Rio Grande Found. v. City of Santa Fe

• Citation: 437 F.Supp.3d 1051
• Decision Date: 29 January 2020
• Docket Number: No. Civ. 1:17-cv-00768-JCH-CG,Civ. 1:17-cv-00768-JCH-CG
• Parties: RIO GRANDE FOUNDATION, Plaintiff, v. CITY OF SANTA FE, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

437 F.Supp.3d 1051

RIO GRANDE FOUNDATION, Plaintiff,

v.CITY OF SANTA FE, et al., Defendants.

No. Civ. 1:17-cv-00768-JCH-CG

United States District Court, D. New Mexico.

Filed January 29, 2020

Jonathan Riches, Matthew R. Miller, Goldwater Institute, Phoenix, AZ, Jordy Lior Stern, Colin Lambert Hunter, Barnett Law Firm, P.A., Albuquerque, NM, for Plaintiff.

Marcos D. Martinez, City of Santa Fe, Santa Fe, NM, Megan McAllen, Tara Malloy, The Campaign Legal Center, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

JUDITH C. HERRERA, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the Court on (i) the Motion for Summary Judgment (ECF No. 39) filed by Defendants City of Santa Fe, New Mexico, ("Santa Fe" or the "City") and City of Santa Fe Ethics and Campaign Review Board ("ECRB"), collectively "Defendants," and (ii) the Motion for Summary Judgment (ECF No. 40) filed by Plaintiff Rio Grande Foundation ("Plaintiff" or "RGF"). The motions have been fully briefed. Additionally, this Court granted permission for the Brennan Center and ten other amici to file an amici curiae brief in support of Defendants' motion for summary judgment. The Court, having considered the cross motions for summary judgment, the parties' briefs, the amici brief, the evidence, relevant law, and otherwise being fully advised, concludes that Defendants' motion for summary judgment should be granted, and Plaintiff's motion should be denied.

I. INTRODUCTION

This case presents colliding interests of constitutional significance – a person's or collection of persons' rights to donate anonymously for speech on ballot issues against the electorate's right to know who is spending money and in what amounts advocating for or against ballot measures. On the one hand, encouraging discourse and testing the merits of a person or group's thoughts and arguments in the court of public opinion is essential to a functioning democracy, and the source of the message should carry less weight than the merits of the ideas. As the Supreme Court has stated, "[a]nonymity ... provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent." McIntyre v. Ohio Elections Com'n , 514 U.S. 334, 342, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).¹ Anonymity also enables speakers concerned for their own safety, economic security, or social standing to speak on issues without concern that they may incur personal or financial harm from opponents of their speech. The First Amendment protects unpopular individuals from retaliation and the suppression of their ideas by an intolerant society. Id. at 357, 115 S.Ct. 1511. "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." NAACP v. Alabama , 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). "[F]orbidding anonymous political advertising reduces the amount of political advertising because some would-be advertisers are unwilling to reveal their identity." Majors , 361 F.3d at 352.

On the other hand, bringing more transparency and informing the electorate of special interests seeking to influence ballot measures helps citizens evaluate who stands to gain and lose from proposed legislation. State and local governments have passed disclosure requirements to try to limit the impact of "dark money" and the disproportionate effect that wealthy individuals or entities may have on an election. As the Supreme Court has noted, "[i]dentification of the source of advertising may be required as a means of disclosure, so that people will be able to evaluate the arguments to which they are being subjected." First Nat. Bank of Boston v. Bellotti , 435 U.S. 765, 792 n.32, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

In its efforts to bring transparency to independent spending in local elections, Santa Fe has attempted to craft a disclosure law that will not offend First Amendment rights and withstand constitutional scrutiny. Plaintiff Rio Grande Foundation nonetheless asks this Court to declare Santa Fe City Campaign Code § 9-2.6 unconstitutional on its face and as applied to nonprofit speech about municipal ballot measures and to permanently enjoin its enforcement by Defendants. At a minimum, RGF asks the Court to find that RGF and similarly situated nonprofit groups should be protected from involuntary donor disclosure, but RGF urges the Court to rule more expansively that all nonprofits are protected from involuntary donor disclosure when they speak about ballot measures. Pl.'s Resp. 5, ECF No. 45 at 9 of 31.

II. FACTUAL BACKGROUND

A. Undisputed Facts²

Santa Fe, a municipal charter city in New Mexico, administers local elections pursuant to the City Charter and the Santa Fe City Code of 1987 ("SFCC"). Defs.' Mot. for Summ. J. ("MSJ"), Undisputed Fact ("UF") ¶ 1, ECF No. 39. Santa Fe has an estimated total population of 82,927 persons and a voting age population of 58,453. Id. UF ¶ 8.

