Ed Butcher v. Austin Knudsen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ED BUTCHER; LONNY BERGSTROM, No. 21-35010
Plaintiffs-Appellants,
D.C. No.
v. 6:20-cv-00057-
DLC
AUSTIN KNUDSEN, * in his official
capacity as Attorney General of
Montana; JEFFREY MANGAN, in his OPINION
official capacity as Montana
Commissioner of Political Practices,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted October 8, 2021
Portland, Oregon
Filed July 6, 2022
Before: William A. Fletcher, Sandra S. Ikuta, and
Daniel A. Bress, Circuit Judges.
*
Austin Knudsen is substituted for his predecessor, Timothy Fox,
as Attorney General of Montana. Fed. R. App. P. 43(c)(2).
2 BUTCHER V. KNUDSEN
Opinion by Judge Bress;
Dissent by Judge W. Fletcher
SUMMARY **
Civil Rights
The panel reversed the district court’s summary
judgment for Montana state defendants and held that
Montana Administrative Rule 44.11603, under which
plaintiffs were required by the Montana Commission of
Political Practices to register as a political action committee,
is unconstitutionally vague as applied to plaintiffs.
Plaintiffs, Ed Butcher, a former Montana State Senator,
and Lonny Bergstrom, operate a website that tracks the
voting records of Republican state legislators in Montana.
Based on the travel expenses plaintiffs incurred in giving
presentations about the website to Republican groups,
Montana’s Commissioner of Political Practices determined
that Butcher and Bergstrom had formed a “political
committee” under Montana law, subject to numerous
reporting obligations.
Montana law broadly defines a “political committee,” in
relevant part, as “a combination of two or more individuals
. . . who receives a contribution or makes an expenditure” to
“support or oppose” a candidate or a ballot issue. An
expenditure of $250 or less does not create a political
committee. Nor will expenditures that qualify as “de
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BUTCHER V. KNUDSEN 3
minimis acts,” which do not count towards the $250
threshold. Montana Administrative Rule 44.11.603 sets
forth guidance as to what constitutes a de minimis act,
including exempt volunteer services or efforts.
The panel held that Montana’s administrative scheme
did not give plaintiffs fair notice that when they traveled
around Big Sky Country without pay to give presentations,
their purchases of fast food, fuel, and lodging at a roadside
motel were not considered de minimis expenses associated
with volunteer services. Although plaintiffs acknowledged
they occasionally advocated for particular candidates, from
the standpoint of a reasonable person, that conduct was fully
consistent with both the term “volunteer” and Montana’s de
minimis acts exemption. Nothing in Montana law suggests
that only those persons providing volunteer services or
efforts within an organizational structure of a group are
exempted from a political committee designation.
Dissenting, Judge Fletcher stated that plaintiffs were not
political naifs. They were sophisticated political actors.
They acted in a concerted and sustained manner to bring
accurate and relevant political information to interested
political groups. In short, they engaged in valuable and
protected First Amendment activity. But they did not do so
as “volunteers” within the meaning of Montana election law.
Rather, they did so as a “political committee.”
4 BUTCHER V. KNUDSEN
COUNSEL
Matthew G. Monforton (argued), Monforton Law Offices
PLLC, Bozeman, Montana, for Plaintiffs-Appellants.
Jeremiah Langston (argued), Assistant Attorney General; J.
Stuart Segrest, Chief, Civil Bureau; Austin Knudsen,
Attorney General; Office of the Attorney General, Helena,
Montana; for Defendants-Appellees.
OPINION
BRESS, Circuit Judge:
Two retirees, Ed Butcher and Lonny Bergstrom, operate
a website that tracks the voting records of Republican state
legislators in Montana. Several local Republican groups in
Montana took an interest in the website and invited Butcher
and Bergstrom to speak on their findings. Based on the
travel expenses they incurred in giving these presentations—
such as for gas, meals at McDonald’s, and a night at a La
Quinta Inn—Montana’s Commissioner of Political Practices
determined that Butcher and Bergstrom had formed a
“political committee” under Montana law. Because Butcher
and Bergstrom had neither registered their alleged political
committee with the state nor complied with numerous
reporting obligations, the Commissioner concluded they
were subject to a civil fine and civil prosecution. Butcher
and Bergstrom argue, however, that Montana law is
impermissibly vague because they lacked fair notice that
their conduct would not be treated as “de minimis,” and thus
exempt, under Montana Administrative Rule 44.11.603.
BUTCHER V. KNUDSEN 5
We hold that Rule 44.11.603 is unconstitutionally vague
as applied to Butcher and Bergstrom. Butcher and
Bergstrom were engaged in core political speech that lies at
the heart of the First Amendment. The protections against
impermissibly vague laws, rooted here in the Due Process
Clause of the Fourteenth Amendment, are at their maximum
in this most sensitive area, in which insufficiently defined
legal regimes can discourage valuable speech and invite
unbalanced government regulation of less popular views. In
this case, Montana law did not give Butcher and Bergstrom
fair notice that the travel expenses associated with their
hobbyist speaking engagements transformed them into a
two-person political committee subject to demanding
disclosure and reporting requirements. We therefore reverse
the district court’s judgment to the contrary.
I
A
Ed Butcher is a 78-year-old retired Republican state
senator from Montana. His late son Trevis created a website
called Legistats. Legistats analyzes how individual
Republican state legislators in Montana vote on what
Legistats terms “partisan bills,” that is, bills in which the
Republican and Democratic state caucuses usually vote in
opposition to each other. Legistats then ranks the lawmakers
according to how often they vote with the rest of the
Republican Party. Each legislator is given a grade, ranging
from “A,” which means “exception[al] party loyalty,” to
“F,” meaning “basically a Republican that Democrats can
consistently count on to swing partisan votes.” After Trevis
passed away in 2017, Butcher took over operation of the
website.
6 BUTCHER V. KNUDSEN
Local Republican groups around Montana were
intrigued and invited Butcher to give presentations on
Legistats. Butcher’s friend Lonny Bergstrom, who is also
retired, accompanied him to these presentations. Bergstrom
helped by preparing the PowerPoint presentations and
projecting the slides while Butcher spoke. Butcher primarily
aimed to be “informative and educational” in his remarks,
but sometimes he would make statements supporting or
criticizing candidates for office.
From January 2019 to May 2020, Butcher and Bergstrom
gave eight presentations to Republican groups in various
towns across Montana. In doing so, they incurred ordinary
travel expenses. They spent between $100 and $400 on gas
each time. For food, they stopped at McDonald’s, purchased
snacks at a gas station, or brought sack lunches. They stayed
overnight once, at the La Quinta Inn in Glendive, Montana,
a small town near the North Dakota border. The room rate
was approximately $75. Butcher and Bergstrom never
received compensation for the presentations, nor were they
reimbursed for their expenses.
B
Since the 1970s, Montana has required political
committees to register with the state, report election-related
expenditures, and comply with additional requirements. See
Mont. Code Ann. §§ 13-37-201 et seq.; Canyon Ferry
Baptist Church v. Unsworth, 556 F.3d 1021, 1026 (9th Cir.
2009). Montana law broadly defines a “political
committee,” in relevant part, as “a combination of two or
more individuals . . . who receives a contribution or makes
an expenditure” to “support or oppose” a candidate or a
ballot issue. Mont. Code Ann. § 13-1-101(32)(a).
BUTCHER V. KNUDSEN 7
As pertinent here, whether a group of two or more
persons is a political committee turns on Montana’s
definition of a qualifying expenditure. An “expenditure” is
“a purchase, payment, distribution, loan, advance, promise,
pledge, or gift of money or anything of value . . . made by a
candidate or political committee to support or oppose a
candidate or a ballot issue.” Id. § 13-1-101(19)(a)(i).
An expenditure of $250 or less will not create a political
committee. Id. § 13-1-101(32)(d). Nor will expenditures
that qualify as “de minimis act[s],” which do not count
towards the $250 threshold. See id. § 13-1-101(11); Mont.
