Canyon Ferry Road Baptist Church of East Helena v. Unsworth

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CANYON FERRY ROAD BAPTIST 
CHURCH OF EAST HELENA, INC.;
BERTHOLD GOTLIEB STUMBERG, III,
“B.G.”,
No. 06-35883
Plaintiffs-Appellants,
v.  D.C. No.
CV-04-00024-DWM
DENNIS UNSWORTH, Montana
OPINION
Commissioner of Political
Practices, in his official and
individual capacity,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Argued and Submitted
August 4, 2008—Seattle, Washington
Filed February 25, 2009
Before: Harry Pregerson, William C. Canby, Jr., and
John T. Noonan, Circuit Judges.
Opinion by Judge Canby;
Concurrence by Judge Noonan
2167
2170 CANYON FERRY ROAD v. UNSWORTH
COUNSEL
Dale Schowengerdt, Alliance Defense Fund, Scottsdale, Ari-
zona, for the plaintiffs-appellants.
CANYON FERRY ROAD v. UNSWORTH 2171
Anthony Johnstone, Deputy State Attorney General, Office of
the Montana Attorney General, Helena, Montana, for the
defendant-appellee.
Steven W. Fitschen, The National Legal Foundation, Virginia
Beach, Virginia; Jonathan R. Motl, Reynolds, Motl & Sher-
wood, Helena, Montana; for Amici Curiae.
OPINION
CANBY, Circuit Judge:
Canyon Ferry Road Baptist Church challenges certain pro-
visions of Montana’s campaign finance law requiring report-
ing and disclosure of campaign contributions or expenditures.
The Church challenges the statutory provisions both facially
and as applied to its activities of de minimis economic effect
in support of a 2004 state ballot initiative. Following an
adverse administrative decision by the Montana Commis-
sioner of Political Practices, the Church brought this action in
federal court, claiming that the Commissioner’s decision vio-
lated its First Amendment and due process rights and seeking
declaratory relief as well as nominal damages. On cross-
motions for summary judgment, the district court upheld the
Montana law against all challenges. We reverse.
BACKGROUND
Canyon Ferry Road Baptist Church, an incorporated reli-
gious institution located in East Helena, Montana, generally
adheres to the Christian doctrines of the Southern Baptist
Convention. Among these doctrines is the belief that marriage
may exist only between one man and one woman.
In the spring of 2004, the Church’s Pastor, Berthold
Gotlieb Stumberg, III, became interested in possible ways in
2172 CANYON FERRY ROAD v. UNSWORTH
which the Church could assist in an effort to collect signatures
to place Constitutional Initiative No. 96 (“CI-96”) on the
Montana state ballot the following November. If placed on the
ballot and approved by Montana’s voters, CI-96 would amend
the Montana state constitution to define marriage as a union
between one man and one woman. For the signatures to be
effective, the signed petition forms had to be turned over to
the sponsoring organization and then submitted to appropriate
election officials no later than June 18, 2004.
In May 2004, Terri Paske, a member of the Church who
campaigned for CI-96 in partnership with Jeff Laszloffy,1
printed out a template CI-96 petition from the Montana Fam-
ily Foundation website and made less than fifty copies of the
petition on the Church’s copy machine, using her own paper.
With Stumberg’s approval, Paske placed roughly twenty cop-
ies of the petition in the Church’s foyer.
At about the same time, Stumberg began making arrange-
ments for the Church’s congregation to view an audio-visual
simulcast entitled Battle for Marriage. The Battle for Mar-
riage simulcast included presentations by several prominent
religious leaders on the topic of marriage. Stumberg planned
to have it screened in connection with a regularly scheduled
Sunday evening service on May 23, 2004. There is no evi-
dence in the record that the Church was charged any fees for
access to the Battle for Marriage simulcast.
The Church advertised the upcoming screening, which was
open to the public, through unpaid public service announce-
ments aired by five radio stations. Although the Church often
incorporates simulcasts in its services and all of the Church’s
services are open to the public, the Battle for Marriage was
the only simulcast for which the Church secured public ser-
vice announcements on the radio. In addition, the Church
1
Laszloffy was a sponsor of CI-96 and the president of its campaign
committee, Montana Family Foundation.
CANYON FERRY ROAD v. UNSWORTH 2173
photocopied and circulated flyers publicizing the event, the
template for which had been provided to the Church by the
organizers of the simulcast. The flyers were placed in the
Church’s bulletin and Stumberg encouraged members of the
congregation to take the flyers to their workplace and “let
people see it.” The flyers did not mention CI-96.
On May 23, 2004, ninety-three people attended the Battle
for Marriage event, well above the average attendance for a
typical Sunday evening service at the Church. The congrega-
tion and members of the public watched the Battle for Mar-
riage simulcast. In addition to televised presentations by
several Christian ministers, the simulcast discussed a pro-
posed amendment to the United States Constitution that
would establish a definition of marriage as being solely
between one man and one woman. It did not expressly sup-
port or oppose any Montana ballot issue or candidate for pub-
lic office.
After the Battle for Marriage program ended, Stumberg
spoke to those in attendance about CI-96. He said that the
threat to marriage also existed in Montana, and that the con-
gregation should resist it in prayer and by signing the CI-96
petition. Stumberg told the audience that they “need[ed] to
sign” the CI-96 petition and that he would “encourage[ ]
everyone to sign it. This is one of the ways that we take a
stand for righteousness.” He then indicated that CI-96 peti-
tions were available in the foyer near the Church’s exits. The
following Sunday, Stumberg circulated the CI-96 petition for
signature among the attendees at each of the Church’s three
services that day during announcement time. The petitions
remained available in the Church’s foyer for signature until
they were submitted on June 13, 2004.
