New Hampshire Right to Life Political Action Committee v. Gardner

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-1744

NEW HAMPSHIRE RIGHT TO LIFE POLITICAL ACTION COMMITTEE,

Plaintiff, Appellant,

v.

WILLIAM M. GARDNER, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF
STATE OF THE STATE OF NEW HAMPSHIRE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Selya, Circuit Judge,

Aldrich and Bownes, Senior Circuit Judges.

James Bopp, Jr. with whom Paul R. Scholle, Bopp, Coleson &

Bostrom, and Stephen F. Queeney were on brief, for appellant.

Lucy C. Hodder, Assistant Attorney General, with whom Martin

P. Honigberg, Senior Assistant Attorney General, was on brief,

for appellees.

November 1, 1996

SELYA, Circuit Judge. Like forecasted hurricanes,
SELYA, Circuit Judge.

approaching elections invariably give rise not only to gusts of

wind but also to feverish preparations. And, just as the prudent

fisherman does not trust in chance to save his boat from the

gathering storm, the sage political activist does not rely on an

unenlightened electorate to save her candidate from the

vicissitudes of the ballot box. Still, government from time to

time attempts to circumscribe the ways and means of bringing

enlightenment to a sometimes truculent public. This appeal comes

to us by virtue of one such restriction: the $1,000 per election

limit that New Hampshire places on "independent expenditures" in

a political campaign.1 See N.H. Rev. Stat. Ann. (RSA), tit.

LXIII, ch. 664:5, V; 664:3, I; 664:3, II (Supp. 1995).

In this case the appellant New Hampshire Right to Life

Political Action Committee (N-PAC) challenges the

constitutionality of the New Hampshire limitation, arguing that

the statutory scheme violates the First Amendment.2 In the

course of denying a requested preliminary injunction, the

1New Hampshire considers independent expenditures to include
expenditures by a political committee for the purpose of
"expressly advocating the election or defeat of a clearly
identified candidate which are made without cooperation or
consultation with any candidate, or any authorized committee or
agent of [any] candidate, and which are not made in concert with,
or at the request or suggestion of, any candidate, or any
authorized committee or agent of [any] candidate." N.H. Rev.
Stat. Ann., tit. LXIII, ch. 664:2, XI. That definition is not
atypical. See, e.g., Ariz. Rev. Stat. Ann., tit. 16, ch. 6,

16-901(11); Or. Rev. Stat., tit. 23, ch. 260.005(8).

2The First Amendment applies to states by operation of the
Fourteenth Amendment. See 44 Liquormart, Inc. v. Rhode Island,

116 S. Ct. 1495, 1501 n.1 (1996).

2

district court dismissed the case sua sponte. The court held

that the appellant lacked standing to maintain the action.

Because N-PAC faces a credible threat of prosecution if it

pursues its wonted activities, we conclude that it does have

standing to mount a pre-enforcement facial challenge to the

statutory cap. Consequently, we reverse the district court's

order of dismissal, and, because the merits of the case are

clear, we strike down New Hampshire's ceiling on independent

expenditures.

I. THE STATUTORY SCHEME
I. THE STATUTORY SCHEME

Understandably perturbed by the corrosive effect of

money on the electoral process, New Hampshire began to enact

campaign finance reform legislation as far back as 1989. In 1991

the state legislature capped a political committee's ability to

make "independent expenditures" at $1,000 per election.3 The

relevant statute reads:

No political committee shall make
independent expenditures in excess of $1,000
for any or against any candidate running for
a particular office in a state primary
election, and a like amount in a state
general election, in support of or to oppose
any candidate.

RSA 664:5, V. Two other statutes complement the general

restriction on independent expenditures. First, the state

requires a political committee to file a declaration with the

Secretary of State pledging that it "will not exceed the

3In the vocabulary of the statute, a political committee
includes "any organization of 2 or more persons [that attempts]
to influence elections . . . ." RSA 664:2, III.

3

expenditure limitations allowed under RSA 664:5, V." RSA 664:3,

I. Another statute provides that "[o]nly those political

committees that have filed a declaration with respect to

independent expenditures . . . may make such expenditures." RSA

664:3, II. The violation of any of these provisions is a

criminal offense. See RSA 664:21, V.

New Hampshire vests enforcement of this statutory

scheme in its Attorney General. See RSA 664:18. The Secretary

of State is charged with receiving and examining reports of

election expenditures and notifying the Attorney General of any

suspected improprieties. See RSA 664:19.

