649 F.3d 34 (1st Cir. 2011), 10-2000, National Organization for Marriage v. McKee

Docket Nº:10-2000, 10-2049.
Citation:649 F.3d 34
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:NATIONAL ORGANIZATION FOR MARRIAGE, Plaintiff, Appellant/Cross-Appellee, v. Walter F. McKEE, in his official capacity as member of the Commission on Governmental Ethics and Election Practices, et al., Defendants, Appellees/Cross-Appellants, American Principles in Action, Plaintiff, Matthew Dunlap, in his official capacity as Secretary of the State
Attorney:James Bopp, Jr., with whom Randy Elf, Joseph A. Vanderhulst, James Madison Center for Free Speech, Stephen C. Whiting, and The Whiting Law Firm were on brief, for appellant/cross-appellee. Thomas A. Knowlton, Assistant Attorney General, with whom Janet Mills, Attorney General, and Phyllis Gardine...
Judge Panel:Before TORRUELLA, BOUDIN, and LIPEZ, Circuit Judges.
Case Date:August 11, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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649 F.3d 34 (1st Cir. 2011)

NATIONAL ORGANIZATION FOR MARRIAGE, Plaintiff, Appellant/Cross-Appellee,

American Principles in Action, Plaintiff,

v.

Walter F. McKEE, in his official capacity as member of the Commission on Governmental Ethics and Election Practices, et al., Defendants, Appellees/Cross-Appellants,

Matthew Dunlap, in his official capacity as Secretary of the State of Maine, Defendant.

Nos. 10-2000, 10-2049.

United States Court of Appeals, First Circuit.

August 11, 2011

Heard April 5, 2011.

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James Bopp, Jr., with whom Randy Elf, Joseph A. Vanderhulst, James Madison Center for Free Speech, Stephen C. Whiting, and The Whiting Law Firm were on brief, for appellant/cross-appellee.

Thomas A. Knowlton, Assistant Attorney General, with whom Janet Mills, Attorney General, and Phyllis Gardiner, Assistant Attorney General, were on brief, for appellees/cross-appellants.

Lisa J. Danetz, Brenda Wright, DEMOS, and John Brautigam on brief for Maine Citizens for Clean Elections, amicus curiae.

Before TORRUELLA, BOUDIN, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

This appeal requires us to address the constitutionality of several Maine election laws governing, inter alia, the registration of political action committees (" PACs" ) and the disclosure and reporting of information about expenditures made for election-related advocacy.1 Appellant National Organization for Marriage (" NOM" ), a New Jersey-based nonprofit corporation organized for the purpose of providing " organized opposition to same-sex marriage in state legislatures," contends that Maine's laws are unconstitutionally vague and overbroad. Claiming a chill of its First Amendment-protected advocacy efforts in

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Maine, NOM brought a facial and as-applied challenge seeking an injunction against the laws' enforcement and a declaration of their unconstitutionality. On summary judgment, the district court largely rejected NOM's claims, agreeing only that the phrase " for the purpose of influencing," which the court severed from the provisions in which it appeared, was unconstitutionally vague.2

NOM renews here its arguments challenging Maine's laws on vagueness and overbreadth grounds. NOM asks as well that we reverse a ruling by the district court unsealing the trial record. In turn, the defendants (various Maine officials) contend that the district court erred in finding vague, and severing from Maine's statutes, the phrase " for the purpose of influencing."

After careful consideration of the parties' arguments and key precedents, we conclude that Maine's laws pass constitutional muster. Central to our holding is the nature of the laws NOM challenges here. These provisions neither erect a barrier to political speech nor limit its quantity. Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas. As the Supreme Court recently observed, such compulsory " transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." Citizens United v. FEC, --- U.S. ----, 130 S.Ct. 876, 916, 175 L.Ed.2d 753 (2010). While we acknowledge that disclosure can, in some cases, unduly burden or chill political speech, there is no evidence that the Maine laws at issue here have had such a deleterious effect on NOM or its constituents.

We agree with the appellees that the use of " for the purpose of influencing" in the statutes at issue, given the appropriately limited reading offered by Maine's Commission on Governmental Ethics and Election Practices, is not unconstitutionally vague, and therefore we vacate the district court's holding as to that phrase and the consequent severance of portions of Maine's statutes. We otherwise affirm the district court's judgment in its entirety.