By June 13, 2004, the petitions made available in the
Church’s foyer contained ninety-eight valid signatures of resi-
dents of Lewis and Clark County.2 Ninety-two of these came
2
Similar forms were also available in the foyer for signature by resi-
dents of two other counties. The record does not disclose how many signa-
2174 CANYON FERRY ROAD v. UNSWORTH
from members of the Church. Paske had the forms notarized
and mailed copies of the signed petitions to the designated
county officials for filing and to Laszloffy. The sponsors of
CI-96 ultimately obtained the requisite number of signatures
and the initiative was placed on the November ballot. It was
passed by the voters of Montana by a margin 295,070 Yes
votes to 148,263 No votes (66.5% to 33.5%).
On May 26, 2004, an advocacy group called “Montanans
for Families and Fairness” filed a Campaign Finance and
Practices Complaint against the Church. The complaint
alleged that the Church, by its “expenditures” in connection
with the May 23 event to support CI-96, had created an “inci-
dental political committee” within the meaning of Montana’s
campaign finance laws but had not filed the required disclo-
sure forms. After completing an investigation, the state Com-
mission of Political Practices (“Commission”) issued an
administrative decision. It found that
it is clear that when the Church and pastor Stumberg
chose to engage in activities supporting the effort to
place CI-96 on the ballot, the Church became an
incidental political committee under Montana law,
with corresponding reporting obligations. Use of the
Church’s facilities to obtain signatures on CI-96
petitions, along with Pastor Stumberg’s encourage-
ment of persons to sign the CI-96 petitions during
regularly scheduled Church services, obviously had
value to the campaign in support of CI-96. Pastor
Stumberg was not acting as a volunteer when he
engaged in the activities supporting CI-96, since
tures were collected from residents of those counties, but suggests that the
great majority of the signatures came from residents of Lewis and Clark
County.
CANYON FERRY ROAD v. UNSWORTH 2175
those activities occurred in the Church building and
during regularly scheduled Church services.3
The Church and Stumberg (collectively, the “Church”)
brought this action under 42 U.S.C. § 1983 for declaratory
relief and nominal damages. The Church challenges the Com-
missioner’s application of Montana’s disclosure and reporting
provisions. It argues that, as interpreted by the Commission,
Montana’s disclosure and reporting provisions are impermiss-
ibly vague, in violation of the Due Process Clause of the
Fourteenth Amendment. It also argues that the provisions are
overbroad and violate the Church’s First Amendment rights of
free speech, association, and free exercise of religion. The
parties filed cross-motions for summary judgment and the dis-
trict court dismissed the complaint, rejecting all the claims
asserted by the Church. The Church appeals. We have juris-
diction under 28 U.S.C. § 1291.
STATUTORY BACKGROUND
Since the 1970s, Montana has required “political commit-
tees” to disclose expenditures and contributions made toward
candidate elections and ballot issues and to comply with addi-
tional reporting requirements. In relevant part, the key term
“political committee” is defined as “a combination of two or
more individuals or a person other than an individual who
makes a contribution or expenditure . . . to support or oppose
a ballot issue or a committee organized to support or oppose
a ballot issue . . . .” Mont. Code. Ann. § 13-1-101(20).4 Mon-
3
Unpaid services provided to candidates or political committees by indi-
viduals volunteering their time are excluded from the statutory definitions
of “contribution” and “expenditure.” Mont. Code Ann. § 13-1-101(7)(b)(i)
and (11)(b)(i).
4
Individuals have no duty to report directly to the State the contributions
and expenditures they make in connection with candidate elections or bal-
lot initiatives. Their contributions to political committees or individual
candidates, however, are reported by the recipients as part of their report-
ing and disclosure obligations. Mont. Code. Ann. § 13-37-229(4). If an
individual’s aggregate contributions to a given candidate or committee are
greater than $35, the recipient must report the contributor’s full name,
mailing address, occupation, and employer, if any. Id. § 13-37-229(2).
2176 CANYON FERRY ROAD v. UNSWORTH
tana’s Administrative Rules refine this definition by differen-
tiating among three different types of “political committees”:
“principal campaign committees,” “independent committees,”
and “incidental committees.” Mont. Admin. R. 44.10.327(1).
The Commission found the Church to be an “incidental com-
mittee,” which is defined as “a political committee that is not
specifically organized or maintained for the primary purpose
of influencing elections but that may incidentally become a
political committee by making a contribution or expenditure
to support or oppose a candidate and/or issue.”5 Mont. Admin.
R. 44.10.327(2)(c).
The designation of a group or entity as an “incidental com-
mittee,” then, turns on the definition of the terms “contribu-
tion” and “expenditure”; if two or more persons make a
contribution or expenditure for or against a candidate or ballot
proposition, a committee has been formed. A “contribution”
is defined as
an advance, gift, loan, conveyance, deposit, pay-
ment, or distribution of money or anything of value
to influence an election; a transfer of funds between
political committees [or] the payment by a person
other than a candidate or political committee of com-
pensation for the personal services of another person
that are rendered to a candidate or political commit-
tee.
Mont. Code. Ann. § 13-1-101 (7)(a)(i)-(ii).6 Similarly, an “ex-
penditure” is defined as
5
“Issue” is defined by the statute as:
a proposal submitted to the people at an election for their
approval or rejection, including but not limited to initiatives, ref-
erenda, proposed constitutional amendments, recall questions,
school levy questions, bond issue questions, or a ballot question.
§ 13-1-101(17).
6
The statute carves out from this definition of “contribution” the time
devoted by volunteers working on a campaign as well as any lodging and
CANYON FERRY ROAD v. UNSWORTH 2177
a purchase, payment, distribution, loan, advance,
promise, pledge, or gift of money or anything of
value made for the purpose of influencing the results
of an election.
