Del. Strong Families v. Attorney Gen. of Del.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation793 F.3d 304
Docket NumberNo. 14–1887.,14–1887.
PartiesDELAWARE STRONG FAMILIES, a Delaware nonprofit corporation v. ATTORNEY GENERAL OF the State of DELAWARE, in his official capacity as Attorney General of the State of Delaware; Commissioner of Elections, in her official capacity as State Commissioner of Elections Appellants.
Decision Date16 July 2015

793 F.3d 304

DELAWARE STRONG FAMILIES, a Delaware nonprofit corporation
ATTORNEY GENERAL OF the State of DELAWARE, in his official capacity as Attorney General of the State of Delaware; Commissioner of Elections, in her official capacity as State Commissioner of Elections Appellants.

No. 14–1887.

United States Court of Appeals, Third Circuit.

Argued Oct. 28, 2014.
Opinion Filed: July 16, 2015.

793 F.3d 306

Jonathan G. Cedarbaum, Esq., [ARGUED], Seth P. Waxman, Esq., Wilmer Hale, Washington, DC, Joseph C. Handlon, Esq., Aleph A. Woolfolk, Esq., Delaware Department of Justice, Wilmington, DE, Counsel for Appellant.

Allen J. Dickerson, Esq., [ARGUED], Zachary R. Morgan, Esq., Center for Competitive Politics, Alexandria, VA, David E. Wilks, Esq., Wilks, Lukoff & Bracegirdle, Wilmington, DE, Counsel for Appellee.

David B. Hird, Esq., Weil, Gotshal & Manges, Washington, DC, Counsel for Amicus Appellants League of Women Voters of Delaware and Common Cause.

James Bopp., Jr., Esq., Randy Elf, Esq., James Madison Center for Free Speech, Terre Haute, IN, Lakewood, NY, Counsel for Amicus Appellee James Madison Center for Free Speech.

Heidi K. Abegg, Esq., Webster, Chamberlain & Bean, Washington, DC, Counsel for Amicus Appellees United States Constitutional Rights Legal Defense Fund and National Right to Work Committee.

Before: McKEE, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges.


GREENAWAY, JR., Circuit Judge.

This case requires us to decide whether the Delaware Elections Disclosure Act (the “Act”) is constitutional as applied1 to a 2014 Voter Guide (“Voter Guide”) that Appellee Delaware Strong Families (“DSF”) intended to produce and distribute. DSF's Complaint seeks a declaratory judgment that the Act's disclosure provisions are unconstitutional and a preliminary injunction preventing enforcement of the Act. The United States District Court for the District of Delaware (“District Court”) granted the preliminary injunction declaring that the Act's disclosure requirements are unconstitutional. Because the Act is narrowly tailored and not impermissibly broad we will reverse the District Court and remand for entry of judgment in favor of Appellants.


On October 23, 2013, DSF filed a Complaint alleging both facial and as-applied challenges to the Act.2 DSF planned to

793 F.3d 307

distribute the 2014 Voter Guide over the internet within sixty days of Delaware's general election and planned to spend more than $500 on its creation and distribution.3 The State of Delaware (“State”) filed an answer and issued various discovery requests. DSF moved for a protective order and preliminary injunction. The District Court denied DSF's motion for a protective order and instructed the parties to submit briefs addressing whether the Act is constitutional. J.A. 5–6. On March 31, 2014, Judge Robinson issued an opinion granting a preliminary injunction against Appellants and, on April 8, 2014, entered an order granting DSF's motion for a preliminary injunction. Id. at 4. This appeal followed.

In 2012, DSF disseminated its 2012 Voter Guide without having to disclose its donors. However, enactment of the Act on January 1, 2013, changed the relevant disclosure requirements. The Act requires “[a]ny person ... who makes an expenditure for any third-party advertisement that causes the aggregate amount of expenditures for third-party advertisements made by such person to exceed $500 during an election period [to] file a third-party advertisement report with the Commissioner.”15 Del. C. § 8031(a).

The Act defines a “third-party advertisement” in part as “an electioneering communication.” Id. § 8002(27). An electioneering communication is:

a communication by any individual or other person (other than a candidate committee or a political party) that: 1. Refers to a clearly identified candidate; and 2. Is publicly distributed within 30 days before a primary election ... or 60 days before a general election to an audience that includes members of the electorate for the office sought by such candidate.

