Ctr. for Individual Freedom, Inc. v. Tennant

Citation706 F.3d 270
Decision Date18 January 2013
Docket NumberNos. 11–1952,11–1993.,s. 11–1952
PartiesCENTER FOR INDIVIDUAL FREEDOM, INCORPORATED; West Virginians for Life, Incorporated; Zane Lawhorn, Plaintiffs–Appellees, v. Natalie H. TENNANT, Secretary of the State of West Virginia and as a member of the West Virginia State Election Commission; Gary Collias; William N. Renzelli; Robert Rupp; Cindy Smith, in their official capacities as members of the West Virginia State Election Commission; Scott Ash, Prosecuting Attorney for Mercer County, as a representative of the class of Prosecuting Attorneys in the State of West Virginia, Defendants–Appellants, and West Virginia Education Association; West Virginia American Federation of Labor and Congress of Industrial Organizations; Bob Bastress; Margaret L. Workman; Menis Elbert Ketchum, Intervenors/Defendants. Brennan Center for Justice at NYU School of Law; Ohio Valley Environmental Coalition; West Virginia Citizens for Clean Elections; League of Women Voters of West Virginia; West Virginia Citizen Action Group, Amici Supporting Appellants. Center for Individual Freedom, Incorporated, Plaintiff–Appellant, and West Virginians for Life, Incorporated; Zane Lawhorn, Plaintiffs, v. Natalie H. Tennant, Secretary of the State of West Virginia and as a member of the West Virginia State Election Commission; Gary Collias; William N. Renzelli; Robert Rupp; Cindy Smith, in their official capacities as members of the West Virginia State Election Commission; Scott Ash, Prosecuting Attorney for Mercer County, as a representative of the class of Prosecuting Attorneys in the State of West Virginia, Defendants–Appellees, and West Virginia Education Association; West Virginia American Federation of Labor and Congress of Industrial Organizations; Bob Bastress; Margaret L. Workman; Menis Elbert Ketchum, Intervenors/Defendants. Brennan Center for Justice at NYU School of Law; Ohio Valley Environmental Coalition; West Virginia Citizens for Clean Elections; League of Women Voters of West Virginia; West Virginia Citizen Action Group, Amici Supporting Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

OPINION TEXT STARTS HERE

Held Unconstitutional

West's Ann.W.Va.Code, 3–8–1a(11), (11)(B)(iv)

Recognized as Invalid

2 U.S.C.A. § 441b(b)(2)ARGUED:Anthony J. Majestro, Powell & Majestro, PLLC, Charleston, West Virginia, for Natalie H. Tennant, Gary Collias, William N. Renzelli, Robert Rupp, Cindy Smith, and Scott Ash. James Bopp, Jr., The Bopp Law Firm, Terre Haute, Indiana; Thomas W. Kirby, Wiley Rein, LLP, Washington, D.C., for Center for Individual Freedom, Incorporated, West Virginians for Life, Incorporated, and Zane Lawhorn. ON BRIEF:Silas B. Taylor, Senior Deputy Attorney General, Office of the Attorney General of West Virginia, Charleston, West Virginia, for Natalie H. Tennant, Gary Collias, William N. Renzelli, Robert Rupp, and Cindy Smith; Nicholas S. Preservati, Charleston, West Virginia, for Scott Ash. Andrew G. Woodson, Wiley Rein, LLP, Washington, D.C., for Center for Individual Freedom, Incorporated. Randy Elf, James Madison Center for Free Speech, Terre Haute, Indiana, for West Virginians for Life, Incorporated, and Zane Lawhorn. David S. Turetsky, Mark Walsh, J. Porter Wiseman, Dewey & Leboeuf LLP, Washington, D.C.; Mark Ladov, Mimi Marziani, Adam Skaggs, David Earley, The Brennan Center for Justice at NYU, New York, New York, for Amici Curiae.

Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge FLOYD wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

OPINION

FLOYD, Circuit Judge:

The First Amendment provides that Congress shall make no law ... abridging the freedom of speech.” U.S. Const. amend. I. In its now-famous Citizens United v. FEC decision, the Supreme Court recognized that the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office.” 558 U.S. 310, 130 S.Ct. 876, 898, 175 L.Ed.2d 753 (2010) (quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)) (internal quotation marks omitted). However, at the same time, the Supreme Court has emphasized the importance of providing the electorate with information about the source of campaign spending—even when these disclosure requirements burden election-related speech. See, e.g., McConnell v. FEC, 540 U.S. 93, 196, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled on other grounds by Citizens United, 558 U.S. 310, 130 S.Ct. 876;Buckley v. Valeo, 424 U.S. 1, 64, 66–67, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). In this case, we confront the delicate balance between protecting political speech and informing the electorate about the organizations that bankroll modern elections. Specifically, we consider whether West Virginia's campaign-finance reporting and disclaimer requirements can survive constitutional scrutiny.