§ 13-1-101(11)(a). The term “anything of value”—which
affects the scope of “expenditures” and “contributions” alike
—is defined as “any goods that have a certain utility to the
recipient that is real and that is ordinarily not given away free
but is purchased.” § 13-1-101(3). Montana’s Administrative
Rules elaborate on the scope of these key provisions. The
terms “expenditures” and “contributions” encompass “in-
kind” expenditures and contributions, which refer—with
some exceptions irrelevant in this case—to “the furnishing of
services, property, or rights without charge or at a charge
which is less than fair market value to a person, candidate, or
political committee for the purpose of supporting or opposing
any person, candidate, ballot issue or political committee
. . . .” Mont. Admin. R. 44.10.323(2).
Different types of “political committees” are subject to dif-
ferent reporting and disclosure obligations. As an “incidental
committee,” the Church is required to report all transactions,
regardless of the amount involved, that 1) qualify as “expen-
ditures” or “contributions” under the statute and regulations
and 2) are made by the committee “in connection with a state-
wide issue.” Mont. Admin. R. 44.10.411(4). In addition, an
incidental committee must also report every contribution that
it receives if the contribution is “earmarked.”7 Mont. Admin.
R. 44.10.411(5). Other donations, such as those that the
meals provided by individuals in their private residences, news or editorial
coverage in the media and an organization’s communications to its mem-
bership. § 13-1-101 (7)(b).
7
A contribution is “earmarked” if it is “made with the direction, express
or implied, that all or part of it be transferred to or expended on behalf of
a specified candidate, ballot issue, or petition for nomination.” Mont.
Admin. R. 44.10.519(1).
2178 CANYON FERRY ROAD v. UNSWORTH
Church ordinarily receives to support its regular operations,
are not subject to any reporting or disclosure requirements.
Generally, an incidental committee is subject to periodic
filings which must be completed every quarter and at various
times surrounding an election. Mont. Code. Ann. § 13-37-
226(6); Mont. Admin. R. 44.10.411. If the incidental commit-
tee makes a one-time political expenditure, however, it may
file a combined initial and closing report that terminates its sta-
tus.8 In either case, the initial registration as an “incidental
committee” must occur within five days of making a political
expenditure. § 13-37-201.
If a political committee fails to file a required report within
the required time periods, the Commissioner of Political Prac-
tices may issue an order of noncompliance. § 13-37-121(2).
Upon issuance of an order of noncompliance, a political com-
mittee must submit the necessary information within five or
ten days, depending on whether the order is issued during an
election period or not, respectively. § 13-37-121(3)-(4). Fail-
ure to do so may result in the initiation of civil or criminal
actions. Id. In the past ten years, the Commissioner has settled
or dismissed all investigations it has commenced under these
provisions without filing a civil action, and the record dis-
closes no criminal prosecutions.
STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.
8
Unlike incidental committees, principal and independent committees
are required to provide more extensive disclosure, including information
on (1) loans, (2) interest, rebates, refunds and fundraisers, (3) political
action committee contributions, (4) political party committee contribu-
tions, (5) incidental committee contributions, (6) individual contributions
above $35, (7) petty cash expenditures, (8) independent expenditures and
(9) other debts outstanding. (http://politicalpractices.mt.gov/content/pdf/
5cfp/2008_Complete_C-6_form_1.pdf).
CANYON FERRY ROAD v. UNSWORTH 2179
2001) (en banc). “Viewing the evidence in the light most
favorable to the non-moving party, we must determine
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant sub-
stantive law.” Id.
DISCUSSION
The Church argues that it cannot constitutionally be sub-
jected to the disclosure and reporting requirements applicable
to “incidental political committees” under Montana law on the
sole basis of its activities of de minimis economic effect in
connection with the Battle for Marriage event and related
petition—signing efforts in support of CI-96. It argues, inter
alia, that, as applied to its activities, the Montana statute is
impermissibly vague. We agree in part with the Church’s
vagueness claim and hold that, as applied to (1) the placement
of the petition in its foyer and (2) Stumberg’s exhortation to
sign the petition in support of CI-96 during a regularly sched-
uled Sunday service, the Commission’s interpretation of “in-
kind expenditures” is unconstitutionally vague.
We also agree that the designation of the Church as an “in-
cidental committee” because of its one-time, in-kind “expen-
ditures” of de minimis economic effect violates the Church’s
First Amendment free speech rights.9
Vagueness
[1] The thrust of the Church’s vagueness challenge is that
the definition of in-kind expenditures and contributions10
9
Our disposition of the vagueness and free speech issues makes it
unnecessary for us to address the Church’s additional challenges based on
First Amendment rights of association and free exercise of religion.
10
Although the Commission expressly rejected the contention that the
Church’s activities amounted to “coordinated expenditures,” it is not
entirely clear whether the Commission considered the Church’s activities
2180 CANYON FERRY ROAD v. UNSWORTH
under Montana law “fails to provide people of ordinary intel-
ligence a reasonable opportunity to understand” whether their
activities require disclosure under the statute. Hill v. Colo-
rado, 530 U.S. 703, 732 (2000). Montana law defines an “in-
kind expenditure” as “the furnishing of services, property, or
rights without charge or at a charge which is less than fair
market value to a person, candidate, or political committee for
the purpose of supporting or opposing any person, candidate,
ballot issue or political committee.” Mont. Admin. R.
44.10.323(2)11; see also Mont. Admin. R. 44.10.321(2)(a)
(providing a similar definition of in-kind contributions).
On their face, the Montana regulations are precise enough.
