Human Life of Washington, Inc. v. Chair Bill Brumsickle

FILED
FOR PUBLICATION OCT 12 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

HUMAN LIFE OF WASHINGTON INC., No. 09-35128

Plaintiff - Appellant, D.C. No. 2:08-cv-00590-JCC

v.
OPINION
CHAIR BILL BRUMSICKLE; VICE
CHAIR KEN SCHELLBERG;
SECRETARY DAVE SEABROOK;
JANE NOLAND; JIM CLEMENTS, in
their Official Capacities as Officers and
Members of the Washington State Public
Disclosure Commission; ROB
MCKENNA, in His Official Capacity as
Washington Attorney General,

Defendants - Appellees.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding

Argued and Submitted May 7, 2010
Seattle, Washington

Filed October 12, 2010
Before: WARDLAW and GOULD, Circuit Judges, and WARE, District Judge. *

Opinion by Judge WARDLAW, Circuit Judge:

“[T]he people in our democracy are entrusted with the
responsibility for judging and evaluating the relative merits
of conflicting arguments. They may consider, in making
their judgment, the source and credibility of the advocate.”

– First National Bank v. Bellotti, 435 U.S. 765, 791–92
(1978) (footnotes omitted)

Human Life of Washington (“Human Life”), a nonprofit, pro-life advocacy

corporation, appeals the district court’s denial of summary judgment in its suit

against various Washington state officials.1 Human Life challenges, on First

Amendment grounds, Washington state’s Public Disclosure Law (“Disclosure

Law”), enacted as part of its campaign finance regulation. The Supreme Court

recently concluded that the government “may regulate corporate political speech

through disclaimer and disclosure requirements, but it may not suppress that

speech altogether.” Citizens United v. FEC, 130 S. Ct. 876, 886 (2010). Based on

*
The Honorable James Ware, United States District Judge for the Northern
District of California, sitting by designation.
1
The named officials are Bill Brumsickle, Ken Schellberg, Dave Seabrook,
Jane Noland, and Jim Clements, in their official capacities as officers and members
of the Washington State Public Disclosure Commission, and Rob McKenna, in his
official capacity as Washington Attorney General (collectively, with the state of
Washington, “Washington State”).

2
this principle, and for many of the same reasons articulated by the well-reasoned

opinion of the district court, we too conclude that Washington State’s disclosure

requirements do not violate the First Amendment, either facially or as applied to

Human Life and its proposed campaign to educate voters about the dangers of

physician-assisted suicide in connection with a ballot measure that would legalize

the practice.

I. BACKGROUND

A. Human Life of Washington and Initiative 1000

In 2008, Washington voters were asked to consider a ballot initiative,

Initiative 1000, which would “permit terminally ill, competent, adult Washington

residents medically predicted to die within six months to request and

self-administer lethal medication prescribed by a physician.” Wash. Initiative

Measure No. 1000 (2008). The measure quickly spawned an “emotionally charged

battle” between its advocates and its opponents. Associated Press, Washington

State Battles over Vote to Allow Lethal Meds for Dying Patients, Oct. 11, 2008; see

also John Iwasaki, “Playing God” or Dignified Death? Faith Based Groups

Taking Crucial Role in Initiative Battle, Seattle Post-Intelligencer, Oct. 13, 2008

(“On their respective Web sites, the campaigns for and against Initiative 1000

include point-by-point attempts to debunk the other side in the debate over

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physician-assisted suicide, the contentious end-of-life issue facing Washington

voters in the general election.”).

Human Life opposed Initiative 1000, consistent with its mission to

“reestablish throughout our culture, the recognition that all beings of human origin

are persons endowed with intrinsic dignity and the inalienable right to life from

conception to natural death.” In pursuit of this goal, Human Life engages in

“educational, legislative, and judicial efforts” to “seek reform in our culture’s

understanding.” Over the years, Human Life has expended considerable time and

resources opposing efforts to legalize physician-assisted suicide in Washington.

For example, in 1991, Human Life and its affiliated political action committee,

HLPAC, actively participated in the successful campaign to defeat Initiative 119,

which would have amended Washington’s constitution to legalize

physician-assisted suicide. In 2008, on the day that Initiative 1000 was filed,

Human Life issued a “special report” in an attempt to prevent the initiative from

receiving a sufficient number of signatures to qualify for the ballot. Urging readers

to “ENCOURAGE OTHERS NOT TO SIGN THE INITIATIVE,” the report

stated: “One would hope that it would deeply trouble the conscience of anyone

inclined to sign this initiative petition, knowing they are signing some else’s death

warrant.”

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 With physician-assisted suicide back on the ballot in 2008, Human Life

undertook plans to solicit funds for and launch a public education campaign. As

Human Life explained in its verified complaint, filed April 16, 2008,

The year 2008 is an especially vital time for HLW to
address the physician-assisted suicide issue because people
again will be unusually attentive as it swirls to the forefront
of public attention. . . . The physician-assisted suicide issue
is in people’s focus because former Governor Booth
Gardner filed the proposed I-1000 with the Secretary of
State on January 9, 2008, with qualifying signatures due by
July 3, 2008.

Human Life’s planned educational campaign consisted of three proposed public

communications, as well as “substantially similar activities” that had not yet been

identified.

First, Human Life would distribute a solicitation letter via email, regular

mail, and its website. The proposed letter, which did not expressly mention

Initiative 1000, opened: “The assisted suicide issue just won’t go away. But

neither will we. We are here to argue the prolife side on your behalf. However, as

this grisly issue heats up again in 2008, Human Life of Washington needs your

help to pay for some radio ads to educate the public.” It went on to recount the

defeat of the 1991 ballot initiative, to draw parallels between mid-19th century

slavery abolitionists and modern-day pro-life advocates, and to discuss a study by a

5
palliative-care specialist in Scotland, which it asserted “shows that problems with

Oregon’s assisted suicide scheme are real.” In closing, the letter requested a

donation to fund Human Life’s public education campaign, stating that “[t]he

public needs to receive this sort of information as assisted suicide advocates once

again offer biased, inaccurate, and rosy depictions of this grisly practice.”

Second, in addition to sending letters, Human Life intended to target

individual voters by telephone. After introducing themselves as callers on behalf

of Human Life, callers would read from a proposed script, alluding to Initiative

1000. The scripts read:

Right now we are trying to reach every pro-life household
in Washington with an urgent update. As you’ve probably
heard, former Governor Booth Gardner is trying to get an
initiative on the ballot this fall that would legalize
physician-assisted suicide in the State of Washington. We
fear that many Washingtonians do not know the grisly facts
about physician-assisted-suicide and its devastating effect
on a culture of life.

Callers then would solicit financial contributions to Human Life’s public education

and advocacy activities.

Finally, Human Life intended to broadcast radio advertisements. It

developed four proposed scripts for thirty-second radio spots. In one, a male voice

would say, “Some people think that persons with disabilities don’t have lives worth

6
living,” to which a female voice would respond, “Like Nazi docs!” In another

proposed radio spot, the speaker would note that “[a]ssisted suicide is back in the

news” and would go on to summarize results from a study about assisted suicide in

Oregon. A third proposed advertisement would feature a male voice warning that

physician-assisted suicide is a “slippery slope” because “people who can’t consent

– like babies – are being killed.” Finally, in a fourth proposed radio spot, a speaker

would warn that assisted suicide “turns doctors into killers.” None of the proposed

advertisements would expressly mention Initiative 1000, and each would end with

a disclosure that the advertisement was sponsored by Human Life.

Human Life’s educational campaign never got off the ground, however,

because Human Life feared that its proposed communications would subject it to

the requirements of Washington’s Disclosure Law, a law that Human Life contends

violates its First Amendment rights.

B. Washington’s Public Disclosure Law

The Disclosure Law was enacted by ballot initiative in 1972, with the

support of 72% of the voting public. It declares as Washington state’s public

policy “[t]hat political campaign and lobbying contributions and expenditures be

fully disclosed to the public and that secrecy is to be avoided.” Wash. Rev. Code

§ 42.17.010(1). It also states as Washington’s public policy that “full access to

7
information concerning the conduct of government on every level must be assured

as a fundamental and necessary precondition to the sound governance of a free

society.” Id. § 42.17.010(11). Under the Disclosure Law, this policy is

implemented through detailed reporting, registration, and disclosure requirements

(collectively, “disclosure requirements”), which are administered and enforced by

Washington’s Public Disclosure Commission (the “Commission”), a bipartisan

citizen’s commission whose five members are appointed by the governor and

confirmed by the state senate.

According to the Commission’s Executive Director, the Disclosure Law

“enables the public to ‘follow the money’ with respect to campaigns and lobbying”

by providing for the collection of informational forms, which become public

record. These forms are now electronically available in searchable format through

the Commission’s website. The Commission’s Chief Technology Officer reports

that its website receives approximately 14,000 visitors per month. In addition, the

media uses financial data in its reporting. See, e.g., Richard Roesler, I-1000

Advocates Raking It In, Spokesman-Review, Apr. 30, 2008; Susan Gilmore, How

Money Talks on Initiatives, Seattle Times, Nov. 22, 2004. As well as gathering

data and reports, the Commission provides the public with aggregate data, analysis,

and summaries in its biennial “Election Financing Fact Book.”

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 At issue in this appeal are two aspects of the Disclosure Law: (1) the

requirements imposed on “political committees” and (2) the requirements for

“independent expenditures” and “political advertising.” These provisions do not

place a limit on expenditures for advocacy; rather, they require only that covered

entities make certain public disclosures.

1. Political Committees

The Disclosure Law defines a “political committee” as “any person (except a

candidate or individual dealing with his or her own funds or property) having the

expectation of receiving contributions or making expenditures in support of, or

opposition to, any candidate or any ballot proposition.” Wash. Rev. Code

§ 42.17.020(39). As construed by Washington courts, this definition “sets forth

two alternative prongs under which an individual or organization may become a

political committee and subject to the Act’s reporting requirements.” Evergreen

Freedom Found. v. Wash. Educ. Ass’n, 49 P.3d 894, 902 (Wash. Ct. App. 2002).

Under the prong at issue here – the “expenditures” prong – “a person or

organization may become a political committee by . . . expecting to make or

making expenditures to further electoral political goals.” Id. at 902–03. This

definition has been narrowed by judicial construction to cover only an organization

that has as its “primary or one of the primary purposes” to “affect, directly or

9
indirectly, governmental decision making by supporting or opposing candidates or

ballot propositions.” Id. at 903 (quoting State v. Dan J. Evans Campaign Comm.,

546 P.2d 75, 79 (Wash. 1976)).

A group’s designation as a “political committee” triggers various disclosure

requirements. First, all political committees must appoint a treasurer and open a

bank account in the state of Washington. See Wash. Rev. Code § 42.17.050(1). In

addition, they must register with the Commission by filing a two-page Political

Committee Registration Form, which contains information required by the

Disclosure Law. This information includes the committee’s name and address; the

names and addresses of related and affiliated committees and persons; the names,

addresses, and titles of the committee’s officers and any persons authorized to

make expenditures for the committee; a statement of whether the organization is a

continuing one (i.e., whether it was established in anticipation of any election

campaign in particular); the ballot proposition or candidate that the committee

supports or opposes; how surplus funds will be distributed in the event of

dissolution; and the name, address, and title of anyone who works for the

committee to perform ministerial functions. See id. § 42.17.040.