Admin. R. 44.11.202(3)(c) (“A political committee is not
formed by . . . a de minimis activity.”); Vargas v. Hoffman,
Mont. Comm’r Pol. Prac. Advisory Op. 4–5 (Oct. 20, 2017).
A “de minimis act” means “an action, contribution, or
expenditure that is so small that it does not trigger
registration, reporting, disclaimer, or disclosure obligations
. . . or warrant enforcement as a campaign practices
violation.” Mont. Code Ann. § 13-1-101(11). Thus, “de
minimis acts” do not create political committees or require
reporting. See id.The statute delegates to Montana’s Commissioner of
Political Practices the authority to further define “de minimis
acts.” Id. § 13-37-114. In Montana Administrative Rule
44.11.603, the Commissioner has attempted to provide
guidance on this point. In subsection (1), the Commissioner
has identified five factors that he “may consider” in
determining whether an expenditure is de minimis:
The commissioner may consider the
following factors in determining whether
specific acts, contributions, or expenditures
are de minimis and therefore do not trigger
registration, reporting, attribution, or
8 BUTCHER V. KNUDSEN
disclosure requirements, or warrant
enforcement as a campaign practices
violation:
(a) whether the act, contribution, or
expenditure has an ascertainable fair market
value, and if so the amount of that value;
(b) in the case of an act that results in the
provision of services, whether the act results
in either a detriment to the provider of the
services, such as an out-of-pocket expense or
the preclusion of other activities;
(c) whether the act, contribution, or
expenditure at issue is a single, one-time
event or occurrence or multiple events or
occurrences;
(d) the extent to which a particular campaign
practices violation deprives the public of
disclosure;
(e) other factors and circumstances similarly
showing limited value or minimal harm.
Mont. Admin. R. 44.11.603(1).
Then, in subsection (2), the Commissioner’s rule
provides seven examples of expenditures “that may,
depending on the circumstances, be considered de minimis”:
Acts, contributions, or expenditures that may,
depending on the circumstances, be
considered de minimis include:
BUTCHER V. KNUDSEN 9
(a) the creation of electronic or written
communications or digital photos or video,
on a voluntary (unpaid) basis by an
individual, including the creation and
outgoing content development and delivery
of social media on the internet or by
telephone;
(b) the provision by an individual or political
committee of personal property, food, or
services with a cumulative fair market value
of less than $35 in the aggregate for any
single election;
(c) the location value of the display of lawn
or yard signs on real property, but only if the
property owner does not normally and does
not in fact charge a fee for [the] display of
signs;
(d) any value attributable to the display of
campaign bumper stickers or signs on a
vehicle, but only if the vehicle owner does
not normally and does not in fact charge a fee
for [the] display of bumper stickers or signs;
(e) typographical errors or incomplete or
erroneous information on a campaign finance
report that is determined not to be misleading
or that does not substantially affect
disclosure;
(f) any failure to comply with the attribution
requirements of 13-35-225, MCA, that is
determined to nevertheless provide sufficient
10 BUTCHER V. KNUDSEN
disclosure regarding who made or financed
the communication;
(g) expenses associated with volunteer
services or efforts, including the cost of gas,
parking, and meals.
Id. 44.11.603(2). We will return to Rule 44.11.603 in greater
detail below.
Montana political committees are subject to elaborate
registration, disclosure, and reporting obligations. See
Mont. Code Ann. §§ 13-37-201 et seq. Within five days of
making a qualifying expenditure that forms a political
committee, the committee must register with the state. Id.§ 13-37-201(2)(b). Then, political committees must
generally file reports on “the 30th day of March, April, May,
June, August, September, October, and November in the
year of an election in which the political committee . . .
participates.” Id. § 13-37-226(2)(b). Other reports must be
filed quarterly, id. §§ 13-37-226(2)(a), (e), or, in some
instances, within two days of receiving a contribution or
making an expenditure above a $500 threshold, id. §§ 13-37-
226(2)(c)–(d). These required reports must disclose detailed
information about the political committee’s financials. Id.
§ 13-37-229.
In addition, each political committee must designate a
campaign depository and make most expenditures “by check
drawn on the designated depository.” Mont. Admin. R.
44.11.409(3); Mont. Code Ann. § 13-37-205(1). The
committee’s financial accounts “may be inspected under
reasonable circumstances . . . by the campaign treasurer of
any opposing candidate or political committee in the same
electoral district.” Id. § 13-37-209. Within five business
BUTCHER V. KNUDSEN 11
days of receiving any contribution, the treasurer must
transfer the funds into the depository and prepare a written
statement describing the deposit. Id. § 13-37-207.
Montana law allows any person who believes a
campaign finance violation has occurred to file a written
complaint with the Commissioner. Mont. Admin. R.
44.11.106(1). “[U]pon receipt of a complaint, the
commissioner shall investigate the alleged violation” and
“prepare a written summary of facts and statement of
findings.” Id. 44.11.106(3).
If the Commissioner finds facts supporting a violation,
he “shall notify the county attorney of the county in which
the alleged violation occurred.” Mont. Code Ann. § 13-37-
124(1). “If the county attorney fails to initiate the
appropriate civil or criminal action within 30 days,” the
Commissioner may do so. Id. The Commissioner typically
resolves cases through the payment of a negotiated fine.
However, he may instead choose to file a complaint in court
against the violator. See id. § 13-37-124(4).
C
On May 29, 2020, a Montana resident filed a citizen
campaign finance complaint against Butcher and Bergstrom.
According to the complainant, by giving the Legistats
presentations Butcher and Bergstrom had “been traveling the
state” and “spending time and money in a campaign effort to
target certain Republican candidates in the upcoming
Republican primary.” The complaint alleged that Butcher
and Bergstrom had formed a political committee yet had
failed to register with the state and comply with related
requirements.
12 BUTCHER V. KNUDSEN
Jeffrey Mangan, Montana’s Commissioner of Political
Practices, investigated the complaint. He issued a final
decision on September 30, 2020, finding that Butcher and
Bergstrom “became a political committee on or about June
7, 2019,” when they gave the first known Legistats
presentation in Stevensville, Montana. According to
Mangan, “Mr. Butcher and Mr. Bergstrom represent a
combination of two or more individuals that made an
expenditure of more than $250.00 to support or oppose
candidates for election,” because their expenses for the
Stevensville trip were estimated at $346.15, and “de minimis
. . . theories are not applicable.”
Mangan ordered Butcher and Bergstrom to register with
the state and submit the required filings within two weeks.
He further concluded that “a civil fine or civil prosecution”
was justified. Mangan referred the matter to the county
attorney “for his consideration as to prosecution.”
While the administrative investigation was still ongoing,
Butcher and Bergstrom filed this lawsuit against Mangan
and Timothy Fox, the state Attorney General (Austin
Knudsen has since replaced Fox). Butcher and Bergstrom
raised several theories under 42 U.S.C. § 1983, including
that Rule 44.11.603 is unconstitutionally vague. Butcher
and Bergstrom alleged in their complaint that while they
“intend to engage in similar presentations during the
remainder of the 2020 election cycle and beyond,” they “will
not do so . . . while there remains a threat of additional
exposure to civil penalties.”
The district court granted summary judgment to the
State. On appeal, in which our review is de novo, see
O’Doan v. Sanford, 991 F.3d 1027, 1035 (9th Cir. 2021),
Butcher and Bergstrom challenge only the district court’s
ruling on their vagueness theory. Specifically, Butcher and
BUTCHER V. KNUDSEN 13
Bergstrom argue that they lacked fair notice that their
expenses would not be exempted as “de minimis” under
Rule 44.11.603.