The hallmark of an “in-kind” participation in a campaign
finance effort is the provision of a good or service either
“without charge” or with a charge below its fair market value.
For example, extended provision of vehicles or rental space
without charge are common types of in-kind political expen-
ditures or donations that clearly fall within this definition. We
have no doubt, therefore, that the Montana regulation poses
no vagueness problem in the “ ‘vast majority of its intended
applications.’ ” Hill, 530 U.S. at 733 (quoting United States
v. Raines, 362 U.S. 17, 23 (1960)). We accordingly reject the
Church’s claim that the regulation is void for vagueness on its
face. See id.
in-kind expenditures or in-kind contributions. This distinction does not
affect our analysis, however, because, in this case, we are concerned only
with disclosure, not substantive restrictions on campaign finance. To avoid
repetitions, we assume that the Commission considered the Church’s
activities in-kind expenditures.
We also note that the Commission does not appear to have relied on the
regulation extending the reach of “expenditures” to “[e]xpenses incurred
in support of or opposition to the drafting, printing, distribution and col-
lection of signatures for any petition for nomination or a statewide ballot
issue.” Mont. Admin. R. 44.10.323(1)(c).
11
This definition is quite similar to the comparable definition of in-kind
contributions in federal regulations. See 11 C.F.R. § 100.52(d).
CANYON FERRY ROAD v. UNSWORTH 2181
[2] The application of the regulation to the Church’s activi-
ties in this case presents a different question, however. Unlike
the federal disclosure law, 2 U.S.C. §§ 431(4)(A),
434(b)(3)(A), the Montana disclosure and reporting require-
ments are triggered by any in-kind expenditure or contribu-
tion, no matter how negligible its value. See Mont. Admin. R.
44.10.411(4). The absence of a minimum value threshold sub-
stantially affects the analysis of the disclosure requirement’s
vagueness. As the commercial value of a certain activity in
support of a candidate or ballot issue approaches zero, it
becomes increasingly difficult for the party engaging in the
activity to know whether his or her activity could possibly be
considered a “service.” This case presents a classic illustration
of the problem.
The Church’s activities relied on by the Commission
included (1) allowing Paske to photocopy a CI-96 petition
form on the Church’s copy machine, with her own paper; (2)
placing the CI-96 petitions in the Church’s foyer; and (3)
Stumberg’s exhortation to sign the CI-96 petition during a
regularly scheduled sermon on May 23, 2004. The Commis-
sion apparently found that all three of these activities consti-
tuted “in-kind expenditures.” We conclude that, as applied to
the second and third activities, the definition of “in-kind
expenditure” is impermissibly vague.
[3] In extending the reach of “in-kind expenditures” to
cover Stumberg’s endorsement and the Church’s acquies-
cence in making the petition available in its foyer, the Com-
mission apparently concluded that these activities amounted
to “services.” With respect to Stumberg’s exhortation, the the-
ory adopted by the Commission is that any otherwise qualify-
ing political activity, if performed within the scope of one’s
employment, amounts to a “service.” The same theory
appears to have driven the Commission’s conclusion with
respect to the Church’s decision to let Paske “use its facili-
ties” to display the petition.
2182 CANYON FERRY ROAD v. UNSWORTH
[4] When a group’s “services” are accompanied by either
a detriment to the provider of the service—say, an out-of-
pocket expense or the preclusion of other activities—or an
ascertainable market value, notice that a service has been pro-
vided is inherent in the provision of the service itself. But
when the activity in question brings no detriment to the puta-
tive incidental committee and carries no market value, the
notice fails. In that case, a group engaging in a certain activity
for the purpose of supporting a candidate or ballot issue is left
with no objective guidance as to whether it has provided a
“service”; the best it can do is rest on its members’ subjective
intent12 and guess what effect their conduct will have on the
intended beneficiary. Under the Commission’s interpretation
of “in-kind expenditures,” an activity that might not appear to
be an expenditure becomes one if the activity turns out to
have been of value to the beneficiary, even though that value
may not become apparent until after the reporting date has
passed. Such uncertainty does not “provide people of ordinary
intelligence a reasonable opportunity to understand” whether
their activities require disclosure under the statute. Hill, 530
U.S. at 732. We therefore conclude that Montana’s in-kind
expenditures provision may not be applied to the Church’s
conduct when that conduct neither causes an economic detri-
ment to the Church nor carries an ascertainable market value.
[5] The Church’s placement of the petition in its foyer and
Stumberg’s endorsement of CI-96 do not bear the objective
indicia that we have just specified. There is no indication that
the Church suffered any detriment from either placing a few
sheets of paper in its foyer or having its pastor engage in a
brief discussion of CI-96. Nor do we accept the State’s char-
12
An expenditure or contribution requires an intent “to influence an
election.” Mont. Code. Ann. § 13-1-101(7)(a)(i). In addition, for two or
more people to be subjected to “incidental political committee” reporting
requirements, their contribution or expenditure must be made “to support
or oppose a candidate and/or [ballot] issue.” Mont. Admin. R.
44.10.327(2)(c).
CANYON FERRY ROAD v. UNSWORTH 2183
acterization of the entire Battle for Marriage event and May
23, 2004 service as a rally in support of the signature-
gathering effort. The event took place in conjunction with a
regularly scheduled service, the discussion of CI-96 took up
but a fraction of the program, and the Church paid no fee to
secure access to the simulcast. Finally, the Church would
have incurred the same maintenance expenses whether Stum-
berg had discussed and endorsed CI-96 or not. We therefore
conclude that the Church incurred no expense or otherwise
cognizable detriment in connection with these two activities.