II. THE GATHERING STORM
II. THE GATHERING STORM

N-PAC is a political committee within the contemplation

of RSA 664:2, III and has been registered as such with the

Secretary of State for over a decade. The organization's stated

purpose is to "promote the sanctity of human life from conception

to natural death." N-PAC works in a variety of ways to

accomplish this goal. Among other stratagems, it supports (or

opposes) various candidates for state office whom it perceives as

endorsing (or denigrating) its views. N-PAC's support manifests

itself through the expenditure of funds for such purposes as

purchasing advertisements and distributing leaflets.

Over the past decade N-PAC typically has spent all the

contributions that it receives on some form of right-to-life

political advocacy. The 1996 election followed this well-trodden

path. Originally, N-PAC vowed to make political expenditures

4

opposing a certain candidate in the primary election, but that

candidate withdrew. N-PAC then shifted gears and decided to

throw its support behind a different candidate who was running

for state office in the primary election.4

Ellen Dube, a state employee, functions as the

Secretary of State's liaison with the Attorney General. One of

Dube's duties is to report possible violations of RSA 664 to the

Attorney General, who then makes the decision whether to

investigate and/or prosecute. On March 6, 1996, N-PAC's

president, Barbara Hagan, telephoned Dube. Hagan inquired if the

state intended to enforce the statutory limitation on independent

expenditures. Dube replied that infractions "would be noticed"

and that the state would commence enforcement actions against any

persons who violated RSA 664:5, V. Hagan subsequently posed the

same question to Wynn Arnold, a member of the Attorney General's

staff. Arnold advised her that the initiation of an enforcement

action would depend on whether there had been a referral from the

Secretary of State. He refused to deny that the Attorney General

would enforce RSA 664:5, V.

N-PAC then filed suit in New Hampshire's federal

district court against the Secretary of State, William M.

Gardner, and the Attorney General, Jeffrey R. Howard. N-PAC's

verified complaint alleged that it intended to exceed the

limitation on independent expenditures in the 1996 election

4The identity of the candidate, his or her party
affiliation, and the particular office sought are being held in
confidence pursuant to an agreement between the parties.

5

campaign, that it feared prosecution if it did so, and that the

challenged statutory provisions impermissibly burdened its free-

speech rights and thereby ran afoul of the Supreme Court's

holding in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). N-

PAC sought a declaratory judgment that RSA 664:5, V and 664:3, I

& II on their face chill its political expression and thereby

abridge its constitutional rights. It also sought an order

restraining the defendants from enforcing these statutes against

it.

Within a week, N-PAC filed a motion for a preliminary

injunction. In describing the need for this relief, N-PAC

focused on three sets of expenditures which it intended to make

for the September 10 primary election: (1) its contemplated

purchase of an advertisement endorsing the candidate in the June

edition of the New Hampshire Right to Life Committee (NHRLC)

newsletter (estimated cost: $900); (2) its planned distribution

at public events around the state on July 4 of roughly 30,000

fliers supporting the candidate (estimated cost: slightly over

$3,000); and (3) its proposed purchase of a follow-up

advertisement in either the August or September issue of the

NHRLC newsletter (estimated cost not disclosed in the record).

After deposing Hagan and learning of these projected

expenditures, the defendants informed N-PAC that the state would

not take any enforcement action because of its belief that the

pattern of contacts between N-PAC and the candidate whom it had

opted to support precluded classification of the proposed

6

expenditures as "independent" within the purview of RSA 664:2,

XI. As what seemed to them a logical corollary of this

determination, the defendants asserted that in the absence of a

threat of enforcement, N-PAC could not claim to have suffered any

cognizable injury by operation of the challenged statutes and

therefore had no standing to contest their constitutionality.

On June 21, 1996, the district court denied the motion

for a preliminary injunction. In that same order the court

relying heavily on the Attorney General's representation that the

specified expenditures, if made, would not engender prosecution

sua sponte dismissed the action for want of standing.5 In the

court's view its conclusion that N-PAC lacked standing

"present[ed] a constitutional barrier not only to the

adjudication of the instant motion but also to the court's

consideration of the merits of the case." As part and parcel of

this determination, the court concluded that N-PAC did not face a

credible threat of prosecution based on the aggregate effect of

the $900 expenditure it had already made and the other two

planned expenditures. Importantly, the court neither dwelt on N-

PAC's prayer for declaratory relief nor assayed the threat of

prosecution vis- -vis other potential expenditures.

N-PAC filed this appeal, but it refrained from printing

5The court considered and rejected N-PAC's contention that
the Attorney General lacked the authority to make these
representations, finding "the representations to be binding and
the plaintiff to be protected by them." Given the basis for our
decision, see text infra, we do not review this finding, and we

express no opinion on the correctness of the legal proposition
upon which it rests.