Filing the registration form is the sole requirement imposed on political

committees that raise or spend less than $5,000 in a year and that raise no more

10
than $500 from any single donor. Wash. Admin. Code § 390-16-105(2); see also

Wash. Rev. Code § 42.17.370(8) (authorizing the Commission to relieve political

committees of certain reporting obligations). Political committees that exceed

these limits must submit various additional reports to the Commission. See Wash.

Rev. Code §§ 42.17.080, 42.17.090. First, monthly reports are required if the

political committee “has received a contribution or made an expenditure in the

preceding calendar month and either the total contributions received or total

expenditures made since the last such report exceeds two thousand dollars.” Id.

§ 42.17.080(2)(c). Second, a political committee must file periodic reports on

certain dates relative to the election at issue: (1) the twenty-first day before an

election, (2) the seventh day before an election, and (3) the tenth day of the first

month after an election. Id. § 42.17.080(2)(a)–(b). Each periodic report must

include an accounting of the political committee’s “funds on hand” at the

beginning of the reporting period, including “[t]he surplus or deficit of

contributions over expenditures”; the source and amount of contributions received;

the source and amount of any loans to be used for the political committee’s benefit;

and the identity of “each candidate or political committee to which any transfer of

funds was made, together with the amounts and dates of such transfers.” Id.

§ 42.17.090(1).

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 2. Independent Expenditures and Political Advertising

An entity not subject to the disclosure requirements governing political

committees may be required nonetheless to disclose certain information about its

“independent expenditures” and “political advertising.” For example, a

corporation that does not qualify as a political committee because of its relatively

limited involvement in political advocacy might, prior to a particular election,

decide to spend money on a series of radio advertisements criticizing a candidate

whose views the corporation considers inimical to its business interests. See

Citizens United, 130 S. Ct. at 913 (holding that corporations have a First

Amendment right to make independent expenditures). Under the Disclosure Law,

the corporation might be subject to disclosure requirements associated with this

activity even though the corporation does not qualify as a political committee.

An “independent expenditure” is “any expenditure that is made in support of

or in opposition to any candidate or ballot proposition and is not otherwise

required to be reported.” Wash. Rev. Code § 42.17.100(1). Disclosure

requirements are triggered if, in a given election, such an expenditure equals more

than $100 or if its value cannot reasonably be estimated. Id. § 42.17.100(2). If an

expenditure crosses this valuation threshold, an entity must submit “an initial

report of all independent expenditures made during the campaign” up until that

12
point in time. Id. The required two-page report must include the name and address

of the person filing the report; the name and address of each person to whom an

independent expenditure was made in the aggregate amount of more than fifty

dollars; the amount, date, and purpose of each such expenditure; and the total sum

of all independent expenditures made during the campaign. Id. § 42.17.100(5).

After submitting the initial report, the regulated entity must submit monthly update

reports, but this requirement applies only if “the reporting person has made an

independent expenditure since the date of the last previous report filed.” Id.

§ 42.17.100(3)(c). Finally, three updates to the initial report are required on certain

dates pegged to the election at issue: (1) the twenty-first day before the election,

(2) the seventh day before the election, and (3) the tenth day of the month after the

election. Id. § 42.17.100(3). The entity’s reporting obligations cease after the

post-election report is filed. Id.

In addition to disclosures for independent expenditures, the Disclosure Law

sets forth requirements for “political advertising,” defined as “any advertising

displays, newspaper ads, billboards, signs, brochures, articles, tabloids, flyers,

letters, radio or television presentations, or other means of mass communication,

used for the purpose of appealing, directly or indirectly, for votes or for financial

or other support or opposition in any election campaign.” Id. § 42.17.020(38). An

13
advertisement must identify its sponsor: written political advertising must include

the sponsor’s name and address; radio and television ads must state the sponsor’s

name; and advertising undertaken as an independent expenditure must state that the

advertisement was not approved by any candidate. See id. § 42.17.510(1)–(4).

The Disclosure Law requires special reports for political advertising made

twenty-one days before an election and that has a fair market value of $1,000 or

more. Id. § 42.17.103(1). Such special reports must include the name and address

of the person making the expenditure; the name and address of the person to whom

the expenditure was made; a detailed description of the expenditure; the date that

the expenditure was made and that the advertising was presented to the public; the

amount of the expenditure; and the name of the candidate or ballot proposition

supported or opposed by the expenditure. Id. § 42.17.103(3).

These disclosure requirements do not apply to a “news item, feature,

commentary, or editorial in a regularly scheduled news medium that is of primary

interest to the general public, that is in a news medium controlled by a person

whose business is that news medium, and that is not controlled by a candidate or a

political committee.” Id. § 42.17.020(15)(b)(iv) (listing news media exceptions to

the definition of “contribution”); Wash. Admin. Code § 390-16-206 (exempting

news media from independent expenditure disclosure requirements). Nor do they

14
apply to “letters to the editor, news or feature articles, editorial comment or replies

thereto in a regularly published newspaper, periodical, or on a radio or television

broadcast where payment for the printed space or broadcast time is not normally

required.” Wash. Admin. Code § 390-05-290 (listing exceptions to the definition

of “political advertising”); id. § 390-16-206 (exempting the foregoing from

political advertising disclosure requirements).

C. Procedural History

On April 16, 2008, Human Life filed this lawsuit, seeking a declaration that

Washington’s Disclosure Law is unconstitutional and an injunction against its

enforcement. On August 7, 2008, Human Life moved for summary judgment. It

submitted no evidence in support of its motion, instead stating that all relevant

facts were set forth in its verified complaint. In opposition, the Commission

submitted declarations and other documents containing information about the

Commission’s operations and the public’s use of the disclosure data it had

compiled. In reply, Human Life submitted excerpts of its CEO Dan Kennedy’s

deposition.

While Human Life’s summary judgment motion remained pending,

Washington voters approved Initiative 1000 on Election Day, November 4, 2008,

effectively legalizing physician-assisted suicide. Thereafter, on January 8, 2009,

15
the district court denied Human Life’s summary judgment motion. After ruling

that Initiative 1000’s passage did not moot Human Life’s lawsuit, the district court

rejected Human Life’s contention that the Disclosure Law’s requirements for

“political committees,” “independent expenditures,” and “political advertising” are

unconstitutional. Final judgment was entered on January 23, 2009. We have

jurisdiction over the district court’s final judgment pursuant to 28 U.S.C. § 1291,

and “[w]e review the constitutionality of a statute de novo.” United States v.

Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

II. DISCUSSION

A. Justiciability

“[T]he Constitution mandates that prior to our exercise of jurisdiction there

exist a constitutional ‘case or controversy,’ that the issues presented are ‘definite

and concrete, not hypothetical or abstract.’” Thomas v. Anchorage Equal Rights

Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (quoting Ry. Mail Ass’n v.

Corsi, 326 U.S. 88, 93 (1945)). Thus, before reaching the merits of Human Life’s

constitutional claims, we must determine whether this appeal is justiciable. See

Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 689

(9th Cir. 2010). We agree with the district court’s reasoning and conclude that the

appeal presents a case or controversy even though Human Life refrained from

16
engaging in its planned public education campaign, and we find that the

controversy remains live even after the passage of Initiative 1000 almost two years

ago.

1. Standing and Ripeness

To satisfy Article III’s case or controversy requirement, Human Life must

establish standing to sue. “[T]he irreducible constitutional minimum of standing

contains three elements”: the plaintiff must demonstrate (1) an injury-in-fact, (2)

causation, and (3) a likelihood that the injury will be redressed by a decision in the

plaintiff’s favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Because the court’s role is “neither to issue advisory opinions nor to declare rights

in hypothetical cases,” the case or controversy standard also requires that a claim

be ripe for review. Thomas, 220 F.3d at 1138 (“The constitutional component of

the ripeness inquiry is often treated under the rubric of standing . . . .”). In the

context of pre-enforcement constitutional challenges, where the plaintiff has not

yet been penalized for violating the challenged statute, we have held that “neither

the mere existence of a proscriptive statute nor a generalized threat of prosecution

satisfies the ‘case or controversy’ requirement.” Id. at 1139. Rather, in general, a

case or controversy exists only if the plaintiff faces a “genuine threat of imminent

prosecution.” Id.

17
 However, when a challenged statute risks chilling the exercise of First

Amendment rights, “the Supreme Court has dispensed with rigid standing

requirements,” Cal. Pro-Life Council, Inc. v. Getman (CPLC–I), 328 F.3d 1088,

1094 (9th Cir. 2003), and recognized “self-censorship” as “a harm that can be

realized even without an actual prosecution,” Virginia v. Am. Booksellers Ass’n,

484 U.S. 383, 393 (1988); see also Dombrowski v. Pfister, 380 U.S. 479, 486

(1965) (“Because of the sensitive nature of constitutionally protected expression,

we have not required that all of those subject to overbroad regulations risk

prosecution to test their rights.”). As we have held, where a plaintiff has refrained

from engaging in expressive activity for fear of prosecution under the challenged

statute, such self-censorship is a “constitutionally sufficient injury” as long as it is

based on “an actual and well-founded fear” that the challenged statute will be

enforced. CPLC–I, 328 F.3d at 1093, 1095; see also Ariz. Right to Life PAC v.

Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (finding that an entity that was

“forced to modify its speech and behavior to comply with the statute” had suffered

injury even though it had “neither violated the statute nor been subject to penalties

for doing so”). Such fear exists if the “intended speech arguably falls within the

statute’s reach.” CPLC–I, 328 F.3d at 1095.

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 The present appeal is indistinguishable from CPLC–I, where we found that

the California Pro-Life Council (“CPLC”) had established standing even though it

had not been subject to prosecution under the statute it challenged. The statute

required disclosures for any communication that “unambiguously urges a particular

result in an election.” Id. at 1096 (emphasis omitted). Because CPLC “feared

enforcement proceedings might be initiated,” id. at 1094, CPLC refrained from

spending money to distribute voter guides that advocated pro-life positions

implicated by pending ballot initiatives, id. at 1092–93. Even though CPLC’s

voter guides did not use “explicit words of advocacy,” we concluded that they

arguably fell within the statute’s provisions. Id. at 1095. Thus, although we

cautioned that “[t]he self-censorship door to standing does not open for every

plaintiff,” we concluded that CPLC’s self-censorship was based on a reasonable

fear of prosecution and was therefore a “constitutionally recognized injury.” Id.

