related activities, and do
not prevent anyone from speaking.” Citizens United,
130 S. Ct. at 914 (citations and internal quotation marks
omitted). The burden of public identification may
foreclose application of disclosure laws to individual
pamphleteers, see McIntyre v. Ohio Elections Comm’n, 514
No. 11-3693 31
U.S. 334 (1995), or small neighborhood groups that raise
less than $1000, see Sampson v. Buescher, 625 F.3d 1247 (10th
Cir. 2010), for in these cases the state’s interest in dis-
seminating such information to voters is at a low ebb. See
McIntyre, 514 U.S. at 348-49. Here, however, the Center
is a far cry from the lone pamphleteer in McIntyre,
and its broad “interest in anonymity” does not justify
invalidating disclosure laws in a facial challenge
brought by a national political advocacy organization
that seeks to use the mass media in Illinois to spread its
political messages on a broad scale. That is exactly the
sort of campaign-related advertising about which
Illinois has a substantial interest in providing informa-
tion to its public.
Similarly, the record in this facial challenge does
not support any prospect of retaliation that could bar
application of Article 9. In Doe v. Reed, the Supreme
Court upheld the constitutionality of a state law that
allowed for public disclosure of petition signers’ names
and addresses. The Court held that disclosure of the
names and addresses of petition signers would not ordi-
narily create a “reasonable probability” that they would
be harassed. 130 S. Ct. at 2820-21, quoting Buckley, 424
U.S. at 74. The same result applies here. The Center has
“provided us scant evidence or argument,” id. at 2821,
beyond bare speculation, that Article 9 would be at all
likely to precipitate “threats, harassment, or reprisals”
against it or other similarly situated advocacy groups.
See Buckley, 424 U.S. at 74.
Article 9’s application to contributions and expenditures
related to ballot initiatives is substantially related to
32 No. 11-3693
Illinois’s strong interest in maintaining an informed
electorate, and this interest strongly outweighs any bur-
dens on protected speech, at least in the absence of
facts that might be offered in support of a much
narrower as-applied challenge.1 6
2. Electioneering Communications on Ballot Issues
Article 9 also requires groups to register as ballot initia-
tive committees when they spend more than $3,000
on electioneering communications that advocate for or
against ballot issues. 10 ILCS 5/9-1.8(e). This provision
likewise advances the state’s interest in ensuring voters
are informed about ballot initiatives. The Center argues
that the requirement imposes significant burdens on
speakers because the definition of electioneering com-
munication does not adequately distinguish ballot initia-
tive campaign advocacy from pure issue discussion.
The Center’s argument relies principally on two
Supreme Court cases — Buckley v. Valeo and FEC v. Wis-
consin Right to Life, Inc., 551 U.S. 449 (2007). The Buckley
Court upheld all of the disclosure and reporting require-
ments in FECA. To avoid the regulation of pure “issue
discussion,” though, the Court placed a narrowing con-
struction on the term “expenditure” “to reach only
funds used for communications that expressly advocate
the election or defeat of a clearly identified candidate.”
16
The failure of the Center’s “broad based challenge does not
foreclose success” on a future as-applied challenge to Article 9.
See Doe, 130 S. Ct. at 2821.
No. 11-3693 33
Buckley, 424 U.S. at 80 (footnote omitted) (emphasis
added). This was the genesis of a distinction Buckley
had earlier drawn in the context of independent ex-
penditures between issue discussion and express advo-
cacy. The latter, the Court said, would typically involve the
use of unequivocal words and phrases “such as ‘vote
for,’ ‘elect,’ ‘support,’ ‘cast your ballot for, ‘Smith for
Congress,’ . . . ‘defeat,’ ‘reject’ ”— a list that has come to be
known as Buckley’s “magic words.” Id. at 44 n.52. For many
years the Court adhered to the distinction, but it repeatedly
emphasized that “the express advocacy limitation . . . was
the product of statutory interpretation rather than a con-
stitutional command.” McConnell, 540 U.S. at 191-92; see
also Wisconsin Right to Life, 551 U.S. at 475 n.71 (principal
opinion of Roberts, C.J.) (reiterating that Buckley’s
“magic words” definition “does not dictate a constitu-
tional test” and the “express advocacy restriction was
an endpoint of statutory interpretation, not a first
principle of constitutional law”).
In Wisconsin Right to Life, the Supreme Court’s lead
opinion held that the federal ban on corporate and labor
disbursements for campaign-related broadcasts could
be applied only to advertisements that were “express
advocacy” or its “functional equivalent.” 551 U.S. at 465,
citing McConnell, 540 U.S. at 206. A broadcast is the
“functional equivalent of express advocacy only if the
ad is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candi-
date.” Id. at 469-70. While “[c]ourts need not ignore
basic background information that may be necessary to
put an ad in context,” id. at 474 , “there generally should
34 No. 11-3693
be no discovery or inquiry into the sort of contextual
factors” that would go to either the speaker’s “subjective”
intent or the likely “effect” of the ad on the electorate,
id. at 474 n.7. The Center contends that Article 9’s defini-
tion of electioneering communication is inconsistent
with Buckley and Wisconsin Right to Life because it
considers whether a broadcast refers to a “clearly
identified question of public policy that will appear on
the ballot.” 10 ILCS 5/9-1.14. The Center calls this “an
intent-or-effect standard that requires a judgment as
to how a listener will understand speech,” since the
public discussion of certain policy issues could be con-
sidered discussion of a ballot question.
For two reasons, we disagree. First, Citizens United
made clear that the wooden distinction between express
advocacy and issue discussion does not apply in the
disclosure context.
In Citizens United, which came after Wisconsin Right to
Life, the Court explicitly rejected the plaintiff’s attempt to
graft the express advocacy/issue discussion dichotomy
onto the constitutional law of campaign finance disclo-
sure. 130 S. Ct. at 915. The Court reaffirmed that
disclosure is a less restrictive alternative to more compre-
hensive regulations of speech. In Buckley, the Court
upheld a disclosure requirement for independent expen-
ditures even though it invalidated a provision that
imposed a ceiling on those expenditures. In McConnell,
three Justices who would have found § 441b to be
unconstitutional nonetheless voted to uphold BCRA’s
disclosure and disclaimer requirements. And the Court
No. 11-3693 35
has upheld registration and disclosure requirements
on lobbyists, even though Congress has no power to
ban lobbying itself. For these reasons, we reject Citizens
United’s contention that the disclosure requirements
must be limited to speech that is the functional equiva-
lent of express advocacy.
Id. at 915 (citations omitted). Accordingly, mandatory
disclosure requirements are constitutionally permissible
even if ads contain no direct candidate advocacy and
“only pertain to a commercial transaction.” Id. at 915.
Whatever the status of the express advocacy/issue dis-
cussion distinction may be in other areas of campaign
finance law, Citizens United left no doubt that disclosure
requirements need not hew to it to survive First Amend-
ment scrutiny. With just one exception, every circuit
that has reviewed First Amendment challenges to dis-
closure requirements since Citizens United has concluded
that such laws may constitutionally cover more than
just express advocacy and its functional equivalents, and
in each case the court upheld the law.1 7
17
See National Org. for Marriage, Inc. v. Sec’y, No. 11-14193, 2012
WL 1758607, at *1 (11th Cir. May 17, 2012) (unpublished
opinion); The Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544,
551-52 (4th Cir. 2012); National Org. for Marriage v. McKee, 649
F.3d 34, 54-55 (1st Cir. 2011); Human Life of Wash. Inc. v.
Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010). The exception is
the Tenth Circuit. In Sampson v. Buescher, 625 F.3d 1247 (10th
Cir. 2010), the court struck down disclosure requirements as
applied to a neighborhood group that had raised less than
(continued...)
36 No. 11-3693
Second, even if disclosure requirements were constitu-
tionally applicable only to express advocacy and its
functional equivalent, Illinois’s definition of “electioneer-
ing communication” is limited by language nearly
identical to that used in Wisconsin Right to Life to define
the functional equivalent of express advocacy. Compare
10 ILCS 5/9-1.14 (the broadcast must be “susceptible to
no reasonable interpretation other than as an appeal to
vote for or against a clearly identified candidate, . . . a
political party, or a question of public policy that will
appear on the ballot”), with Wisconsin Right to Life, 551
U.S. at 669-70 (principal opinion) (“a court should find
that an ad is the functional equivalent of express
advocacy only if the ad is susceptible of no reasonable
interpretation other than as an appeal to vote for or
against a specific candidate”). Moreover, Article 9’s
(...continued)
$1,000 to oppose annexation. In New Mexico Youth Organized
v. Herrera, 611 F.3d 669, 677 n.4 (10th Cir. 2010), the court
invalidated state disclosure requirements as applied to a
nonprofit because it believed “that for a regulation of
campaign related speech to be constitutional it must be unam-
biguously campaign related.” Herrera was decided and argued
after Citizens United, but briefing had been completed prior
to the Supreme Court’s decision. The only reference to Citizens
United was a brief statement in a footnote that “[a]lthough that
opinion left many issues unresolved, we believe that require-
ment — that for a regulation of campaign related speech to be
constitutional it must be unambiguously campaign related
standard [sic] — as it pertains to this case has not been
changed.” Id. at 677 n.4.