7

the fliers or purchasing a second advertisement.

III. STANDARD OF REVIEW
III. STANDARD OF REVIEW

We review standing determinations de novo, crediting

the plaintiff's factual allegations to the extent that they are

material and construing those alleged facts, together with the

reasonable inferences therefrom, in favor of the plaintiff. See

Warth v. Seldin, 422 U.S. 490, 501 (1975); Benjamin v. Aroostook

Medical Ctr., Inc., 57 F.3d 101, 104 (1st Cir. 1995); United

States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992). Where,

as here, dismissal is ordered sua sponte, the ultimate standard

of review does not vary, but the court of appeals must take an

extra step, scrutinizing the proceedings carefully to make

certain that the plaintiff has had a fair opportunity to put its

best foot forward. See, e.g., Carparts Distribution Ctr., Inc.

v. Automotive Wholesaler's Ass'n of New Eng., Inc., 37 F.3d 12,

15 (1st Cir. 1994); Preterm, Inc. v. Dukakis, 591 F.2d 121, 134

(1st Cir.), cert. denied, 441 U.S. 952 (1979).

IV. STANDING
IV. STANDING

Standing is a "threshold question in every federal

case, determining the power of the court to entertain the suit."

Warth, 422 U.S. at 498. After all, "[i]f a party lacks standing

to bring a matter before the court, the court lacks jurisdiction

to decide the merits of the underlying case." AVX, 962 F.2d at

113.

Curiously, the doctrine of standing, though vitally

important for federal courts, remains a morass of imprecision.

8

The Justices once termed it "a concept of uncertain meaning and

scope," Flast v. Cohen, 392 U.S. 83, 95 (1968), and a quarter-

century later we acknowledged that, even after so many years, the

"ingredients of standing are . . . not easily susceptible to

concrete definitions or mechanical application." AVX, 962 F.2d at

113. In the absence of any hard-and-fast test, we limn those

guidelines on which federal courts seemingly agree and then move

to a more particularized discussion of the cases that provide the

best analogies for the present situation. After dealing briefly

with prudential concerns, we apply these distilled principles to

the standing issue in this case. Finally, we address the

possibility that the case is moot.

A
A

Standing involves "a blend of constitutional

requirements and prudential considerations." Valley Forge

Christian Coll. v. Americans United for Separation of Church and

State, 454 U.S. 464, 471 (1982). The constitutional requisites

stem from the admonition that a federal court is empowered only

to decide "cases" and "controversies." See U.S. Const., Art.

III. Not every dispute is a case or controversy. "The presence

of a disagreement, however sharp and acrimonious it may be, is

insufficient by itself to meet Art. III's requirements." Diamond

v. Charles, 476 U.S. 54, 62 (1986). To clear the Article III

hurdle, the party who invokes a federal court's authority must

show that (1) he or she personally has suffered some actual or

threatened injury as a result of the challenged conduct; (2) the

9

injury can fairly be traced to that conduct; and (3) the injury

likely will be redressed by a favorable decision from the court.

See Valley Forge, 454 U.S. at 472; Vote Choice, Inc. v.

DiStefano, 4 F.3d 26, 36 (1st Cir. 1993). The complaining party

must satisfy this test throughout the litigation, not just at the

moment when the complaint is filed. See Steffel v. Thompson, 415

U.S. 452, 459 n.10 (1974).

The second and third prongs of the test are not

legitimately in issue here. To the extent that N-PAC has

suffered a cognizable injury at all a matter to which we shall

soon return the injury can be traced to the existence and

threatened enforcement of the challenged statutes. That injury

is also redressable in this action: when a plaintiff seeks a

declaration that a particular statute is unconstitutional, the

proper defendants are the government officials charged with

administering and enforcing it. See Diamond, 476 U.S. at 57 n.2;

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Consequently,

the dispositive inquiry here involves the test's first prong:

the existence vel non of an actual or threatened injury.

This inquiry is always case-specific, and that truism

applies with special force in this instance. When, as now, a

party launches a pre-enforcement challenge to a statute that

provides for criminal penalties and claims that the statute, on

its face, abridges First Amendment rights, two potential injuries

must be considered. First, there is the injury which attends the

threat of enforcement. As the Court has repeatedly explained, it

10

is not necessary that a person expose herself to arrest or

prosecution under a statute in order to challenge that statute in

a federal court. See Babbitt v. United Farm Workers Nat'l Union,

442 U.S. 289, 298 (1979); Steffel, 415 U.S. at 459; Epperson v.

Arkansas, 393 U.S. 97 (1968). The rationale that underlies this

rule is straightforward: a credible threat of present or future

prosecution itself works an injury that is sufficient to confer

standing, even if there is no history of past enforcement. See

Doe v. Bolton, 410 U.S. 179, 188 (1973).

