California Pro-Life Council, Inc. v. Getman

• Citation: 328 F.3d 1088
• Decision Date: 08 May 2003
• Docket Number: No. 0215378.,0215378.
• Parties: CALIFORNIA PRO-LIFE COUNCIL, INC., Plaintiff-Appellant, v. Karen GETMAN, Chairman of the Fair Political Practices Commission; William Deaver, in his official capacity as member of the Fair Political Practices Commission; Carol Scott, in her official capacity as member of the Fair Political Practices Commission; Gordana Swanson, in her official capacity as member of the Fair Political Practices Commission; Jan Scully, Sacramento County District Attorney, and representative of the class of District Attorneys in the State of California; Samuel L. Jackson, Sacramento City Attorney, and representative of the class of City Attorneys in the State of California; Bill Lockyer, Attorney General; Kathleen Richer Makel; Sheridan Downey, III; Thomas S. Knox, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

328 F.3d 1088

CALIFORNIA PRO-LIFE COUNCIL, INC., Plaintiff-Appellant, v. Karen GETMAN, Chairman of the Fair Political Practices Commission; William Deaver, in his official capacity as member of the Fair Political Practices Commission; Carol Scott, in her official capacity as member of the Fair Political Practices Commission; Gordana Swanson, in her official capacity as member of the Fair Political Practices Commission; Jan Scully, Sacramento County District Attorney, and representative of the class of District Attorneys in the State of California; Samuel L. Jackson, Sacramento City Attorney, and representative of the class of City Attorneys in the State of California; Bill Lockyer, Attorney General; Kathleen Richer Makel; Sheridan Downey, III; Thomas S. Knox, Defendants-Appellees.

No. 0215378.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2003.

Filed May 8, 2003.

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James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN, for the plaintiff-appellant.

Timothy M. Muscat, Office of the Attorney General of the State of California, Deputy Attorney General, Sacramento, California; Lawrence T. Woodlock, Fair Political Practices Commission, Sacramento, CA, for the defendants-appellees.

Christine O. Gregoire, Attorney General of the State of Washington and Shannon E. Smith, Assistant Attorney General for the State of Washington; Frankie Sue Del Papa, Attorney General for the State of Nevada; Hardy Myers, Attorney General for the State of Oregon, brief of amicus curiae in support of defendants-appellees.

Edward Lazarus, Akin, Gump, Strauss, Hauer & Feld, LLP; Nancy Northup and Deborah Goldberg, Brennan Center for Justice at NYU School of Law; Brenda Wright, National Voting Rights Institute, brief of amicus curiae in support of defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding, D.C. No. CV-00-01698-FCD.

Before: TROTT, RYMER, and TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge.

In California, when a certain amount of money is spent for the purpose of defeating or passing a voter-decided proposition, state law requires the source and amount of that contribution or expenditure to be disclosed for public scrutiny. Such disclosure is needed, California argues, to fully inform the electorate and inhibit improper election practices. See Cal. Govt.Code § 81002(a).

California Pro-Life Council (CPLC), a non-profit corporation that frequently takes a position on California propositions relating to abortion and assisted suicide, challenges the constitutionality of California's campaign finance disclosure laws. CPLC's attack is two-fold. First, CPLC contends that California ambiguously defines which political communications are subject to regulation. According to CPLC, this vague definition violates the bright-line rule of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), that only communications containing express words of advocacy may be subject to governmental regulation. Second, CPLC argues that California may not regulate ballot-measure advocacy. The argument goes that California may not, under any circumstance, compel disclosure of the source and amount of campaign contributions and expenditures made for the purpose of defeating or passing a voter-decided proposition.

We reject CPLC's first claim and hold that California's definition of "independent expenditure" is not unconstitutionally vague. We also disagree with CPLC's second argument and hold that California may regulate express ballot-measure advocacy. However, we do not determine whether California has shown a compelling interest in informing its voters of the source and amount of funds expended on express ballot-measure advocacy, or whether its scheme is narrowly enough tailored. We leave these issues to the district court on remand.

I

A

Enacted by referendum in 1974, the California Political Reform Act (PRA) generally regulates "candidates" and "committees." A "committee" is defined as any individual or group who receives political contributions of more than $1,000 for any calendar year, or makes expenditures totaling more than $1,000 for any calendar year, in order to expressly advocate the passage or defeat of a ballot measure or to advocate the election or defeat of a candidate. Cal. Govt.Code §§ 82013; 82015; 82031.