No. 11-3693 37
definition tracks BCRA’s in every respect, as each is
limited by the same five factors: (1) by medium,1 8 (2) by
total amount spent,1 9 (3) temporally,2 0 (4) geographically,2 1
and (5) by content.2 2 Although there are some dif-
ferences with the federal statute’s definition, which we
consider below in Section IV.C, the point is that Article 9
is carefully drawn to track a definition already approved
by the Supreme Court in Wisconsin Right to Life. Even
if disclosure requirements could reach only so far as
express advocacy or its functional equivalent, on its
face, Article 9 regulates no more than that and so is not
facially overbroad.
18
Compare 2 U.S.C. § 434(f)(3)(A) (“any broadcast, cable or
satellite communication”), with 10 ILCS 5/9-1.14(a) (“any
broadcast, cable, or satellite communication, including radio,
television, or Internet communication”).
19
Compare 2 U.S.C. § 434(f) ($10,000 triggers reporting require-
ments), with 10 ILCS 5/9-8.6 ($3,000 triggers reporting require-
ments).
20
Compare 2 U.S.C. § 434(f)(3)(A)(i)(II) (appears within 60 days
of a general election or 30 days of a primary), with 10 ILCS 5/9-
1.14(a)(2) (same).
21
Compare 2 U.S.C. § 434(f)(3)(A)(i)(III) ( “is targeted to the
relevant electorate” ), with 10 ILCS 5/9-1.14(a)(3) (same).
22
Compare 2 U.S.C. § 434(f)(3)(A)(i)(I) (“refers to a clearly
identified candidate”), with 10 ILCS 5/9-1.14(a)(1) (“refers to a
clearly identified candidate,” “political party,” or “question
of public policy that will appear on the ballot”) (numbering
omitted).
38 No. 11-3693
3. Vagueness
The Center’s final concern about Article 9’s regulation
of ballot initiative activity is that it is triggered by con-
tributions or expenditures received or made “with
the purpose of securing a place on the ballot for, [or]
advocating the defeat or passage of” any ballot initiative,
“regardless of whether petitions have been circulated
or filed with the appropriate office or whether the
question has been adopted and certified by the
governing body.” 10 ILCS 5/9-1.8(e). The Center first
argues that the “in support of or in opposition to”
language is vague. In McConnell, however, the Court
found that very similar language was not unconstitu-
tionally vague. See 540 U.S. at 170 n.64 (“The words ‘pro-
mote,’ ‘oppose,’ ‘attack,’ and ‘support’ clearly set forth
the confines within which potential party speakers
must act in order to avoid triggering the provision. These
words ‘provide explicit standards for those who apply
them’ and ‘give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited.’ ”),
quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972). This part of McConnell remains valid after Citizens
United, and it forecloses the Center’s argument that
subsection 1.8(e)’s support/opposition language is uncon-
stitutionally vague. Accord, National Org. for Marriage,
649 F.3d at 62-64 (rejecting vagueness challenge to
terms “promoting,” “support,” and “opposition”).
The Center also contends that the definition is vague
because it could apply to advocacy on any issue that
might one day become the subject of a ballot initiative,
No. 11-3693 39
and the statute “provides no guidance . . . for determining
when such a policy issue becomes a regulated ‘question
of public policy.’ ” For example, a group might spend
$3,000 producing an ad that denounces high sales taxes,
only to find six months later that a sales tax cut will be
on the ballot as an initiative. The Center argues that
under Article 9, that group might be found to have
violated the statute if it failed to register as a ballot initia-
tive committee and make required disclosures.
Courts do not decide facial challenges on the basis
of such speculative hypotheticals. As the district court
observed, campaign-related broadcasts are considered
electioneering communications only when they are made
within 60 days of a general election or 30 days of a pri-
mary, “at which point it would already be known if an
initiative is on the ballot.” As for expenditures that are
not for electioneering communications (for example,
glossy mailers, bumper stickers, buttons, and other cam-
paign paraphernalia), Article 9’s definition of “ballot
initiative committee” is quite plainly aimed at regulating
groups that are either campaigning in favor of or
against actual ballot measures or actively advocating or
opposing placing a specific question on the ballot. We
have no reason to suppose the Board would construe or
enforce the provision more expansively, so we cannot
say that the definition of ballot initiative committee is
substantially overbroad in relation to its plainly legitimate
sweep, see United States v. Stevens, 130 S. Ct. 1577, 1587
(2010), or that its “deterrent effect on legitimate expres-
sion is . . . both real and substantial.” Young v. American
Mini Theatres, Inc., 427 U.S. 50, 60 (1976). Illinois’s regula-
40 No. 11-3693
tion of expenditures for, contributions to, and electioneer-
ing communications about ballot initiative campaigns
is not facially overbroad or vague.
B. Definition of Political Committee: The “Major Purpose”
Test
The Center argues that Illinois’s disclosure requirements
are vague and overbroad because they regulate as
political committees groups that do not have as their
“major purpose” the election of a candidate. Recall that
outside groups are required to register as political com-
mittees if within a 12-month period they make or receive
more than $3,000 worth of contributions, expenditures,
or independent expenditures for electioneering com-
munications. See 10 ILCS 5/9-1.8, 5/9-8.6(b). The Center
contends that Supreme Court precedent strictly cabins
regulation of political committees to organizations that
are “under the control of a candidate” or whose
“major purpose” is “the nomination or election of a
candidate.” Article 9’s political committee provision
covers additional entities, and thus, the Center contends,
the provision is fatally overbroad. We disagree.
Like the express advocacy/issue discussion distinction,
the Center’s proposed major purpose test also has its
origins in Buckley. The Buckley Court reviewed FECA’s
reporting requirements on political committees, which
the statute defined as “any committee, club, association,
or other group of persons which receives contributions
or makes expenditures during a calendar year in an
aggregate amount exceeding $1,000.” Buckley, 424 U.S. at
No. 11-3693 41
79 n.105, quoting 2 U.S.C. § 431(d) (current version at
§ 431(4)(A)). A parallel provision of FECA defined “contri-
bution” and “expenditure” as the “use of money or other
valuable assets ‘for the purpose of . . . influencing’ the
nomination or election of candidates for federal office.” Id.
at 77, quoting 2 U.S.C. § 431(e), (f) (current version at
§ 431(8), (9)). In the context of this definition, the Court
concluded that the disclosure requirements could
present “vagueness problems, for ‘political committee’ is
defined only in terms of amount of annual ‘contributions’
and ‘expenditures,’ and could be interpreted to reach
groups engaged purely in issue discussion.” Id. at 79. To
avoid these line-drawing problems, the Court construed
the term political committee more narrowly:
To fulfill the purposes of the Act, [political committees]
need only encompass organizations that are under
the control of a candidate or the major purpose of which
is the nomination or election of a candidate. Expendi-
tures of candidates and of “political committees” so
construed can be assumed to fall within the core
area sought to be addressed by Congress. They are,
by definition, campaign related.
Id. (emphasis added). The Court has referred to this
narrowing construction in subsequent opinions. See, e.g.,
McConnell, 540 U.S. at 170 n.64; FEC v. Massachusetts
Citizens for Life, 479 U.S. 238, 252 n.6 (1986) (plurality
opinion). The Center draws from this the conclusion
that the First Amendment imposes a bright-line prohibi-
tion against applying disclosure requirements to a
group whose “major purpose” is other than the nomina-
tion or election of candidates.
42 No. 11-3693
The argument reads Buckley too broadly. First, as is
clear from the quoted portion, the “major purpose”
limitation, like the express advocacy/issue discussion
distinction, was a creature of statutory interpretation,
not constitutional command. See National Org. for
Marriage, 649 F.3d at 59 (“We find no reason to believe
that this so-called ‘major purpose’ test, like the other
narrowing constructions adopted in Buckley, is anything
more than an artifact of the Court’s construction of a
federal statute.”); Human Life, 624 F.3d at 1009-10
(“Buckley’s statement . . . does not indicate that an entity
must have that major purpose to be deemed constitution-
ally a political committee.”).2 3 Buckley’s limiting construc-
tion was drawn for the statute before it, and the
Supreme Court has never applied a “major purpose” test
to a state’s regulation of political committees. See National
Org. for Marriage, 649 F.3d at 59.