Moreover, while we do not doubt that the sponsors of
CI-96 eventually derived some value from the activities in
question, nothing in the record establishes that either the dis-
play of the petition in the foyer of the Church or the endorse-
ment of the Church’s pastor, without more, carry any
objective market value. Certainly, the Church was not in the
business of selling endorsements or renting out its foyer to
those wishing to advertise therein; nor does the record dis-
close any market to which the sponsors of CI-96 could have
turned to secure comparable assistance in exchange for a fee.
[6] We therefore conclude that, because the display of the
petition in the Church’s foyer and Stumberg’s endorsement
did not bring about a detriment to the Church or carry ascer-
tainable market value, the Church had no way to know ex ante
that, by engaging in these two activities, it was actually pro-
viding a “service” that would later be considered an in-kind
expenditure in support of CI-96. As applied to these services,
the Montana regulations defining in-kind contributions are
unconstitutionally vague.
[7] In contrast, we conclude that, as applied to the Church’s
acquiescence with Paske’s use of its copy machine to photo-
copy the template CI-96 petition, Montana’s definition of in-
kind expenditure poses is not unconstitutionally vague. Unlike
Stumberg’s endorsement or the placement of the petition in
the Church’s foyer, the provision of a copy machine meets the
2184 CANYON FERRY ROAD v. UNSWORTH
objective criteria that we have set forth above. It is clear that
the Church incurred some, albeit de minimis, expense in the
wear and tear of its equipment; it is also clear that Paske
would have been charged if she had secured the same photo-
copying services on the open market. It is not unreasonable to
charge the Church with knowledge that it was providing a ser-
vice of some market value. Accordingly, we conclude that the
regulations defining in-kind contribution are not impermiss-
ibly vague as applied to the copying service. That conclusion
does not end our constitutional inquiry, however, for the
Church also challenges the regulations on First Amendment
free speech grounds.
Free Speech Challenge
The Church challenges the financial and organizational dis-
closures that a group of two or more people must make upon
becoming an “incidental committee.” The Church argues that,
as applied to its activities, the disclosure requirements
imposed under Montana law violate its First Amendment
rights by imposing an unjustified burden on its constitution-
ally protected election-related “speech.” We conclude that, as
applied to the one-time in-kind de minimis expenditures
involved in this case, the state reporting requirements violate
the Church’s First Amendment rights.
A. Degree of Scrutiny
The degree of scrutiny that we must apply to Montana’s
disclosure requirements with respect to the Church’s activities
is somewhat unclear, due in part to arguably inconsistent pre-
cedent and in part to the uncertain status of the Church as a
multi-purpose advocacy organization.13 See Alaska Right To
13
The Church presents most, but not necessarily all of the salient fea-
tures of a multipurpose public advocacy organization that was held to be
entitled to challenge restrictions on campaign expenditures under a strict
scrutiny standard in FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238
 CANYON FERRY ROAD v. UNSWORTH 2185
Life Comm. v. Miles, 441 F.3d 773, 787-88 (9th Cir. 2006)
(questioning whether, in the wake of McConnell v. FEC, 540
U.S. 93 (2003), disclosure requirements should be subjected
to strict scrutiny in an as-applied challenge brought by a
multi-purpose organization and assuming without deciding
that strict scrutiny applied). But see Cal. Pro-Life Council,
Inc. v. Randolph (“Cal. Pro-Life II”), 507 F.3d 1172, 1178
(9th Cir. 2007) (applying strict scrutiny to a multi-purpose
organization after McConnell, albeit relying in part on the
“law of the case” doctrine). We do not need to decide this
complex question to adjudicate this case, however. We will
assume without deciding that “heightened”—not “strict”—
scrutiny applies to the Church’s challenge.14 In other words,
we ask whether the Montana disclosure requirement has a
“ ‘relevant correlation’ or ‘substantial relation,’ ” Buckley v.
Valeo, 424 U.S. 1, 64 (1976) (footnote omitted), to an “impor-
tant state interest,” McConnell, 540 U.S. at 195. Even under
this standard, the state disclosure requirement, as applied to
the Church’s de minimis in-kind expenditures, runs afoul of
the First Amendment.
B. Informational Interest
The State articulates only one interest in defense of its dis-
closure scheme: providing its citizenry with information about
the constituencies supporting and opposing ballot issues. We
are satisfied that this interest is “important.”
(1986). Like Massachusetts Citizens for Life, the Church is a non-profit
organization that cannot engage in business activities, has no shareholders
or affiliated persons with a claim to assets or earnings and was not estab-
lished by a corporation or business entity. See id. at 264. Unlike Massa-
chusetts Citizens for Life, however, it was not “formed for the express
purpose of promoting political ideas.” Id.
14
In Alaska Right to Life Comm., we similarly found it unnecessary to
resolve the uncertainties over the standard of review, and applied the stan-
dard most favorable to the non-prevailing party on appeal. Alaska Right
to Life Comm., 441 F.3d at 788.
2186 CANYON FERRY ROAD v. UNSWORTH
[8] In Buckley and again in McConnell, the Supreme Court
identified three “important” interests that justified campaign
finance disclosure in the context of elections for federal
office: “providing the electorate with information, deterring
actual corruption and avoiding any appearance thereof, and
gathering the data necessary to enforce more substantive elec-
tioneering restrictions.” McConnell, 540 U.S. at 196 (citing
Buckley, 424 U.S. at 67-68). Of these, the second interest—
deterring corruption or the appearance thereof—falls out of
the picture in the context of ballot initiatives, for such refer-
enda present no risk of quid pro quo. See, e.g., First Nat’l
Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The
risk of corruption perceived in cases involving candidate elec-
tions . . . is not present in a popular vote on a public issue.”);
Mont. Chamber of Commerce v. Argenbright, 226 F.3d 1049,
1056 (9th Cir. 2000) (same). In addition, the state disclosure
requirements at issue in this case are evidently not substan-
tially related to the third important interest: aid in enforcing
“more substantive electioneering restrictions,” for no substan-
tive limits on contributions or expenditures apply in the con-
text of Montana’s ballot issues. McConnell, 540 U.S. at 196
(emphasis added); see Mont. Chamber of Commerce, 226
F.3d at 1057-58 (striking down Montana’s ban on corporate
expenditures and contributions in ballot issues under Mont.
