Alaska Right to Life Committee v. Miles, 04-35599.

• Decision Date: 22 March 2006
• Docket Number: No. 04-35599.,04-35599.
• Citation: 441 F.3d 773
• Parties: ALASKA RIGHT TO LIFE COMMITTEE, Plaintiff-Appellant, v. Brooke MILES; Andrea Jacobson; Larry Wood; Mark Handley; John Dapcevich; Sheila Allaghaer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

441 F.3d 773

ALASKA RIGHT TO LIFE COMMITTEE, Plaintiff-Appellant, v. Brooke MILES; Andrea Jacobson; Larry Wood; Mark Handley; John Dapcevich; Sheila Allaghaer, Defendants-Appellees.

No. 04-35599.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2005.

Filed March 22, 2006.

COPYRIGHT MATERIAL OMITTED

Kenneth P. Jacobus, Anchorage, Alaska, Richard E. Coleson and James Bopp, Jr., Bopp Coleson & Bostrom, Terre Haute, IN, for the plaintiff-appellant.

Michael G. Mitchell, Office of the Alaska Attorney General, Anchorage, AK, for the defendants-appellees.

Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, District Judge, Presiding. D.C. No. CV-02-00274-A-RRB.

Before ALFRED T. GOODWIN, MELVIN BRUNETTI, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Alaska Right to Life Committee ("AKRTL") challenges certain aspects of Alaska's campaign finance law, Alaska Stat. § 15.13.030 et seq. Prior to the 2002 Alaska gubernatorial election, AKRTL was informed by the Alaska Public Offices Commission that if it wished to engage in "electioneering communications" as a "nongroup entity," it would have to comply with registration, reporting, notification, and disclosure-of-identity requirements. AKRTL brought suit in federal district court based on the First Amendment, seeking declaratory and injunctive relief against these requirements. On cross-motions for summary judgment, the district court upheld the Alaska law. We affirm.

I. Factual and Procedural Background

AKRTL is a nonprofit corporation headquartered in Anchorage, Alaska. It describes itself as "a membership-based association that seeks to promote its pro-life perspective to the Alaska public." It describes its major purpose as promoting "a pro-life consensus in Alaska's public through the presentation of its pro life message." It seeks to accomplish its goals through various forms of communication to the public, including a newsletter, telemarketing, and the Internet. AKRTL states that it is not affiliated with any political party, political candidate, or campaign committee.

AKRTL is affiliated with the Alaska Right to Life Political Action Committee ("AKRTL-PAC") and Alaska Right to Life, Inc. ("AKRTL Inc."). AKRTL-PAC is an advocacy organization, and AKRTL Inc. is a tax-exempt educational organization. The three entities share the same director and the same board of directors. The degree of financial separation among the three entities is unclear from the record. AKRTL-PAC is registered as a "group" with the Alaska Public Offices Commission ("APOC"), which interprets and enforces Alaska's campaign finance disclosure law. AKRTL is not registered.

Fundraising by AKRTL is primarily accomplished through telemarketing campaigns. In 2002, AKRTL developed a proposed telemarketing campaign costing more than $500 (the monetary threshold under Alaska law) that would mention candidates' names; discuss political issues that were relevant to the then-upcoming gubernatorial election on November 5, 2002; and state the candidates' position on those issues. Specific language that AKRTL planned to use in the campaign was as follows:

Alaska Right to Life is always on the forefront of implementing pro-life legislation within our state, such as banning partial birth abortion, establishing parental consent and stopping state funding. We believe these are important issues affecting all Alaskans. Frank Murkowski supports Alaska Right to Life's pro-life vision by supporting a ban on partial birth abortion, establishing parental consent and stopping state funding. But Fran Ulmer stands in opposition to these measures. Please be sure to vote.

Frank Murkowski and Fran Ulmer were, respectively, the Republican and Democratic candidates for governor in 2002.

In late September 2002, the Indiana-based lawyer now representing AKRTL made general telephone inquiries to APOC concerning Alaska's campaign finance law without revealing the identity of his client. The same lawyer made two later inquiries, again without identifying his client. Finally, on November 1, 2002, local Alaska counsel provided a draft complaint, signed by AKRTL Inc., to the Alaska Attorney General's office. The local counsel indicated that he planned to file the complaint the next day. The draft complaint asked for a temporary restraining order allowing AKRTL Inc. to engage in a telemarketing campaign prior to the November 5, 2002 election using the above-quoted language.