23
See also Vermont Right to Life Committee, Inc. v.
Sorrell, ___ F. Supp. 2d ___, 2012 WL 2370445, at *15 (D. Vt. 2012)
(upholding Vermont campaign finance disclosure laws and
concluding that the “major purpose limiting construction was
the product of a vague statute, not of the First Amendment”).
But see New Mexico Youth Organized v. Herrera, 611 F.3d 669, 677-
78 (10th Cir. 2010) (invalidating state disclosure law as
applied to organization because it did not “satisfy the ‘major
purpose’ test,” which “sets the lower bounds for when regula-
tion as a political committee is constitutionally permissible”);
North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir.
2008) (concluding before Citizens United that state disclosure
law violated the First Amendment because “an entity must
have ‘the major purpose’ of supporting or opposing a can-
didate to be designated a political committee”).
No. 11-3693 43
For four reasons, we do not think this limitation
extends to Illinois’s disclosure requirements. First, when
Buckley was decided, political committees faced much
greater burdens under FECA’s 1974 amendments than
Illinois’s disclosure requirements impose. For instance,
FECA then included hard limits on the size of contribu-
tions to political committees, and on how much they
could contribute to other political committees. See
Buckley, 424 U.S. at 35.2 4 When regulation as a political
committee entails adherence to these and other more
burdensome requirements, there is more room to argue
that the major purpose test might be needed under the
First Amendment than when the law imposes only dis-
closure obligations. For instance, the Supreme Court
in Massachusetts Citizens for Life held that a federal law
prohibiting corporations from making independent
expenditures except through segregated funds was uncon-
stitutional as applied to a nonprofit political advocacy
organization, but the Court expressly acknowledged
that the organization could be required to comply with
FECA’s disclosure regime. See 479 U.S. at 262 (“These
24
In Illinois’s 2009 amendments to its campaign finance law,
the legislature imposed hard limits on the amount political
committees could accept from any one individual, entity, or
other political committee. 10 ILCS 5/9-8.5(d). These limits
went into effect in January 2011 but were invalidated as uncon-
stitutional as applied to non-candidate, non-political party
“political action committees.” See Personal PAC v. McGuffage, ___
F. Supp. 2d __, 2012 WL 850744 (N.D. Ill. March 13, 2012).
The state did not appeal.
44 No. 11-3693
reporting obligations provide precisely the information
necessary to monitor MCFL’s independent spending
activity and its receipt of contributions. The state
interest in disclosure therefore can be met in a manner
less restrictive than imposing the full panoply of regula-
tions that accompany status as a political committee
under the Act.”). Massachusetts Citizens for Life shows
that there is nothing constitutionally magical about being
labeled as a political committee; what matters are the
burdens that attend the classification.
Second, Article 9 defines political committee more
narrowly than FECA by covering only groups that accept
contributions or make expenditures “on behalf of or in
opposition to” a candidate or ballot initiative. This defini-
tion is more targeted to campaign-related speech than
FECA’s definition of contribution and expenditure,
which applies to anything of value given or received
“for the purpose of . . . influencing” an election. 2 U.S.C.
§ 431(8), (9). Again, in McConnell, the Court held that
similar language (words such as “’promote,’ ‘oppose,’
‘attack,’ and ‘support’ ”) “provide[d] explicit standards”
and was not vague. See 540 U.S. at 170 n.64. The Illinois
limit of “on behalf of or in opposition to” confines
the realm of regulated activity to expenditures and con-
tributions within the core area of genuinely campaign-
related transactions.
Third, as the First Circuit noted in upholding Maine’s
campaign finance disclosure law, application of the major
purpose test would “yield perverse results.” “[A] small
group with the major purpose of electing a . . . state
No. 11-3693 45
representative that spends [$3,000] for ads could be
required to register” as a political committee, while a
“mega-group that spends $1,500,000 to defeat the same
candidate,” but spends far more on non-campaign-
related activities, “would not have to register because
the defeat of that candidate could not be considered the
[mega-group’s] major purpose.” National Org. for Marriage,
649 F.3d at 59, quoting National Org. for Marriage v. McKee,
723 F. Supp. 2d at 264; see also Vermont Right to Life Com-
mittee, ___ F. Supp. 2d at __, 2012 WL 2370445, at *16
(noting the “peculiar results” the major purpose test
would produce inasmuch as “a group that spends $1.5 MM
of a total of $6 MM on promoting candidates probably
would not qualify, but one that spends $1500 of a total
budget of $2000 probably would”).
Fourth, limiting disclosure requirements to groups
with the major purpose of influencing elections would
allow even those very groups to circumvent the law with
ease. Any organization dedicated primarily to electing
candidates or promoting ballot measures could easily
dilute that major purpose by just increasing its non-
electioneering activities or better yet by merging
with a sympathetic organization that engaged in
activities unrelated to campaigning.2 5 It is easy to imagine
25
See Human Life, 624 F.3d at 1012; North Carolina Right to Life,
525 F.3d at 332 (Michael, J., dissenting) (warning that major-
purpose standard “effectively encourages advocacy groups
to circumvent the law by not creating political action
committees and instead to hide their electoral advocacy from
(continued...)
46 No. 11-3693
how implementing the kind of major-purpose test the
Center advances could devolve into an administrative
nightmare. The First Amendment does not require a
state to build such an escape hatch into reasonable disclo-
sure laws.26 The Supreme Court has frequently warned
of the “hard lesson of circumvention” in campaign
finance regulation. McConnell, 540 U.S. at 165; see also
Citizens United, 130 S. Ct. at 912; Buckley, 424 U.S. at 62. In
political campaigns, it seems, “[m]oney, like water, will
always find an outlet.” McConnell, 540 U.S. at 224; see
generally Samuel Issacharoff & Pamela S. Karlan, The
Hydraulics of Campaign Finance Reform, 77 Tex. L. Rev. 1705(1999).27 Illinois’s disclosure provisions attempt to reduce
(...continued)
view by pulling it into the fold of their larger organizational
structure”). Contra id., 525 F.3d at 296 (majority opinion)
(rejecting dissent’s warning as “hyperbolic” and stating that
“the dissent fails to set forth any meaningful limit on the
consignment of our most basic political speech to layer
upon layer of intense regulation”).
26
The FEC applies the “major purpose” test on a “case-by-case”
basis, see The Real Truth About Abortion, __ F.3d at __, 2012 WL
2108217, at *1, and in practice the test appears to be quite
complex, see Shays v. Federal Election Comm’n, 511 F. Supp. 2d 19,
31 (D.D.C. 2007).
27
At the federal level, increasingly the outlets found by cam-
paign money are blind alleys; the hydraulics of campaign
finance have propelled funds to pseudonymous super PACs and
§ 501(c)(4) groups. See Dan Eggen, Behind the Ads, Faceless
(continued...)
No. 11-3693 47
27
(...continued)
Donors, W ASH . P OST , Apr. 26, 2012, at A1. By one account, in the
2010 elections less than 10% of the $75 million outside groups
spent on electioneering communications came from entities
that disclosed their donors. See 2010 Outside Spending,
by Groups, Center for Responsive Politics, http://www.
opensecrets.org/outsidespending/summ.php?disp=O (last vis-
ited Aug. 29, 2012). And already this year, groups that do not
disclose their donors have spent $172 million on television,
radio, and Internet advertising. See Paul Blumenthal, ‘Dark
Money’ Hits $172 Million in 2012 Election, Half of Independent
Group Spending, H UFFINGTON P OST (July 29, 2012, 6:17pm),
http://www.huffingtonpost.com/2012/07/29/dark-money-2012-
election_n_1708127.html. The reason for this blind spot is that
FEC regulations require corporations and labor organizations
making electioneering communications to report the identities
of donors giving at least $1,000 only when the donation “was
made for the purpose of furthering electioneering communica-
tions.” 11 C.F.R. § 104.20(c)(9) (emphasis added). While any
person or entity spending at least $10,000 on electioneering
communications must disclose their spending, unions and
corporations need not disclose who has contributed to pay for
these ads, “unless the donor is dumb enough specifically to
direct the organization to use the money for a particular ad.”
Richard L. Hasen, Show Me the Donors: What’s the Point of
Campaign Finance Disclosure? Let’s Review, S LATE (Oct. 14, 2010),
http://www.slate.com/articles/news_and_politics/politics/2010
/10/show_me_the_donors.html.