Because Human Life’s decision to refrain from implementing its educational

program was based on a reasonable fear of enforcement of the Disclosure Law, we

conclude that Human Life has established a case or controversy. Human Life

produced evidence of planned communications that arguably fall within the ambit

of the statute it is challenging. The Disclosure Law imposes obligations on an

entity when one of its “primary purposes” is “to affect, directly or indirectly,

19
governmental decision making by supporting or opposing candidates or ballot

propositions.” Evergreen, 49 P.3d at 903 (quoting Evans, 546 P.2d at 79)

(interpreting the definition of “political committee”). Disclosure obligations also

apply to political advertising “used for the purpose of appealing, directly or

indirectly, for votes,” Wash. Rev. Code § 42.17.020(38), and to expenditures

“made in support of or in opposition to any candidate or ballot proposition” that

meet certain monetary thresholds, id. § 42.17.100. Given the Disclosure Law’s

apparent coverage, Human Life’s fear of being subject to its enforcement is well

founded, and Human Life “does not have to await the consummation of threatened

injury to obtain preventive relief.” Ariz. Right to Life PAC, 320 F.3d at 1006

(quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 143 (1974)).

2. Mootness

The passage of Initiative 1000 in 2008 does not alter the justiciability of

Human Life’s constitutional challenge because that challenge falls squarely within

the class of cases “capable of repetition, yet evading review.” See, e.g., Davis v.

FEC, 128 S. Ct. 2759, 2770 (2008); FEC v. Wis. Right to Life, Inc. (WRTL), 551

U.S. 449, 462 (2007); Bellotti, 435 U.S. at 774. This “established exception” to the

mootness doctrine applies where “(1) the challenged action is in its duration too

short to be fully litigated prior to cessation or expiration; and (2) there is a

20
reasonable expectation that the same complaining party will be subject to the same

action again.” Davis, 128 S. Ct. at 2769 (quoting WRTL, 551 U.S. at 462). As we

have recognized, the exception frequently arises in election cases “because the

inherently brief duration of an election is almost invariably too short to enable full

litigation on the merits.” Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003); see

also, e.g., WRTL, 551 U.S. at 462 (reviewing a challenge to federal limits on

corporate electioneering expenditures after the relevant primary election); Norman

v. Reed, 502 U.S. 279, 287–88 (1992) (reviewing a challenge to state requirements

governing the use of a name by a new political party after the relevant county

election); Bellotti, 435 U.S. at 774 (reviewing a challenge to a state ban on

corporate expenditures to influence votes on referendum proposals after the

relevant referendum vote); Alaska Right to Life Comm. v. Miles (ARTLC), 441 F.3d

773, 779 (9th Cir. 2006) (reviewing a challenge to state disclosure provisions after

the relevant ballot initiative vote); CPLC–I, 328 F.3d at 1095 n.4 (same); Reich v.

Local 396, Int’l Bhd. of Teamsters, 97 F.3d 1269, 1272 n.5 (9th Cir. 1996)

(reviewing a challenge to withholding information from a candidate after the

candidate’s opportunity to be elected had passed).

The present appeal is a case in point. Although Human Life filed suit almost

seven months before the November 2008 vote on Initiative 1000, complete

21
litigation of Human Life’s claim requires a considerably longer period of time.

Indeed, this litigation continues nearly two years after the Initiative 1000 vote has

come and gone. As with most election cases, we have little difficulty concluding

that the duration element of the “capable of repetition, yet evading review”

exception applies to the circumstances here.

As for the reasonable expectation requirement, we conclude there is a

reasonable expectation that Human Life again will be subject to self-censorship if

the Disclosure Law’s constitutionality remains in doubt. Human Life is a

politically active organization that has been heavily involved in public debates

about pro-life issues in the past and intends to undertake future communications

like those it wished to make in conjunction with the Initiative 1000 vote. This is

sufficient to establish a reasonable expectation that Human Life will face the

prospect of enforcement of the Disclosure Law again. See, e.g., WRTL, 551 U.S. at

463 (rejecting a mootness argument in a suit by an ideological advocacy

corporation, stating that it “credibly claimed that it planned on running ‘materially

similar’ future targeted broadcast ads mentioning a candidate within the blackout

period and there is no reason to believe that the FEC will ‘refrain from prosecuting

violations’ of BCRA” (citations omitted)); ARTLC, 441 F.3d at 779 (rejecting a

mootness argument where nonprofit AKRTL planned to engage in a routine,

22
ideological telemarketing campaign when “the provisions of Alaska law

challenged by AKRTL remain in place”); CPLC–I, 328 F.3d at 1095 n.4 (rejecting

a mootness argument where an issue advocacy corporation planned to distribute

voter guides as it had in the past in the face of state disclosure requirements).

B. Facial Challenges to the Disclosure Law

At the heart of Human Life’s appeal is its contention that certain aspects of

the Disclosure Law are facially unconstitutional. In particular, Human Life argues

that the Disclosure Law’s definitions of “political committee,” “independent

expenditure,” and “political advertising” impose burdens that cannot be justified by

Washington State’s interest in disclosure and are therefore unconstitutional. We

begin by identifying the applicable level of judicial scrutiny. We then discuss the

governmental interest supporting the Disclosure Law’s requirements. Finally, we

turn to Human Life’s arguments that certain Disclosure Law provisions are not

sufficiently tailored to that interest.

1. Standard of Review

The parties dispute the level of judicial scrutiny applicable to Washington

State’s disclosure requirements, and indeed, there has been room for debate on this

issue given this circuit’s wrestling with the standard of review appropriate in

disclosure cases. The Supreme Court’s seminal campaign finance decision,

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Buckley v. Valeo, mapped the basic distinction between financial limitations, which

“necessarily reduce[] the quantity of expression by restricting the number of issues

discussed, the depth of their exploration, and the size of the audience reached,” and

disclosure requirements, which “impose no ceiling on campaign-related activities.”

Buckley v. Valeo, 424 U.S. 1, 19, 64 (1976) (per curiam). It noted that, in contrast

to expenditure and contribution limitations, “disclosure requirements – certainly in

most applications – appear to be the least restrictive means of curbing the evils of

campaign ignorance and corruption that Congress found to exist.” Id. at 68.

However, the Court also recognized that “significant encroachments on First

Amendment rights of the sort that compelled disclosure imposes cannot be justified

by a mere showing of some legitimate governmental interest.” Id. at 64. Rather,

the Buckley Court applied “exacting scrutiny” to the disclosure requirements and

“insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the

governmental interest and the information required to be disclosed.” Id. at 68

(footnotes omitted).

Despite the Buckley Court’s clear endorsement of “exacting scrutiny,”

confusion emerged in our circuit as to the level of judicial scrutiny applicable to

constitutional challenges to campaign finance disclosure requirements. Much of

the confusion can be traced to our initial interpretation of the Supreme Court’s

24
decision in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238

(1986). In MCFL, the Court considered the constitutionally of a federal

prohibition on corporate independent expenditures as applied to MCFL, a

nonprofit, non-stock, ideological corporation not unlike Human Life. Id. at

241–42. Although MCFL did not qualify as a “political committee” under the

federal statute, then-existing law prohibited any corporation from making

independent expenditures unless the corporation established a separate, segregated

fund containing monies specifically earmarked for campaign spending. Id. at 253.

This separate fund would be subject to “political committee” requirements,

including “[d]etailed record keeping and disclosure obligations, along with the

duty to appoint a treasurer and custodian of the records,” thus essentially requiring

MCFL “to assume a more sophisticated organizational form.” Id. at 254; see also

ARTLC, 441 F.3d at 791 (distinguishing the provisions at issue in MCFL because

they “require structural changes”). The Court found that the “practical effect” of

imposing such requirements on organizations like MCFL was to make “engaging

in protected speech a severely demanding task,” MCFL, 479 U.S. at 256, thereby

“directly limiting the ability of such organizations to engage in core political

speech,” id. at 254. Considering the as-applied challenge, the MCFL Court

25
subjected the federal provision to strict scrutiny review and concluded that it was

unconstitutional as applied to MCFL. Id. at 256.

That MCFL involved a financial limitation rather than a disclosure

requirement is an arguable basis for distinguishing the rationale for applying the

strict scrutiny standard in MCFL from the application of the exacting scrutiny

standard in the disclosure context in Buckley. However, because the MCFL Court

discussed its application of strict scrutiny in terms of the onerous disclosure

requirements imposed upon segregated funds (rather than in terms of the financial

limitations imposed on corporations), we read the two cases as being in tension

with one another.

Our analysis in CPLC–I reflects this interpretation of Buckley and MCFL as

inconsistent. In CPLC–I, an ideological advocacy corporation challenged

California’s requirement that “political committees” disclose information about

financial activities undertaken to “expressly advocate the passage or defeat of a

ballot measure.” CPLC–I, 328 F.3d at 1092. In light of the differing standards of

review applied in Buckley and MCFL, we stated that “the Supreme Court has been

less than clear as to the proper level of judicial scrutiny we must apply in deciding

the constitutionality of disclosure regulations.” Id. at 1101 n.16. We reasoned,

“Given that the MCFL Court considered FECA’s disclosure requirements to be a

26
severe burden on political speech for multi-purpose organizations, we must analyze

the California statute under strict scrutiny.” Id. “Notwithstanding Buckley,” we

therefore held that the strict scrutiny standard applies to disclosure requirements,

and we remanded to the district court to apply that test. Id.

Following our decision in CPLC–I, the waters of the applicable standard of

review were further muddied by the Supreme Court’s decision in McConnell v.

FEC, 540 U.S. 93 (2003). Considering a federal campaign finance disclosure law,

McConnell upheld the requirement that any person making disbursements of

$10,000 or more in a calendar year for electioneering communications must file a

statement with the FEC identifying the pertinent election and all persons sharing

the costs of the disbursements. Id. at 194. The McConnell Court did not explicitly

describe the level of scrutiny applied to the disclosure requirements, stating only

that the requirements were supported by “important state interests.” Id. at 196. In

its analysis, the McConnell Court appeared to endorse Buckley’s use of exacting

scrutiny, stating that Buckley “amply supports application of [the] disclosure

requirements” at issue. Id. However, it did not distinguish MCFL or its

application of the strict scrutiny standard. Id.

After McConnell augmented the confusion regarding the applicable standard

of review in disclosure cases, our circuit began to avoid the issue rather than

27
stating the appropriate level of scrutiny in any given context. For example, in

ARTLC, rather than attempting to untangle the conflicting doctrine, we first

acknowledged that the applicable standard of review was “somewhat unclear,”

ARTLC, 441 F.3d at 787, and then we resolved to “assume without deciding that

strict scrutiny applies to all of the challenged disclosure requirements,” id. at 788.

The following year in California Pro-Life Council, Inc. v. Randolph (CPLC–II),

507 F.3d 1172 (9th Cir. 2007), we again avoided deciding the standard of review

issue, concluding that the law of the case, as established in CPLC–I, required

application of the strict scrutiny standard. Id. at 1177 n.5 (“We need not resolve

any potential conflict because we are bound by the ‘law of the case’ to apply strict

scrutiny.”). Finally, in Canyon Ferry Road Baptist Church v. Unsworth, 556 F.3d

1021 (9th Cir. 2009), after lamenting that the degree of scrutiny applicable to

disclosure requirements “is somewhat unclear, due in part to arguably inconsistent

precedent,” we stated, “We do not need to decide this complex question to

adjudicate this case.” Id. at 1031.

