United States Court of Appeals
For the First Circuit
No. 10-2304
NATIONAL ORGANIZATION FOR MARRIAGE,
Plaintiff, Appellant,
v.
JOHN DALUZ, in his official capacity as chairman of the Rhode
Island Board of Elections, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Boudin, and Lipez, Circuit Judges.
James Bopp, Jr., with whom Randy Elf, Jeffrey P. Gallant,
Austin J. Hepworth, James Madison Center for Free Speech, Stephen
A. Izzi, and Moses & Afonso, Ltd. were on brief, for appellant.
Rebecca Tedford Partington, Assistant Attorney General, with
whom Peter F. Kilmartin, Attorney General, was on brief, for
appellee.
Catherine R. Connors, Matthew D. Manahan, Michael J. Daly,
Pierce Atwood LLP, Thomas R. Bender, and Hanson Curran LLP on brief
for Gay & Lesbian Advocates & Defenders and Common Cause Rhode
Island, amici curiae.
August 11, 2011
LIPEZ, Circuit Judge. Appellant National Organization
for Marriage ("NOM") appeals the denial of a preliminary injunction
in its challenge to the constitutionality of a Rhode Island
election law requiring the reporting of so-called "independent
expenditures." NOM argues that Rhode Island's reporting
requirement is both overbroad under the First Amendment and so
vague in its terms as to violate due process. The district court,
noting the minimal burden imposed by the law and the valuable
governmental interest underlying it, concluded that NOM had failed
to show a likelihood of success on the merits of its challenge.
After careful review, we find no abuse of discretion in the
district court's denial of preliminary relief. We therefore
affirm.
Our opinion in this appeal accompanies an opinion
resolving a separate set of challenges to provisions of Maine's
election laws, including an independent expenditure reporting
requirement similar to Rhode Island's. See Nat'l Org. for Marriage
v. McKee, Nos. 10-2000 & 10-2049 (1st Cir. 2011). The vagueness
and overbreadth arguments NOM presses here are substantially the
same as those addressed in our companion opinion. We therefore
rely heavily here on our more thorough discussion in the Maine
opinion.
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I.
In September 2010, NOM filed a verified complaint in the
District Court for the District of Rhode Island challenging the
constitutionality of several aspects of Rhode Island's Campaign
Contributions and Expenditures Reporting Act, R.I. Gen. Laws § 17-
25-1 et seq., on vagueness and First Amendment overbreadth
grounds.1 Specifically, NOM's complaint targeted provisions of the
state's election laws governing (1) registration of political
action committees ("PACs"), id. § 17-25-3(10); (2) contributions to
and expenditures on behalf of candidates, id. § 17-25-10.1(h)(1),
(j); and (3) reporting of independent expenditures, id. § 17-25-10.
The complaint alleged that NOM sought, in the lead-up to the 2010
elections as well as in future election cycles, to "engage in
multiple forms of speech in Rhode Island, including radio ads,
television ads, direct mail, and publicly accessible internet
postings" that would "clearly identify candidates for state or
local office in Rhode Island." The complaint further alleged that
NOM would refrain from engaging in such activities if it had to
register as a PAC to do so. If no PAC registration were required,
however, NOM would proceed with its activities and "comply with the
independent expenditure reporting requirements under protest."
1
This initial complaint was dismissed by the district court
under Federal Rule of Civil Procedure 8 on the ground that the
"pertinent factual allegations in the complaint [were] buried"
amidst "conclusory and argumentative passages." NOM filed an
amended complaint in October.
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NOM's motion for a preliminary injunction came before the
district court for a hearing on October 21, 2010. At the hearing,
in light of prior assurances from the defendants that NOM could
engage in its intended speech without registering as a PAC,2 the
district court narrowed the issues to NOM's challenge to the
independent expenditure reporting provision. Finding that the
reporting requirement was not "terribly burdensome" and served an
important public interest of informing voters "as to the origins of
. . . speech," the district court held that NOM had not met its
burden of demonstrating a likelihood of success on the merits. The
court therefore denied NOM's motion for a preliminary injunction.