A district court recently invalidated the FEC-created loophole
as an unreasonable construction of the FECA statute. See Van
Hollen v. FEC, __ F. Supp. 2d __, 2012 WL 1066717 (D.D.C. 2012),
(continued...)
48 No. 11-3693
this risk of circumvention by defining political committee
to include groups that either coordinate expenditures
with campaigns and parties or that run ads that are
unambiguous appeals to vote a particular way.
In light of these considerations, the line-drawing con-
cerns that led the Court to adopt the major purpose
limitation for contribution and expenditure limits in
Buckley do not control our overbreadth analysis of
the disclosure requirements of Article 9. Instead, as the
Supreme Court has instructed in applying exacting scru-
tiny, our inquiry depends on whether there is a sub-
stantial relation between Illinois’s interest in informing
its electorate about who is speaking before an election
and Article 9’s regulation of campaign-related spending
by groups whose major purpose is not electoral politics.
We find that there is.
In Illinois, the voting “public has an interest in
knowing who is speaking about a candidate shortly
before an election,” Citizens United, 130 S. Ct. at 915,
whether that speaker is a political party, a nonprofit
27
(...continued)
stay pending appeal denied, No. 12-5117, 12-5118, 2012 WL 1758569(D.C. Cir. May 14, 2012) (“On the merits, intervenors fail to
demonstrate a strong likelihood that the district court erred in
interpreting . . . the plain text of section 201 of the Bipartisan
Campaign Reform Act (’BCRA’), which requires that dis-
closures ‘shall contain . . . the names . . . of all contributors who
contributed an aggregate amount of $1,000 or more to the
person” purchasing “electioneering communications.’ ”),
quoting 2 U.S.C. § 434(f)(2)(F).
No. 11-3693 49
advocacy group, a for-profit corporation, a labor union,
or an individual citizen. The need for an effective and
comprehensive disclosure system is especially valuable
after Citizens United, since individuals and outside
business entities may engage in unlimited political ad-
vertising so long as they do not coordinate tactics with
a political campaign or political party. See Citizens
United, 130 S. Ct. at 916 (“A campaign finance system
that pairs corporate independent expenditures with
effective disclosure has not existed before today. . . . With
the advent of the Internet, prompt disclosure of expendi-
tures can provide shareholders and citizens with the
information needed to hold corporations and elected
officials accountable for their positions and supporters.”).
Already in the 2012 federal elections, outside spending
has approached $300 million nationwide.2 8
Amidst this cacophony of political voices — super
PACs, corporations, unions, advocacy groups, and in-
dividuals, not to mention the parties and candidates
themselves — campaign finance data can help busy
voters sift through the information and make informed
political judgments. Transparency in campaign finance
allows the public to weigh the “credib[ility]” of the
speaker and thus the “persuas[iveness]” of the message,
and that is so “generally whatever the question is,” Aris-
totle, Rhetoric, in 2 The Complete Works of Aristotle 2152,
28
See Outside Spending, Center for Responsive Politics,
http://www.opensecrets.org/outsidespending/index.php (last
visited Aug. 29, 2012).
50 No. 11-3693
2155 (Jonathan Barnes ed. 1984)., quoted in Majors v.
Abell, 361 F.3d 349, 352 (7th Cir. 2004) (upholding state
statute requiring political ads to identify sponsors).
Such transparency helps the public hold political
speakers accountable for making false, manipulative, or
otherwise unseemly ads that they might otherwise run
with impunity. As Justice Brandeis observed, “Sunlight
is said to be the best of disinfectants; electric light the
most efficient policeman.” Louis Brandeis, Other People’s
Money 62 (1933), quoted in Buckley, 424 U.S. at 67.
We conclude that Article 9’s regulation as political
committees of groups that lack the major purpose of
influencing elections does not condemn the disclosure
law as unconstitutionally overbroad.
C. “Electioneering Communication”
In addition to its two major substantive challenges to
Article 9, the Center asserts that several other provi-
sions are facially vague and overbroad. The first is the
definition of “electioneering communication,” which
applies to expenditures and contributions to determine
whether an entity is a regulated political committee
that must disclose its finances and donors. Illinois defines
“electioneering communication” as:
any broadcast, cable, or satellite communication,
including radio, television, or Internet communication,
that (1) refers to a clearly identified candidate . . .,
clearly identified political party, or a clearly identified
question of public policy that will appear on the
No. 11-3693 51
ballot, (2) is made within 60 days before a general
election . . . or 30 days before a primary election, (3) is
targeted to the relevant electorate, and (4) is suscepti-
ble to no reasonable interpretation other than as an
appeal to vote for or against a clearly identified candi-
date . . ., a political party, or a question of public
policy.
10 ILCS 5/9-1.14 (some internal numbering omitted). This
definition is taken almost verbatim from the federal
definition that was upheld (to the extent it triggered
disclosure requirements) in Citizens United. Federal law
defines “electioneering communication” as:
any broadcast, cable, or satellite communication
which —
(I) refers to a clearly identified candidate for Fed-
eral office;
(II) is made within —
(aa) 60 days before a general . . . election candi-
date; or
(bb) 30 days before a primary . . . election . . .;
and
(III) . . . is targeted to the relevant electorate.
...
. . . [A] communication which refers to a clearly
identified candidate for Federal office is “targeted
to the relevant electorate” if the communication
can be received by 50,000 or more persons —
52 No. 11-3693
. . . in the district [or state] the candidate seeks to
represent . . . .
2 U.S.C.A. § 434(f)(3)(A)-(C).
The Center maintains that Article 9’s definition of
“electioneering communication” is vague and overbroad.
The Supreme Court has already found the federal defini-
tion to be neither overbroad nor vague in the context of
disclosure requirements, see, e.g., Citizens United, 130
S. Ct. at 916, so in assessing Article 9 we focus on the
ways in which the Illinois statute is broader or less
precise than the federal one and then inquire whether
each difference is constitutionally permissible.
There are three differences between the federal and
Article 9 definitions of “electioneering communications.”
First, the Illinois statute covers communications related
to ballot measure campaigns. We determined above
that this element of Article 9 does not render the
statute vague or overbroad, see parts IV.A.2 & .3, and do
not repeat our analysis here. Second, Article 9 covers
“Internet speech,” which is not regulated by the
federal statute. Third, Illinois does not limit the phrase
“targeted to the relevant electorate” by reference to
minimum audience size. We now address these last
two differences.
1. Internet Communications
The Center contends that Article 9’s regulation of
certain Internet speech as electioneering communica-
tions renders it unconstitutionally broad because
No. 11-3693 53
Internet speech, in contrast to radio and television broad-
casts, is not confined to particular audience markets or
moments in time. Without firm temporal or geographic
limitations, the Center argues, Article 9 potentially
sweeps in an untold amount of online speech that has
nothing to do with Illinois elections. The Center notes
that “many Internet communications” — for example,
postings on the Center’s website, emails to the Center’s
membership distribution lists, or messages through
social networking sites — “are equally accessible from
almost anywhere in the world” and may even persist
forever in cyber-space through the use of a so-called “Way-
Back Machine” that stores web sites even after they
have been removed by their creators or sponsors. The
consequence, it suggests, is that “politically-oriented
websites around the world must review their content
before each Illinois election to identify and remove any
prior posting referring to someone who now is an Illinois
candidate or something that now is an Illinois ballot
question.” Keeping in mind that this is a facial chal-
lenge, we are not persuaded that this prospect
invalidates the entire law.
First, requiring disclosure of genuinely campaign-
related Internet communications undoubtedly advances
Illinois’s important interest in informing its voters
about who is speaking before an election. In recent years,
a large and growing proportion of electioneering has
been occurring online. In 2008, for the first time, “more
than half the voting-age population used the internet
to connect to the political process during an election
54 No. 11-3693
cycle.” 2 9 That portion is almost certainly higher today. By
one estimate, the two major parties’ presidential cam-
paigns will spend $159 million more on web ads in
2012 than in 2008 — a sevenfold increase. 3 0 Thanks to
advanced Internet marketing strategies, campaigns and
other political actors have now “acquired the technical
capacity to target Web ads with the precision of mail or
a door-to-door canvass.” 3 1 Campaigns, parties, and advo-
cacy groups have increasingly turned to the Internet to
reach the electorate with campaign messages, and
Illinois voters have just as much a stake in knowing who
is behind such messages as when they are broadcast
in traditional media.
On the other hand, we agree with the Center that
the potential reach of Illinois’s disclosure law could be
problematic if distant speakers were actually subject to
regulation because their Internet postings inadvertently
29
Aaron Smith, The Internet’s Role in Campaign 2008 3 (Pew
Internet & Amer. Life Project, Apr. 2009), available at
http://pewresearch.org/pubs/1192/internet-politics-campaign-
2008.