Recent Supreme Court decisions have eliminated the apparent confusion as

to the standard of review applicable in disclosure cases. The Court has clarified

that a campaign finance disclosure requirement is constitutional if it survives

exacting scrutiny, meaning that it is substantially related to a sufficiently important

28
governmental interest. In Doe v. Reed, 130 S. Ct. 2811 (2010), the Supreme Court

examined a statute authorizing public disclosure of the signatories to a ballot

initiative. In explaining why disclosure requirements were subject to the less

demanding standard of review of exacting scrutiny, the Reed Court emphasized

that the statute at issue was “not a prohibition on speech, but instead a disclosure

requirement.” Id. at 2818. As the Court held in Citizens United, “disclosure

requirements may burden the ability to speak, but they ‘impose no ceiling on

campaign-related activities’ and ‘do not prevent anyone from speaking.’” Citizens

United, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64; McConnell, 540 U.S. at

201). The Reed Court continued:

We have a series of precedents considering First
Amendment challenges to disclosure requirements in the
electoral context. These precedents have reviewed such
challenges under what has been termed “exacting scrutiny.”
That standard requires a substantial relation between the
disclosure requirement and a sufficiently important
governmental interest.

Reed, 130 S. Ct. at 2818 (citations and internal quotation marks omitted). As the

latest in a trilogy of recent Supreme Court cases, Reed confirmed that exacting

scrutiny applies in the campaign finance disclosure context. See Citizens United,

130 S. Ct. at 914; Davis, 128 S. Ct. at 2765–66. We therefore apply exacting

scrutiny to Human Life’s facial challenges to the Disclosure Law and examine

29
whether the law’s requirements are substantially related to a sufficiently important

governmental interest.

2. Governmental Interest

Providing information to the electorate is vital to the efficient functioning of

the marketplace of ideas, and thus to advancing the democratic objectives

underlying the First Amendment. As the Supreme Court explained in Buckley, “In

a republic where the people are sovereign, the ability of the citizenry to make

informed choices among candidates for office is essential.” Buckley, 424 U.S. at

14–15; see also McConnell, 540 U.S. at 197 (recognizing the “First Amendment

interests of individual citizens seeking to make informed choices in the political

marketplace” (quoting McConnell v. FEC, 251 F. Supp. 2d 176, 237 (D.D.C.

2003))). Thus, by revealing information about the contributors to and participants

in public discourse and debate, disclosure laws help ensure that voters have the

facts they need to evaluate the various messages competing for their attention.

This vital provision of information repeatedly has been recognized as a

sufficiently important, if not compelling, governmental interest. As the Court first

articulated in Buckley,

[D]isclosure provides the electorate with information “as to
where political campaign money comes from and how it is
spent by the candidate” in order to aid the voters in

30
 evaluating those who seek federal office. It allows voters
to place each candidate in the political spectrum more
precisely than is often possible solely on the basis of party
labels and campaign speeches. The sources of a
candidate’s financial support also alert the voter to the
interests to which a candidate is most likely to be
responsive and thus facilitate predictions of future
performance in office.

Buckley, 424 U.S. at 66–67. Buckley recognized this informational interest as

substantial, and in its campaign finance jurisprudence, the Supreme Court

consistently has acknowledged the important role played by disclosure

requirements in political discourse. See Citizens United, 130 S. Ct. at 915–16

(recognizing the government’s informational interest as substantial and stating that

the “First Amendment protects political speech; and disclosure permits citizens and

shareholders to react to the speech of corporate entities in a proper way”);

McConnell, 540 U.S. at 197 (upholding BCRA’s disclosure requirements, while

striking down its segregated fund requirement); MCFL, 479 U.S. at 262 (relying on

the existence of disclosure requirements in rejecting the government’s argument

that failure to apply the more onerous segregated fund requirement to MCFL

would result in dangerous amounts of spending by nonprofits on behalf of

corporations and unions). Similarly, we have frequently reiterated what we

recognized in CPLC–I: that in the “cacophony of political communications through

31
which California voters must pick out meaningful and accurate messages . . . being

able to evaluate who is doing the talking is of great importance.” CPLC–I, 328

F.3d at 1105; see also Canyon Ferry, 556 F.3d at 1032 (“[W]e have little trouble

concluding that Montana’s informational interest is generally ‘important’ in the

context of Montana’s statewide ballot issues.”); CPLC–II, 507 F.3d at 1179 n.8

(“[I]n the context of disclosure requirements, the government’s interest in

providing the electorate with information related to election and ballot issues is

well-established.”); ARTLC, 441 F.3d at 793 (recognizing that “[i]ndividual

citizens seeking to make informed choices in the political marketplace . . . need to

know what entity is funding a communication” (citation and internal quotation

marks omitted)).

We have observed that these considerations “apply just as forcefully, if not

more so, for voter-decided ballot measures.” CPLC–I, 328 F.3d at 1105. In the

ballot initiative context, where voters are responsible for taking positions on some

of the day’s most contentious and technical issues, “[v]oters act as legislators,”

while “interest groups and individuals advocating a measure’s defeat or passage act

as lobbyists.” Id. at 1106. As a result of this process, “average citizens are

subjected to advertising blitzes of distortion and half-truths and are left to figure

out for themselves which interest groups pose the greatest threats to their

32
self-interest.” Id. at 1105–06 (quoting David S. Broder, Democracy Derailed:

Initiative Campaigns and the Power of Money 18 (2000)). Thus, the high stakes of

the ballot context only amplify the crucial need to inform the electorate that is well

recognized in the context of candidate elections.

Notably, in the lobbying context, the Supreme Court has upheld disclosure

requirements enabling lawmakers “to know who is being hired, who is putting up

the money, and how much.” United States v. Harriss, 347 U.S. 612, 625 (1956).

The Court found these requirements necessary because “legislative complexities

are such that individual members of Congress cannot be expected to explore the

myriad pressures to which they are regularly subjected. Yet full realization of the

American ideal of government by elected representatives depends to no small

extent on their ability to properly evaluate such pressures.” Id.

In a similar manner, citizens, acting “as lawmakers, have an interest in

knowing who is lobbying for their vote, just as members of Congress may require

lobbyists to disclose who is paying for the lobbyists’ services and how much.”

CPLC–I, 328 F.3d at 1106; see also Citizens Against Rent Control v. City of

Berkeley, 454 U.S. 290, 298 (1981) (recognizing in the ballot initiative context the

interest of voters in knowing “the identity of those whose money supports or

opposes a given ballot measure”). Indeed, the provision of this information is

33
particularly critical in the ballot measure context, “especially when one considers

that ballot-measure language is typically confusing, and the long-term policy

ramifications of the ballot measure are often unknown.” CPLC–I, 328 F.3d at

1106. If nothing else, “knowing who backs or opposes a given initiative” will give

voters “a pretty good idea of who stands to benefit from the legislation.” Id.

Access to reliable information becomes even more important as more

speakers, more speech – and thus more spending – enter the marketplace, which is

precisely what has occurred in recent years. Like campaigns for elected office,

ballot initiatives are the subject of intense debate and, accordingly, greater

expenditures to ensure that messages reach voters. As we noted in CPLC–I,

“initiative campaigns have become a money game.” Id. at 1105 (quoting Broder at

18). By one account, spending on political campaigns reached $5.3 billion in

2008, a 27% increase over 2004 spending. See Jeanne Cummings, 2008 Campaign

Costliest in U.S. History, Politico, Nov. 5, 2008. The Commission’s own data

reveal that independent expenditures in Washington elections and ballot initiative

contests increased from $269,275 in 1994 to nearly $8 million in 2004. According

to the Commission, committees reported receiving more than $12.5 million in

contributions and making more than $12 million in expenditures for ballot

initiatives in 2006, and expenditures for and against a single ballot measure have

34
reached more than $15.5 million. As one journalist has observed, “Money does not

always prevail in initiative fights, but it is almost always a major – even dominant

– factor.” Broder at 7; see also Daniel Smith, Campaign Financing of Ballot

Initiatives in the American States 71 (2001) (“[C]ampaign financing . . . play[s] a

central role in ballot measures.”).

The district court noted the particular importance of the government’s

informational interest in this case given the nature of ballot initiative campaigns

across the country: “The state’s interest in informing the electorate about ‘where

political campaign money comes from and how it is spent’ is only amplified in the

ballot initiative context as more and more money is poured into ballot measures

nationwide.” Human Life of Wash., Inc. v. Brumsickle, No. C08-0590-JCC, 2009

WL 62144, at *13 (W.D. Wash. Jan. 8, 2009) (citation omitted). The district court

concluded that the “state therefore retains an extremely compelling interest in

‘following the money’ in the ballot initiative context so that the electorate’s

decision may be an informed one.” Id. As trends in campaign finance

jurisprudence have opened the door to even more political expenditures in the

35
future, the magnitude of the state’s interest is only likely to increase.2 See, e.g.,

Citizens United, 130 S. Ct. at 911 (holding unconstitutional a prohibition on

corporate independent expenditures and stating that “it is our law and our tradition

that more speech, not less, is the governing rule” under the First Amendment);

Long Beach Area Chamber of Commerce, 603 F.3d at 695–99 (following Citizens

United to deem limitations on contributions to and expenditures by independent

expenditure committees violative of the First Amendment).

Campaign finance disclosure requirements thus advance the important and

well-recognized governmental interest of providing the voting public with the

information with which to assess the various messages vying for their attention in

the marketplace of ideas. An appeal to cast one’s vote a particular way might

prove persuasive when made or financed by one source, but the same argument

might fall on deaf ears when made or financed by another. The increased

“transparency” engendered by disclosure laws “enables the electorate to make

informed decisions and give proper weight to different speakers and messages.”

2
Alarmingly, as levels in political spending rise dramatically, the
percentage of independent entities disclosing information about where that political
spending comes from has sharply declined. See Editorial, The Secret Election,
N.Y. Times, Sept. 18, 2010 (reporting that the rate of disclosure by independent
groups receiving electioneering donations dropped from almost 100% in 2004 and
2006, to less than 50% in 2008, to only 32% in 2010).

36
Citizens United, 130 S. Ct. at 916. As the Supreme Court has stated: “[T]he people

in our democracy are entrusted with the responsibility for judging and evaluating

the relative merits of conflicting arguments. They may consider, in making their

judgment, the source and credibility of the advocate.” Bellotti, 435 U.S. at 791–92.

Disclosure requirements, like those in Washington’s Disclosure Law, allow the

people in our democracy to do just that.

3. Tailoring Analysis

To survive exacting scrutiny, the Disclosure Law’s challenged provisions

must bear a substantial relationship to Washington State’s sufficiently important

interest in providing the electorate with source and financial information to inform

their decisionmaking at the ballot box. See Reed, 130 S. Ct. at 2818. Human Life

contends that three aspects of the Disclosure Law are insufficiently related to

Washington’s interest in ensuring an informed electorate: (a) the definition of

“political committee”; (b) the disclosure requirements imposed on political

committees; and (c) the definitions of “independent expenditure” and “political

advertising.”