II
A
“A fundamental principle in our legal system is that laws
which regulate persons or entities must give fair notice of
conduct that is forbidden or required.” FCC v. Fox
Television Stations, Inc., 567 U.S. 239, 253 (2012). Laws
that are impermissibly vague offend due process because
they contravene two bedrock constitutional norms. Id. The
first is that “regulated parties should know what is required
of them so they may act accordingly.” Id. The second is that
laws must provide proper “precision and guidance” to ensure
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)). When laws fail to
“provide explicit standards for those who apply them,” they
“impermissibly delegate[] basic policy matters . . . for
resolution on an ad hoc and subjective basis.” Grayned,
408 U.S. at 108–09.
Vague laws thus stand in basic opposition to the rule of
law. In evaluating whether a law is unconstitutionally
vague, we ask whether it “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.” Fox, 567 U.S. at 254 (quoting
United States v. Williams, 553 U.S. 285, 304 (2008)).
For laws implicating First Amendment freedoms, the
void-for-vagueness doctrine has special purchase. Although
“perfect clarity is not required even when a law regulates
14 BUTCHER V. KNUDSEN
protected speech,” “vagueness concerns are more acute
when a law implicates First Amendment rights, and,
therefore, vagueness scrutiny is more stringent.” Cal.
Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150
(9th Cir. 2001) (citing Ward v. Rock Against Racism,
491 U.S. 781, 794 (1989) and Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)).
When a law implicating free speech is impermissibly
vague, it risks repressing the very discourse that the First
Amendment protects and encourages. See Fox, 567 U.S. at253–54. As the Supreme Court has explained, when “a
vague statute abuts upon sensitive areas of basic First
Amendment freedoms, it operates to inhibit the exercise of
those freedoms. Uncertain meanings inevitably lead citizens
to steer far wider of the unlawful zone than if the boundaries
of the forbidden areas were clearly marked.” Grayned,
408 U.S. at 109 (quotations and alterations omitted). A
vague law governing speech also poses heightened risks of
arbitrary enforcement, inviting disparate treatment of less
popular speakers or viewpoints. See NAACP v. Button,
371 U.S. 415, 435 (1963) (“[A] vague and broad statute
lends itself to selective enforcement against unpopular
causes.”).
These concerns are magnified even further when a law
regulates political speech, which “occupies the highest rung
of the hierarchy of First Amendment values.” Snyder v.
Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v.
Myers, 461 U.S. 138, 145 (1983)). Free and robust
discussion on political issues and elections is “integral to the
operation of the system of government established by our
Constitution.” McCutcheon v. FEC, 572 U.S. 185, 203–04
(2014) (quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976)).
We must therefore proceed with vigilance when evaluating
BUTCHER V. KNUDSEN 15
a vagueness challenge involving laws that regulate political
speech—speech that is entitled to the “broadest protection.”
Arizona Students’ Ass’n v. Arizona Bd. of Regents, 824 F.3d
858, 867 (9th Cir. 2016) (quoting Buckley, 424 U.S. at 14).
Consistent with these principles, courts have not
hesitated to reject on vagueness grounds laws regulating
speech protected by the First Amendment. See, e.g., Fox,
567 U.S. at 258; Gentile v. State Bar of Nevada, 501 U.S.
1030, 1048 (1991); Hunt v. City of Los Angeles, 638 F.3d
703, 712–13 (9th Cir. 2011); Humanitarian L. Project v.
Reno, 205 F.3d 1130, 1137–38 (9th Cir. 2000); Foti v. City
of Menlo Park, 146 F.3d 629, 638–39 (9th Cir. 1998). This
includes vague laws that regulate political speech. See, e.g.,
Buckley, 424 U.S. at 43–44; Wisconsin Right to Life, Inc. v.
Barland, 751 F.3d 804, 843–44 (7th Cir. 2014); North
Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 284–85
(4th Cir. 2008).
Within this framework, we turn to Butcher and
Bergstrom’s as-applied challenge to Rule 44.11.603. 1
B
We first address Montana’s argument that our decision
in Canyon Ferry Baptist Church v. Unsworth, 556 F.3d 1021(9th Cir. 2009), forecloses Butcher and Bergstrom’s due
process challenge. We conclude that Montana’s reliance on
Canyon Ferry is misplaced.
1
We do not consider whether Montana’s scheme is facially invalid,
i.e., unconstitutional in nearly all its applications. See Johnson v. United
States, 576 U.S. 591, 602–03 (2015). We also do not consider whether
Montana’s political committee requirements, if applicable, would violate
the First Amendment. See Canyon Ferry, 556 F.3d at 1030–34.
16 BUTCHER V. KNUDSEN
In Canyon Ferry, we considered the constitutionality of
Montana’s political committee registration and reporting
scheme, and specifically an older version of Montana’s
definition of “expenditures.” See id. at 1023–25. Montana
law at that time had no exception for expenses under $250
or for de minimis activities, so that every “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” formed a committee
and had to be disclosed. Id. at 1026–27 (quoting Mont. Code
Ann. § 13-1-101(11)(a) (2008)). Montana regulations
further explained that this definition encompassed “in-kind
expenditures,” that is, “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.”
Id. at 1027 (quoting Mont. Admin. R. 44.10.323(2) (2008)).
In Canyon Ferry, the Commissioner found that the
Canyon Ferry Baptist Church was a “political committee.”
He reached this conclusion because the Church had made
three “expenditures” in the course of collecting signatures
supporting “CI–96,” a ballot initiative that would have
amended the state constitution to define marriage as between
a man and a woman. Id. at 1024–25. Specifically, (1) the
Church allowed one of its members “to photocopy a CI–96
petition form on the Church’s copy machine, with her own
paper”; (2) it allowed that same member to “plac[e] the CI–
96 petitions in the Church’s foyer”; and (3) the Church’s
pastor had issued an “exhortation to sign the CI–96 petition
during a regularly scheduled sermon.” Id. at 1029.
As in this case, the Commissioner concluded that these
“expenditures” created a political committee. Id. at 1025.
Like Butcher and Bergstrom, the Church brought a § 1983
action claiming, among other things, that Montana’s
BUTCHER V. KNUDSEN 17
definition of “expenditures” was unconstitutionally vague.
Id.
We rejected the Church’s facial challenge because “[o]n
their face, the Montana regulations are precise enough” and
“pose[] no vagueness problem in the ‘vast majority of [their]
intended applications.’” Id. at 1028 (quoting Hill v.
Colorado, 530 U.S. 703, 733 (2000)). But we agreed with
the Church that the regulations were unconstitutionally
vague as applied to the Church’s second and third cited
expenditures. We explained that “[t]he absence of a
minimum value threshold substantially affects the analysis
of the disclosure requirement’s vagueness.” Id. at 1029.
And because the placement of the petition in the Church
foyer and the pastor’s endorsement “neither cause[d] an
economic detriment to the Church nor carrie[d] an
ascertainable market value,” the Church lacked notice and
“objective guidance as to whether it ha[d] provided a
‘service.’” Id. at 1029–30.
By contrast, the law was sufficiently clear as applied to
the photocopies because they caused the Church to incur
detriment in the form of “wear and tear of its equipment,”
and would have cost the Church money “on the open
market.” Id. at 1030. Even so, we went on to hold, the
Commissioner had nonetheless violated the First
Amendment by imposing onerous disclosure requirements
on the Church based only on this minimal activity. Id.
at 1030–34.
After Canyon Ferry, Montana amended the definition of
“expenditure” by adding the $250 threshold and carving out
“de minimis” activities. See Mont. Code Ann. §§ 13-1-
101(11), (32)(d). Montana now suggests these changes
effectively insulate the new law from a vagueness challenge
altogether. It argues that “[t]his Court, in Canyon Ferry,
18 BUTCHER V. KNUDSEN
already determined that Montana’s disclosure requirements
are facially valid,” and that the post-Canyon Ferry
amendments only “improved the clarity of Montana’s
regulations.”