Code Ann. § 13-35-227).
[9] With respect to the remaining interest, we have little
trouble concluding that Montana’s informational interest is
generally “important” in the context of Montana’s statewide
ballot issues. Indeed, we recently observed that California had
produced evidence sufficient to qualify its informational inter-
est in disclosure of contributions to a ballot issue as “compel-
ling.” Cal. Pro-Life II, 507 F.3d at 1179-80 nn.8&9. Although
the evidence put forth by Montana in this case is not as formi-
dable as that provided by California in Cal. Pro-Life II,15
15
The evidence presented to the district court in Cal. Pro-Life II
included a survey gauging public sentiment about the ballot initiative pro-
cess, expert testimony by a professor of political science and an affidavit
by a public official. 507 F.3d at 1179 n.8.
CANYON FERRY ROAD v. UNSWORTH 2187
Montana’s case is convincing and its burden lighter.16 See
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000)
(“The quantum of empirical evidence needed to satisfy
heightened judicial scrutiny of legislative judgments will vary
up or down with the novelty and plausibility of the justifica-
tion raised.”). We have already held that, as a general matter,
mandating disclosure of the financiers of a ballot initiative
may prevent “the wolf from masquerading in sheep’s cloth-
ing.” Cal. Pro-Life Council, Inc. v. Getman (“Cal. Pro-Life
I”), 328 F.3d 1088, 1106 n.24 (9th Cir. 2003). “[B]y knowing
who backs or opposes a given initiative, voters will have a
pretty good idea of who stands to benefit from the legisla-
tion.” Id. at 1106. We also reject the suggestion that, because
Montana’s election system appears to be open and highly
functional, the need for disclosure is somehow decreased. We
are not willing to count Montanans’ current confidence in
their state ballot process against the State’s informational
interest. See Mont. Chamber of Commerce, 28 F. Supp. 2d
593, 598-99 (D. Mont. 1998), aff’d 226 F.3d 1049, 1056 (9th
Cir. 2000) (“The ballot issue process in Montana is healthy
and not corrupt.”). We conclude that, in the context of ballot
issues in which this case arises, Montana’s interest in keeping
its citizens well informed with respect to the groups finan-
cially supporting and opposing voter initiatives remains “im-
portant” today.
It is essential to keep in mind, however, just what informa-
tion the State has determined that the public needs. The infor-
mation to be disclosed is the identity of persons financially
supporting or opposing a candidate or ballot proposition. See,
e.g., Mont. Admin. Rule 44.10.411(4); see also Buckley, 424
U.S. at 78 (Congress “wished to promote full disclosure of
campaign-oriented spending to insure both the reality and
appearance of purity and openness of the federal election pro-
cess.”). The disclosure requirements are not designed to
16
Cal. Pro-Life II, which addressed a challenge brought by a multipur-
pose entity, applied strict scrutiny. 507 F.3d at 1178.
2188 CANYON FERRY ROAD v. UNSWORTH
advise the public generally what groups may be in favor of,
or opposed to, a particular candidate or ballot issue; they are
designed to inform the public what groups have demonstrated
an interest in the passage or defeat of a candidate or ballot
issue by their contributions or expenditures directed to that
result. This point regarding the nature of the informational
interest becomes especially important when we examine
whether the Montana regulations as applied to the Church are
substantially related to that interest.
C. Substantial Relation
We next assess the “fit” between Montana’s disclosure
requirements and the State’s informational interest. We must
decide whether the informational value, as we have just
described it, to the public derived from disclosure of the
Church’s de minimis in-kind expenditures justifies the burden
imposed by the reporting requirement. We note at the outset
that the question is one of degree, not kind, for it is well
established that, in the ordinary case, a state informational
interest is sufficient to justify the mandatory reporting of
expenditures and contributions in the context of ballot initia-
tives. See, e.g., Alaska Right To Life Comm., 441 F.3d at
789-92 (upholding disclosure requirements under strict scru-
tiny); Cal. Pro-Life II, F.3d at 1189 (endorsing disclosure
requirements in the context of ballot initiatives on the author-
ity of Mass. Citizens for Life, 479 U.S. at 262).
In Buckley, the Supreme Court reviewed a federal reporting
scheme requiring record-keeping of contributions above $10
and disclosure of contributions above $100. Buckley, 424 U.S.
at 82-85. It noted that, in setting thresholds for disclosure of
campaign finance activities, “[t]he line is necessarily a judg-
mental decision, best left in the context of this complex legis-
lation to congressional discretion.” Id. at 83. It concluded that,
on the “bare record” before the Court, “the limits designated
[we]re [not] wholly without rationality,” even though there
was “little in the legislative history to indicate that Congress
CANYON FERRY ROAD v. UNSWORTH 2189
focused carefully on the appropriate level at which to require
recording and disclosure.” Id. (footnote omitted). Because the
federal statute did not require disclosure of contributions
below $100, the Court expressly reserved judgment on
whether “information concerning gifts [between $10 and
$100] can be made available to the public without trespassing
impermissibly on First Amendment rights.” Id. at 84.