37
 a. Definition of “Political Committee”

An organization qualifies as a “political committee” if its “primary or one of

the primary purposes” is “to affect, directly or indirectly, governmental decision

making by supporting or opposing candidates or ballot propositions.” Evergreen

Freedom Found., 49 P.3d at 903 (quoting Evans, 546 P.2d at 79). Human Life

contends that this definition sweeps too broadly, and thus is not substantially

related to the government’s informational interest, because it covers groups with

“a” primary purpose of political advocacy, instead of being limited to groups with

“the” primary purpose of political advocacy. Human Life argues that the First

Amendment categorically prohibits the government from designating a group as a

“political committee” unless the group’s sole, primary purpose is political

advocacy, and it argues that this result is compelled by the Supreme Court’s

decision in Buckley. Thus, Human Life contends that the breadth of the Disclosure

Law’s definition of “political committee” renders it per se facially unconstitutional.

We disagree with Human Life’s premise regarding the scope of constitutionally

permissible political committee regulation and with its conclusion that the

Disclosure Law’s definition of “political committee” is too broad to be

substantially related to the government’s important informational interest.

38
 To support its proposed bright-line prohibition on regulating groups with

only “a” primary purpose of political advocacy, Human Life relies on Buckley.

There, the Supreme Court narrowly construed the definition of “political

committee” under federal campaign finance law.3 The Court noted that FECA’s

definition of “political committee” referred only to a monetary threshold, and thus

could be construed as reaching large amounts of pure issue advocacy – in which

case the burdens imposed on speech would outstrip the governmental interests

furthered by the Act. To avoid this unconstitutional result, the Buckley Court

adopted the lower court’s narrowing construction of the definition of “political

committees”:

To fulfill the purposes of the Act they need only encompass
organizations that are under the control of a candidate or
the major purpose of which is the nomination or election of
a candidate. Expenditures of candidates and of “political
committees” so construed can be assumed to fall within the
core area sought to be addressed by Congress. They are, by
definition, campaign related.

Buckley, 424 U.S. at 79. Thus, by limiting the definition of which entities were

subject to FECA’s requirements, the Court ensured that those requirements were

substantially related to the purposes of the Act.

3
Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3 (1972),
amended by Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, 2
U.S.C. § 431 et seq.

39
 Seizing upon the phrase “the major purpose,” Human Life insists that a

statute is unconstitutional under Buckley if it imposes disclosure requirements on

groups with multiple “major purposes,” even if one of the group’s major purposes

happens to be political advocacy. Put differently, Human Life argues that Buckley

establishes a bright-line rule that, unless the sole major purpose of a group is

political advocacy, any regulation of that group will automatically be too

burdensome to be justified by the state’s informational interest. The Fourth Circuit

has adopted Humans Life’s view, reading Buckley as a statement of “the Supreme

Court’s insistence that political committees can only be regulated if they have the

support or opposition of candidates as their primary purpose.” N.C. Right to Life,

Inc. v. Leake, 525 F.3d 274, 289 (4th Cir. 2008).

We disagree with Human Life’s reading of Buckley, and we reject its

invitation to adopt a bright-line rule prohibiting all regulation of groups with “a”

primary purpose of political advocacy. The Buckley Court’s statement that a

narrow definition of political committee “can be assumed to fall within the core

area sought to be addressed by Congress” is most reasonably read to mean exactly

what it says – that it was clear and uncontroversial that the burdens imposed by the

disclosure requirements in that case were “by definition” substantially related to

the government’s interests when applied to organizations whose single major

40
purpose was political advocacy. Nothing in Buckley suggests, however, that

disclosure requirements are constitutional only when so applied. Contrary to

Human Life’s interpretation, Buckley’s statement – that defining groups with “the

major purpose” of political advocacy as political committees is sufficient “[t]o

fulfill the purposes of the Act,” Buckley 424 U.S. at 79 – does not indicate that an

entity must have that major purpose to be deemed constitutionally a political

committee. See, e.g., CPLC–II, 507 F.3d at 1180 n.11 (“[T]his Court has held that

irrespective of the major purpose of an organization, disclosure requirements may

be imposed.”); Canyon Ferry, 556 F.3d at 1026 (discussing Montana regulations of

“incidental political committees,” which are subject to disclosure requirements if

they make contributions or expenditures, regardless of their primary purpose).

Rather, in stating that disclosure requirements “(1) cannot cover ‘groups engaged

purely in issue discussion’ and (2) can cover ‘groups the major purpose of which is

the nomination or election of a candidate,’” the Buckley Court “defined the outer

limits of permissible political committee regulation.” Leake, 525 F.3d at 327

(Michael, J., dissenting). What is permissible within these outer limits depends on

whether the burdens imposed by the disclosure requirements are substantially

related to the government’s important informational interest.

41
 Human Life argues that our reading of Buckley is inconsistent with the

Supreme Court’s decision in MCFL, which it claims “reaffirmed Buckley’s

major-purpose test.” MCFL did no such thing. MCFL considered whether the

burden of a corporate campaign expenditure limitation was unconstitutional as

applied to an ideological nonprofit; it did not consider a facial challenge to a

disclosure requirement imposed on entities engaging in political advocacy. See

MCFL, 479 U.S. at 241. Not only did MCFL involve a higher standard of review

than is appropriate here, but it also dealt with significantly more severe burdens on

First Amendment rights. As the Supreme Court has made clear, financial

limitations are subject to a different constitutional analysis than are disclosure

requirements. See, e.g., Reed, 130 S. Ct. at 2813; Citizens United, 130 S. Ct. at

914. Limitations on expenditures entail the application of strict scrutiny rather

than exacting scrutiny, and they are uniformly recognized as implicating the most

central First Amendment interests. As the Court in MCFL stated, independent

expenditures lie at “the core of our electoral process and of First Amendment

freedoms,” MCFL, 479 U.S. at 251 (quoting Buckely, 424 U.S. at 39)), and their

limitation must be justified by a compelling state interest. The Court also

recognized the significant burden imposed by such limitations, which have the

effect of “directly limiting” some entities’ ability to “engage in core political

42
speech,” id. at 255, whereas disclosure requirements are “less restrictive,” id. at

262. Furthermore, in MCFL, political advocacy was not “a” major purpose – much

less “the” major purpose – of MCFL, which the Court noted only “occasionally

engages in activities on behalf of political candidates,” and whose “central

organizational purpose is issue advocacy.” Id. at 253 n.6.

Thus, the proposed bright-line prohibition that Human Life argues is

established by Buckley was not at issue in MCFL and is not supported by its

reasoning. The Court stated that, “should MCFL’s independent spending become

so extensive that the organization’s major purpose may be regarded as campaign

activity,” it would be classified as a political committee under the existing statute.

MCFL, 479 U.S. at 262. But this statement that MCFL’s increased campaign

spending could render it a political committee under the statute in no way

forecloses the government’s ability to affirmatively designate as “political

committees” groups with “a” major purpose of political advocacy.

Having rejected the notion that the First Amendment categorically prohibits

the government from imposing disclosure requirements on groups with more than

one “major purpose,” we turn to the crux of the applicable constitutional analysis –

whether there is a substantial relationship between Washington State’s

informational interest and its decision to impose disclosure requirements on

43
organizations with a primary purpose of political advocacy. We conclude that

there is.

The Disclosure Law does not extend to all groups with “a purpose” of

political advocacy, but instead is tailored to reach only those groups with a

“primary” purpose of political activity. This limitation ensures that the electorate

has information about groups that make political advocacy a priority, without

sweeping into its purview groups that only incidentally engage in such advocacy.

Under this statutory scheme, the word “primary” – not the words “a” or “the” – is

what is constitutionally significant. See Leake, 525 F.3d at 328 (Michael, J.,

dissenting) (“The key word providing guidance to both speakers and regulators in

‘the major purpose’ test or ‘a major purpose’ test is the word ‘major,’ not the

article before it.”). While we do not hold that the word “primary” or its equivalent

is constitutionally necessary, we do hold that it is sufficient in this case to ensure

that the Disclosure Law is appropriately tailored to the government’s informational

interest.

Furthermore, the Disclosure Law’s definition of “political committee” is

“tailored to address a fundamental organizational reality” that most organizations

“do not have just one major purpose.” Id. at 330. Human Life concedes, as it

must, that there is a substantial relationship between the government’s

44
informational interest and the disclosure requirements it may impose on groups

whose single primary purpose is political advocacy. We fail to see how that

relationship changes so materially as to render the relationship insubstantial once

the groups engage in several primary purposes including political advocacy.

Indeed, in some circumstances, the latter relationship may be stronger than the

former. Consider, for instance, two otherwise identical groups: One spends 40%

of its time and resources on political advocacy, 30% of its time and resources

producing merchandise, and 30% of its time and resources overseeing academic

research. The other group spends 45% of its time and resources on political

advocacy, 45% of its time and resources producing merchandise, and 10% of its

time and resources overseeing academic research. Political advocacy is “the”

major purpose for the former group (because political advocacy commands the

largest share of the group’s time and resources), but it is just “a” major purpose of

the latter (because the group expends equal time and resources on political

advocacy and merchandise production). Under Human Life’s interpretation of

Buckley, the government may constitutionally regulate the former group and not

the latter, even though in absolute terms the latter group spends more time and

resources than the former on political advocacy. The manner in which the

Disclosure Law’s definition of “political committee” interacts with the nuances of

45
entities’ organizational structure reinforces the conclusion that the definition is

substantially related to the government’s informational interest.

In addition, the Disclosure Law addresses the “hard lesson of

circumvention” that has historically plagued the campaign finance context.

McConnell, 540 U.S. at 165; see also Citizens United, 130 S. Ct. at 912 (“Political

speech is so ingrained in our culture that speakers find ways to circumvent [these]

campaign finance laws.”); McConnell, 540 U.S. at 176 (“Experience under the

current law demonstrates that Congress’ concerns about circumvention are not

merely hypothetical.”). If the Disclosure Law exempted groups with only “a”

primary purpose of political advocacy, a group like Human Life’s affiliated

political action committee, HLPAC (which unmistakably qualifies as a political

committee under the Disclosure Law), could evade political committee status

simply by merging with its affiliated organization, and thus diluting the newly

created organization’s relative share of advocacy activity. See Leake, 525 F.3d at

332 (Michael, J., dissenting) (warning that such a standard “effectively encourages

advocacy groups to circumvent the law by not creating political action committees

and instead to hide their electoral advocacy from view by pulling it into the fold of

their larger organizational structure”). Washington’s Disclosure Law minimizes

this risk of circumvention by tailoring its definition of “political committee” to

46
cover groups with a primary purpose of political advocacy, while still exempting

those that are primarily devoted to issue advocacy.