Montana reads Canyon Ferry to resolve a constitutional
challenge that the case did not and could not address. Even
if Montana’s addition of a “de minimis act” exemption and
a $250 threshold were intended as responsive to Canyon
Ferry’s concerns, Canyon Ferry had no opportunity to
consider the constitutionality of future amendments that the
state might make. And as we explain below, Montana made
various other changes to its laws that have no apparent
connection to what we said in Canyon Ferry.
Simply because Montana added more to its law after
Canyon Ferry does not mean Canyon Ferry now shields the
new law from a vagueness challenge, much less an as-
applied one. Montana’s reliance on Canyon Ferry is also at
odds with the fact that the case did, after all, largely vindicate
the plaintiff’s constitutional challenge. Whether Montana’s
new law survives constitutional scrutiny thus cannot be
resolved by a cursory comparison to Canyon Ferry. Instead,
we must consider Montana’s new rules in the context of its
scheme as a whole, as applied to the plaintiffs here.
C
Did Butcher and Bergstrom have “fair notice” that when
they traveled around Big Sky Country without pay to give
presentations, their purchases of fast food, fuel, and lodging
at a roadside motel made them a “political committee” under
Montana law? See Fox, 567 U.S. at 253. Our examination
of Montana’s scheme convinces us that the answer must be
no.
BUTCHER V. KNUDSEN 19
1
To see why, it is important to begin with the overall
structure of Montana law, which broadly defines what
counts as a “political committee” and then allows the
Commissioner to exclude persons from that all-embracing
definition based on various factors. A “political committee”
is “a combination of two or more individuals . . . who
receives a contribution or makes an expenditure” for an
election-related purpose. Mont. Code Ann. § 13-1-
101(32)(a). And with limited carve-outs that do not apply
here, id. § 13-1-101(19)(b), “expenditure” is defined
expansively as “anything of value,” id. § 13-1-101(19)(a).
Montana law now imposes a $250 expenditure threshold
and excludes expenditures that are “de minimis act[s].” Id.
§§ 13-1-101(11), (32)(d). But absent the “de minimis acts”
exemption, Montana law would treat as “political
committees” a vast range of persons engaged in nearly every
form of election-related activity. Political persuasion and
electioneering are often group endeavors. Get just two
people together for that purpose, have them spend $250 over
a given election cycle, see Essman v. Billings Chamber of
Commerce, Mont. Comm’r Pol. Prac. Advisory Op. 6–8
(Oct. 31, 2018), and they might now be a “political
committee,” subject to rigorous reporting requirements that
are sure to discourage political speech, especially by those
less sophisticated in the intricacies of campaign finance law.
See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S.
238, 254–55 (1986). The First Amendment implications of
such a system should be obvious.
That underscores the importance of Montana’s “de
minimis acts” exemption. But even a cursory glance at how
the Commissioner has interpreted that exemption
demonstrates just how widely Montana’s “political
20 BUTCHER V. KNUDSEN
committee” definition would otherwise sweep. The
examples the Commissioner has given of potentially exempt
de minimis acts include: the unpaid creation of material for
social media, “the location value of the display of lawn or
yard signs on real property,” and “any value attributable to
the display of campaign bumper stickers or signs on a
vehicle.” Mont. Admin. R. 44.11.603(2)(a), (c), (d). These
are some of the most basic forms of American political
activity. But the implication of these exemptions is that the
“expenditures” associated with, for instance, the location
value of front yard grass or the monthly bill for Wi-Fi, could
otherwise form a “political committee” if two or more
persons are involved (which they nearly always will be).
Once again, treating common “expenditures” associated
with common political activity as producing a “political
committee,” and then regulating them as such, would have
profound First Amendment implications.
2
It is against this backdrop that we turn to Rule
44.11.603(2)(g), the “de minimis” example that Butcher and
Bergstrom claim should have applied to them, and whose
non-application, they assert, was not reasonably foreseeable.
In subsection 2(g), the Commissioner identified as among
the “[a]cts, contributions, or expenditures that may,
depending on the circumstances, be considered de minimis
. . . (g) expenses associated with volunteer services or
efforts, including the cost of gas, parking, and meals.”
Butcher and Bergstrom claim they provided “volunteer
services or efforts” because they “gratuitously and freely
confer[red] the benefits of their time and efforts upon the
GOP organizations that invite[d] them to give Legistats
presentations.” And they point out that gas, which is
specifically listed as an exempted volunteer expense, is what
BUTCHER V. KNUDSEN 21
they mostly spent their money on. In their view, they had no
reasonable way of knowing that their expenses would not be
exempt from Montana’s registration and reporting
requirements. 2
In evaluating Butcher and Bergstrom’s argument, we
first consider whether the “common understanding” of the
phrase “volunteer services or efforts” “provides a ‘person of
ordinary intelligence a reasonable opportunity to know what
is prohibited.’” Gospel Missions of America v. City of Los
Angeles, 419 F.3d 1042, 1047 (9th Cir. 2005) (quoting
Grayned, 408 U.S. at 108). In determining this “common
understanding,” we may consider dictionary definitions.
See, e.g., id.; Valle del Sol Inc. v. Whiting, 732 F.3d 1006,
1020 (9th Cir. 2013).
Here, and although we do not suggest that “volunteer” is
an infinitely elastic term, Butcher and Bergstrom quite
reasonably maintain that they provided “volunteer services
or efforts.” Indeed, any suggestion that they were not acting
in that capacity runs counter to the common understanding
of those terms. “Volunteer” means “of or pertaining to”
“one who voluntarily offers his services in any capacity,”
where “voluntarily” means “freely” or “willingly.”
Volunteer, Oxford English Dictionary (2d ed. 1989);
2
Contrary to Montana’s position on appeal, Butcher and Bergstrom
did not waive the argument that they provided volunteer services to the
local GOP organizations that invited them to speak. In their motion for
summary judgment, Butcher and Bergstrom specifically argued that they
“d[id] not receive compensation from the Republican organizations that
invite them to make these presentations.” Then, after extensive
discussion of the “volunteer” exemption, they argued that they “could
reasonably assume that their travel expenses were de minimis under Rule
44.11.603(2)(g).” They thus preserved the arguments they make on
appeal.
22 BUTCHER V. KNUDSEN
Voluntarily, Oxford English Dictionary (2d ed. 1989).
Black’s Law Dictionary similarly defines a “volunteer” as
“[s]omeone who gratuitously and freely confers a benefit on
another.” Volunteer, Black’s Law Dictionary (10th ed.
2014). Here, Butcher and Bergstrom gave their
presentations at the request and for the benefit of local
groups. They did so without compensation and on their own
time. They thus fit the usual understanding of volunteers. 3
Montana resists this straightforward point, claiming that
Butcher and Bergstrom were not “volunteers” because “they
were advocating for particular candidates, and using their
own resources to do so.” These arguments are unpersuasive.
Taking the latter point first, that Butcher and Bergstrom used
their own resources does not show (or even suggest) that
they were not volunteers, much less that Butcher and
Bergstrom should have intuited this result. Volunteers often
act at some cost to themselves. A volunteer docent at a
museum who drives downtown each week and pays for
parking in the city garage is no less providing “volunteer
services.” Insofar as Montana means to suggest that Butcher
and Bergstrom are different because they spent
approximately $2,000 in total on their in-state travels, the
argument likewise fails. Making such an outlay to perform
unpaid services makes them, if anything, more dedicated
volunteers.
Although Butcher and Bergstrom acknowledge they
occasionally advocated for particular candidates, from the
3
Indeed, that understanding is consistent with the Commissioner’s
own explanation that voluntary means “unpaid,” as set forth in Rule
44.11.603(2)(a). See Mont. Admin. R. 44.11.603(2)(a) (“[T]he creation
of electronic or written communications or digital photos or video, on a
voluntary (unpaid) basis by an individual.”) (emphasis added).
BUTCHER V. KNUDSEN 23
standpoint of a reasonable person, that conduct is also fully
consistent with both the term “volunteer” and Montana’s de
minimis acts exemption. See Grayned, 408 U.S. at 108.
