Rio Grande Found. v. Oliver

• Decision Date: 18 January 2023
• Docket Number: 22-2004
• Citation: 57 F.4th 1147
• Parties: RIO GRANDE FOUNDATION; Illinois Opportunity Project, Plaintiffs - Appellants, v. Maggie Toulouse OLIVER, in her official capacity as Secretary of State of New Mexico, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

57 F.4th 1147

RIO GRANDE FOUNDATION; Illinois Opportunity Project, Plaintiffs - Appellants,

v.Maggie Toulouse OLIVER, in her official capacity as Secretary of State of New Mexico, Defendant - Appellee.

No. 22-2004

United States Court of Appeals, Tenth Circuit.

FILED January 18, 2023

Jacob Huebert, Liberty Justice Center (Daniel R. Suhr on the briefs), Chicago, Illinois, for Plaintiffs – Appellants.

Nicholas M. Sydow, Solicitor General, Office of the New Mexico Attorney General, Albuquerque, New Mexico, for Defendant – Appellee.

Before HARTZ, McHUGH, and MORITZ, Circuit Judges.

McHUGH, Circuit Judge.

This appeal asks us to explore the boundaries of Article III standing for a First Amendment challenge to state electioneering rules. Rio Grande Foundation ("RGF") and Illinois Opportunity Project ("IOP") (collectively, "Appellants") are nonprofit advocacy groups challenging an amendment to New Mexico's Campaign Reporting Act ("CRA"), which requires groups spending over designated amounts on electioneering communications to state their identities on the materials and to disclose the identities of their donors to New Mexico's Secretary of State (the "Secretary"). Appellants claim these requirements burden their First Amendment rights and chilled their planned speech in the 2020 election cycle. The district court dismissed the case at summary judgment for lack of standing, reasoning Appellants showed no injury-in-fact under the framework we laid out in Initiative and Referendum Institute v. Walker , 450 F.3d 1082 (10th Cir. 2006).

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the dismissal in part, holding that RGF had standing to pursue its First Amendment challenge to the amended CRA's disclosure requirement. We affirm the dismissal of IOP's claims, but on grounds different than those relied on by the district court.

I. BACKGROUND

A. Factual History¹

On de novo review of a grant of summary judgment in a First Amendment case, we consider the entirety of the record submitted. Citizens for Peace in Space v. City of Colo. Springs , 477 F.3d 1212, 1219 (10th Cir. 2007) ; Essence, Inc. v. City of Fed. Heights , 285 F.3d 1272, 1283 (10th Cir. 2002).²

To begin, we set forth the factual background with respect to the change in New Mexico's election disclosure laws. We then provide the undisputed facts presented to the district court in the parties’ motions for summary judgment. Turning to the disputed facts, we include the nature of the parties’ disagreement on each point and relevant record evidence. Finally, we provide the procedural background leading to this appeal.

1. Senate Bill 3 (2019)

In 2019, New Mexico adopted Senate Bill 3 (2019) ("SB3"), which amended the CRA to include disclaimer and disclosure requirements for certain electioneering communications. Campaign Finance Reporting Act, ch. 262, 2019 N.M. Laws § 1 (codified as amended at N.M. Stat. Ann. §§ 1-19-26.4, 27.3; id. at § 2-21-1). A violation of the CRA is a misdemeanor carrying a fine of up to $1,000 or up to one year imprisonment or both. N.M. Stat. Ann. § 1-19-36.

The amended CRA requires political committees³ to register with the Secretary and to disclose (1) the name of the committee with any sponsoring organization and its address; (2) a statement of purpose; (3) the names and addresses of the officers of the committee; and (4) any bank account used for contributions or expenditures.⁴ N.M. Stat. § 1-19-26.1(B) and (C). The amended CRA also requires reporting the names and addresses of donors if independent expenditures⁵ exceed certain amounts (the "disclosure requirement"), as follows:

A person who makes independent expenditures required to be reported under this section in an amount totaling more than three thousand dollars ($3,000) in a nonstatewide election or nine thousand dollars ($9,000) in a statewide election, in addition to reporting the information specified in Subsection C of this section, shall either:

(1) if the expenditures were made exclusively from a segregated bank account consisting only of funds contributed to the account by individuals to be used for making independent expenditures, report the name and address of, and amount of each contribution made by, each contributor who contributed more than two hundred dollars ($200) to that account in the election cycle; or

(2) if the expenditures were made in whole or part from funds other than those described in Paragraph (1) of this subsection, report the name and address of, and amount of each contribution made by, each contributor who contributed more than a total of five thousand dollars ($5,000) during the election cycle to the person making the expenditures; provided, however, that a contribution is exempt from reporting pursuant to this paragraph if the contributor requested in writing that the contribution not be used to fund independent or coordinated expenditures or to make contributions to a candidate, campaign committee or political committee.