30
See Obama Outspends Romney on Online Ads, CNN
(June 3, 2012), http://www.cnn.com/2012/06/
03/politics/online-campaign-spending/index.html.
31
Sasha Issenberg, The Creepiness Factor, S LATE (Apr. 26, 2012),
http://www.slate.com/articles/news_and_politics/victory_lab/
2012/04/web_based_political_ads_why_they_scare_the_obama_
and_romney_campaigns.html.
No. 11-3693 55
or obliquely coincided with the subjects of Illinois ballot
measures. The state’s interest in informing its voters of
the identities, financial outlays, and funding sources of
such marginal political messengers does not rise to
the importance the First Amendment demands. Yet the
Center has identified no case in which the State
Election Board has asked out-of-state speakers to
register as political committees for disseminating emails,
tweets, zombie web pages, or any other Internet com-
munications that merely mentioned Illinois candidates
or discussed issues related to Illinois ballot measures.
Nor could the Board legally do so, for under Article 9
Internet ads count as electioneering communications
only when they are both “targeted to the relevant
[Illinois] electorate” and “susceptible to no reasonable
interpretation other than as an appeal to vote for or
against a clearly identified candidate . . ., a political party,
or a question of public policy.” 10 ILCS 5/9-1.14. The
Center’s notion that the Board might consider an out-of-
state advocacy group’s web ad generally endorsing
low taxes to be an unambiguous appeal to vote for a
“ballot question to balance the Illinois budget” sounds far-
fetched.
With no evidence that the Board would actually
construe Article 9 in this surprising way, such remote,
hypothetical applications do not justify invalidating
Illinois’s disclosure provisions for facial overbreadth.
See Washington State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450 (2008) (“[W]e must be careful not
to go beyond the statute’s facial requirements and specu-
late about ‘hypothetical’ or ‘imaginary’ cases.”), quoting
56 No. 11-3693
United States v. Raines, 362 U.S. 17, 22 (1960); see also
Robert Bork, The Tempting of America 169 (1990) (“Judges
and lawyers live on the slippery slope of analogies;
they are not supposed to ski it to the bottom.”). For a facial
challenge to prevail, a statute’s overbreadth must be
“substantial, not only in an absolute sense, but also
relative to the statute’s plainly legitimate sweep.” United
States v. Williams, 553 U.S. 285, 292 (2008). Cf. Yazoo &
Mississippi Valley R.R. Co. v. Jackson Vinegar Co., 226
U.S. 217, 220 (1912) (“How the state court may apply
[a statute] to other cases, whether its general words may
be treated as more or less restrained, and how far parts
of it may be sustained if others fail are matters upon
which we need not speculate now.”). Neither the Board
nor Illinois courts have had “occasion to construe the
law in the context of actual disputes arising from the
electoral context, or to accord the law a limiting construc-
tion to avoid constitutional questions.” Washington State
Grange, 552 U.S. at 450. It would be premature for this
court to presume that the Board would disregard the
obvious limits of the statutory text and seek to
apply Article 9 in such a sweeping fashion.
The Center complains that it is too difficult to know
when an “electioneering communication” is “made” on the
Internet. Timing is important because of the duties that
apply during the 30-day and 60-day windows before
elections. See 10 ILCS 5/9-1.14(a). The district court and
the defendants assert that a communication is “made”
on a website both when it is first posted and while
it remains available on the website. That is a sensible
reading, just as a physical billboard is considered a com-
No. 11-3693 57
munication made by the advertiser as long as it is dis-
played. The Center wonders if it would still be
responsible for later communications (within the 30-
day and 60-day windows) if others copy its ads and
post them on other websites. If that happens, the Center
would not be “making” those later communications
and would not be responsible for them.
We do not anticipate that Article 9 will restrict or chill
a substantial amount of protected speech because
it treats certain Internet speech as electioneering com-
munications. On its face, this element of the statute
is neither vague nor overbroad.
2. Targeted to the Relevant Electorate
Article 9 does not numerically define “target[ing]
the relevant electorate” as does FECA, which requires
that the communication be capable of being “received by
50,000 or more persons.” 2 U.S.C. § 434(f)(3)(C). Illinois
has good reasons for omitting a number. Its elections
involve much smaller electorates, and it does not have
an agency like the Federal Communications Commission
that would let it monitor how large an audience a
given broadcast reaches. This difference does not
defeat Illinois’s substantial interest in informing its elec-
torate for the purposes of this facial challenge. In ad-
judicating facial challenges, federal courts do not
assume that state officials will construe state law in the
most expansive way imaginable. On the contrary, it “is
reasonable to assume . . . that a state court presented with
a state statute . . . will attempt to construe the statute
58 No. 11-3693
consistently with constitutional requirements.” City of
Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S.
416, 441 (1983), overruled in part on other grounds by
Planned Parenthood v. Casey, 505 U.S. 833, 881-83 (1992)
(as stated in plurality opinion). We agree with the state
that a “reasonable, and constitutional construction of
‘targeted to the relevant electorate’ means a broadcast
communication receivable within the geographical area
where potential voters on that candidate or issue live.” The
absence of a numeric baseline does not condemn
the phrase “targeted to the relevant” as facially invalid.
Article 9’s definition of “electioneering communications”
is not facially vague or overbroad.
D. Contribution and Expenditure
Article 9 defines “contribution” as a “gift . . . or anything
of value, knowingly received in connection with the
nomination for election, election, or retention of any
candidate or person to or in public office or in connec-
tion with any question of public policy.” 10 ILCS 5/9-
1.4(A)(1). “Expenditure” means “gift of money, or
anything of value, [made] in connection with the nomina-
tion for election, election, or retention of any person to
or in public office or in connection with any question
of public policy.” 10 ILCS 5/9-1.5(A)(1). The “transfer
of funds by a political committee to another political
committee” automatically qualifies as a contribution (for
the transferee) and an expenditure (for the transferor).
10 ILCS 5/9-1.5(A)(3), 5/9-1.4(A)(3). An expenditure “made
in cooperation, consultation, or concert with another
No. 11-3693 59
political committee” is considered a contribution to that
committee. 10 ILCS 5/9-1.4(A)(5). The Center challenges
three aspects of these definitions as unconstitutionally
vague.
1. In Connection With, Supporting, or Opposing
First, the Center argues that the requirement that a
contribution or expenditure be “in connection with” an
election or ballot initiative is “so vague and broad as to
provide no meaningful guidance.” By itself, the “in con-
nection with” language would be of little help. But as
the district court correctly observed, the scope of the
“contribution” and “expenditure” definitions is further
limited by the narrower definition of “political commit-
tee,” which applies only to contributions or expendi-
tures that are made “on behalf of or in opposition to a
candidate” (for political action committees) or made “with
the purpose of securing a place on the ballot for [or]
advocating the defeat or passage of . . . the question of
public policy” (for ballot initiative committees). 10 ILCS
5/9-1.8(d), (e). The only regulatory consequence of a
transaction qualifying as a contribution or expenditure
is when it triggers registration requirements for political
committees, so the more circumscribed language in
that latter provision is what matters for the vagueness
analysis. Following McConnell, we concluded above that
the “in support of or opposition” language in the
definition of “ballot initiative committee” is clear enough.
See part IV.A.3. The same goes for the “on behalf of or
in opposition to a candidate” language in the definition
60 No. 11-3693
of “political action committee.” All of these definitions
“give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited.” Grayned, 408
U.S. at 108.
2. Transfer of Funds from One Political Committee
to Another
Next, the Center attacks Article 9’s treatment of any
“transfer of funds by a political committee to another
political committee” as a contribution or expenditure.
The Center claims this provision may apply to transfers
with groups that qualify as political committees under
the statute but have not yet registered, so it requires
people “to judge whether a source or recipient of funds
may later be judged to have made a $3,000 contribution,
expenditure, or otherwise became a political committee.”
Thus, the Center fears, it “could find itself classified as
an Illinois political committee depending on how regula-
tors later assess some other group’s speech or other
activities that [the Center] could not have known
about.” This result seems highly unlikely because it over-
looks an important aspect of the transfer of funds provi-
sions. A transfer counts as a contribution and expendi-
ture only if it is already between two entities that each
qualify as political committees. See 10 ILCS 5/9-1.4(A)3
and -1.5(A)(3). That makes sense only if they each
already qualify as political committees independent of the
particular transfer. The transfer to or from some other
entity that is a political committee would not make the
other entity a political committee. (Otherwise, for
No. 11-3693 61
example, a contractor who produced an ad attacking a
candidate for a political committee would itself be trans-
formed into a political committee.) The mere possibility
that the Board might enforce the statute in such an
unfair way as the Center says it fears is a good example
of the sort of “hypothetical or imaginary” situation with
which courts do not concern themselves in facial chal-
lenges. Washington State Grange, 552 U.S. at 450. If the
Board sought to enforce Article 9 as the Center says it
fears, that might well provide a strong basis for an as-
applied challenge.