Persons who volunteer in an election-related capacity quite
often advocate for particular candidates. The other examples
of de minimis acts, like displaying yard signs or bumper
stickers, reflect advocacy for particular candidates, too.
Charging Butcher and Bergstrom with political advocacy
thus does not demonstrate they had fair notice that they were
not engaging in volunteer services. And if Montana is
suggesting that the problem is that Butcher and Bergstrom
obtained some personal or reputational (though non-
monetary) benefit from making their presentations, again,
the same can be said of many other forms of volunteer work.
Next, Montana claims that Butcher and Bergstrom were
not engaging in volunteer services because they acted “on
their own” and not within the “organizational structure” of
the Republican Party or local Republican groups. This
argument is unavailing. Nothing in Montana law suggests
that only those persons providing “volunteer services or
efforts” within the “organizational structure” of a group are
exempted from a political committee designation. There is
no mention of any “organizational” requirement in Rule
44.11.603 or in Montana’s other governing rules. See
Canyon Ferry, 556 F.3d at 1030 (holding that Montana law
was unconstitutionally vague as applied because “the
Church had no way to know ex ante” that it would be treated
as a political committee).
Montana’s “organizational” requirement also conflicts
with the common understanding of “volunteer.” A volunteer
often does not work for the organization for whom she
provides volunteer services. A lawyer who volunteers to
speak at a high school career fair is not within the
24 BUTCHER V. KNUDSEN
organizational structure of the school. But she is no less
providing “volunteer services or efforts,” Mont. Admin. R.
44.11.603(2)(g), just as Butcher and Bergstrom could have
most naturally viewed themselves when they were invited to
speak without compensation on topics of interest to local
groups. To the extent Montana means that, to satisfy this
“organizational” requirement, an organization must just be
involved, here organizations were involved: they invited
Butcher and Bergstrom to speak at events that the
organizations sponsored. 4
Finally, Montana argues that Butcher and Bergstrom
could not have reasonably viewed themselves as volunteers
because Rule 44.11.603(2)(g) was intended to codify a 2014
4
Montana points out that the statutory definition of “contributions”
excludes “services provided without compensation by individuals
volunteering a portion or all of their time on behalf of a candidate or
political committee,” and that this exclusion carries over to the definition
of “expenditures.” Mont. Code Ann. §§ 13-1-101(9)(b)(i), (19)(b)(i).
But Rule 44.11.603 is a separate part of the regulatory scheme from these
exclusions. And even if the statutory exclusions were relevant here, they
do not purport to provide a definition of who qualifies as a “volunteer,”
much less a definition applicable to Rule 44.11.603(2)(g), which uses the
phrase “volunteer services or efforts.” The regulatory scheme thus does
not indicate that Rule 44.11.603(2)(g) is meant to “implement” §§ 13-1-
101(19)(b)(i) or 13-1-101(9)(b)(i), as the dissent asserts. And even if we
assume this is the correct interpretation of Montana law, the question for
purposes of Butcher and Bergstrom’s vagueness claim is whether the law
provided “fair notice” of this interpretation, which it does not. Fox, 567
U.S. at 254.
Montana also errs in claiming that Butcher and Bergstrom
“independently expended resources supporting and opposing specific
candidates, meeting the definition of a political committee.” This logic
is circular. If Butcher and Bergstrom’s expenses were de minimis under
Montana law, then they never formed a political committee in the first
place.
BUTCHER V. KNUDSEN 25
Commissioner of Political Practices advisory opinion. See
Electronic Campaigning, Mont. Comm’r Pol. Prac.
Advisory Op. 2 (Jan. 31, 2014); see also 2015 Mont. Admin.
Reg. 1138, 1150 (Aug. 13, 2015) (confirming that the de
minimis rule codified the Commissioner’s previous advisory
opinions). In the 2014 opinion, the Commissioner explained
that “Montana law has a particular exception from the
definition of campaign contribution for volunteer time as
well as for certain unreimbursed expenses (gas for car)
associated with volunteer time.” Electronic Campaigning,
Mont. Comm’r Pol. Prac. Advisory Op. (Jan. 31, 2014). The
2014 opinion further clarified that based on this exception,
“[t]he time spent by legions of civic minded people going
door to door in Montana to talk in favor of a candidate” is
not reportable. Id.In its brief on appeal, Montana relies on this 2014
advisory opinion to argue that “Butcher and Bergstrom could
have met th[e] requirement” for “volunteer services” “if, for
example, they volunteered with a local GOP organization to
conduct door-to-door canvasing.” The problem, Montana
tells us, is that Rule 44.11.603(2) “is intended to avoid
sweeping up individuals engaged in casual political acts into
Montana’s reporting requirements,” and “Butcher and
Bergstrom are neither casual political participants nor were
they engaged in door-to-door canvasing.” (Emphasis
added.) We reject this argument.
There is nothing in Montana law or the common
understanding of “volunteer services” that limits the term to
door-to-door canvassers or people akin to them. And
regardless, by the Commissioner’s characterization of
Butcher and Bergstrom’s activities, it is not clear why the
two were not analogous to door-to-door canvassers, as “civic
minded people” speaking “in favor of” candidates.
26 BUTCHER V. KNUDSEN
Electronic Campaigning, Mont. Comm’r Pol. Prac.
Advisory Op. 2 (Jan. 31, 2014).
The State’s suggestion that Montana’s reporting scheme
intends to exclude “casual political acts” is of even greater
concern from a due process perspective. That phrase also
appears nowhere in any Montana statute or regulation. And
if it did, it would create clear vagueness problems because
what may count as a “casual political act” is entirely
subjective. See City of Chicago v. Morales, 527 U.S. 41, 62–
64 (1999) (concluding that an ordinance “does not provide
sufficiently specific limits on the enforcement discretion of
the police to meet constitutional standards” because its
application was “inherently subjective”). It would also
invite arbitrary enforcement, giving the Commissioner
unguided discretion to determine when a speaker’s core First
Amendment activities had become sufficiently “non-
casual,” e.g., too prominent, frequent, or outside the norm.
Posting one sign in the yard might be “casual,” but what
about fifteen? Butcher and Bergstrom had no reasonable
way to know that when they drove around Montana and
bought meals at McDonald’s and stayed at the La Quinta
Inn, they were not being “casual” enough.
To this point, at oral argument we asked the State
whether a married couple who drove around their town
doing door-to-door canvassing and spent more than $250 in
gas would have to register as a Montana political committee.
And Montana’s answer, remarkably, was yes. Nothing in
Montana law could have possibly alerted anyone that this
kind of activity would form a political committee and
thereby require compliance with Montana’s detailed
registration and disclosure requirements, some of which
apply within five days of the expenditure. Montana’s 2014
advisory opinion expressly exempted the costs of door-to-
BUTCHER V. KNUDSEN 27
door canvassing. Now Montana says that in some
circumstances they might in fact be covered. The lack of fair
notice and risks of arbitrary enforcement are palpable. See
Fox, 567 U.S. at 254.
For all these reasons, we hold that Butcher and
Bergstrom lacked fair notice that their conduct would not be
regarded as volunteer services or efforts under Rule
44.11.603(2)(g).
D
We turn lastly to Montana’s remaining argument: that
even if Butcher and Bergstrom more probably incurred
expenses associated with “volunteer services,” they still had
fair notice based on the rest of Rule 44.11.603 that their
expenditures were not “de minimis acts.”
Montana first points out that although Rule 44.11.603(2)
lists examples of acts and expenditures that may be treated
as de minimis (including those associated with volunteer
services or efforts), that subsection is prefaced with: “Acts,
contributions, or expenditures that may, depending on the
circumstances, include . . . .” (Emphasis added). Montana
thus argues that meeting any of the examples in subsection
(2) is not a “safe haven.” And Montana further maintains
that subsection (2)’s mention of “circumstances” is a
reference to subsection (1), which sets forth five factors that
the Commissioner “may consider” in determining whether
expenditures are de minimis. In Montana’s view,
“[a]pplication of the five factors to specific facts will
indicate the probability of an act being considered de
minimis, thus providing individuals a reasonable opportunity
to know whether their actions” are exempt.