The second type of injury is peculiar to the First

Amendment context. In such cases, an actual injury can exist

when the plaintiff is chilled from exercising her right to free

expression or forgoes expression in order to avoid enforcement

consequences. See Meese v. Keene, 481 U.S. 465, 473 (1987);

Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987). In such

situations the vice of the statute is its pull toward self-

censorship. See Virginia v. American Booksellers Ass'n, Inc.,

484 U.S. 383, 393 (1988).

Of course, these two types of injury are interrelated.

Both hinge on the existence of a credible threat that the

challenged law will be enforced. If such a threat exists, then

it poses a classic dilemma for an affected party: either to

engage in the expressive activity, thus courting prosecution, or

to succumb to the threat, thus forgoing free expression. Either

injury is justiciable. Conversely, if no credible threat of

prosecution looms, the chill is insufficient to sustain the

11

burden that Article III imposes. A party's subjective fear that

she may be prosecuted for engaging in expressive activity will

not be held to constitute an injury for standing purposes unless

that fear is objectively reasonable. See Laird v. Tatum, 408

U.S. 1, 13-14 (1972); Chamber of Commerce v. FEC, 69 F.3d 600,

603-04 (D.C. Cir. 1995); see also ACLU v. Florida Bar, 999 F.2d

1486, 1492 (11th Cir. 1993) (noting that when the claimed injury

is one of self-censorship, the likelihood of enforcement action

becomes an important factor in determining whether there is more

than merely a subjective chill). The bottom line is that, as

long as a credible threat of prosecution exists, a litigant has

standing to mount a pre-enforcement challenge to the facial

constitutionality of a statute on the basis that her First

Amendment rights arguably are being trammelled.

Because the threat of prosecution is a common

denominator of both types of injury, their existence can be

resolved in a single inquiry. The contours of that inquiry are

well-defined. In a pre-enforcement challenge to a statute

carrying criminal penalties, standing exists when "the plaintiff

has alleged an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed

by [the] statute, and there exists a credible threat of

prosecution." Babbitt, 442 U.S. at 298. The first two-thirds of

the Babbitt framework fit this case snugly. The record reveals

that N-PAC intends to engage in political expenditures of a type

protected under the First Amendment, see Buckley, 424 U.S. at 14,

12

and New Hampshire's statutory scheme restricts N-PAC's freedom to

make those expenditures. Thus, the bone of contention here is

whether the third prong of the Babbitt framework fits. In the

next section, we gnaw upon that bone.

B
B

While bright lines grow faint in the area of standing,

we believe that a discussion of pertinent caselaw illuminates the

path to appropriate resolution of this appeal. We begin with

bedrock: "The conflict between state officials empowered to

enforce a law and private parties subject to prosecution under

that law is a classic `case' or `controversy' within the meaning

of Art. III." Diamond, 476 U.S. at 64. To establish the

conflict needed to animate this principle, however, a party must

show that her fear of prosecution is "not imaginary or wholly

speculative." Babbitt, 442 U.S. at 302.

This standard encapsulated in the phrase "credible

threat of prosecution" is quite forgiving. Babbitt illustrates

how readily one can meet it. There, the plaintiffs attacked a

statute that criminalized certain deceptive statements made

during consumer publicity campaigns and sought a declaration of

the statute's unconstitutionality. Id. at 301. Although the

defendants noted that no criminal penalties had ever been levied

under the statute and argued that none might ever be imposed, the

Court found a credible threat of prosecution. It observed that

the plaintiffs had engaged in consumer publicity campaigns in the

13

past and that they professed an intent to engage in such

activities in the future. Id. Since "the State has not

disavowed any intention of invoking the criminal penalty

provision against [violators]," the plaintiffs were "not without

some reason in fearing prosecution for violation of the ban on

specified forms of consumer publicity." Id. at 302.

Other cases set a similarly low threshold. In Doe, the

Justices held that a class consisting of doctors who performed

abortions had standing to challenge the constitutionality of

Georgia's statutes restricting the procedure, notwithstanding

that no physician "ha[d] been prosecuted, or threatened with

prosecution, for violation of the . . . statutes." 410 U.S. at

188. The Doe Court distinguished Poe v. Ullman, 367 U.S. 497

(1961), in which standing had been denied, on the ground that Poe

involved a hoary statute that had led to only one prosecution in

more than eighty years. "Georgia's statute, in contrast, is

recent and not moribund." Doe, 410 U.S. at 188.