Id. § 8002(10)(a). The “third-party advertisement report” must include “[t]he full name and mailing address of each person who has made contributions to [DSF] during the election period in an aggregate amount or value in excess of $100.” Id. § 8031(a)(3). Disclosure is not limited to individuals who earmarked their donations to fund an electioneering communication.

The Act's application here is undisputed since the Voter Guide: 1) meets the definition of “electioneering communication,” 2) would be distributed on the internet within the sixty days prior to Delaware's general election, and 3) would cost DSF more than $500 to produce.


The District Court had jurisdiction under 28 U.S.C. § 1331 and this Court has jurisdiction under 28 U.S.C. § 1292(a)(1). We exercise plenary review over a challenge to the constitutionality of

793 F.3d 308

a statute. United States v. Pendleton, 636 F.3d 78, 82 (3d Cir.2011). In reviewing the grant or denial of a preliminary injunction, we employ a “tripartite standard of review”: findings of fact are reviewed for clear error, legal conclusions are reviewed de novo, and the decision to grant or deny an injunction is reviewed for abuse of discretion. K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir.2013). “The decision to issue a preliminary injunction is governed by a four-factor test.” Id. The plaintiff must show: 1) likelihood of success on the merits; 2) that he is likely to suffer irreparable harm; 3) that denying relief would injure the plaintiff more than an injunction would harm the defendant; and 4) that granting relief would serve the public interest. Id.


We first address the District Court's erroneous conclusion that the Act's disclosure requirements are unconstitutionally broad by virtue of reaching “neutral communication[s]” by “neutral communicator[s].” Del. Strong Families, 34 F.Supp.3d at 395. We then turn to the relevant Supreme Court precedent, which analyzed the federal statute comparable to the Act—the Bi–Partisan Campaign Reform Act (“BCRA”)—and compare the respective disclosure requirements of BCRA and the Act to determine whether the Act survives constitutional scrutiny.

A. Advocacy and the Voter Guide

Campaign finance jurisprudence uses the terms “express advocacy” and “issue advocacy” to describe different types of election-related speech. The former encompasses “communications that expressly advocate the election or defeat of a clearly identified candidate,” Buckley v. Valeo, 424 U.S. 1, 80, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), while the latter are communications that seek to impact voter choice by focusing on specific issues. The Supreme Court has consistently held that disclosure requirements are not limited to “express advocacy” and that there is not a “rigid barrier between express advocacy and so-called issue advocacy.” McConnell v. FEC, 540 U.S. 93, 193, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). Any possibility that the Constitution limits the reach of disclosure to express advocacy or its functional equivalent is surely repudiated by Citizens United v. FEC, which stated: “The principal opinion in [FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469–76, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) ] limited ... restrictions on independent expenditures to express advocacy and its functional equivalent. Citizens United seeks to import a similar distinction into BCRA's disclosure requirements. We reject this contention.” 558 U.S. 310, 368, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).

The District Court concluded that the Act's disclosure requirements could not constitutionally reach DSF's Voter Guide because it was a “neutral communication” by a “neutral communicator.” Del. Strong Families, 34 F.Supp.3d at 395. This formulation finds no support in the case law and is not one that we choose to adopt. The District Court found that DSF was a presumed neutral communicator by virtue of its status as a § 501(c)(3) organization. Id. Similarly, DSF argues in its reply brief that, by virtue of this status, it is not permitted to engage in “any political campaign on behalf of or in opposition to any candidate for public office.” 26 C.F.R. § 1.501(c)(3)–1(b)(3)(ii). The Act and § 501(c)(3), however, are separate and unrelated, and DSF has offered no compelling reason to defer to the § 501(c)(3) scheme in determining which communications require disclosure under the Act. Accordingly, we conclude that it is the conduct

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of an organization, rather than an organization's status with the Internal Revenue Service, that determines whether it makes communications subject to the Act.

The District Court noted that voter guides are typically intended to influence voters even though they may “lack[ ] words of express advocacy.” Del. Strong Families, 34 F.Supp.3d at 394 n. 19. By selecting issues on which to focus, a voter guide that mentions...

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