[10] The question, then, becomes whether Montana’s “zero
dollar” threshold for disclosure is “wholly without rationali-
ty.” Id. at 83. On the one hand, we recognize the principle that
“signals are transmitted . . . not only by a contribution’s size
but also by the contributor’s identity.” Vote Choice v. DiSte-
fano, 4 F.3d 26, 32 (1st Cir. 1993). On the other hand, we
cannot say that the informational value derived by the citi-
zenry is the same across expenditures of all sizes. As we have
explained, in the ballot issue context, the relevant informa-
tional goal is to inform voters as to “who backs or opposes a
given initiative” financially, so that the voters “will have a
pretty good idea of who stands to benefit from the legisla-
tion.” Cal. Pro-Life I, 328 F.3d at 1106. As a matter of com-
mon sense, the value of this financial information to the
voters declines drastically as the value of the expenditure or
contribution sinks to a negligible level. As the monetary value
of an expenditure in support of a ballot issue approaches zero,
financial sponsorship fades into support and then into mere
sympathy. In the present case, the voters could learn little
about the financial backing of the ballot proposition by gain-
ing access to information about the Church’s activities of
minimal economic effect.
Meanwhile, the burden of reporting remains constant even
though the size of the in-kind expenditure decreases to a neg-
ligible level. The Commissioner of Political Practices has
issued two forms applicable to incidental political commit-
tees: Form C-2, “Statement of Organization”; and Form C-4,
the “Incidental Political Committee Finance Report.” Form
C-2 requires a statement of purpose, the name and address of
2190 CANYON FERRY ROAD v. UNSWORTH
the committee, its designated treasurer and other officers, and
the bank holding the committee’s depository account. Form
C-4 goes further and requires a list of earmarked contributions
received by the committee—including the donors’ names,
addresses, occupations, employers, and amounts contributed
for contributions greater than $35—and expenditures made by
the committee—including amount, purpose, and name and
address of payee. While not exceedingly onerous, such
requirements undoubtedly constitute a burden, even in the
case of one-time expenditures, which may be reported in a
combined initial and closing report.
[11] We conclude that, if the Supreme Court’s “rationality”
test for threshold disclosure levels has any force at all, there
must be a level below which mandatory disclosure of cam-
paign expenditures by “incidental committees” runs afoul of
the First Amendment. It may very well be that such a level is
not susceptible to dollar estimation or that all monetary con-
tributions convey sufficiently valuable information about the
supporters of an initiative to justify the burden of disclosure.
But if we are to give any effect to Buckley’s “rationality” test,
at some point enough must be enough. Applying the disclo-
sure provisions to the Church’s de minimis in-kind expendi-
tures lies beyond that point. Expending a few moments of a
pastor’s time, or a marginal additional space in the Church for
petitions, is so lacking in economic substance that we have
already held that requiring their reporting creates fatal prob-
lems of unconstitutional vagueness. Similarly, the value of
public knowledge that the Church permitted a single like-
minded person to use its copy machine on a single occasion
to make a few dozen copies on her own paper—as the Church
did in this case—does not justify the burden imposed by Mon-
tana’s disclosure requirements.17
17
The State emphasizes that the retail nature of Montana politics
requires a low reporting threshold. True as that proposition may be, it does
not justify the burden of “incidental committee” reporting imposed as a
consequence of the extremely minimal in-kind expenditures attributed to
the Church in this case.
CANYON FERRY ROAD v. UNSWORTH 2191
[12] We conclude that, by applying its disclosure provi-
sions to the Church’s de minimis in-kind contributions in the
context of a state ballot initiative, the Commission violated
the Church’s First Amendment rights. We limit our holding
to this formulation. In this case, we are not concerned with—
and express no view about—the constitutionality of Mon-
tana’s disclosure requirements in the context of candidate
elections or as applied to monetary contributions of any size.
We also do not purport to establish a level above de minimis
at which a disclosure requirement for in-kind expenditures for
ballot issues passes constitutional muster. The fixing of any
such level is for the Montana authorities in the first instance.
We are satisfied, however, that the application of Montana’s
disclosure requirements to the Church because of its de
minimis activities in this case impermissibly infringes on the
Church’s free speech rights.
CONCLUSION
[13] For the foregoing reasons, we conclude that Montana’s
disclosure and reporting requirements are unconstitutional as
applied to the Church’s de minimis activities in connection
with CI-96. We reverse the judgment of the district court and
remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
NOONAN, Circuit Judge, concurring:
I gladly join the opinion of the court and write here to
address an issue briefed by both parties and not of inconse-
quential importance: the constitutionality of MCA § 13-1-101
et seq. and the regulations thereunder in the light of the Free
Exercise Clause of the First Amendment.
Current constitutional doctrine permits “a neutral, generally
applicable law” to operate even though its incidental effect is
2192 CANYON FERRY ROAD v. UNSWORTH
an impact on the exercise of religion. Employment Division v.
Smith, 494 U.S. 872, 890 (1990). In contrast, a statute that is
not both of general applicability and neutral toward a reli-
gious practice is constitutional only if justified by a compel-
ling government interest which the law is narrowly tailored to
serve. Church of Lukumi Babalu Aye., Inc. v. City of Hialeah,
508 U.S. 520, 531 (1993). Is the Montana statute neutral and
generally applicable? Is it narrowly tailored to serve a com-
pelling government interest?
The first question is answered by inspection of the statute.
A large class of activities is exempted from its operation. A
reportable contribution does not include “the cost of any bona
fide news story, commentary, or editorial distributed through
the facilities of any broadcasting station, newspaper, maga-
zine or other periodical publication of general circulation.”
MCA § 13-1-101(7)(b)(2). The media are free to promote
political opinions without registering as independent political
committees and without disclosing the identity of those own-
ing the facilities used to promote the opinions. The most
likely sources of potent political input into an election are
removed from the statute’s scope. The generality of the statute
is destroyed. The neutrality of the statute is preserved as to the
media while all religious expressions on a ballot measure are
swept within its requirements. The disparity between the
treatment of the media and the treatment of churches is great
and gross.