Thus, the Disclosure Law’s definition of “political committee” is

substantially related to the government’s sufficiently important informational

interest. By applying the disclosure requirements attached to political committee

status to organizations with a primary purpose of political advocacy, its coverage

vindicates the government’s interest in an informed electorate without imposing on

nonpolitical organizations unnecessarily. We therefore conclude that the definition

of “political committee” does not violate the First Amendment.

b. Political Committee Disclosure Requirements

Human Life argues that, even if the definition of “political committee” is

constitutionally permissible and groups with a primary purpose of political

advocacy may be regulated, the requirements the Disclosure Law imposes on

groups satisfying that definition are unconstitutionally onerous. Human Life relies

on our decision in CPLC–II, in which we held that California’s “political action

committee–like” disclosure requirements were unconstitutional as applied to a

“nonprofit, nonsectarian, educational organization dedicated to educating the

public on abortion, infanticide, and euthanasia.” CPLC–II, 507 F.3d at 1174, 1187.

Applying strict scrutiny, the CPLC–II panel cited MCFL’s holding that a

47
segregated fund financial requirement was not narrowly tailored to the

government’s interest in regulating an ideological nonprofit,4 and it concluded that

the disclosure requirements at issue were not narrowly tailored. The panel noted

the Court’s conclusion in MCFL that the state’s informational interest could be

achieved “in a manner less restrictive than imposing the full panoply of regulations

that accompany status as a political committee.” Id. at 1189 (quoting MCFL, 479

U.S. at 262). Arguing that CPLC–II controls the outcome of this case, Human Life

characterizes the issue before us as “whether Washington may do what this Court

said California may not do” – namely, require political committees to appoint a

treasurer, open a bank account in the state, and file certain reports.

We reject Human Life’s contention that CPLC–II governs the issue of

whether Washington State’s political committee disclosure requirements are

unconstitutionally onerous because we apply a different standard of review than

that applied in CPLC–II. Though we are bound to follow circuit precedent, an

exception to this rule exists: “[I]n the face of intervening Supreme Court and en

4
We note that because Human Life already has a political action committee,
HLPAC, the effect of the Disclosure Law on Human Life differs from the effect
the federal law had on the nonprofit in MCFL. There, the corporation would have
been required to engage in major bureaucratic restructuring due to incidental
political advocacy. Here, the structural requirements imposed by the Disclosure
Law already exist.

48
banc opinions, ‘a three-judge panel of this court and district courts should consider

themselves bound by the intervening higher authority and reject the prior opinion

of this court as having been effectively overruled.’” United States v. Broussard,

611 F.3d 1069, 1072 (9th Cir. 2010) (quoting Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc)). Since CPLC–II was decided, the Supreme Court has

made clear that exacting scrutiny, not strict scrutiny, is applicable to campaign

finance disclosure requirements. See Reed, 130 S. Ct. at 1288; Citizens United,

130 S. Ct. at 914. In light of this intervening Supreme Court authority, it is clear

that CPLC–II set the bar too high in applying strict scrutiny. The government need

not, as we suggested in CPLC–II, employ the least restrictive means to satisfy its

interest in providing the electorate with information; it need only ensure that its

means are substantially related to that interest. Washington State’s disclosure

scheme passes that test.

Indeed, it is the Supreme Court’s decision in Citizens United, rather than the

panel decision in CPLC–II, that provides the best guidance regarding the

constitutionality of the Disclosure Law’s requirements. The Citizens United Court

underscored the fundamental distinction between the burdens imposed by financial

regulations, see Citizens United, 130 S. Ct. at 897, and those imposed by

disclaimer and disclosure requirements, see id. at 915–16. Recounting the series of

49
Supreme Court cases that had upheld disclosure requirements while simultaneously

striking down other regulations on campaign speech, the Court affirmed and

reiterated the importance of disclosure requirements – even requirements that apply

to issue advocacy – to the government’s interest in informing the electorate. Id.

Like the requirements in Citizens United, Washington State’s political

committee disclosure requirements are not unconstitutionally burdensome relative

to the government’s informational interest. Rather, they are narrowly tailored such

that the required disclosure increases as a political committee more actively

engages in campaign spending and as an election nears. First, the registration form

required of all political committees is two pages long and elicits basic information

about the organization’s name, relationship with other organizations, and persons

with authority over the organization’s finances. Only entities that expect to raise or

spend more than $5,000 in a year or receive more than $500 from a single donor

are required to submit additional reports. See Wash. Admin. Code § 390-16-105 et

seq. (limiting the requirements imposed on political committees that meet the

enumerated criteria). These comparatively active political committees submit three

additional reports, the timing of which is pegged to the election in which they are

engaging. See Wash. Rev. Code § 42.17.080. Only if a political committee subject

to post-registration reporting raises or spends more than $200 in a given month

50
must it file a further report providing an update of its financial activities. See id.

§ 42.17.080. These disclosure requirements are not unduly onerous, and their

timing and particular informational requirements are substantially related to the

government’s informational interest.

Our conclusion here is compelled by our decision in ARTLC, in which we

held that Alaska’s materially identical political committee disclosure requirements

survive strict scrutiny. See ARTLC, 441 F.3d at 791. If Alaska’s disclosure

requirements survive strict scrutiny, then, a fortiori, Washington State’s disclosure

requirements (which promote the same important governmental interest) survive

exacting scrutiny. Our ARTLC decision was based on three grounds, each of which

is equally applicable here. First, we explained that the provisions at issue were not

a financial limitation and required “only reporting of contributions to, and of

contributions and expenditures by,” regulated entities. Id. Second, we observed

that there was “no allegation in this case that the reporting provisions limit the

fundraising ability” of regulated entities. Id. (distinguishing MCFL). Finally, we

noted that, unlike the provisions in MCFL, which essentially required major

structural changes to an organization, the disclosure provisions applied to ARTLC

imposed minimal, if any, organizational burdens. Id. We concluded that “[i]n

light of the nature of the burdens imposed” by the registration and reporting

51
requirements, the challenged disclosure provisions passed muster under the First

Amendment. Id. at 792. Here, too, because the Disclosure Law’s somewhat

modest political committee disclosure requirements are substantially related to the

government’s interest in informing the electorate, they survive exacting scrutiny.

c. “Independent Expenditure” and “Political Advertising” Definitions

We next turn to Human Life’s contention that the Disclosure Law’s

definitions for “independent expenditure” and “political advertising” are too

expansive to be substantially related to the government’s important interest. The

Disclosure Law defines “independent expenditure” in terms of money spent “in

support of or opposition to” a candidate or ballot initiative, Wash. Rev. Code

§ 42.17.100, and it defines “political advertising” as mass communications “used

for the purpose of appealing, directly or indirectly,” for support in any election

campaign, id. § 42.17.020(38). Human Life argues that these definitions are

facially unconstitutional because they encompass issue advocacy instead of

extending only to express advocacy or its functional equivalent. Human Life

concedes that the government may impose disclosure requirements on a radio

advertisement that expressly urges Washingtonians to vote for or against a

particular ballot initiative, but it argues that the government may not impose

disclosure requirements on advertisements that avoid references to particular ballot

52
initiatives, and instead speak only about the issues involved in pending ballot

initiatives. In other words, Human Life argues that there is a constitutionally

significant distinction between an advertisement saying, “physician-assisted

suicide is bad policy,” at a time when a measure like Initiative 1000 is on the ballot

and an advertisement saying, “vote against Initiative 1000.” Human Life’s

position is that the latter advertisement, which is express advocacy, may be subject

to disclosure requirements, whereas the former advertisement is constitutionally

sacrosanct issue advocacy that may not be regulated. On this basis, it argues that

the burdens imposed by the Disclosure Law’s political committee obligations are

categorically unconstitutional.5

Arguing that Buckley established a distinction between the ability to regulate

express and issue advocacy, Human Life cites WRTL. In WRTL, the Supreme

Court considered the constitutionality of a federal limitation on campaign speech

that prohibited “electioneering communications” during certain “blackout dates”

leading up to an election as applied to three advertisements that WRTL wished to

pursue. WRTL, 551 U.S. at 464. Although the ads were clearly prohibited by the

federal statute, they did not contain “magic words of express advocacy” as

5
Although the Fourth Circuit adopted this position in Leake, 525 F.3d at
281–83, its decision predates Citizens United and Reed and therefore is
unpersuasive in the disclosure context.

53
identified in Buckley. The Court had already determined in McConnell that such

magic words were not a prerequisite to regulation and that, as long as the

communications were the “functional equivalent” of express advocacy, they fell

within the definition of communications constitutionally subject to disclosure.

McConnell, 540 U.S. at 193–94. Thus, the question before the WRTL Court was the

scope of the definition of “functional equivalent.”

The Court defined “express advocacy or its functional equivalent” as

communications “susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate.” WRTL, 551 U.S. at 469–70.

The Court concluded that WRTL’s ads – which did not discuss an issue in an

upcoming election, did not urge their audience to vote for or against any candidate

or measure, and merely encouraged citizens to contact their senators and urge them

to oppose an ongoing filibuster – were neither express advocacy nor “susceptible

of no reasonable interpretation other than as an appeal for a vote.” Id. at 458–60,

470. Because they did not fall within the express advocacy category that was

automatically constitutionally permissible, the Court subjected the regulations to

strict scrutiny. Concluding that it had “never recognized a compelling interest in

regulating ads, like WRTL’s, that are neither express advocacy nor its functional

54
equivalent,” id. at 464–65, the Court held that the ads could not constitutionally be

subject to the federal prohibition on electioneering communications, id. at 466.

As a preliminary matter, we could arguably dispose of Human Life’s

challenge to the disclosure requirements by concluding that its communications

constitute the functional equivalent of express advocacy under WRTL. Human

Life’s proposed communications, even if they do not mention Initiative 1000 by

name, are susceptible of no reasonable interpretation other than as an urgent appeal

to vote down the measure. The communications explicitly state that physician-

assisted suicide has reentered the realm of public debate and that the situation

demands action. Even if the communications were less obvious, the WRTL Court

noted that certain background information may be relevant in determining whether

a communication can reasonably be interpreted only as relating to a specific

election or vote. Id. at 473–74. For example, the Court mentioned as a

consideration the timing element – that is, if an ad “describes a legislative issue

that is either currently the subject of legislative scrutiny or likely to be the subject

of scrutiny in the near future,” it is more likely it should be interpreted as appealing

for a vote. Id. at 474 (quoting Wis. Right to Life, Inc. v. FEC, 466 F. Supp. 2d 195,

207 (D.D.C. 2006)). Human Life itself admits that timing is particularly relevant

to its proposed communications; in elaborating on the burden imposed by the

55
Disclosure Law, it stated in its verified complaint that “2008 is an especially vital

time for HLW to address the physician-assisted suicide issue because people will

again be unusually attentive as it swirls to the forefront of public attention.” Given

their detailed language and unique timing, the communications proposed by

Human Life are certainly express advocacy or its functional equivalent. Moreover,

the ads cannot be compared with the communications at issue in WRTL, which did

not involve an issue that was the subject of an election and merely encouraged

voters to engage in communication with their representatives.