American Booksellers is of like tenor. That case

involved a pre-enforcement facial challenge to a Virginia

obscenity statute. The Court rejected the state's plea that the

plaintiffs had sued prematurely (the statute having been only

recently enacted and not yet having taken effect). The Justices

reasoned that the law was "aimed directly" at entities like the

plaintiffs, who would either have to "take significant and costly

compliance measures or risk criminal prosecution." American

Booksellers, 484 U.S. at 392. Since "[t]he State ha[d] not

14

suggested that the newly enacted law will not be enforced," the

booksellers had "an actual and well-founded fear that the law

[would] be enforced against them." Id. at 393. They thus had

standing to mount a pre-enforcement facial challenge to it. See

id. In reaching this conclusion, the Court took pains to note

that the "danger of this statute is, in large measure, one of

self-censorship" and termed self-censorship "a harm that can be

realized even without an actual prosecution." Id.

Federal appellate courts echo these holdings. In

Chamber of Commerce the D.C. Circuit found standing to mount a

facial challenge to a Federal Election Commission regulation

despite the fact that the FEC was split on the advisability of

the rule and there was no present danger of enforcement. The

court explained that a credible threat of prosecution nonetheless

existed because nothing "prevents the Commission from enforcing

its rule at any time with, perhaps, another change of mind of one

of the Commissioners." 69 F.3d at 603. Similarly, in Wilson,

which bears a family resemblance to the case at bar, the Tenth

Circuit held that when a state statute chills the exercise of

First Amendment rights, standing exists even though the official

charged with enforcement responsibilities has not taken any

enforcement action against the plaintiff and does not presently

intend to take any such action. 819 F.2d at 946-47.

The preceding cases make clear that when dealing with

pre-enforcement challenges to recently enacted (or, at least,

non-moribund) statutes that facially restrict expressive activity

15

by the class to which the plaintiff belongs, courts will assume a

credible threat of prosecution in the absence of compelling

contrary evidence.

C
C

Of course, in addition to its constitutional

dimensions, "the doctrine of standing also embraces prudential

concerns regarding the proper exercise of federal jurisdiction."

AVX, 962 F.2d at 114. To satisfy these concerns, a suit must

meet certain additional criteria. We mention three of them.

First, the complaint must "fall within the zone of interests

protected by the law invoked." Allen v. Wright, 468 U.S. 737,

751 (1984). Next, under the principle of jus tertii, the

plaintiff ordinarily "must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal

rights or interests of third parties." Warth, 422 U.S. at 499.

Third, the suit must present more than "abstract questions of

wide public significance which amount to generalized grievances,

pervasively shared and most appropriately addressed in the

representative branches." Valley Forge, 454 U.S. at 475

(citations and internal quotation marks omitted).

In the circumstances of this case, N-PAC readily

satisfies the prudential prerequisites for a grant of standing.

First, its complaint implicates basic political expression and

advocacy; it thus falls comfortably within the zone of interests

protected by the First Amendment. Second, N-PAC is asserting its

own legal rights, as the statute takes direct aim at a class of

16

entities (political committees) to which it belongs. Third, N-

PAC's disagreement with New Hampshire's cap on independent

political expenditures is a sufficiently particularized

grievance.

D
D

In this case, therefore, standing depends upon whether

N-PAC faces a credible threat of prosecution. To answer this

question, we must first place the matter into better perspective.

In its complaint N-PAC sought both declaratory and

injunctive relief. Because it projected that it would make

certain expenditures in June, it focused its initial efforts on

securing a preliminary injunction that would permit it to make

those outlays in the proper time frame. The defendants also

concentrated on these expenditures, eventually representing to

the district court that the Attorney General did not consider

them to be "independent" under RSA 664:2, XI, and therefore the

expenditures, even if made, would not trigger RSA 664:5, V. In

its ruling on the motion for preliminary injunctive relief, the

lower court correctly focused on this point.

But then the court went beyond the scope of the pending

motion, deemed the treatment of the initial expenditures to be

dispositive of the entire case, and dismissed the complaint out

of hand. In doing so, the court erred. The purpose of a

preliminary injunction is simply to "preserve the relative

positions of the parties until a trial on the merits can be

held." University of Texas v. Camenisch, 451 U.S. 390, 395

17

(1981). Because a preliminary injunction is customarily granted

or denied on the basis of procedures and considerations that

differ markedly from those that apply at trial, it is risky

business for a district court to enter final judgment at the

preliminary injunction stage. See id. This case bears witness

to that admonition.