3. Coordinated Expenditures
Finally, the statute treats as a contribution any “election-
eering communication made in concert or cooperation with
or at the request, suggestion, or knowledge of a candidate,
a political committee, or any of their agents.” 10 ILCS 5/9-
1.4(A)(1.5) (emphases added). The Center contends that
the italicized words are vague because they do not
specify the “degree of actual agreement required.” Since
before Buckley, however, FECA has provided that “ex-
penditures made by any person in cooperation, consulta-
tion, or concert, with, or at the request or suggestion of,
a candidate, his authorized political committees, or
their agents, shall be considered to be a contribution to
such candidate.” 2 U.S.C. § 441a(a)(7)(B)(i); see Buckley,
424 U.S. at 46. With the exception of the word, “knowl-
edge,” Article 9’s definition of coordination is no less
clear than the federal definition, which has long passed
muster in the Supreme Court. See, e.g., McConnell, 540
62 No. 11-3693
U.S. at 219-23. We therefore reject the Center’s argu-
ment that the terms, “in concert or cooperation with,”
“request,” and “suggestion,” are unconstitutionally vague.
As for the word “knowledge,” we agree with the Center
that standing alone, it would sweep in a wide range
of expenditures as coordinated expenditures (and thus
as indirect contributions to campaign committees). For
instance, if a candidate learned that an outside group
had produced a favorable TV ad, would the candidate
have “knowledge” that the electioneering communica-
tion was made? This would not be enough to say that
the ad was coordinated with the campaign. Recognizing
this problem, the district court adopted the limiting
construction that “affirmative acquiescence is required,
not mere after the fact knowledge that the advocacy
has occurred.” Although we are somewhat puzzled by
the phrase “affirmative acquiescence,” we think the
main thrust of this limiting construction is sound. Under
the canon of noscitur a sociis, the fact that “several items
in a list share an attribute counsels in favor of inter-
preting the other items as possessing that attribute as
well.” Beecham v. United States, 511 U.S. 368, 371 (1994).
Thus, the Illinois legislature’s placement of “knowledge”
in a series after “request” and “suggestion” indicates
that we should interpret the last, more general word, to
be similar to its more specific neighbors. 3 2 Both “request”
32
This construction is especially appropriate given that the
“knowledge” requirement is omitted from an otherwise
(continued...)
No. 11-3693 63
and “suggest” necessarily imply actual prior communica-
tion between the purchaser of the electioneering com-
munication and the candidate, committee, or an agent
thereof. The use of the term “knowledge” is clearly in-
tended to ensure that coordination cannot be achieved
by a proverbial “wink and nod,” such as where the sup-
posedly independent group gives a candidate’s cam-
paign advance, secret notice of its planned advertising
campaign to attack the opponent in a particular way,
but without actually drawing an explicit response from
the candidate’s campaign.3 3
In the context of “request” and “suggest,” the word
“knowledge” may fairly be construed as requiring
advance and non-public communication with the candi-
(...continued)
parallel provision of Article 9 defining “independent expendi-
ture.” See 10 ILCS 5/9-1.15 (defining “independent expendi-
ture” as an expenditure for electioneering communication
“that is not made in connection, consultation, or concert with
or at the request or suggestion of the public official or
candidate, . . ., political committee, . . . campaign, . . . or [any]
agent [thereof]”).
33
For example, the FEC’s regulations on coordinated expendi-
tures state that the definition “is not satisfied if the infor-
mation material to the creation, production, or distribu-
tion of the communication was obtained from a publicly
available source,” but that “[a]greement or formal col-
laboration between the person paying for the communica-
tion and the candidate . . . is not required.” 11 C.F.R.
§ 109.21(d)(2), (e).
64 No. 11-3693
date or entity on whose behalf the electioneering com-
munication is supposedly made. Where an otherwise
ambiguous provision is readily susceptible to a limiting
construction that cures the vagueness concerns, we
should adopt it. See Buckley, 424 U.S. at 77-78 (“Where
the constitutional requirement of definiteness is at
stake, we have the further obligation to construe
the statute, if that can be done consistent with the legisla-
ture’s purpose, to avoid the shoals of vagueness.”). Ac-
cordingly, we interpret “knowledge” in light of its
adjacent terms and conclude that the coordination lan-
guage of Article 9 is clear enough to provide a rea-
sonably intelligent person “fair warning” of what sort
of conduct is covered. See Grayned, 408 U.S. at 108.
E. Independent Expenditures
An “independent expenditure” is an expenditure for
an electioneering communication or any form of express
advocacy that is not coordinated with a candidate
or a campaign.34 Unlike coordinated expenditures, an
34
Article 9 defines “independent expenditure” as “any payment,
gift, donation, or expenditure of funds (i) by a natural person
or political committee for the purpose of making elec-
tioneering communications or of expressly advocating for or
against the nomination for election, election, retention, or
defeat of a clearly identifiable public official or candidate or
for or against any question of public policy to be submitted to
the voters and (ii) that is not made in connection, consultation,
(continued...)
No. 11-3693 65
“independent expenditure is not considered a contribu-
tion to a political committee.” 10 ILCS 5/9-8.6(a). When,
however, in a 12-month period a person or organization
makes more than $3,000 worth of independent expendi-
tures “supporting or opposing a public official or candi-
date,” 10 ILCS 5/9-8.6, this triggers Article 9’s disclosure
requirements.35 The Center contends that the phrase
“supporting or opposing a public official or candidate” is
impermissibly vague because the “supporting or op-
posing” language is unclear, and because the provision
appears to apply to advocacy for or against public
officials who are not candidates.
(...continued)
or concert with or at the request or suggestion of the public
official or candidate, the public official’s or candidate’s desig-
nated political committee or campaign, or the agent or agents
of the public official, candidate, or political committee or
campaign.” 10 ILCS 5/9-1.15.
35
After exceeding the threshold, any natural person making
such independent expenditures “must file a written disclosure
with the State Board of Elections within 2 business days . . .
identify[ing] the natural person, the public official or candidate
supported or opposed, the date, amount, and nature of each
independent expenditure, and the natural person’s occupa-
tion and employer.” 10 ILCS 5/9-8.6(a). “Any entity other than
a natural person that makes expenditures of any kind in an
aggregate amount exceeding $3,000 during any 12-month
period supporting or opposing a public official or candidate
must organize as a political committee” and “report all
such independent expenditures as required under” Article 9.
10 ILCS 5/9-8.6(b), (c).
66 No. 11-3693
First, the “supporting or opposing” language has no
effect on the scope or substance of these independent
expenditure reporting requirements. Not just any unco-
ordinated campaign-related expenditure is an “independ-
ent expenditure” — only those made either (1) for “elec-
tioneering communications” or (2) for “expressly ad-
vocating for or against the . . . election . . . or defeat of a
clearly identifiable public official or candidate.” 10 ILCS
5/9-1.15. Recall that a broadcast counts as an elec-
tioneering communication only if it “refers to a clearly
identified candidate” and is “susceptible to no reasonable
interpretation other than as an appeal to vote for or
against” that candidate. 10 ILCS 5/9-1.14(a). This
standard — as well as the standard for express advocacy —
is much more demanding than the requirement that ex-
penditures merely be “supporting or opposing a public
official or candidate.” When the multiple statutory terms
and definitions are assembled, then, the “supporting or
opposing” language is redundant and does not render
the definition of “independent expenditure” unconstitu-
tionally vague or overbroad. See Human Life, 624 F.3d at
1021 (“otherwise imprecise terms may avoid vagueness
problems when used in combination with terms that
provide sufficient clarity”), quoting Gammoh v. City of
La Habra, 395 F.3d 1114, 1120 (9th Cir. 2005).
As for the phrase “public official,” we agree with the
Center that a strictly literal interpretation of the provi-
sion would include independent expenditures made for
“expressly advocating for or against the . . . election
or defeat of a clearly identifiable public official” who is
not currently a candidate, but who may run for re-election
No. 11-3693 67
in some future year.3 6 It is clear, however, from both
the text of this section and Article 9 as a whole, which
repeatedly refers to incumbent candidates as “public
officials,” that the legislature intended the phrase “public
official” in section 9-8.6 to mean a public official who
is also a candidate. That is the limiting construction
the district court adopted, and it is a sound one. So nar-
rowed, the provision of Article 9 imposing disclosure
requirements for “independent expenditures” is not
vague or overly broad.