I. Statutory and Procedural Background

A. Maine's Election Laws

Maine has enacted a comprehensive set of election laws that embraces, among other things, contribution limits, a public financing system for state-office candidates, and various reporting and disclosure requirements for those engaged in election-related advocacy. We have previously described the contribution limit and public financing aspects of Maine's regulation of elections— which are not at issue here— in some detail. See Daggett v. Comm'n on Governmental Ethics & Election Practices, 205 F.3d 445, 450-52 (1st Cir.2000). The provisions challenged here, all relating solely to reporting and disclosure, fall into three categories: rules governing PACs, rules governing " independent expenditures," and general attribution and disclaimer requirements.

1. PAC Provisions

Maine's PAC provisions are, as the appellees aptly characterize them, " pure disclosure laws." Maine imposes no limitation on the amount of money PACs may

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raise, nor does it cap the sum a PAC may spend independently of a candidate or candidate committee. If they contribute money directly to a candidate, PACs are subject to the same per-candidate contribution limits— $750 per election for gubernatorial candidates and $350 per election for legislative candidates— as any other donor. See Me.Rev.Stat. tit. 21-A, § 1015(1), (2). The only PAC-specific requirements relate to registration, recordkeeping, and reporting.

An organization may qualify as a PAC under Maine law in one of several ways, of which two are relevant here. The first pertains to so-called " major-purpose" PACs. An organization that " has as its major purpose initiating, promoting, defeating or influencing a candidate election, campaign or ballot question" must register as a PAC in Maine if it receives contributions or makes expenditures aggregating more than $1,500 in a given calendar year for that purpose. Id. §§ 1052(5)(A)(4), 1053. The second relates to " non-major-purpose PACs," which are subject to a significantly higher contribution/expenditure threshold for registration. Specifically, Maine law requires that an organization register as a PAC if it " does not have as its major purpose promoting, defeating or influencing candidate elections but ... receives contributions or makes expenditures aggregating more than $5,000 in a calendar year for the purpose of promoting, defeating or influencing in any way the nomination or election of any candidate to political office." Id. §§ 1052(5)(A)(5), 1053.

Within seven days of exceeding the relevant contribution or expenditure threshold, a PAC must register with the Maine Commission on Governmental Ethics and Election Practices (the " Commission" ). Id. § 1053. Registration requires that the organization supply a name and address for the PAC; identify its form of organization and date of origin; name its treasurer, principal officers, and primary fundraisers and decisionmakers; and indicate which candidates, committees, referenda, or campaigns it supports or opposes. Id. An organization need not make any formal changes, such as forming a separate legal entity or creating a segregated fund, to operate as a PAC in Maine.

Once registered, a PAC is subject to two ongoing obligations under Maine law. First, the PAC treasurer must maintain records of certain election-related expenditures and contributions for four years following the election to which the records pertain. Id. § 1057. Second, the PAC must electronically file campaign finance reports on a quarterly basis, with additional reports due eleven days before any primary or general election and forty-two days after. Id. § 1059. The contents of the report vary by type of PAC. A major-purpose PAC must report any contribution to the PAC of more than $50 (including the name, address, occupation, and place of business of the contributor), while a non-major-purpose PAC reports only those contributions made " for the purpose of promoting, defeating or influencing a ballot question or the nomination or election of a candidate to political office." Id. § 1060(6). The reporting of expenditures breaks down along similar lines: major-purpose PACs report all expenditures, including operational and administrative expenses, whereas non-major-purpose PACs report " only those expenditures made for the purpose of promoting, defeating or influencing a ballot question or the nomination or election of a candidate to political office." Id. § 1060(4), (5), (7).

Maine law also explicitly requires PACs that are organized in another state to comply with all applicable registration and reporting requirements. See id. § 1053-B.

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There is, however, a narrow exemption: out-of-state PACs may contribute to candidates, party committees, and PACs in Maine without registering with the Commission, provided that (1) such contributions are the out-of-state PAC's only financial activity within Maine and (2) the out-of-state PAC " has not raised and accepted any contributions during the calendar year to influence an election or campaign" in Maine. Id.

2. " Independent Expenditure" Provision

In addition to its PAC-specific requirements, Maine's election laws also require across-the-board reporting of certain " independent expenditures." At a general level, an " independent expenditure" is any payment or obligation made " for the purpose of influencing the nomination or election of any person to political office" other than a direct contribution to candidates and their campaign committees. Id. §§ 1012(3), 1019-B(1). Maine law provides that any individual or entity making independent...

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