In grafting a sua sponte dismissal onto the denial of a

motion for a preliminary injunction, the district court

effectively denied N-PAC any opportunity to develop its evidence

and arguments for declaratory relief. More importantly, the

court confused the threat of enforcement which existed relative

to the initial expenditures with the broader threat of

enforcement that had to be considered in ruling on N-PAC's

standing to seek a declaration that the statutory scheme is

unconstitutional on its face. In this case, the distinction is

crucial.

The district court may or may not have been correct in

determining that the representations made by the defendants

removed any danger of prosecution for the specific expenditures

that N-PAC sought to make in the summer of 1996. See supra note

5. But N-PAC's standing for purposes of the suit as opposed to

the preliminary injunction cannot be determined solely with

reference to those expenditures. Given the fact that the

district court dismissed the action sua sponte, we must

scrutinize the entire record to see what it reveals about N-PAC's

standing to secure declaratory relief. The record adequately

18

evinces that N-PAC is an organization whose very purpose is to

make political expenditures. It has done so for more than a

decade, and it intends to do so in the future. Indeed, N-PAC

typically spends all the money that it raises on political

advocacy, and its outlays, past and prospective, at least

arguably fall within the statutory definition of "independent

expenditures."

It is, therefore, highly probable that N-PAC will at

some point find itself either in violation of a statute that

takes direct aim at its customary conduct or be forced to self-

censor (i.e., withhold expenditures earmarked for funding

expressive activity) for fear of the consequences. In such

circumstances, a pre-enforcement facial challenge to a statute's

constitutionality is entirely appropriate unless the state can

convincingly demonstrate that the statute is moribund or that it

simply will not be enforced.

New Hampshire has failed to make such a showing here.

As the record reflects, an official in the Secretary of State's

office told N-PAC's president that RSA 664:5, V would be enforced

and that violations would not escape notice. A representative of

the Attorney General refused to disclaim the possibility of

enforcement. As late as oral argument in this court, the

defendants vouchsafed the constitutionality of the statute.

Indeed, the defendants have not only refused to disavow RSA

664:5, V, but their defense of it indicates that they will some

day enforce it.

19

To sum up, there is more than enough in this record to

show that the threat of future prosecution is not wholly

conjectural, but, rather, that it is sufficiently credible to

confer standing to launch a facial challenge to a recently

enacted statute. Hence, we conclude that N-PAC has standing to

challenge the constitutionality of New Hampshire's statutory

scheme.

This conclusion is bolstered by a factual comparison

between this case and cases in which the Supreme Court has found

standing. As in Babbitt, 442 U.S. at 301-02, the plaintiff here

has in the past and intends in the future to engage in conduct

likely proscribed by a challenged statute. As in Doe, 410 U.S.

at 188, the statute in question is not a dead letter, and the

defendants have not disclaimed any intention ever to enforce it.

As in American Booksellers, 484 U.S. at 393, the plaintiff must

either risk criminal prosecution under a statute aimed directly

at it or engage in self-censorship. Finally, as was the case in

Doe, 410 U.S. at 188, the lack of past prosecutions is irrelevant

given the statute's recent origin.

Our holding finds additional support in a well-reasoned

decision of the Eleventh Circuit. In that case, the plaintiff, a

candidate for elected judicial office, brought a First Amendment

challenge to a provision of the canons of judicial conduct that

he believed would proscribe a campaign speech that he wished to

make. See ACLU, 999 F.2d at 1488. The defendants (persons

charged with enforcement of the canons) responded that the rule

20

did not apply to the plaintiff's proposed speech, but insisted

that the rule itself was constitutional. In finding that the

plaintiff had standing and that the defendants' representation

did not render the issue moot, Judge Kravitch wrote:

[I]t would be an anomalous result if [the
defendants] were permitted to (1) maintain
that Canon 7(B)(1)(a) is constitutional and
enforceable and yet, if [the plaintiff] or
another judicial candidate in [the
plaintiff's] position were to seek pre-
enforcement review, to 2) again come into
court saying, `Canon 7(B)(1)(a) does not
apply to that proposed speech.' This process
itself, aside from the canons and the rules,
is enough to chill speech.

Id. at 1495.6 These words have clear pertinence here.