28 BUTCHER V. KNUDSEN
We reject Montana’s argument as applied to Butcher and
Bergstrom. We agree that in assessing a vagueness
challenge, we must consider Montana law as a whole. See,
e.g., Gospel Missions, 419 F.3d at 1048; Hum. Life of
Washington, Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir.
2010). We further agree that laws that confer some amount
of flexibility in their application do not invariably trigger
vagueness concerns. See, e.g., Ward, 491 U.S. at 794(“[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive
activity.”).
But in this case, consideration of Rule 44.11.603 in its
entirety only exacerbates the due process problems with
treating Butcher and Bergstrom as a political committee. It
is hardly apparent, as Montana claims, that “the
circumstances” in Rule 44.11.603(2) is a reference to the
five “factors” in Rule 44.11.603(1). But even assuming a
reasonable person would have fair notice of that claimed tie-
in, evaluation of the Rule 44.11.603(1) factors in connection
with the volunteer example in Rule 44.11.603(2)(g) shows
that Montana cannot prevail. Montana is correct that on its
face, Rule 44.11.603(2) does not purport to confer safe
havens. The problem is that the rest of the Rule does not
provide fair notice as to when persons like Butcher and
Bergstrom who are presumptively within the subsection
(2)(g) volunteer example may nonetheless be regulated as a
political committee. And it thereby creates the very risk of
arbitrary enforcement that the Due Process Clause seeks to
prevent.
We begin with the first three “factors” in Rule
44.11.603(1): (a) whether the expenditure has an
“ascertainable market value,” (b) in the case of the provision
of services, whether the act “results in either a detriment to
BUTCHER V. KNUDSEN 29
the provider of the services, such as an out-of-pocket
expense or the preclusion of other activities,” and
(c) whether the expenditure “is a single, one-time event or
occurrence or multiple events or occurrences.” Mont.
Admin. R. 44.11.603(1)(a)–(c). Montana argues that factors
(a) and (b) were intended to address Canyon Ferry, and that
factor (c) provides similarly objective criteria as the first
two.
The issue that arises with the first three factors, however,
is not how they operate standing alone and with each other,
but how they interact with Rule 44.11.603(2)(g)’s volunteer
services example. For even though Butcher and Bergstrom’s
conduct fell within the common understanding of volunteer
services or efforts, it also fell within each of the first three
factors in Rule 44.11.603(1). And the same would be true of
nearly any volunteer work, including the actions of door-to-
door canvassers—the “legions of civic minded people” who
were the specifically intended beneficiaries of the “volunteer
exception.” Electronic Campaigning, Mont. Comm’r Pol.
Prac. Advisory Op. 2 (Jan. 31, 2014). A review of the first
three factors shows the problem.
Under the first factor, just as is true for Butcher and
Bergstrom, door-to-door canvassers will often incur
expenses that have an “ascertainable market value.” Mont.
Admin. R. 44.11.603(1)(a). We might expect typical
expenses to include gas, parking, and meals—
coincidentally, the very expenses listed in the volunteer
example in Rule 44.11.603(2)(g). Under the second factor,
volunteers (including door-to-door canvassers) often
provide “services” that result in a detriment to themselves,
either through “out-of-pocket expense or the preclusion of
other activities.” Id. 44.11.603(1)(b). And under the third
factor, id. 44.11.603(1)(c), we can reasonably assume that
30 BUTCHER V. KNUDSEN
many volunteers will volunteer more than once (though
notably here, the Commissioner found that Butcher and
Bergstrom formed a political committee as soon as they
made their first Legistats presentation).
The upshot is that nearly anyone who provides volunteer
services with at least one other person will likely be covered
by the first three factors in Rule 44.11.603(1), despite falling
within an exemplar circumstance for acts that may be
exempted. See id. 44.11.603(2)(g). Nothing in these
warring provisions tells a person when his expenses
associated with volunteering will be regarded as de minimis
or not. See Chalmers v. City of Los Angeles, 762 F.2d 753,
757–59 (9th Cir. 1985) (holding that “conflicting” and
“facially contradictory” ordinances were impermissibly
vague as applied).
Montana argues, however, that further clarity can be
found in Rule 44.11.603(1)’s fourth and fifth factors. These
last two factors have no apparent roots in Canyon Ferry, and
Montana law does not specify how they are to be weighed
against the first three. At oral argument, Montana agreed
that even if none of the first three factors applies, two
persons could still be regulated as a political committee
based on the fourth and fifth factors alone. Regardless, the
final two factors only confirm that the Rule is fatally vague
as applied to Butcher and Bergstrom.
The fourth factor is “the extent to which a particular
campaign practices violation deprives the public of
disclosure.” Mont. Admin. R. 44.11.603(1)(d). But this
factor begs the question. The threshold issue here is whether
a failure to report is a campaign practices violation in the
first place. And whether it deprives the public of disclosure
depends on what one believes the public ought to know—
which is inherently a “policy matter[]” that turns on
BUTCHER V. KNUDSEN 31
“subjective” considerations. Grayned, 408 U.S. at 109; see
also Fox, 567 U.S. at 253 (explaining that a regulation is
vague when “it is unclear as to what fact must be proved”).
Montana’s discussion of this fourth factor in its briefing
bears this out. Montana argues that “Butcher and
Bergstrom’s political activities should be subject to
disclosure.” (Emphasis added.) Whatever one’s views on
that point, it is a policy judgment. One could also think that
a church placing election petitions in its foyer and a pastor
urging members to vote for a ballot initiative are political
activities that should be subject to disclosure, too. See
Canyon Ferry, 556 F.3d at 1029–30. The same could be said
of door-to-door canvassing. Particularly given the high First
Amendment value of their speech and the risk that political
discourse will be chilled, we do not think it satisfies due
process to charge Butcher and Bergstrom with anticipating
when the state would decide their activities warranted further
disclosure.
Montana also argues under the fourth factor that the
public has an interest in knowing how money is spent in
political campaigns. Setting aside that if Butcher and
Bergstrom had acted alone, they would not have formed a
political committee regardless of how much they spent on
their road trips, nothing in the statute (beyond the $250
threshold) provides guidance on when expenditures would
be high enough to warrant disclosure. Indeed, by the logic
of Montana’s argument, any expenditures exceeding $250
could trigger the state’s asserted interest, including ones that
are expressly listed as examples of expenses that may be
considered de minimis. See Mont. Admin. R. 44.11.603(2).
It is thus telling, and of little comfort, that Montana tells us
in its briefing that social media posts, lawn signs, and
bumper stickers are only “potentially exclud[ed] from
32 BUTCHER V. KNUDSEN
reporting” requirements. (Emphasis added.) As applied to
Butcher and Bergstrom—persons who fit well within an
exemplar de minimis activity in Rule 44.11.603(2)—
subsection (1)’s fourth factor is a blueprint for arbitrary
enforcement and lack of fair notice.
The fifth factor does not change matters. That factor is
a catch-all consisting of “other factors and circumstances
similarly showing limited value or minimal harm.” Mont.
Admin. R. 44.11.603(1)(e). While Montana argues that the
word “similarly” constrains the Commissioner to
considerations similar to the first four factors, that constraint
is minimal at best. Nothing in Montana law identifies what
“factors and circumstances” might show limited value or
minimal harm beyond the factors already set forth in the
Rule. Nor does Montana law anywhere identify the
magnitude of either the value or harm that Montana is or is
not concerned with, much less the types of harms that would
be considered relevant. See Foti, 146 F.3d at 639 (“With this
range of factors to consider, there is the danger that a police
officer might resort to enforcing the ordinance only against
cars with signs whose messages the officer or the public
dislikes.”); Berger v. City of Seattle, 569 F.3d 1029, 1047–
48 (9th Cir. 2009) (concluding that a law was
unconstitutionally vague because officials’ ability to
consider a “myriad of factors lends itself to discriminatory
enforcement”).
