Nat'l Org. for Marriage, Inc. v. McKee, 11–1196.

• Citation: 669 F.3d 34
• Decision Date: 31 January 2012
• Docket Number: No. 11–1196.,11–1196.
• Parties: NATIONAL ORGANIZATION FOR MARRIAGE, INC., and American Principles in Action, Inc., Plaintiffs, Appellants, v. Walter F. McKEE, et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

669 F.3d 34

NATIONAL ORGANIZATION FOR MARRIAGE, INC., and American Principles in Action, Inc., Plaintiffs, Appellants,
v.
Walter F. McKEE, et al., Defendants, Appellees.

No. 11–1196.

United States Court of Appeals, First Circuit.

Heard Sept. 14, 2011.Decided Jan. 31, 2012.

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James Bopp, Jr., with whom Stephen C. Whiting, The Whiting Law Firm, Randy Elf, Jeffrey A. Gallant, Josiah S. Neeley, and James Madison Center for Free Speech were on brief, for appellants.

Thomas A. Knowlton, Assistant Attorney General, with whom Phyllis Gardiner, Assistant Attorney General, was on brief, for appellees.

Mary L. Bonauto, Catherine R. Connors, and Pierce Atwood LLP on brief for Amicus Gay & Lesbian Advocates & Defenders.

Before BOUDIN, SELYA, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

This appeal presents the second chapter of a lawsuit challenging the constitutionality

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of Maine laws imposing registration and disclosure requirements on entities that finance election-related advocacy. In a recent decision, we rejected claims made by one of the appellants here, the National Organization for Marriage (“NOM”), asserting that Maine's laws regulating political action committees (“PACs”) are unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments. See NOM v. McKee, 649 F.3d 34 (1st Cir.2011) (“ NOM I ”). We now consider similar contentions raised by NOM and co-appellant American Principles in Action, Inc. (“APIA”) concerning the law applicable to ballot question committees (“BQCs”). See Me.Rev.Stat. Ann. tit. 21–A, § 1056–B. Our decision in NOM I effectively disposes of most of appellants' challenges to Maine's BQC requirements. On the only substantively distinct issue—the constitutionality of the definition of “contribution” in section 1056–B—we conclude that the BQC law, like the PAC laws, is constitutional. We thus affirm in its entirety the district court's grant of summary judgment for the defendants.

I. A. The BQC Law: Section 1056–B

Maine's BQC law, section 1056–B, imposes disclosure and reporting requirements on certain individuals and organizations that “receive [ ] contributions or make[ ] expenditures,” other than through PACs, “for the purpose of initiating or influencing a [ballot-measure] campaign.” See Me.Rev.Stat. Ann. tit. 21–A, § 1056–B.¹ Individuals and groups who receive or make aggregate contributions or expenditures in excess of $5,000 for such a purpose are required to file periodic reports with the Commission on Governmental Ethics and Election Practices (“Commission”). Id. §§ 1001(1), 1056–B. They must register with the Commission as a BQC within seven days of reaching the $5,000 threshold, and the information provided on the registration form “must include specification of a treasurer for the committee, any other principal officers and all individuals who are the primary fund-raisers and decision makers for the committee.” Id. § 1056–B. The statute requires BQCs to report contributions from, and expenditures to, “a single source aggregating in excess of $100 in any election.” Id. § 1056–B(2).

Under section 1056–B(2–A), a contribution is defined to include:

A. Funds that the contributor specified were given in connection with a campaign;

B. Funds provided in response to a solicitation that would lead the contributor to believe that the funds would be used specifically for the purpose of initiating or influencing a campaign;

C. Funds that can reasonably be determined to have been provided by the contributor for the purpose of initiating or influencing a campaign when viewed in the context of the contribution and the recipient's activities regarding a campaign; and

D. Funds or transfers from the general treasury of an organization filing a ballot question report.

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Persons or organizations filing reports under section 1056–B must keep detailed records for four years following the election to which the records pertain, including “a detailed account of all contributions made to the filer for the purpose of initiating or influencing a campaign and all expenditures made for those purposes.” Id. § 1056–B(4)(A).

