Gaspee Project v. Mederos

• Decision Date: 28 August 2020
• Docket Number: C.A. No. 1:19-CV-00609-MSM-LDA
• Citation: 482 F.Supp.3d 11
• Parties: The GASPEE PROJECT and Illinois Opportunity Project, Plaintiffs, v. Diane C. MEDEROS, Stephen P. Erickson, Jennifer L. Johnson, Richard H. Pierce, Isadore S. Ramos, David H. Sholes, and William West, in their official capacities as members of the Rhode Island State Board of Elections, Defendants.
• Court: U.S. District Court — District of Rhode Island

482 F.Supp.3d 11

The GASPEE PROJECT and Illinois Opportunity Project, Plaintiffs,

v.Diane C. MEDEROS, Stephen P. Erickson, Jennifer L. Johnson, Richard H. Pierce, Isadore S. Ramos, David H. Sholes, and William West, in their official capacities as members of the Rhode Island State Board of Elections, Defendants.

C.A. No. 1:19-CV-00609-MSM-LDA

United States District Court, D. Rhode Island.

Signed August 28, 2020

Caroline R. Thibeault, Joseph S. Larisa, Jr., Larisa Law, Robert G. Flanders, Jr., Whelan, Corrente, Flanders, Kinder & Siket LLP, Providence, RI, Jeffrey M. Schwab, Pro Hac Vice, Brian Kelsey, Pro Hac Vice, Daniel R. Suhr, Pro Hac Vice, Liberty Justice Center, Chicago, IL, for Plaintiffs.

Katherine Connolly Sadeck, Keith David Hoffmann, Sean H. Lyness, Rhode Island Office of the Attorney General, Raymond A. Marcaccio, Oliverio & Marcaccio, LLP, Providence, RI, for Defendants.

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

The plaintiffs, the Gaspee Project and Illinois Opportunity Project, have filed this action under 42 U.S.C. § 1983 asserting that the disclosure and disclaimer provisions of Rhode Island's Independent Expenditures and Electioneering Communications for Elections Act, R.I.G.L. § 17-25.3-1 et seq. ("the Act"), are facially violative of the First and Fourteenth Amendments to the United States Constitution. The defendants, the members of the Rhode Island Board of Elections (collectively, "the Board"), have filed a Motion to Dismiss the plaintiffs’ Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), asserting that the Act's requirements contested here—the disclosure of donations in excess of a certain threshold, the disclaimer of sponsorship of electioneering, and the disclosure of top donors—are constitutionally permissible.

The avowed governmental purpose for these requirements is for an electorate that is informed and aware of who or what is spending money in its elections. It is for the Court to determine whether this state interest is sufficiently important to impose the Act's burdens on political speech and whether those burdens are substantially related to achieving that end.

The Court determines that the Act meets the applicable standard of constitutional review and, for the following reasons, GRANTS the Board's Motion to Dismiss (ECF No. 22).

I. BACKGROUND

A. The Rhode Island Independent Expenditures and Electioneering Communications Act

Passed in 2012, the Act makes clear that it is lawful for a person, business entity, or political action committee to spend money in elections. R.I.G.L. § 17-25.3-1(a). But any "independent expenditure" or "electioneering communication" where the money spent exceeds $1,000 within a calendar year, must be reported to the Board, along with certain specified information about the entities and the donors. R.I.G.L. § 17-25.3-1(b), (h). The Act defines these two key phrases as follows:¹

• "Independent expenditure" is as any spending that "when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or the passage or defeat of a referendum...." R.I.G.L. § 17-25-3(17).

• "Electioneering communication" is print, broadcast, cable, satellite, or electronic media communication that "unambiguously identifies a candidate or referendum" and is made "sixty (60) days before a general or special election or town meeting" or "thirty (30) days before a primary election" and "is targeted to the relevant electorate." R.I.G.L. § 17-25-3(16). A communication is "targeted to the relevant electorate" if it "can be received by two thousand (2,000) or more persons in the district the candidate seeks to represent or the constituency voting on the referendum." R.I.G.L. § 17-25-3(16)(i).

The required report to the Board for independent expenditures and electioneering communications where spending exceeds $1,000 in a calendar year must include the name, street address, city, state, zip code, occupation, and employer of the person responsible for the expenditure, the date and amount of each expenditure, and the year to date total.