Conclusion
“Whatever differences may exist about interpretations
of the First Amendment, there is practically universal
agreement that a major purpose of that Amendment was
to protect the free discussion of governmental affairs.
This of course includes discussions of candidates, . . . and
all such matters relating to political processes.” Mills v.
Alabama, 384 U.S. 214, 218-19 (1966). The First Amend-
ment helps to ensure that our “constitutionally protected
‘discussion of governmental affairs’ is an informed one.”
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605
(1982), quoting Mills, 384 U.S. at 218. Campaign finance
disclosure requirements can advance the democratic
36
It could not apply to expenditures made for “electioneering
communications,” of course, because these require reference
to a “clearly identified candidate” and an unambiguous
“appeal to vote” for or against that candidate. 10 ILCS 5/9-
1.14(a) (emphasis added).
68 No. 11-3693
virtues in informed and transparent public discourse
without impairing other First Amendment values.
Although “disclosure is a less restrictive alternative
to more comprehensive regulations of speech,” Citizens
United, 130 S. Ct. at 915, we are not unmindful of the
costs it may generate in foregone speech from those
who wish to remain anonymous, in the loss of privacy,
and from social friction. See, e.g., McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334 (1995) (striking down
state law requiring identification of authorship on all
campaign-related publications as applied to distribution
of unsigned leaflets by individual pamphleteer); see
generally Symposium, Privacy, Democracy, and Elections,
19 Wm. & Mary Bill Rights J. 857 (2011). We also take
the Center at its word that its donors are so adamant
about remaining anonymous that subjecting it to the
Illinois reporting requirements will deter it from
engaging in its preferred form of public advocacy. That
is regrettable, but it is the Center’s and its donors’ choice
to make. As Justice Scalia has written, participation in
the political process takes “civic courage, without which
democracy is doomed.” Doe v. Reed, 130 S. Ct. at 2837(Scalia, J., concurring in the judgment). While there is
also a “respected tradition of anonymity in the advocacy
of political causes” in this country, see McIntyre, 514
U.S. at 343, that tradition does not mean voters must
remain in the dark about “who is speaking about a candi-
date shortly before an election.” Citizens United, 130 S. Ct.
at 915. Campaign finance disclosure laws must strike a
balance between protecting individual speakers from
invasions of privacy and harassment on the one hand,
No. 11-3693 69
and enabling transparency and accountability in political
campaigns on the other. Illinois’s laws do so sufficiently
to survive this facial challenge.
The judgment of the district court is A FFIRMED.
P OSNER, Circuit Judge, concurring in part and dissenting
in part. I agree with much in the majority opinion,
but several provisions of the Illinois statute seem to me
to burden the plaintiff’s freedom of speech unduly;
we should invalidate them.
The Center for Individual Freedom is a nonprofit organi-
zation engaged in public advocacy. It makes advertise-
ments and disseminates them in television, print, online,
and other media; it maintains a website; and it produces
a radio show. It conducts some of its activities during
election campaigns, often commending to the electorate
candidates whom it thinks likely if elected to support
the policies it advocates. But it is not affiliated with and
does not coordinate its activities with any candidate,
campaign, or political party and is thus an “independent”
advocacy group within the meaning of Citizens United
v. Federal Election Commission, 130 S. Ct. 876, 910 (2010),
and Buckley v. Valeo, 424 U.S. 1, 45-47 and n. 53 (1976)
(per curiam). It therefore is not subject to all the reg-
70 No. 11-3693
ulations that states are allowed to impose on political
committees that are affiliated with candidates, campaigns,
or parties. A state is permitted, however, to compel
public disclosure of election-related activities of indep-
endent groups, on the theory that such disclosure
helps the electorate evaluate candidates for public office,
id. at 66, 81, though a state may not limit donations to
an independent advocacy organization or the expendi-
tures that such an organization can make, or ban its
speech. See SpeechNow.org v. Federal Election Commission,
599 F.3d 686, 694-96 (D.C. Cir. 2010) (en banc).
Illinois regulates what it calls “political committees,” and
the term includes not only partisan committees but
also any independent organization or individual that
“accepts contributions or makes expenditures during
any 12-month period in an aggregate amount ex-
ceeding $3000 on behalf of or in opposition to a candidate
or candidates for public office” or “in support of or in
opposition to any question of public policy to be
submitted to the electors,” or that “makes electioneering
communications,” exceeding the monetary threshold,
that are “related to” a candidate or to a question of
public policy. 10 ILCS 5/9-1.8(d), (e). A “contribution” is
among other things “anything of value that constitutes
an electioneering communication made in concert or
cooperation with or at the request, suggestion, or knowl-
edge of a candidate, a political committee, or any of their
agents,” or “a transfer of funds received by a political
committee from another political committee.” 10 ILCS 5/9-
1.4(A)(1.5), (3). An “expenditure” is anything of
value given “in connection with the nomination for
No. 11-3693 71
election, election, or retention of any person to or in
public office,” 10 ILCS 5/9-1.5(A)(1), or “that constitutes
an electioneering communication made in concert or
cooperation with or at the request, suggestion, or knowl-
edge of a candidate, a political committee, or any of
their agents.” 10 ILCS 5/9-1.5(A)(2). And finally an “elec-
tioneering communication” is any broadcast, cable,
satellite, or Internet communication that refers to a
“clearly identified candidate,” “clearly identified
political party,” or “clearly identified question of public
policy that will appear on the ballot,” provided that
the communication is made within 60 days before a
general election or 30 days before a primary election,
is “targeted to the relevant electorate,” and “is sus-
ceptible to no reasonable interpretation other than as an
appeal to vote for or against a clearly identified candi-
date…or a question of public policy.” 10 ILCS 5/9-1.14(a).
A political committee must register with the Illinois
Board of Elections, 10 ILCS 5/9-3(a), and file quarterly
reports that open its finances to public scrutiny. For each
report must reveal “all financial activity,” as the state
website puts it (Illinois State Board of Elections, “Political
Committee Report Filing Forms,” http://elections.il.gov/
CampaignDisclosure/PoliticalCommittee.aspx (visited
Aug. 23, 2012)), in the previous quarter—must reveal
the total contributions it received, along with all other
receipts, and the total expenditures it made, including
investments and loans; along with the names, addresses,
and other identifying details of donors, and of recipients
of the committee’s expenditures. 10 ILCS 5/9-10(b), -11(a).
72 No. 11-3693
Having to disclose the names of donors is the most
onerous requirement that the statute imposes on a
political committee because many donors don’t want to
be publicly identified as contributing to an organiza-
tion engaged in public advocacy regarding issues of
public policy, which usually are controversial. Indeed CIF
alleges without contradiction that its donors require
assurances that their identities will not be disclosed, and
that this anonymity is a condition of their support. So CIF
very much does not want to be classified as a political com-
mittee and one way to avoid that fate is to avoid any
activity that might, even if there is no certainty that
it would, require CIF to register.
The vagueness of a number of key provisions of the
Illinois law is therefore worrisome. A vague statute
can deter lawful activity. Cautious persons will want
to avoid even a small probability of being found to
have violated it, and the safest way to do that is to
avoid lawful activity that is just across the line from
the unlawful—to create a buffer zone around the
statutory core, just as cautious men decide not to have
sex with young-looking women who probably are not
below the age of consent but may be. When the lawful
activity likely to be deterred by a vague statute is not
extramarital sex but the exercise of free speech—a right
at the apex of modern constitutional solicitude—a
finding of vagueness is apt to doom the statute. FCC v.
Fox Television Stations, Inc., 132 S. Ct. 2307, 2317-18 (2012).
The vague provisions in the Illinois election statute
may cause CIF to refrain from constitutionally protected
No. 11-3693 73
advocacy that the state has no power to regulate
because the advocacy could not influence an election.
Nor can a federal court make a binding interpretation
of a state statute, endeavoring to trim its vague provi-
sions; if it attempts a narrowing interpretation that devi-
ates widely from the statute’s apparent meaning it is
taking a big risk that the state will reject the interpreta-
tion. Stenberg v. Carhart, 530 U.S. 914, 944-45 (2000). That
risk will in turn operate as a deterrent to the advocacy
group’s relying on the federal court’s interpretation.
With an election looming, advocacy groups can’t
wait for the Supreme Court of Illinois to interpret
all the vague provisions of the election statute in cases
instituted in the state court system that are likely to
take years to reach and be decided by the state’s highest
court.
These are the vague provisions:
1. A transfer of funds from a political committee to
a political committee qualifies as a contribution re-
gardless of amount. A political committee must report
all receipts, not just contributions as defined by the
statute, see 10 ILCS 5/9-11(a)(10), and in addition must
report “the name and address of each political commit-
tee from which the reporting committee received, or to
which that committee made, any transfer of funds.”