B. Procedural Background

Section 1056–B was the original target of a complaint filed by NOM and APIA in October 2009, shortly before an election in which Maine voters were asked in a ballot question whether a recent law permitting same-sex marriage in Maine should be overturned. NOM is a national nonprofit advocacy organization “dedicated to providing ‘organized opposition to same-sex marriage in state legislatures,’ ” NOM I, 649 F.3d at 48, and it played a substantial role in Maine's same-sex marriage referendum campaign, see Nat'l Org. for Marriage v. McKee, 765 F.Supp.2d 38, 43 (D.Me.2011).² APIA, also a nonprofit advocacy organization that operates nationwide, is “dedicated to promoting equality of opportunity and ordered liberty.” Second Am. Compl. (“Compl.”), ¶ 7. Their complaint asserted that section 1056–B should be found unconstitutional on multiple grounds: (1) it imposes substantial burdens on political speech and association without adequate justification, (2) it improperly requires entities to register as BQCs without regard to whether their major purpose is the passage or defeat of a ballot measure, (3) its definition of “contribution” is unconstitutionally vague and overbroad, and (4) the $100 reporting threshold is not narrowly tailored to satisfy any compelling government interest.

After the district court denied the plaintiffs' motion for a temporary restraining order, see Nat'l Org. for Marriage v. McKee, 666 F.Supp.2d 193 (D.Me.2009), NOM amended the complaint to add claims targeting the constitutionality of Maine's PAC registration, independent expenditure, and attribution and disclaimer laws, NOM I, 649 F.3d at 44. Those additional claims, pursued only by NOM, were resolved by the district court in August 2010, and we reviewed its PAC rulings in our decision in NOM I. Although we describe certain of our NOM I holdings in more detail below, it suffices to say for now that we rejected all of NOM's claims on appeal and upheld the constitutionality of the challenged PAC statutes.³

Meanwhile, the parties filed cross-motions for summary judgment on the original claims challenging the BQC law. While the ruling on the PAC claims was pending on appeal, the district court issued a thoughtful decision granting the defendants' motion for summary judgment on the BQC claims and denying the plaintiffs' parallel motion. See Nat'l Org. for Marriage, 765 F.Supp.2d at 53.⁴ It concluded that: (1) the BQC registration and reporting requirements are not unconstitutionally burdensome and are justified by the State's compelling interest in “provid[ing] important information to Maine voters

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about the interest groups that are attempting to influence the outcome of a ballot question,” id. at 46; (2) the “major purpose test” adopted by the Supreme Court in the context of federal regulations is inapplicable in “this quite different area of state regulation of ballot questions,” id. at 49; (3) the definition of “contribution” is neither vague nor overbroad, id. at 50–52; and (4) the $100 reporting threshold “is substantially related to Maine's compelling interest in informing voters and narrowly tailored to avoid unnecessary impositions on associational rights,” id. at 53.

We decided NOM I in the interim between the district court's February ruling on the BQC provision and the parties' oral argument in this appeal. As we describe in Section II, with the exception of appellants' challenges to the statute's definition of “contribution,” our decision in NOM I largely disposes of appellants' contentions concerning the BQC statute. We thus address those issues only briefly before considering appellants' arguments concerning section 1056–B's definition of “contribution.”

II. A. First Amendment Overbreadth Challenge

Appellants argue that, under Supreme Court precedent, Maine may define an entity as a BQC—thus triggering what they characterize as the “onerous” requirements of BQC status—only if the entity is under the control of a candidate for state or local office or has as its “major purpose” the passage or defeat of a ballot measure in Maine.⁵ They maintain that section 1056–B is unconstitutionally overbroad because it reaches entities outside that “limited zone of permissible regulation.” NOM I, 649 F.3d at 58–59.

This thesis, embracing the first two claims addressed by the district court, is essentially the same argument we rejected in NOM I with respect to similar disclosure and reporting requirements for PACs.⁶ As an initial matter in NOM I, we discredited NOM's assertion that its constitutional challenge did not arise from the reporting and disclosure requirements per se, but from the statutory definition of a PAC that determines whether a particular entity is subject to the requirements. We noted that “[i]t is not the designation as a PAC but rather the obligations that attend PAC designation that matter for purposes of First Amendment review.” Id. at 56. Thus, we rejected “the claim that PAC status is somehow inherently burdensome apart from the specific requirements it entails.” Id. at 58.

Turning to the obligations themselves, we concluded that the “exacting scrutiny”

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standard applied to our review of the statute, rather than the more rigorous strict scrutiny standard. That is so because the provision “do [es] not prohibit, limit, or impose any onerous burdens on speech, but merely require[s] the maintenance and disclosure of certain financial information.” Id. at 56. We rejected the relevance of the Buckley “major purpose” test—as it was merely “an artifact of the Court's construction of a federal statute,” id. at 59—and concluded that the PAC statute survived exacting scrutiny based on the government's “compelling interest in identifying the speakers behind politically oriented messages,” id. at...