The ECRB for Santa Fe promotes and enforces compliance with the City's Campaign Code (Section 9-2), the Public Campaign Finance Code (Section 9-3), and the Code of Ethics (Section 1.7). Id. UF ¶ 2. The stated purpose of the Campaign Code is to promote public confidence in city government, fully disclose campaign contributions and expenditures to the public, and encourage the widest participation by the public in the electoral process by reducing candidates' dependence on large contributions. SFCC § 9-2.2(A), (B), and (D). The City determined that the "public's right to know how political campaigns are financed far outweighs any right that this matter remain secret and private." Id. § 9-2.2(C).

Subsection 9-2.6 of the Campaign Code was enacted in 2005 and amended in 2007, 2013, and 2015. Defs.' UF ¶ 3, ECF No. 39. After the 2014 elections, the ECRB concluded that adjustments to the Campaign Code's disclosure requirements were necessary to ensure voters were informed about the funding sources of outside groups trying to influence their votes. See id. UF ¶ 6. City residents expressed concerns about potential coordination between outside groups and candidates and about the lack of transparency regarding outside groups' funding sources. Id. UF ¶ 17. The ECRB held eight public meetings and referred proposed changes to the City Council. Id. UF ¶ 19. After receiving the ECRB's recommendations, in 2015 the City Council adopted changes to the Campaign Code. See id. UF ¶¶ 7, 19.

As relevant here, post-2015 amendments, Subsection 9-2.6 of the SFCC provides:

9-2.6 Independently Sponsored Campaign Communications and Reporting.

A. Any person or entity that makes expenditures of two hundred fifty dollars ($250) or more in the aggregate during a single election to pay for any form of public communication including print, broadcast, cable or electronic advertising, billboards, signs, pamphlets, mass mailers, mass electronic mail, recorded phone messages, organized phone-banking or organized precinct-walking, that is disseminated to one-hundred (100) or more eligible voters, and that either expressly advocates ... the approval or defeat of a ballot proposition; or refers to a clearly identifiable candidate or ballot proposition within sixty (60) days before an election at which the ... proposition is on the ballot, shall thereafter on each of the days prescribed for the filing of campaign finance statements, file with the city clerk a report of all such expenditures made and all contributions received for the purpose of paying for such expenditures on or before the date of the report and which have not been previously reported. Each report shall be submitted on a form prescribed by the city clerk. Contributions shall be specified by date, amount of contribution, name, address and occupation of the person or entity from whom the contribution was made.... Expenditures shall be specified by date, the amount of the expenditure, the name and address of the person or entity where an expenditure was made and the purpose of the expenditure....

SFCC § 9-2.6(A) (italics added). The report must also include the name of the president, chief executive officer, or equivalent position and the entity's address. SFCC § 9-2.6(C)-(D). If a person or entity subject to subsection A "receives contributions from another entity that does not have to disclose its contributors to the city clerk", then the entity subject to subsection A must place the following disclosure on campaign materials: "This campaign material is supported in part by donations from an organization that is not required to disclose its contributors to the Santa Fe city clerk." SFCC § 9-2.6(B). News media organizations are exempt from the reporting requirements. SFCC § 9-2.6(A). Santa Fe makes these reports available to the public. Dep. of Justin Miller 25:7-14, ECF No. 40-1.

Under the ordinance, a person or entity that spends more than $250 to support or oppose a ballot measure only needs to report donations that were specifically earmarked to pay for those communications. See id. 23:11-25. An entity does not need to report non-earmarked, general donations. See id.

The SFCC also gives the ECRB powers to sanction persons or entities who violate the Code of Ethics, the Campaign Code, or the Public Campaign Finance Code, following a hearing. See SFCC § 6-16.7(B). Sanctions may include imposition of a fine not to exceed $500.00 per violation and each day of a continuing violation may be deemed a separate offense. SFCC § 6-16.7(B)(2). Additional authority is bestowed on the city clerk to assess a fine of $100.00 for unexcused late filing of campaign finance statements. See SFCC § 6-16.7(A) and § 9-2.10.

RGF is an Albuquerque-based non-profit corporation founded in 2000 and organized under section 501(c)(3) of the federal tax code. Defs.' UF ¶¶ 30-31, ECF No. 39; Pl.'s UF ¶¶ 12-13, ECF No. 40. RGF is governed by an...