We thus hold that Rule 44.11.603 did not give Butcher
and Bergstrom “a reasonable opportunity to know” that the
expenses they incurred giving unpaid presentations would
subject them to regulation as a Montana political committee.
Grayned, 408 U.S. at 108. Rule 44.11.603 is therefore
unconstitutional as to them.
BUTCHER V. KNUDSEN 33
* * *
We reverse the judgment of the district court and remand
for proceedings consistent with this opinion.
REVERSED AND REMANDED.
W. FLETCHER, Circuit Judge, dissenting:
In 2019 and 2020 in anticipation of a primary election,
Ed Butcher, a former Montana State Senator, and Lonny
Bergstrom traveled to various locations in Montana giving
political presentations to Republican organizations. They
used a computer program that tracked how often Republican
state legislators voted differently from the Republican
caucus on partisan bills. They encouraged members of the
audience to vote for or against Republican candidates for
state legislative seats based on their past voting patterns. It
is uncontested that Butcher and Bergstrom incurred over
$1,000 in travel expenses. One of their presentations
prompted a citizen complaint to Montana’s Commissioner
of Political Practices, alleging violation of Montana’s
election disclosure requirements.
Under Montana law, a combination of two or more
individuals that spends more than $250 to support or oppose
political candidates must register as a political committee
and must report its expenditures. A regulation exempting de
minimis expenditures from reporting requirements gives
examples of expenditures that “may, depending on the
circumstances, be considered de minimis.” Mont. Admin.
R. 44.11.603(2). One example is “expenses associated with
volunteer services or efforts, including the cost of gas,
parking, and meals.” Id. at 44.11.603(2)(g).
34 BUTCHER V. KNUDSEN
Butcher and Bergstrom filed suit in district court
challenging the statute and the implementing regulation.
The district court entered summary judgment against them.
The panel majority reverses, holding that Montana’s
disclosure requirements are unconstitutionally vague as
applied to Butcher and Bergstrom.
I respectfully dissent.
I. Background
A. Montana’s Disclosure Law
Montana’s election law requires candidates and political
committees to file periodic reports of expenditures with the
Commissioner of Political Practices. Mont. Code Ann. § 13-
37-225. The statute defines a political committee as “a
combination of two or more individuals or a person other
than an individual who receives a contribution or makes an
expenditure” for one of three purposes: (1) “to support or
oppose a candidate or a committee organized to support or
oppose a candidate or a petition for nomination”; (2) “to
support or oppose a ballot issue or a committee organized to
support or oppose a ballot issue”; or (3) “to prepare or
disseminate an election communication, an electioneering
communication, or an independent expenditure.” Id. § 13-
1-101(32)(a). Political committees must file certifications
with the Commissioner within five days of making an
expenditure. Id. § 13-37-201(2)(b). Montana excludes from
its definition of political committee any combination of
individuals that makes an independent expenditure of $250
or less. Id. § 13-1-101(32)(d).
Montana defines an “expenditure” as “a purchase,
payment, distribution, loan, advance, promise, pledge, or gift
of money or anything of value” that is “made by a candidate
BUTCHER V. KNUDSEN 35
or political committee to support or oppose a candidate or a
ballot issue.” Id. § 13-1-101(19)(a). However, an
expenditure falls into the de minimis category if it is “so
small that it does not trigger registration, reporting,
disclaimer, or disclosure obligations . . . or warrant
enforcement as a campaign practices violation.” Id. § 13-1-
101(11).
The Commissioner is authorized to adopt rules that
“define what constitutes de minimis acts, contributions, or
expenditures.” Mont. Code Ann. § 13-37-114. An
Administrative Rule promulgated under the statute provides:
(1) . . . The commissioner may consider the
following factors in determining whether
specific acts, contributions, or expenditures
are de minimis and therefore do not trigger
registration, reporting, attribution, or
disclosure requirements, or warrant
enforcement as a campaign practices
violation:
(a) whether the act, contribution, or
expenditure has an ascertainable fair
market value, and if so the amount of that
value;
(b) in the case of an act that results in the
provision of services, whether the act
results in either a detriment to the
provider of the services, such as an out-
of-pocket expense or the preclusion of
other activities;
36 BUTCHER V. KNUDSEN
(c) whether the act, contribution, or
expenditure at issue is a single, one-time
event or occurrence or multiple events or
occurrences;
(d) the extent to which a particular
campaign practices violation deprives the
public of disclosure;
(e) other factors and circumstances
similarly showing limited value or
minimal harm.
Mont. Admin. R. 44.11.603(1).
The Rule provides a non-exclusive list of contributions
that may be de minimis:
(2) Acts, contributions, or expenditures that
may, depending on the circumstances, be
considered de minimis include:
(a) the creation of electronic or written
communications or digital photos or
video, on a voluntary (unpaid) basis by an
individual, including the creation and
outgoing content development and
delivery of social media on the internet or
by telephone;
(b) the provision by an individual or
political committee of personal property,
food, or services with a cumulative fair
market value of less than $50 in the
aggregate for any single election;
BUTCHER V. KNUDSEN 37
(c) the location value of the display of
lawn or yard signs on real property, but
only if the property owner does not
normally and does not in fact charge a fee
for display of signs;
(d) any value attributable to the display of
campaign bumper stickers or signs on a
vehicle, but only if the vehicle owner
does not normally and does not in fact
charge a fee for display of bumper
stickers or signs;
(e) typographical errors or incomplete or
erroneous information on a campaign
finance report that is determined not to be
misleading or that does not substantially
affect disclosure;
(f) any failure to comply with the
attribution requirements of [Mont. Code
Ann. § 13-35-225] that is determined to
nevertheless provide sufficient disclosure
regarding who made or financed the
communication;
(g) expenses associated with volunteer
services or efforts, including the cost of
gas, parking, and meals.
Id. at 44.11.603(2) (emphasis added).
Based on Mont. Admin. R. 44.11.603(2)(g), italicized
above, Butcher and Bergstrom argue that the Montana law is
unconstitutionally vague.
38 BUTCHER V. KNUDSEN
B. Factual and Procedural Background
During 2019 and 2020, Butcher and Bergstrom traveled
to various locations in Montana to give PowerPoint
presentations to Republican groups using Legistats, a
computer program maintained by Butcher. Legistats tracks
how often Republican members of Montana’s state
legislature vote differently from the majority of the
Republican caucus on partisan bills. The fewer times a
Republican legislator votes differently from the Republican
majority, the higher the ranking that legislator will receive
on Legistats’s loyalty index. Legistats’s rankings are
accessible online at http://legislatorloyalty.com.
In 2019 and 2020, Butcher and Bergstrom gave
numerous presentations to Republican groups at different
locations in Montana. They encouraged the audience to vote
for or against Republican candidates for the state legislature
during their presentations. Their presentation in Glendive,
Montana, prompted a citizen complaint alleging that they
violated Montana’s election disclosure laws. The
Commissioner initiated an investigation into Butcher and
Bergstrom’s presentations. Evidence concerning five
presentations was presented to the Commissioner.
Transportation costs (not including parking, meals, and
lodging) for four of those presentations—at Stevensville,
Bozeman, Glendive, and Kalispell—totaled $1,198.30. The
Commissioner found that Butcher and Bergstrom had
formed a political committee subject to registration and
disclosure requirements.