N.M. Stat. Ann. § 1-19-27.3(D). The independent expenditure reports filed under these laws are publicly available online in searchable format. See N.M. Stat. Ann. § 1-19-32(C).

The amended CRA also requires a person who makes an independent expenditure for an advertisement over $1,000 (for a single advertisement or in the aggregate during the election cycle) to include on the advertisement the name of the person who authorized and paid for the advertisement (the "disclaimer requirement"), except in certain circumstances where doing so would be impracticable. N.M. Stat. Ann. § 1-19-26.4(A), (B).

2. Appellants

a. Undisputed facts

RGF is a charitable organization whose mission is to inform New Mexico's citizens "of the importance of individual freedom, limited government, and economic opportunity." App. at 76. To support this mission, "RGF engages in issue advocacy [in New Mexico] around topics central to its mission and publishes the ‘Freedom Index,’ a real-time online voting scorecard tracking legislators’ positions on free-market issues." Id.

IOP is a social-welfare organization whose mission is to "educat[e] the public about policy driven by principles of liberty and free enterprise." Id. IOP engages in issue advocacy in Illinois and has been a plaintiff in lawsuits outside Illinois. IOP has never sent mailers or other advertisements in New Mexico that would have been subject to SB3.

Both RGF and IOP receive individual contributions over $5,000 during an election cycle. All RGF's and IOP's expenditures are made from their general funds.

Prior to filing this lawsuit, neither organization had taken any action that would have subjected it to the disclosure requirement. In the November 2020 election cycle, RGF sent postcards stating whether certain candidates had signed a pledge demanding no tax hikes through the end of the 2021 New Mexico legislative session (the "taxpayer pledge"), but the costs of printing and mailing were under the disclosure requirement's threshold. IOP did not send any mailers in New Mexico during that election cycle.

b. Disputed facts

i. Prior advocacy

The parties dispute whether either Appellant has a history of engaging in the type of advocacy regulated by SB3 and whether it had any effect on Appellants’ advocacy or lack thereof in the November 2020 election cycle.

RGF's president testified that RGF has engaged in issue advocacy in New Mexico since 2000 on many local and state issues through mailers, emails, social media campaigns, and radio advertisements. He stated that, in the November 2020 election cycle, RGF had planned to publicize the results of its Freedom Index by spending over $3,000 in individual legislative districts on mail campaigns. However, instead of its planned advertising campaign, RGF sent the smaller-scale postcard with the taxpayer pledge information and did some social media advertising at a lower expense. RGF's president stated that the decision to downsize the advertising was for "a variety of practical and logistical reasons," including the economic environment at the time. Id. at 147–48. The mailers identified RGF as the author.

In his August 2020 declaration, IOP's president stated IOP planned to spend over $9,000 on mailings "to thousands of New Mexico voters within [sixty] days of the November 2020 general election." Id. at 30. The mailings were intended to educate voters about an upcoming referendum on an amendment to the New Mexico Constitution and to provide information about "the American tradition of governmental accountability." Id. In his subsequent deposition, IOP's president could not recall the precise amount IOP would have spent but confirmed it was over $9,000. However, IOP did not send those mailers. When asked why, IOP's president replied, "I think we filed a lawsuit because we don't want our donors disclosed." Id. at 163. Unlike RGF, IOP did not do a smaller-scale advertisement.

ii. Concerns about SB3's disclosure requirement

The parties dispute the extent of Appellants’ concerns about the potential risks of donor disclosure.

Both Appellants express concern that donors might experience harassment by "intolerant elements in society" due to the groups’ controversial positions. App. at 31, 36. At his deposition, RGF's president discussed the experience of a Mozilla executive who had contributed to a controversial campaign and then lost his job, a situation in Arizona where the head of the Goldwater Institute had been subjected to harassment and stalking, and "activists on both sides of the political aisle show[ing] up to Tucker Carlson's house." Id. at 153. RGF's president also declared he was personally aware of instances where individuals or organizations affiliated with certain causes or candidates in New Mexico were threatened with or experienced retaliation, as well as harassment, boycotts, and social ostracism, although at his deposition he could not recall any details. He further stated that one of RGF's board members had "a very aggressive approach taken by somebody...