However, even if Human Life’s proposed communications constitute

unadulterated issue advocacy, its argument has been foreclosed by the Supreme

Court’s opinion in Citizens United. Considering the possibility of a bright-line rule

distinguishing express and issue advocacy, the Court stated, “[W]e reject Citizen

United’s contention that the disclosure requirements must be limited to speech that

is the functional equivalent of express advocacy.” Citizens United, 130 S. Ct. at

915. Citing Buckley, MCFL, and McConnell, the Court emphasized the established

principle that “disclosure is a less restrictive alternative to more comprehensive

regulations of speech,” and it recited the list of decisions in which the Court had

upheld disclosure requirements under the same principles it used to strike down

financial limitations. Id. In addition, the Court explained that the distinction

56
between express and issue advocacy that was established by the narrowly

construed statutory definitions in cases like WRTL did not translate into the

disclosure context. The Court explained:

Citizens United claims that . . . [t]he principal opinion in
WRTL limited [BCRA’s] 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. The Court has explained that
disclosure is a less restrictive alternative to more
comprehensive regulations of speech.

Id. (citations omitted). Given the Court’s analysis in Citizens United, and its

holding that the government may impose disclosure requirements on speech, the

position that disclosure requirements cannot constitutionally reach issue advocacy

is unsupportable.

In advocating that position, Human Life does no more than reiterate

arguments that have been rejected by the Supreme Court. First, in upholding the

application of disclosure requirements to electioneering communications, the

McConnell Court rejected the notion that Buckley establishes “a constitutionally

mandated line between express advocacy and so-called issue advocacy, and that

speakers possess an inviolable First Amendment right to engage in the latter

category of speech.” McConnell, 540 U.S. at 190; see also id. at 193 (rejecting the

57
notion “that the First Amendment erects a rigid barrier between express advocacy

and so-called issue advocacy”). The Court found that this notion “misapprehends

our prior decisions” because “a plain reading of Buckley makes clear that the

express advocacy limitation, in both the expenditure and the disclosure contexts,

was the product of statutory interpretation rather than a constitutional command.”

Id. at 190–91. Also, Human Life’s expansive reading of WRTL as concluding that

issue advocacy cannot be subject to disclosure requirements was rejected in

Citizens United. Thus, imposing disclosure obligations on communicators engaged

in issue advocacy is not per se unconstitutional; instead, the constitutionality of the

obligations is determined by whether they are substantially related to a sufficiently

important governmental interest.

Having dispensed with the idea that only express advocacy and its functional

equivalent are subject to government regulation, and that any government

regulation of issue advocacy is therefore unconstitutional, we turn to the operative

question: whether the Disclosure Law’s requirements for “independent

expenditures” and “political advertising” are substantially related to Washington

State’s informational interest. We conclude that they are.

In Citizens United, the Supreme Court unreservedly affirmed the public’s

interest “in knowing who is speaking about a candidate shortly before an election,”

58
and it concluded that “the informational interest alone” was sufficient to support

federal campaign finance disclosure requirements.6 Citizens United, 130 S. Ct. at

915–16. Upholding the line of cases that recognize the importance of the

government’s informational interest, the Court reasoned:

The First Amendment protects political speech; and
disclosure permits citizens and shareholders to react to the
speech of corporate entities in a proper way. This
transparency enables the electorate to make informed
decisions and give proper weight to different speakers and
messages.

Id. at 916.

As in Citizens United, Washington voters’ interest in knowing who is

speaking about physician-assisted suicide shortly before the vote on a ballot

6
Indeed, the Citizens United Court recognized not only the public’s interest
in knowing who is speaking about a candidate, and which donors might wield
influence over a candidate, but also the interest of shareholders in determining
“whether their corporation’s political speech advances the corporation’s interest in
making profits.” Citizens United, 130 S. Ct. at 916. The Court recognized that the
value of the information generated by disclosure was not limited to informing
voters how to vote, but included providing citizens with the ability “to hold
corporations and elected officials accountable for their positions and supporters”
and “to react to the speech of corporate entities in a proper way.” Id.
The reality of this corporate accountability function is illustrated by the
public’s reaction in August 2010 to a political contribution by Target to an anti-gay
gubernatorial candidate. See Jia Lynn Yang & Dan Eggen, Campaign Spending
Puts Target in Bull’s-Eye, Wash. Post, Aug. 19, 2010. After disclosure of the
contribution sparked an outcry from the gay community, one campaign finance
expert suggested that major corporations “are now likely to think twice before
giving corporate money to groups that may later prove controversial.” Id.

59
initiative that proposes to legalize that practice is sufficient to support the

Disclosure Law’s requirements. Under these circumstances, where the “[v]oters

act as legislators,” CPLC–I, 328 F.3d at 1106, the government has a vital interest in

providing the public with information about who is trying to sway its opinion. The

ability of voters to determine who is behind the advertisements seeking to shape

their views is integral to the “full realization of the American ideal of government.”

Harriss, 347 U.S. at 625. Given the complex detail involved in ballot initiatives,

and the sheer volume of relevant information confronting voters, voters cannot be

expected to make such a determination on their own. Thus, to prevent the public

from being misled by special interest groups “masquerading as proponents of the

public weal,” the voters who passed Washington’s Disclosure Law “merely

provided for a modicum of information from those” who wish to influence the

public’s vote. Id.; see also McConnell, 540 U.S. at 196–97 (noting that groups

sometimes use “dubious and misleading names,” like “Citizens for Better

Medicare,” a group funded by the pharmaceutical industry); Editorial, The Secret

Election, N.Y. Times, Sept. 18, 2010 (noting the ability of 501(c)(4) organizations

“with disingenuously innocuous names like American Crossroads and the

American Action Network” to serve as “a funnel for anonymous campaign

60
donations”). We have no trouble concluding that Washington’s interest in

informing the electorate through the Disclosure Law is sufficiently important.

Before analyzing the relationship between the particular burdens imposed by

the Disclosure Law and the government interests it furthers, we note that there is

less danger of a regulation sweeping too broadly in the context of a ballot measure

than in a candidate election. As the district court noted, where a disclosure

requirement regulates issue advocacy, the scope of that regulation is naturally

“more targeted and limited” when the relevant vote involves a ballot initiative.

Human Life, 2009 WL 62144, at *18. “Ballot initiatives present a single issue for

public referendum,” and thus the only relevant campaign speech that a disclosure

requirement could reach is “speech intended to influence the voter’s opinion as to

the merits of this single issue – in other words, it is ‘issue advocacy,’ plain and

simple.” Id. Whereas the broadly defined regulation of campaign speech in the

candidate election context “threatens to burden debate on a broad range of issues –

indeed, any issue that is arguably ‘pertinent’ to the election,” broadly defined

speech regulation in the ballot measure context poses a much less significant

burden; in the ballot context, the only issue advocacy that could potentially be

regulated is advocacy regarding “the single issue put before the public.” Id. Thus,

the potential of the Disclosure Law to incidentally regulate issue advocacy, to

61
which Human Life objects, would engender far more concern if the relevant

election involved a candidate. In the ballot initiative context, on the other hand,

where express and issue advocacy are arguably “one and the same,” any incidental

regulation of issue advocacy imposes more limited burdens that are more likely to

be substantially related to the government’s interests. Because regulation of issue

advocacy in the ballot context is virtually indistinguishable from regulation of

express advocacy (an admittedly appropriate enterprise), such regulation is more

closely related to the government’s interest in informing the electorate. We agree

with the district court’s reasoning that “[f]rom the perspective of the state’s

compelling interest,” it makes little difference whether speech urges the public to

vote for or against a ballot measure implicating a particular issue or whether it

advocates or attacks that particular issue while the ballot measure is pending.7

The particular requirements of Washington’s Disclosure Law are

substantially related to the government’s informational interest in that they target

only those expenditures and advertisements made in conjunction with an ongoing

election or vote. Reporting requirements do not extend indiscriminately to all issue

7
Compare this to a candidate election, where there is a greater distance
between speech urging a vote for or against a particular candidate and advocating
or attacking one of a “broad range of issues” on which the candidate may have a
particular view.

62
advocacy conducted at any time – regulating, for example, an advertisement about

physician-assisted suicide placed at a time when no related ballot measure is

pending. Rather, by definition, disclosure obligations do not apply absent a

pending election or ballot initiative campaign. See Wash. Rev. Code

§ 42.17.100(1) (defining “independent expenditure” as an expenditure made to

support or oppose a “candidate or ballot proposition”); id. § 42.17.020(38)

(defining “political advertising” as communications that support or oppose an

“election campaign”). Moreover, once the initial two-page registration form is

filed, the filing of additional special reports is pegged to the dates of the upcoming

election. For independent expenditures, an initial financial disclosure report is

required only if certain financial thresholds are passed “during the . . . election

campaign,” and subsequent reporting requirements, which become due as the date

of the vote approaches, arise only if additional expenditures have been made

during the campaign period. Id. § 42.17.100(2)–(3). Similarly, special reports for

political advertising are required only if the advertisement has a fair market value

of more than $1,000 and the advertisement is run during the three-week run-up to

the vote. See id. § 42.17.103(1). All disclosure obligations cease shortly after the

relevant vote has taken place. Id. § 42.17.100(3).

63
 Thus, under the Disclosure Law, an organization engaging in issue advocacy

like Human Life may avoid disclosure requirements any time that the issue about

which it is speaking is not the subject of a ballot initiative or other public vote.

Once the issue becomes the subject of a ballot initiative campaign, Human Life

may continue to advocate all it wants; the only difference is that it must provide

certain disclosures at times tied to the date of the vote. Human Life itself

recognizes the unique importance of the temporal window immediately preceding a

vote. As it stated in its complaint, the year 2008 was “a special opportunity” and

“an especially vital time” for it to discuss physician-assisted suicide. It explained

that “[b]ecause physician-assisted suicide is now especially in the public awareness

and debate, people will be particularly receptive to arguments about the physician-

assisted suicide issue.” For the same reasons that Human Life had a heightened

interest in speaking about physician-assisted suicide during the run-up to the

Initiative 1000 vote, Washingtonians had a heightened interest in knowing who

was trying to sway their views on the topic and how much they were willing to

spend to achieve that goal. We conclude that the Disclosure Law’s requirements

for independent expenditures and political advertising are substantially related to

64
that interest.8

C. Vagueness Challenges

“A law is unconstitutionally vague if it fails to provide a reasonable

opportunity to know what conduct is prohibited, or is so indefinite as to allow

arbitrary and discriminatory enforcement.” Tucson Woman’s Clinic v. Eden, 379

F.3d 531, 555 (9th Cir. 2004) (citations omitted); see also Canyon Ferry, 556 F.3d

at 1030 (finding unconstitutional vagueness where an entity “had no way of

knowing ex ante” that its conduct would be covered by the challenged statute).

“Nevertheless, perfect clarity is not required even when a law regulates protected

speech,” Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir.