E
E

Because the 1996 primary election has been held, we

must address a final issue pertaining to justiciability, namely,

mootness. A "case is moot when the issues presented are no

longer `live' or the parties lack a legally cognizable interest

in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969).

In our judgment, this case is not moot.

6The defendants tell us that ACLU is undermined by the

decision in Graham v. Butterworth, 5 F.3d 496 (11th Cir. 1993),

cert. denied, 114 S. Ct. 2136 (1994). We do not agree. Graham

is distinguishable on two bases. First, the Graham court itself

set ACLU apart as involving a situation in which the defendants

continued to maintain that the underlying rule was
constitutional. See id. at 500. Here, of course, the

defendants, as in ACLU, argue that New Hampshire's statutory

scheme passes constitutional muster. Second and more salient
the Graham court concluded that there was no chance that the

defendants there would enforce the challenged rule against the
particular plaintiff. See id. at 499-500. That was not true in

ACLU, and it is not an accurate statement as applied to this

case.

21

This conclusion stands on two pillars. In the first

place, N-PAC seeks not only an injunction permitting certain

planned expenditures but also a declaratory judgment as to the

facial constitutionality of the statute. The latter prayer

affects expenditures that N-PAC may choose to make in future

elections. As to declaratory relief, then, the case is not moot.

See, e.g., Allende v. Shultz, 845 F.2d 1111, 1114-15 (1st Cir.

1988) (holding that, where the plaintiffs sought a declaratory

judgment condemning the government's visa policy, the granting of

one visa did not moot the case, as the government still had not

disavowed its general policy).

In the second place, cases challenging statutes that

touch upon the electoral process are sui generis. There often is

insufficient time to resolve even a promptly filed case before

the election is actually held. Mindful of that pitfall, the

Supreme Court has tended to treat such challenges as coming

within the exception to the mootness doctrine for cases that,

though capable of repetition, may evade review. See, e.g.,

Democratic Party v. Wisconsin, 450 U.S. 107, 115 n.13 (1981);

First Nat'l Bank v. Bellotti, 435 U.S. 765, 774 (1978); Storer v.

Brown, 415 U.S. 724, 737 n.8 (1974).

To fall within this exception, "the challenged action

[must be] in its duration too short to be fully litigated prior

to its cessation or expiration," and there must be "a `reasonable

expectation' or a `demonstrated probability' that the same

controversy will recur involving the same complaining party."

22

Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (citations

omitted). The instant case passes the Murphy test. As events to

date demonstrate, challenges to election spending laws can rarely

be fully resolved before the election itself is over. Moreover,

N-PAC's resolve that it will continue to make expenditures which

are arguably prohibited by RSA 664:5, V leads to a reasonable

expectancy that N-PAC will again find itself in the same quandary

involving the same statutory scheme. Hence, the case is not

moot. See Vote Choice, 4 F.3d at 37 n.12; ACLU, 999 F.2d at

1496.

V. THE MERITS
V. THE MERITS

Having confirmed N-PAC's standing to maintain this

action, we must now decide whether to remand for further

proceedings. When a trial court resolves a matter on a threshold

ground and the appellate court reverses, the usual praxis is to

remand for consideration of the merits. See, e.g., In re Two

Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire

Litig., 994 F.2d 956, 968-69 (1st Cir. 1993); Rivera-Gomez v. de

Castro, 843 F.2d 631, 634-35 (1st Cir. 1988). Like most rules,

however, this one admits of exceptions. Where the merits comprise

a purely legal issue, reviewable de novo on appeal and

susceptible of determination without additional factfinding, a

remand ordinarily will serve no useful purpose. See, e.g., United

States v. Pierro, 32 F.3d 611, 622 (1st Cir. 1994), cert. denied,

115 S. Ct. 919 (1995); Cohen v. Brown Univ., 991 F.2d 888, 904

(1st Cir. 1993); Societe Des Produits Nestle, S.A. v. Casa

23

Helvetia, Inc., 982 F.2d 633, 642 (1st Cir. 1992). So it is

here. Accordingly, we reach the merits of N-PAC's constitutional

challenge.

Buckley controls our analysis. There, the plaintiffs

asseverated that several sections of the Federal Election

Campaign Act (the FEC Act), 2 U.S.C. 431-55, 18 U.S.C. 591-

610 (1995), violated their First Amendment rights. Among other

things, they challenged a statutory cap ($1,000 per year) on the

"independent expenditures" that individuals and groups could make

"relative to a clearly identified candidate." Buckley, 424 U.S.

at 7. In evaluating the constitutionality of this provision, the

Supreme Court first established a frame of reference:

expenditure limitations, the Court said, "operate in an area of

the most fundamental First Amendment activities. Discussion of

public issues and debate on the qualifications of candidates are

integral to the operation of the system of government established

by our Constitution." Id. at 14.