10 ILCS 5/9-11(a)(6). So if by virtue of other contributions
or other activities CIF were to be classified as a political
committee, it would have to identify any other political
committees from which it received money. It might not
know a donor was a political committee, and that would
74 No. 11-3693
be no defense, because the statute does not require knowl-
edge or even suspicion that the transferor is a political
committee—there is no state of mind requirement at
all. The transferee would have to investigate the
financial activity of each donor (including an individual,
who as a “natural person” can constitute a political com-
mittee) to determine whether the donor was a political
committee. It might be a committee that had improperly
failed to register; that would be no defense. Yet it would
be afraid to list a donor as a political committee
unless confident that it was one, as otherwise it might
get into trouble with the donor. Damned if it does,
damned if it doesn’t.
An unregistered entity doesn’t have to disclose its
contributions and expenditures, so it would rarely be
clear whether an entity qualified as a political committee.
Very little of the information required to determine
the status of a donor is public. This is an additional
reason why advocacy groups like CIF might forgo dona-
tions from unfamiliar donors. But by reducing the
group’s resources, this cautious response to the
vagueness of the statute would curtail its advocacy.
An alternative reading of the “transfer of funds” provi-
sion is that receipt of money from a political committee
makes the recipient a political committee. Illinois may
have been concerned that interest groups would
transfer money in chains ending with a committee that
didn’t have to register; to target those chains and thus
close a potential loophole in the statute, the Illinois
courts might read the statute to reach all members of the
No. 11-3693 75
chain. This interpretation would have an even greater
tendency to discourage an advocacy group from
accepting donations from unfamiliar individuals or
organizations.
2. Any “electioneering communication” made with the
“knowledge” of a candidate is an expenditure that if
it exceeds the low statutory threshold makes the
advertiser a political committee. The word “knowledge”
can’t be interpreted to require that the advertiser have
communicated with the candidate, because knowledge
can be acquired in other ways. My colleagues think the
Illinois courts would interpret the word “knowledge,”
which appears at the end of the sequence “request, sug-
gestion, and knowledge,” to mean the same thing as
the two preceding words because it is the “more
general word.” But it’s no more general than the other
words; the three words are simply different from one
another. It’s not like a statute that refers to “automobiles,
trucks, tractors, motorcycles, and other motor-powered
vehicles”; in that sequence “motor-powered vehicles” is
indeed more general than the itemized examples, but
presumably not intended to be so encompassing a
catchall as to include airplanes, since all the preceding
terms in the sequence denote different forms of land-
based transportation. Cf. McBoyle v. United States, 283
U.S. 25 (1931) (Holmes, J.).
So an organization that wanted to avoid crossing
the $3000 threshold would if cautious refrain from broad-
casting ads entirely, rather than just avoid coordinating
their ads with the candidate.
76 No. 11-3693
The district judge was troubled by this provision and
to save it interpreted “knowledge” to mean “affirmative
acquiescence.” But what does that mean? That the candi-
date was delighted to learn of an ad that praised him
or a policy he was pushing?
3. If an “electioneering communication” is deemed to be
“made” whenever a user accesses a website, cf. Flava
Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826, at *7
(7th Cir. Aug. 2, 2012), then even an appeal to vote that
is posted more than 30 or 60 days before the election
(depending on whether it is a primary or a general elec-
tion) will constitute an expenditure that, if it exceeds
the modest threshold in the statute, will make the com-
municator a political committee and thus require it to
register. A television advertiser controls the dates on
which his ad is shown; but an Internet ad or web posting
remains online and accessible until removed. The ad-
vertiser may delete the ad from his website, but it may
already have been copied and posted on a hundred other
websites. Should the advertiser be thought to be con-
tinuing to make an electioneering communication by
failing to ensure that his ad posted during the safe
harbor periods is no longer accessible to voters? And
how can he do that? On these critical questions, the
statute is silent. The only sure way to avoid having to
register as a political committee is therefore to avoid
endorsing an Illinois candidate online at any time.
The Illinois courts might interpret “made” to refer only
to the original posting of the ad. But this would open up
a loophole; the advocacy group might have posted the
No. 11-3693 77
ad shortly before the 30- or 60-day cutoff and deleted it
just before the cutoffs, confident that the campaign
favored by the ad would copy it and post it so that it
would be seen right up to election day. Because the
state courts might well decide to close this loophole by
interpreting “made” to include the initial posting, advo-
cacy groups would be running a legal risk by posting
online ads even long before the date of the election, and
might therefore be deterred from doing so.
4. Any payment “in connection with” an election (in-
cluding payment for ads) counts as an expenditure. “In
connection with” could apply to communications not
made for the purpose of influencing the election, such as
speech on issues of policy that happen to be salient
in the campaign. An advocacy group might intend
its message to reach a wider audience. It might even
be advocating a position embraced by neither candidate.
Disclosure of such a group’s finances would not be
closely related to the state’s interest in informing the
electorate about a candidate’s supporters. Yet the
statute may require it.
Speech can have all sorts of connections to an election:
it may mention an election, describe a candidate and his
positions, or simply refer to a policy that is at issue in the
campaign. A dry discussion of economic indicators
might be seen as being “in connection with” an election
in which the main issue was economic policy. Because
disclosure requirements are not constitutionally limited
to express advocacy for a candidate, see Citizens United
v. Federal Election Commission, supra, 130 S. Ct. at 915,
78 No. 11-3693
there is no telling how far Illinois’s definition reaches
into the realm of issue advocacy. Once again, to be sure
of not having to register, an organization like CIF
might decide to avoid speaking about any policy issues
during election campaigns. It might go silent during
campaigns.
5. Expenditures made “in connection with” an elec-
tion count towards the $3000 threshold for registering
only if they are made “on behalf of or in opposition to”
a candidate, and that might seem to take care of the
concerns I just expressed with respect to “in connection
with.” But speech supporting or opposing a policy associ-
ated with a candidate could be seen as being on behalf
of or in opposition to that candidate, especially if the
policy is the candidate’s signature issue. The term thus
does not clearly exclude most issue advocacy, and
groups such as CIF might therefore avoid speaking
on issues that could be associated with a particular candi-
date. Imagine a single-issue candidate: a songbird en-
thusiast, he wants the owners of cats to be forbidden
to allow their pets out of doors, since cats, indifferent
to avian beauty and melody, kill birds for food and
sport. If the humane society buys ads that declare its
passionate support for the songbirds, isn’t there a sense
in which it is advocating for the election of the song-
birds’ candidate and therefore making an expenditure on
his behalf and in opposition to his opponent? Or should
“on behalf of” be interpreted to mean motivated by a
desire to help the candidate rather than the cause the
candidate supports? Who knows?
No. 11-3693 79
McConnell v. Federal Election Commission, 540 U.S. 93,
170 n. 64 (2003), overruled on other grounds in Citizens
United v. Federal Election Commission, supra, held that a
federal law that contained the words “promotes,” “sup-
ports,” “attacks,” and “opposes” was not vague; and the
phrase “on behalf of or in opposition to” is similar. But
the federal law involved speech referring to particular
candidates and made by state political parties the
actions of which are presumed to be coordinated with
candidates. The Illinois law applies to all who want to
speak on public issues but furnishes no clue to how
related to a candidate’s position their speech must be to
trigger the disclosure requirements. The statute is not
limited to groups that coordinate their activity with a
candidate or expressly advocate for him. And it is not, as
in the counterpart federal statute, 2 U.S.C. § 431(8)(A)(i),
limited to speech made “for the purpose of influencing”
an election, since there is no state of mind limitation in
the Illinois statute, so no basis for using purposiveness
to limit relatedness.
The more arbitrary the meaning that must be assigned
to a state statute to avoid constitutional problems, the
less confident we can be that the state courts would adopt
it. If independent advocacy groups share these doubts,
caution may make them steer well clear of the statutory
conditions for having to register as a political committee,
with all the burdens entailed by registration.
When the five vague statutory provisions that I have
been discussing are considered in combination, it be-
comes apparent that their cumulative effect on advocacy
by CIF and similar organizations could be considerable.
80 No. 11-3693
To avoid the burden of registration, such groups may
take measures to curb their advocacy even if those mea-
sures may not in fact (that is, in law) be required in order
to avoid having to register. That is the vice of vague-
ness—that it causes an organization or an individual
to give a law a wide berth, in this instance by forgoing
constitutionally protected speech. We should insist,
in the name of the First Amendment, that the Illinois
legislature speak with greater clarity.
9-10-12