2001), and “we can never expect mathematical certainty from our language,”

8
Human Life also challenges the constitutionality of a separate Washington
regulation providing that “[a]ny person making a measurable expenditure of funds
to communicate a rating, evaluation, endorsement or recommendation for or
against a candidate or ballot proposition shall report such expenditure including all
costs of preparation and distribution in accordance with chapter 42.17 RCW.”
Wash. Admin. Code § 390-16-206. Human Life argues that this regulation is
unconstitutional because it uses the phrase “for or against” instead of “expressly
for or against.” We already have rejected Human Life’s argument that issue
advocacy is not subject to disclosure requirements. In any event, this regulation
does not create new disclosure requirements, but rather clarifies that certain
communications – including newspaper editorials and news commentaries – are
exempt from the Disclosure Law’s requirements. See id. (cross-referencing Wash.
Rev. Code § 42.17.020(15)(b)(iv), (21)(c); Wash. Admin. Code §§ 390-16-313
(2)(b), 390-05-290).

65
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). Human Life argues that

two terms in the Disclosure Law are unconstitutionally vague: “expectation” as

used in the definition of “political committee,” and “mass communication” as used

in the definition of “political advertising.”9 Although vagueness challenges based

on a statute’s failure to provide the “reasonable opportunity to know what conduct

is prohibited” are generally brought where criminal sanctions may be imposed, see

Buckley, 424 U.S. at 40–41, the Supreme Court has also held that “[b]ecause First

Amendment freedoms need breathing space to survive, government may regulate

in the area only with narrow specificity,” NAACP v. Button, 371 U.S. 415, 433

(1963) (considering a vagueness challenge to a state supreme court’s declaratory

9
Throughout its briefs, Human Life argues that various Disclosure Law
provisions are “vague and overbroad.” With the exception of the two terms
discussed in this section (i.e., “expectation” and “mass communication”), Human
Life’s arguments center on the asserted overbreadth of the Disclosure Law’s
provisions, not their vagueness. This approach is not unusual. See Kolender v.
Lawson, 461 U.S. 352, 358 n.8 (1983) (“[W]e have traditionally viewed vagueness
and overbreadth as logically related and similar doctrines.”); Cal. Teachers Ass’n,
271 F.3d at 1151 (“A statute’s vagueness exceeds constitutional limits if its
deterrent effect on legitimate expression is both real and substantial, and if the
statute is not readily subject to a narrowing construction by the state courts.”
(alterations and internal quotation marks omitted)). We already have addressed
Human Life’s “overbreadth” arguments above insofar as we have held that the
definitions of “independent expenditure” and “political advertising” do not burden
more speech than is constitutionally permissible under exacting scrutiny. In this
section, we address the two statutory terms that Human Life specifically challenges
on vagueness grounds.

66
judgment, which defined the purview of state laws prohibiting certain solicitations

of legal business); see also Grayned, 408 U.S. at 109 (considering a vagueness

challenge where the appellant was fined $25 for violations of antipicketing and

antinoise ordinances, and stating that “where a vague statute ‘abut[s] upon

sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the

exercise of [those] freedoms’” (alterations in original) (footnotes and citations

omitted)).10

1. “Expectation”

An entity qualifies as a “political committee” if it has “the expectation” of

spending or receiving money to support or oppose a candidate or ballot initiative.

Wash. Rev. Code § 42.17.010. Human Life argues that the word “expectation” is

unconstitutionally vague, as it could be interpreted to mean anything from a “hope”

to a “contract.” We disagree. The meaning of the word “expectation” for the

purposes of the Disclosure Law’s definition of “political committee” has been

clarified through judicial interpretation. First, as discussed above, an entity

becomes a political committee under the Disclosure Law’s “expenditures” prong if

one of its primary purposes is political advocacy. See Evergreen Freedom Found.,

10
The Disclosure Law imposes civil penalties for violations, Wash. Rev.
Code § 42.17.390, and does not preclude criminal sanctions where appropriate, see
State v. Conte, 154 P.3d 194, 198 (Wash. 2007).

67
49 P.3d at 902–03. Once an entity demonstrates sufficient political activity to

qualify under this standard, there can be little doubt that it will “expect” to make

expenditures related to that political activity. Second, an entity becomes a political

committee under the “contributions” prong if the entity has given the public “actual

or constructive knowledge that the organization is setting aside funds to support or

oppose a candidate or ballot proposition.” Id. at 904. Arguably, an organization

would not notify the public that funds would be used for political advocacy if the

organization did not expect to receive funds for that purpose. Because the

“primary purpose” test and “actual or constructive knowledge” test graft into the

word “expectation” the concrete, discernible criteria necessary to prevent arbitrary

and discriminatory enforcement, we conclude that the term “expectation” is not

unconstitutionally vague.

2. “Mass Communication”

“Political advertising” for purposes of the Disclosure Law encompasses

newspaper advertisements, billboards, signs, letters, “or other means of mass

communication.” Wash. Rev. Code § 42.17.020(38). Human Life argues that the

phrase “other means of mass communication” is unconstitutionally vague because

it is impossible to determine how broadly distributed a communication must be to

fall within the ambit of the statute.

68
 However, “speculation about possible vagueness in hypothetical situations

not before the Court will not support a facial attack on a statute when it is surely

valid ‘in the vast majority of its intended applications.’” Hill v. Colorado, 530

U.S. 703, 733 (2000) (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

Moreover, “otherwise imprecise terms may avoid vagueness problems when used

in combination with terms that provide sufficient clarity,” Gammoh v. City of La

Habra, 395 F.3d 1114, 1120 (9th Cir. 2005), and vagueness challenges will be

rejected when it is “clear what the ordinance as a whole prohibits,” Grayned, 408

U.S. at 110.

“When Congress does not define a term in a statute, we construe that term

according to its ordinary, contemporary, common meaning.” United States v.

Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009) (quoting United States v. W.R.

Grace, 504 F.3d 745, 755 (9th Cir. 2007)). “Mass” is defined as “[d]irected at or

reaching a large number of people.” Webster’s II New Riverside Dictionary

(1984). “Communication” is defined as “[t]he exchange of ideas, messages, or

information, as by speech, signals, or writing” or “[a] system for sending and

receiving messages, as by mail, telephone, or television.” Id. The only

communication proposed by Human Life not expressly covered by the definition of

69
“political advertising” is its planned telemarketing campaign.11 We conclude that

this campaign clearly falls within the ordinary meaning of “mass communication”

and that there is no reason to believe that the scope of that term will be overly

vague “in the vast majority of its intended applications.” Moreover, given the

lengthy list of other similar covered communications, as well as the clear purposes

of the Disclosure Law, we find that it is sufficiently evident which communications

will be subject to the Disclosure Law’s requirements for political advertising. For

these reasons, we reject Human Life’s contention that “mass communication” is

unconstitutionally vague.

D. As-Applied Challenges

In addition to its facial challenges, Human Life challenges the Disclosure

Law as applied to Human Life and its proposed advocacy activities. However, it

does so in name only. Human Life does not provide any evidence to support an as-

applied challenge, and it does not distinguish between its facial and as-applied

claims in its briefs. It does not, for example, explain how the Disclosure Law

impinges upon its associational freedoms. See, e.g., Citizens United, 130 S. Ct. at

914 (citing Buckley, 424 U.S. at 74) (recognizing that the reasonable probability of

11
Human Life’s proposed letters and radio ads are clearly covered by the
statute’s enumeration of “letters” and “radio or television presentations” as
political advertisements. See Wash. Rev. Code § 42.17.020(38).

70
harassment as a result of disclosure may be an undue burden on First Amendment

rights). Nor does it offer any support for its assertion that Human Life, by its

nature, is unable to comply with the Disclosure Law’s requirements. See, e.g.,

MCFL, 479 U.S. at 255 (noting that compliance with the federal corporate

segregated fund requirements would essentially require MCFL “to assume a more

sophisticated organizational form”). Also, as noted above, some of Human Life’s

proposed communications, which explicitly reference Initiative 1000, constitute

“express advocacy” that would be subject to disclosure requirements even if we

accepted all of Human Life’s constitutional theories.

The factual basis for Human Life’s as-applied challenge is to be found, if

anywhere, in Human Life’s “verified complaint” – its only evidentiary submission.

Not only is the complaint devoid of information from which we could conclude

that the Disclosure Law is unconstitutional as applied to Human Life, it is not clear

from the record that the complaint was verified by a Human Life official with

personal knowledge of the facts alleged therein. See CPLC–II, 507 F.3d at 1176

(explaining that a verified complaint may serve as an affidavit for purposes of

summary judgment if it is based on personal knowledge and sets forth the requisite

facts with specificity). Insofar as there is any evidence at all to support an as-

applied challenge, that evidence is disputed given the Commission’s evidentiary

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submissions, which show that Human Life already has in place many of the

organizational features required of political committees under the Disclosure Law,

and that the reporting requirements imposed by the Disclosure Law are quite

modest. The Commission also points out that it has in place procedures by which

organizations may obtain guidance on their obligations under the Disclosure Law

and that Human Life has not sought any assistance. Any conflicts in the evidence

as to Human Life’s activities or the severity of the burden imposed on them

preclude summary judgment in Human Life’s favor. See Fed. R. Civ. P. 56.

In essence, Human Life’s as-applied argument goes to the relief requested:

We understand Human Life’s position to be that, if we conclude that the Disclosure

Law is unconstitutional on its face, then we should require the district court to

enter an injunction specifying that its disclosure requirements cannot be enforced

against Human Life or its proposed advocacy activities. Because we conclude that

the Disclosure Law is constitutional on its face, we decline to do so.

CONCLUSION

In his first inaugural address, Thomas Jefferson argued that information is a

precondition for public debate, which, in turn, is a precondition for democratic

self-governance: “The diffusion of information and the arraignment of all abuses

at the bar of public reason, I deem [one of] the essential principles of our

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government, and consequently [one of] those which ought to shape its

administration.” Thomas Jefferson, First Inaugural Address, 1801; see also Nixon

v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 411 (2000) (Thomas, J. dissenting) (“Our

Founders sought to protect the rights of individuals to engage in political speech

because a self-governing people depends upon the free exchange of political

information.”). Consistent with Jefferson’s vision, disclosure requirements have

become an important part of our First Amendment tradition. See, e.g., Reed, 130

S. Ct. at 2818; Citizens United, 130 S. Ct. at 908; Harriss, 347 U.S. at 625. The

Disclosure Law represents Washingtonians’ considered judgment that “full access

to information concerning the conduct of government on every level must be

assured as a fundamental and necessary precondition to the sound governance of a

free society.” Wash. Rev. Code § 42.17.010(11). There is a substantial

relationship between Washington State’s interest in informing the electorate and

the definitions and disclosure requirements it employs to advance that interest.

Accordingly, the judgment of the district court is AFFIRMED.

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 Counsel

John J. White, Jr. of Livengood, Fitzgerald & Alskog, PLLC (Kirkland, WA) for
the Appellant.

James Bopp, Jr. (argued), Richard E. Coleson, Jeffrey P. Gallant, and Clayton J.
Callen of Bopp, Coleson & Bostrom (Terre Haute, IN) for the Appellant.

Robert M. McKenna, Linda A. Dalton, Gordon P. Karg, and Nancy J. Krier
(argued) of the State of Washington (Olympia, WA) for the Appellee.

J. Gerald Hebert, Paul S. Ryan, and Tara Malloy of the Campaign Legal Center
(Washington, DC) as Amicus Curiae.

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