It might be countered, “Of course the press doesn’t fall
within the statute. Its freedom is protected by the First
Amendment.” But if it is obvious that the freedom of the press
would be infringed by the statute’s requirements, is it not
equally obvious that the free exercise of religion is burdened
by them? To carve out an exemption for one kind of speech
— that employed by the professional media — and deny the
exemption to speech by a church is to achieve neither neutral-
ity nor general applicability.
CANYON FERRY ROAD v. UNSWORTH 2193
The burden imposed by the statute on a church speaking its
mind is not trivial, especially in the case of a church, such as
the Canyon Ferry Road Baptist Church of East Helena, Inc.,
a Southern Baptist entity possessed of its own identity and
governance. The church consists of 400 members; it has a
pastor and a youth pastor and a part-time secretary. To com-
ply with the statute, the pastor would first have to understand
what the statute requires in the framework of Montana elec-
tion law. This understanding is not materially assisted by the
regulations issued by the Commissioner of Political Practices,
whose statutory duty is “the control of political practices.” As
with many specialized statutes and the regulations issued
under them the advice of a good lawyer would be essential
not to fall afoul of the statute’s criminal penalties. Reading
and understanding the statute with the help of counsel is the
first burden imposed.
The second burden on the church is to convert itself for the
time being into an independent political committee, registered
with the state, equipped with a campaign treasurer, a deposi-
tory, and a new name. Now minted as an IPC, this entity must
file a form with the Commissioner of Political Practices and
with the county within five days of making a political expen-
diture. The IPC must also file a form with the Commissioner
reporting contributions. It is easy to suppose these reporting
and filing requirements are slight. They may be so for a large
enterprise. They are care-demanding and time-consuming for
a small congregational church. In addition, the statute seeks
the names and the employers of the contributors of small
amounts of money. For business or social reasons, a small
contributor may wish not to be publicly identified with one
side of a controversial public issue. The required report strips
this contributor of his chosen anonymity. This effect, which
discourages contributors, is an additional burden on the
church.
As for narrow tailoring to a compelling government inter-
est, the Commissioner of Political Practices contrasts the bad
2194 CANYON FERRY ROAD v. UNSWORTH
old days of domination by the Anaconda Company with the
present healthy state of Montana politics, said to be due to the
disclosure law. The Commissioner does not even attempt to
show how the disclosure law has this beneficent effect.
The disclosure law leads to the disclosure of the names of
the makers of small contributions, said by the Commissioner
to be a major factor in Montana elections. How do the names
of small contributors affect anyone else’s vote? Does any
voter exclaim, “Hank Jones gave $76 to this cause. I must be
against it!” Small contributors are not the Anaconda Com-
pany.
The Commissioner also argues that the report of in-kind
contributions by the church is helpful to the voters. But if the
church’s corporate efforts are effective at all, both the sup-
porters and opponents of a ballot measure will know where
the church stands and judge accordingly. They don’t need to
consult what is filed with the Commissioner.
What has happened here is that a small congregation has
been put to trouble and expense in order to exercise its right
to speak on an issue seen by it to be of vital religious signifi-
cance. One lesson of history is that small incursions on free-
dom are to be resisted lest they grow greater.
I noted earlier the exemptions of the press from the disclo-
sure statute. An unregulated, unregistered press is important
to our democracy. So are unregulated unregistered churches.
Churches have played an important — no, an essential — part
in the democratic life of the United States. On two of the
greatest issues ever to confront our country, churches led the
way and churchmen conducted crusades.
The first decided whether this nation should be half free
and half slave. Not only the slaveowners but many persons of
equable temperament and moderate judgment hesitated to dis-
lodge an institution that had existed in America for over 200
CANYON FERRY ROAD v. UNSWORTH 2195
years, protected by the constitution and the courts. Church-
men — principally Congregationalists and Unitarians — took
up the cause of universal freedom and over bitter opposition
and armed rebellion assured the triumph of what they put for-
ward as a Christian cause.
A century later, when the fruits of freedom had been imper-
fectly realized and African-Americans still suffered griev-
ously from discriminatory laws and practices, Christian
churchmen again led the way in what has been aptly described
by one of its leaders, the Reverend Joseph Lowery, as “the
black church coming alive.” Its opening moments occurred in
1955 in Montgomery, Alabama when Rosa Parks refused to
move to the back of the bus and was arrested for violating a
municipal ordinance segregating bus seating by race. Martin
Luther King, Jr., a local pastor, emerged as the leader of a
boycott of the buses by blacks. At each critical stage King
spoke in the language of religion. At the first mass meeting
he quoted the words of Jesus as reported in the Gospels, told
the crowd that their protest should be “with Christian love,”
and gave as advice, “Let your conscience be your guide.” The
crowd sang “Onward Christian Soldiers.” When his house
was bombed, King cooled the crowd saying, “What we are
doing is just. God is with us.” For King, conscience was a
trumpet. The Lustre of Our Country (1998) 256.
Is it necessary to evoke these historic struggles and the
great constitutional benefits won for the country by its
churches in order to decide this case of petty bureaucratic
harassment? It is necessary. The memory of the memorable
battles grows cold. The liberals who applaud their outcomes
and live in their light forget the motivation that drove the
champions of freedom. They approve religious intervention in
the political process selectively: it’s great when it’s on their
side. In a secular age, Freedom of Speech is more talismanic
than Freedom of Religion. But the latter is the first freedom
in our Bill of Rights. It is in terms of this first freedom that
this case should be decided.