APOC responded by telephone and letter. The letter, dated November 1, noted that "AkRTL" (by which it appears to have meant AKRTL-PAC) had already registered under the Alaska statute. The letter also noted that the fundraising was intended to benefit "the committee" (by which it appears to have meant AKRTL). APOC approved the proposed communication on the assumption that AKRTL-PAC, which had previously registered with APOC as a "group," would be the entity making the telephone calls. APOC specified that "because the script includes an electioneering communication, the costs must be paid for with group-reported funds."

AKRTL Inc. did not file its proposed complaint on November 2. Instead, on November 4, AKRTL — not AKRTL Inc. or AKRTL-PAC — filed suit in federal district court, naming as defendants Brook Miles, Andrea Jacobson, Larry Wood, Mark Handley, John Dapcevich, and Sheila Gallagher in their official capacities as director and members of APOC (collectively "APOC"). As noted above, AKRTL (unlike AKRTL-PAC) has not registered under Alaska's campaign finance law.

AKRTL challenged five provisions of the Alaska law: (1) the definition of "electioneering communication"; (2) the requirement that it register before making campaign finance expenditures; (3) the requirement that it make reports; (4) the requirement that it notify contributors and potential contributors that their contributions may be used to influence an election; and (5) the requirement that it disclose in its communications who is paying for the communication. AKRTL contended that these provisions violate the First Amendment both facially and as applied.

The district court granted summary judgment to APOC. AKRTL appealed everything except the district court's approval of the notification requirement for contributors (issue (4), above). We have jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1291. We affirm.

II. Statutory Background

Alaska has a long history of regulating political influence and campaign finance, beginning in 1913 when the Alaska legislature passed a statute requiring lobbyists to register. 1913 Alaska Sess. Law ch. 43 § 1 (1913). In 1974, Alaska adopted a law limiting individual contributions to candidates, limiting the amount of money candidates could spend, and requiring that written receipts for all expenditures promoting candidates that exceeded $100 be filed with the state election commission. 1974 Alaska Sess. Law ch. 76 § 1 (1974).

A 1990 report commissioned by the Alaska State Senate revealed that public confidence and trust in the integrity of the legislature was "`disturbingly low'" and that this was attributable in part to "`calculated evasions of the purpose and spirit of campaign laws.'" Alaska v. Alaska Civil Liberties Union ("AKCLU"), 978 P.2d 597, 602 (Alaska 1999) (quoting the report). A former member of the State House of Representatives stated that "[t]he constant refrain I heard from citizens ... was that the Legislature was owned by special interests [and] that nothing was going to change the corruption caused by big money." Id. (internal quotation marks omitted).

In 1996, Alaska passed a comprehensive campaign reform statute, commonly referred to as SB 191. SB 191 contained a finding that "the purpose of this Act [is] to substantially revise Alaska's election campaign finance laws in order to restore the public's trust in the electoral process and to foster good government." Alaska Sess. Law ch. 48 § 1. Under SB 191, independent expenditures by an entity supporting or opposing a candidate for state office were banned unless the entity qualified as a "group." AKCLU, 978 P.2d at 607-08. A "group" was defined as "any combination of two or more individuals acting jointly who organize for the principal purpose of influencing the outcome of one or more elections and who take action the major purpose of which is to influence the outcome of an election." Id. at 608 n. 65. All entities not qualifying as "groups" were banned from making such independent expenditures.

In 1999, the Supreme Court of Alaska upheld most of SB 191 in AKCLU. The court upheld the ban on expenditures by what it called "nongroup entities," but only after defining that term narrowly. Guided by the United States Supreme Court's decisions in Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986), and Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), the Alaska court defined "nongroup entities" as "organizations potentially able to amass great wealth through state-created advantages." AKCLU, 978 P.2d at 611-12. Included in the court's definition of "nongroup entities" were corporations and labor unions. 978 P.2d at 607-08. Excluded from its definition were entities that "(1) ... cannot participate in business activities, (2)... have no shareholders who have a claim on corporate earnings, and (3) ... are independent from the influence of business corporations." The court held that "nongroup entities," so defined, could constitutionally be banned from making independent expenditures to support or oppose candidates. Id. at 612. Entities excluded from the court's definition of "non-group entities" were not banned by the statute from making such expenditures. Id. at 611-12.

A separate challenge to SB 191 was brought in federal district court. The district court stayed proceedings...