R.I.G.L. § 17-25.3-1(f). The report must also include a statement identifying the candidate or referendum that the expenditure is intended to promote along with an affirmative statement that the expenditure is not coordinated with the campaign in question. R.I.G.L. § 17-25.3-1(g). Additionally, the report must disclose the identity of all donors of an aggregate of $1,000 or more. R.I.G.L. § 17-25.3-1(h). This report must be filed after each time the person, business entity, or political action committee makes an independent expenditure or electioneering communication of, in the aggregate, an additional $1,000. R.I.G.L. § 17-25.3-1(d).

The Act also requires independent expenditures and electioneering communications to include disclaimers stating who paid for the communication. R.I.G.L. § 17-25.3-3(a). This includes a message stating "I am ___(name of entity's chief executive officer or equivalent), and ___ (title) of ____ (entity), and I approved its content." R.I.G.L. § 17-25.3-3(c). Additionally, tax-exempt organizations under § 501(c) of the Internal Revenue Code and other exempt nonprofits² that "make or incur or fund an electioneering communication for any written, typed, or printed communication" must include on the communication a list of their top five donors during the one-year period prior to the date of the communication. R.I.G.L. § 17-25.3-3(a).

Only money contributed for the purposes of independent expenditures or electioneering communications must be reported as such.³ Should a donor prefer; donations can be expressly conditioned on non-use for independent expenditures or electioneering communications. R.I.G.L. § 17-25.3-1(i). The receiving entity must then certify that the donation will not be used as such and the donor "will not be required to appear in the list of donors." R.I.G.L. § 17-25.3-1(i)(2) ; see also R.I.G.L. § 17-25.3-3(a) (exempting opt-out donors from being listed as a top five donor).

B. The Plaintiffs’ Amended Complaint

The plaintiffs are 501(c)(4) organizations that plan to spend thousands of dollars on Rhode Island elections. (ECF No. 20 ¶¶ 7, 8, 28, 29.) The plaintiffs wish to do so anonymously, without the required disclosures, because they "are concerned that compelled disclosure of their members and supporters could lead to substantial personal and economic repercussions" such as "harassment, career damage, and even death threats for engaging and expressing their views in the public square." Id. ¶ 35.

The plaintiffs therefore have filed suit against the Board under 42 U.S.C. § 1983, asserting the following:

Count I: That R.I.G.L. § 17-25.3-1(h), requiring the plaintiffs to disclose to the Board their members and supporters contributing $1,000 or more, is a violation of their First Amendment right to organizational privacy;

Count II: That R.I.G.L. §§ 17-25.3-1, 3, requiring the plaintiffs to disclose their sponsorship, is a violation of their First Amendment right to anonymity in their free speech; and

Count III: That R.I.G.L. § 17-25.3-3, requiring the plaintiffs to disclose their top five donors, violates their First Amendment right against compelled speech.

The plaintiffs confirmed at oral argument that their claims are a facial challenge to the constitutionality of the Act. See also ECF No. 20 at 14 (plaintiffs’ Amended Complaint seeking to enjoin the Board from enforcing the Act "against Plaintiffs and other organizations that engage solely in issue advocacy") (emphasis added). A facial challenge is not limited to a plaintiff's particular case and can only succeed where the plaintiff establishes "that no set of circumstances exists under which the Act would be valid." John Doe No. 1 v. Reed , 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) ; United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ; see also Naser Jewelers, Inc. v. City Of Concord, N.H. , 513 F.3d 27, 33 (1st Cir. 2008) ("In a facial attack case, it is plaintiff's burden to show that the law has no constitutional application."). A facial challenge requires from a court a cautious approach because it "threaten[s] to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." Ayotte v. Planned Parenthood of N. New Eng. , 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006).

II. MOTION TO DISMISS STANDARD

To survive a motion to dismiss, a complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court assesses the sufficiency of the plaintiff's factual allegations in a two-step process. See Ocasio-Herandez v. Fortuno-Burset , 640 F.3d 1, 7, 11-13 (1st Cir. 2011). "Step one: isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements." Schatz v. Republican State Leadership Comm. , 699 F.3d 50, 55 (1st Cir. 2012). "Step two: take the complaint's well-pled (i.e. , non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief." Id. "The relevant question ... in assessing plausibility is not whether the complaint makes any particular factual allegations but, rather, whether ‘the complaint warrant[s] dismissal because it failed in toto to render plaintiffs’ entitlement to relief plausible.’ " Rodriguez-Reyes v. Molina-Rodriguez , 711 F.3d 49, 55 (1st Cir. 2013) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

III. DISCUSSION

There are two preliminary issues the Court must decide to guide its constitutional analysis of the Act. First, woven into their Amended Complaint and their arguments on this motion, the plaintiffs seek to make a constitutional...