Appellee and Cross–Appellant Center for Individual Freedom (CFIF) and Appellee West Virginians for Life (WVFL) are § 501(c)(4) organizations that engage in election-related speech. These organizations and Zane Lawhorn 1—a West Virginia resident who wishes to receive WVFL's communications—brought suit against West Virginia's secretary of state, members of the West Virginia State Election Commission, and a class of West Virginia's prosecuting attorneys, alleging that West Virginia's campaign finance statutes were constitutionally impermissible. The district court struck down some of the provisions and upheld other portions of the statutory scheme, and both West Virginia 2 and CFIF appealed. We now affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.
A.

Following the 2004 election, the West Virginia legislature acted to strengthen the state's election statutes due to an “explosion of expenditures by groups independent of candidates.” These new laws required organizations to file reports with the West Virginia secretary of state and include disclaimers on their communications when they made certain election-related expenditures and engaged in campaign-related speech. CFIF and WVFL filed separate challenges to the new laws, alleging that they feared prosecution under the statutes because they disseminated communications that fell within the laws' scope but were unwilling to disclose the sources of their contributions.

CFIF's mission “is to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.” CFIF plans to use broadcast media, print media, and telephone banks “to speak to the public in the Southern District of West Virginia on matters of litigation reform and related justice issues, including criminal law enforcement and sentencing, legal reform, and judicial decision-making.” To this end, CFIF will “refer to West Virginia candidates to illustrate its points and ask members of the public to contact the candidates and petition them to take or maintain certain positions.” WVFL, in turn, aims “to present information upon which individuals and the general public may make informed decisions about such topics as fetal development, abortion and its alternatives, and euthanasia.” To further this purpose, “WVFL has distributed candidate-comparison fliers, placed candidate comparisons in ads for newspaper and television as well as on the Internet, and issued petitions and mailings.” In sum, both CFIF and WVFL engage in election-related speech to promote their organizational goals.

B.

CFIF filed its initial complaint against Betty Ireland 3—West Virginia's secretary of state—and a class of West Virginia's prosecuting attorneys on March 21, 2008, challenging West Virginia's reporting and disclaimer requirements for (1) expenses associated with “advocating or opposing the nomination, election or defeat of any candidate;” (2) expenditures “in support of or opposition to the nomination or election” of a candidate; and (3) “electioneering communication.” By order, the district court permitted the West Virginia Education Association (WVEA), the West Virginia American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), Robert M. Bastress, Jr., Margaret L. Workman, and Menis E. Ketchum to intervene as defendants. The West Virginia AFL–CIO and WVEA intervened due to their “concrete interests, distinct from those of other parties, in upholding the West Virginia campaign finance provisions at issue.” Bastress, Workman, and Ketchum were each seeking nomination for election to a seat on the West Virginia Supreme Court of Appeals and alleged that CFIF had targeted them through its communications.

On April 22, 2008, the district court entered an injunction preventing West Virginia from applying the campaign finance statutes to “anything other than communications that expressly advocate the election or defeat of a clearly identified candidate” and restricting the definition of “electioneering communication” to certain broadcast media. Ctr. for Individual Freedom, Inc. v. Ireland (CFIF I), No. 1:08–00190, 2008 WL 1837324, at *7 (S.D.W.Va. Apr. 22, 2008). Shortly thereafter, the West Virginia legislature amended the code sections that were the subject of the injunction, and West Virginia moved to dissolve the injunction, arguing that the amendments rendered it moot. The district court granted West Virginia's motion and directed CFIF to seek a new injunction based on the amended language.

On September 30, 2008, WVFL filed its verified complaint and motion for a preliminary injunction raising challenges to the amended statutory provisions. Specifically, WVFL challenged the statutory scheme's reporting requirements and its definitions of “electioneering communication” and “expressly advocating.” Less than a week later, CFIF filed a motion for a preliminary injunction and challenged many of the same provisions, and the district court consolidated the two cases: Center for...

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