After the citizen complaint was filed, but before the
Commissioner reached a decision, Butcher and Bergstrom
sued the Montana Attorney General and the Commissioner
in federal district court under 42 U.S.C. § 1983. Their
complaint alleged that Montana’s election disclosure laws
BUTCHER V. KNUDSEN 39
violated the First and Fourteenth Amendments based on
speaker-based discrimination, vagueness, and infringement
on fundamental rights. In answers to interrogatories,
Butcher and Bergstrom “recall[ed]” that they had given eight
presentations. They answered that their transportation costs
(again, not including parking, meals, and lodging) for seven
of those presentations totaled $1,887.00. In their “Statement
of Facts” in the district court, Butcher and Bergstrom wrote
that during their presentation in Kalispell they had stated
they had given their presentation “14 or 15 times.”
The district court granted summary judgment against
Butcher and Bergstrom. It held, inter alia, that Montana’s
definition of de minimis acts is not unconstitutionally vague.
Butcher and Bergstrom’s only argument on appeal is that
example (g) in Montana’s Administrative Rule—“expenses
associated with volunteer services or efforts”—is
unconstitutionally vague. Mont. Admin. R. 44.11.603(2)(g).
II. Discussion
“A law is unconstitutionally vague if it fails to provide a
reasonable opportunity to know what conduct is prohibited,
or is so indefinite as to allow arbitrary and discriminatory
enforcement.” Hum. Life of Wash. Inc. v. Brumsickle,
624 F.3d 990, 1019 (9th Cir. 2010) (quoting Tucson
Woman’s Clinic v. Eden, 379 F.3d 531, 555 (9th Cir. 2004)).
“Nevertheless, perfect clarity is not required even when a
law regulates protected speech,” because “we can never
expect mathematical certainty from our language.” Id. (first
quoting Cal. Tchrs. Ass’n v. State Bd. of Educ., 271 F.3d
1141, 1150 (9th Cir. 2001); and then quoting Grayned v. City
of Rockford, 408 U.S. 104, 110 (1972)).
40 BUTCHER V. KNUDSEN
A. Canyon Ferry
We considered an earlier version of Montana’s election
disclosure regime against a vagueness challenge in Canyon
Ferry Road Baptist Church of East Helena, Inc. v.
Unsworth, 556 F.3d 1021 (9th Cir. 2009). At that time,
Montana did not exempt de minimis acts or expenditures less
than $250 from its disclosure requirements. Id. at 1026–27.
In Canyon Ferry, a church allowed a member to use the
church’s photocopy machine to make fewer than 50 copies
of the petition for a state ballot initiative. Id. at 1024. The
church placed the ballot petitions in its foyer, and at a
regularly scheduled Sunday evening service the pastor
encouraged the congregation to sign the petitions. Id.at 1024–25.
The Commissioner of Political Practices found that the
church and its pastor were a political committee and that the
committee had failed to meet its reporting obligations. Id.
at 1025. The Commissioner found that the pastor was not a
volunteer. Id. The church and the pastor brought suit under
§ 1983, arguing that Montana’s election disclosure law is
unconstitutionally vague both on its face and as applied. Id.
They did not challenge, and we did not address, the
Commissioner’s conclusion that the pastor was not a
volunteer. Rather, they challenged the Commissioner’s
conclusion that the church and pastor had made expenditures
within the meaning of the statute. Id. at 1028.
We upheld the statute’s definition of expenditures
against a facial vagueness challenge: “We have no doubt
that the Montana regulation poses no vagueness problem in
the ‘vast majority of its intended applications.’” Id. (quoting
Hill v. Colorado, 530 U.S. 703, 733 (2000)). We held that
Montana’s disclosure regulation was unconstitutionally
vague as applied to the placement of the ballot petitions in
BUTCHER V. KNUDSEN 41
the church’s foyer, and to the pastor’s exhortation to sign the
petition during a sermon. Id. at 1029–30. But we held that
it was not unconstitutionally vague as applied to the
member’s use of the church’s photocopy machine. 1 Id. at
1030.
After Canyon Ferry, Montana amended its definition of
an “expenditure” that triggers the creation of a political
committee. As relevant here, Montana added a $250
threshold and an exception for de minimis acts. See Mont.
Code Ann. § 13-1-101(32)(d) (“A political committee is not
formed when a combination of two or more individuals or a
person other than an individual makes an election
communication, an electioneering communication, or an
independent expenditure of $250 or less.”); id. § 13-1-
101(11) (“‘De minimis act’ means an action, contribution, or
expenditure that is so small that it does not trigger
registration, reporting, disclaimer, or disclosure
obligations . . . or warrant enforcement as a campaign
practices violation . . . .”). Pursuant to Mont. Code Ann.
§ 13-37-114, the Commissioner promulgated the
interpretive Administrative Rule quoted above.
B. Mont. Admin. R. 44.11.603(2)(g)
Butcher and Bergstrom’s sole argument on appeal is that
the exemption contained in § 44.11.603(2)(g) is
unconstitutionally vague as applied to them. They formulate
the issue on appeal as follows:
1
We went on to hold that Montana violated the church’s First
Amendment rights to free speech by requiring it to report its member’s
use of the church photocopier. Canyon Ferry, 556 F.3d at 1034.
42 BUTCHER V. KNUDSEN
When a campaign-finance law exempts from
disclosure “expenses associated with
volunteer services or efforts,” but application
of that exemption “depend[s] on the
circumstances,” and those “circumstances”
are not defined with any degree of clarity, is
the law unconstitutionally vague?
Butcher and Bergstrom argue that they had no way of
knowing whether expenses for “the cost of gas, parking[,]
and meals” were expenses “associated with volunteer
services,” and had no way of knowing whether they were
covered by Montana’s registration and reporting
requirements. They do not argue that the definition of “the
cost of gas, parking, and meals” is unconstitutionally vague.
Rather, they argue that they are not a “political committee”
under Montana law, but are, instead, “volunteers.” They
argue that if the term “volunteer services” does not include
their activities, it is unconstitutionally vague as to them.
In my view, this is a fairly straightforward case. Both
the Commissioner and the district court got it right.
As relevant here, a “[p]olitical committee” is defined
under Montana law as “a combination of two or more
individuals . . . who . . . makes an expenditure . . . to support
or oppose a candidate[.]” Mont. Code Ann. § 13-1-
101(32)(a)(i). “A political committee is not formed when a
combination of two or more individuals . . . makes . . . an
independent expenditure of $250 or less.” Id. § 13-1-
101(32)(d). Butcher and Bergstrom are two individuals.
They combined to support or oppose candidates in
Republican primary elections. They made expenditures of
more than $250 in this endeavor. Butcher and Bergstrom
were therefore a “political committee” under Montana law.
BUTCHER V. KNUDSEN 43
Butcher and Bergstrom contend that they were not a
political committee, but were, rather, merely “volunteers.”
They are correct that “volunteers,” even if acting together,
do not become a “political committee” by virtue of making
expenditures of more than $250. The Montana statute
provides that expenditures by volunteers do not transform
volunteers into a political committee: “The term
[expenditure] does not mean . . . services provided without
compensation by individuals volunteering a portion or all of
their time on behalf of a candidate or political committee.”
Id. § 13-1-101(19)(b)(i) (emphasis added) (incorporating by
reference § 13-1-101(9)(b)(i)). Administrative Rule
44.11.603(2)(g), specifying that volunteers’ expenditures for
gas, parking, and meals are not expenditures by a “political
committee,” implements the Montana statute.
Butcher and Bergstrom did not act as “volunteers” within
the meaning of § 13-1-101(19)(b)(i). By their own
admission, they did not incur their travel costs as volunteers
“on behalf of a . . . political committee.” Id. Nor did they
do so as volunteers on behalf of a particular candidate.
Rather, they encouraged Republican groups in Montana to
vote for or against various Republican candidates based on
their past voting patterns in the Montana legislature.
Butcher and Bergstrom are not political naifs. They are
sophisticated political actors. They acted in a concerted and
sustained manner to bring accurate and relevant political
information to interested political groups. In short, they
engaged in valuable and protected First Amendment activity.
But they did not do so as “volunteers” within the meaning of
Montana election law. Rather, they did so as a “political
committee.”
I respectfully dissent.