Those persons or groups who qualify as "committees" are burdened by the PRA in several ways,¹ and these obligations vary depending on whether the committee is a "recipient committee" or an "independent expenditure committee." Generally speaking, both recipient committees and independent expenditure committees must comply with the PRA's detailed reporting and disclosure requirements. See id. § 84100 et. seq.

B

CPLC, a non-profit corporation whose stated corporate purpose is "to promote the social welfare and the protection of all human life," seeks to engage in political advocacy without being burdened by the PRA disclosure and reporting scheme. Among its many activities, not all of which are political in nature, CPLC publishes voter guides. These guides report the positions of some federal and most statewide candidates on abortion-related topics. The guides also urge readers to vote for or against certain ballot initiatives that concern abortion or related subjects.

In September 2000, CPLC sued the Attorney General of California and members of the Fair Political Practices Commission ("Commission") (hereinafter collectively referred to as "California" or "State"). In a ten-count amended complaint, CPLC asked the district court to declare unconstitutional various provisions of the PRA. CPLC also requested that the Commission be enjoined from enforcing the alleged unconstitutional provisions.

In a memorandum and order filed October 24, 2000, the district court granted California's motion to dismiss several of CPLC's claims. The court held that: (1) CPLC does not have standing to challenge the PRA's regulation of candidate advocacy; and (2) CPLC failed to state a claim upon which relief may be granted when CPLC asserted that ballot-measure advocacy is absolutely protected speech.

Later, in September 2001, the parties stipulated to a dismissal of three counts.

Finally, in a memorandum and order filed January 22, 2002, the district court granted summary judgment in favor of California on CPLC's remaining claim. The court held that CPLC's challenge, on vagueness grounds, to the PRA's definition of "independent expenditure" was not constitutionally ripe for review.

CPLC filed the present appeal, raising three principal issues. CPLC first argues that its vagueness challenge to the PRA definition of "independent expenditure" is ripe for review. Though no enforcement proceedings have been initiated against CPLC for failure to comply with the PRA, CPLC contends that its speech has been chilled by the vague statute, thereby rendering its First Amendment challenge justiciable. Having established standing to raise its vagueness claim, CPLC next argues that the PRA definition of "independent expenditure" unconstitutionally appears to regulate protected issue advocacy. Finally, CPLC maintains that California may not regulate ballot-measure advocacy, even express ballot-measure advocacy, because such speech is absolutely protected by the First Amendment.

II

We must first decide which of CPLC's claims are justiciable. Applying our decision in Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir.2000) (en banc), the district court held that CPLC could not challenge — as unconstitutionally vague — the PRA's definition of "independent expenditure" as it relates to express ballot-measure advocacy. The district court reasoned that CPLC's claim was not ripe for judicial review because California never evinced an intent to prosecute CPLC for its voter publications. We review the district court's determination of standing and ripeness de novo, San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1124 (9th Cir.1996), and hold that CPLC has suffered the constitutionally sufficient injury of self-censorship, rendering its vagueness challenge to the statute, as it relates to express ballot-measure advocacy, justiciable.

A

CPLC introduced evidence before the district court that it planned to spend more than $1000 on a communication in the November 2000 general election in order to defeat California Proposition 34. The communication would not include literal, express, or explicit words of advocacy. CPLC decided against the planned expenditure because it feared that such a communication might fall within the regulatory ambit of the PRA. CPLC believed its communication would be protected issue advocacy, but it feared enforcement proceedings if it published the communication without complying with the PRA. Such a fear was reasonable, CPLC argues, because the plain language of the PRA purports to regulate those communications that, when "taken as a whole and in context, unambiguously urge[] a particular result in an election." Cal. Govt.Code § 82031. Thus, the statute appears to regulate even those communications that do not contain express words of advocacy. CPLC contends that it has suffered the injury of self-censorship as a result of this vague statutory language.

To satisfy the Article III case or controversy requirement, CPLC must establish, among other things, that it has suffered a constitutionally cognizable injury-in-fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (explaining that the "irreducible constitutional minimum of standing contains three elements": (1) an injury-in-fact, (2) causation, and (3) a likelihood that a favorable decision will redress plaintiff's injury). In deciding whether CPLC has suffered an injury-in-fact making this case justiciable, we...