Public debate about candidates, the Court continued, is

often fueled by money. See id. at 19. As a consequence, any

"restriction on the amount of money a person or group can spend

on political communication during a campaign necessarily reduces

the quantity of expression by restricting the number of issues

discussed, the depth of their exploration, and the size of the

audience reached." Id. The FEC Act's ceiling on independent

expenditures therefore represented a substantial restraint on

political speech. See id. In the Court's evocative metaphor,

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"[b]eing free to engage in unlimited political expression subject

to a ceiling on expenditures is like being free to drive an

automobile as far and as often as one desires on a single tank of

gasoline." Id. at n.18.

Having described the depth of the restriction involved,

the Buckley Court proceeded to find that the government had not

advanced a sufficiently compelling interest to warrant the severe

First Amendment incursions associated with the proviso. The

principal government interest asserted avoiding corruption of

the political process could not justify the cap because

independent expenditures, by definition, were made without

consultation or cooperation between the contributor and the

candidate. See id. at 45-47. The Court likewise rejected the

idea that expenditure limitations served a governmental interest

in equalizing the ability of various groups to affect the outcome

of elections. "The First Amendment's protection against

governmental abridgement of free expression cannot properly be

made to depend on a person's financial ability to engage in

public discussion." Id. at 49.

Under Buckley, RSA 664:5, V insults the First

Amendment. The New Hampshire statute limits the same kind of

independent expenditures that the FEC Act attempted to regulate,

and the New Hampshire law purports to cap those expenditures at

precisely the same level ($1,000) as the FEC Act set.7 To be

7We do not consider the distinction between the FEC Act's
$1,000 annual limit and New Hampshire's $1,000 per election limit
to be of constitutional consequence, especially since most

25

sure, the price of political expression has changed but the

changes work against the state's position. We take judicial

notice that political campaigns are much more expensive now than

when Buckley was decided two decades ago. The price of

television and newspaper advertisements has ballooned, as have

the costs associated with printing and distributing leaflets. To

illustrate the point, N-PAC's plan to distribute 30,000 fliers at

various public events held around the state on July 4, 1996,

would have required that it spend in excess of $3,000. In our

judgment, this single example makes painfully apparent how

severely RSA 664:5, V restricts political speech. The First

Amendment does not tolerate such drastic limitations of protected

political advocacy.8

Our determination that the $1,000 per election

limitation on independent expenditures is unconstitutional

necessarily leads us to invalidate not only RSA 664:5, V, but

also those portions of RSA 664:3, I & II which complement it. See

supra Part I. One cannot be compelled to state that one will

comply with an unconstitutional statute. Accordingly, neither the

declaration requirement contained in RSA 664:3, I nor RSA 664:3,

elected state officials in New Hampshire serve two-year terms.

8At oral argument, counsel for the state argued that New
Hampshire's particular system of campaign finance regulation,
which places heavy emphasis on candidates' voluntary acceptance
of spending limits, creates a uniquely compelling governmental
interest in curbing independent expenditures. Accepting this
argument would require us to carve out an unwarranted exception
to a settled constitutional rule. We decline to do so. An
organization's right to unfettered political expression and
advocacy is just as substantial within New Hampshire as without.

26

II's proviso conditioning the making of any independent

expenditures on the filing of a declaration pledging that the

committee will observe New Hampshire's $1,000 ceiling is

enforceable. See Perry v. Sindermann, 408 U.S. 593, 597 (1972)

(explaining that, in the area of free speech, government may not

indirectly deny, through unconstitutional conditions, that which

it cannot directly prohibit).

VI. CONCLUSION
VI. CONCLUSION

We summarize succinctly. N-PAC has established a

credible threat that New Hampshire will enforce against it in

future elections a statutory scheme that the state believes to be

constitutional. Moreover, the statutes contain criminal

penalties and suppress core activity protected by the First

Amendment. We therefore conclude that N-PAC has suffered an

actual injury and, consequently, we reverse the district court's

dismissal of this case for lack of standing. Moreover, since New

Hampshire's limitation on independent expenditures plainly

violates the First Amendment, RSA 664:5, V is facially

unconstitutional, and RSA 664:3, I and RSA 664:3, II, to the

extent that they command fealty to RSA 664:5, V, are

unenforceable. On remand, the district court shall enter an

appropriate decree.

Reversed and remanded.
Reversed and remanded.

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