II.
On interlocutory appeal from the district court's denial
of its motion for preliminary relief, NOM argues that the court
erred as a matter of law in concluding that NOM had not
demonstrated a likelihood of success on the merits of its challenge
to Rhode Island's independent expenditure statute. We review the
denial of a preliminary injunction under a deferential standard,
reversing only upon finding a mistake of law, a clear error in
fact-finding, or other abuse of discretion, González-Droz v.
2
Prior to filing suit, NOM sought an advisory opinion from
the Rhode Island Board of Elections as to whether it would be
required to form a PAC to engage in its speech. The Board issued
an opinion indicating that NOM could proceed with its speech
without forming a PAC, and the defendants reiterated this point in
responding to NOM's motion for preliminary relief.
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González-Colon, 573 F.3d 75, 79 (1st Cir. 2009). In ruling on a
motion for preliminary relief, a district court must consider
several factors, among which likelihood of success carries
particular weight.3 Id.
NOM offers two lines of argument challenging the
constitutionality of the independent expenditure provision, the
first based on First Amendment overbreadth grounds and the second
on due process vagueness grounds. After examination of each of
these, we find no abuse of discretion in the district court's
holding that NOM failed to show a likelihood of success.
A. First Amendment Challenges
Campaign finance disclosure laws challenged on First
Amendment grounds are subject to "exacting scrutiny," "which
requires a 'substantial relation' between the disclosure
requirement and a 'sufficiently important' governmental interest."
Citizens United v. FEC, 130 S. Ct. 876, 914 (2010) (quoting Buckley
v. Valeo, 424 U.S. 1, 64, 66 (1976)). As the district court
correctly concluded, Rhode Island's independent expenditure law
requires only disclosure, and, as a disclosure law, is adequately
3
The other factors a district court must consider are "the
potential for irreparable harm in the absence of an injunction,"
"whether issuing an injunction will burden the defendants less than
denying an injunction would burden the plaintiffs," and "the
effect, if any, on the public interest." Bos. Duck Tours, LP v.
Super Duck Tours, LLC, 531 F.3d 1, 11 (1st Cir. 2008) (internal
quotation marks omitted).
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supported by a governmental interest in providing information to
the electorate.
In pertinent part, Rhode Island's independent expenditure
provision provides that any person "not acting in concert with any
other person or group" who makes expenditures aggregating over $100
in a given calendar year "to support or defeat a candidate" must
file a report within seven days with (1) the Rhode Island Board of
Elections (the "Board") and (2) the treasurer of the candidate "on
whose behalf the expenditure . . . was made." R.I. Gen. Laws § 17-
25-10(b). The report, which is filed on a one-page form provided
by the Board, simply requires disclosure of the name and contact
information of the person making the expenditure, identification of
the candidate or candidates the expenditures were made to support
or defeat, and the date, amount, recipient, and purpose of each
expenditure. The individual submitting the report must also
certify that the expenditures were not made in concert with any
other person or group.
These disclosure requirements are substantially the same
as those imposed by Maine's independent expenditure provision,
which we uphold today in our companion opinion. As with Maine's
law, the disclosures required by the provision here impose no great
burden on the exercise of election-related speech. All that is
required is the completion of a one-page form, which can be filled
out and submitted to the Board online. This relatively small
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imposition serves the recognizedly important government interest in
"provid[ing] the electorate with information as to where political
campaign money comes from and how it is spent." Buckley, 424 U.S.
at 66 (internal quotation marks omitted).
NOM nonetheless argues that the district court erred on
several grounds in finding insufficient likelihood of success on
the merits to warrant preliminary relief. First, NOM contends that
Rhode Island's independent expenditure law is unconstitutionally
overbroad because it extends beyond regulation of express advocacy.
As we explain in our companion opinion, the Supreme Court has
explicitly rejected the contention that disclosure laws must be
limited to regulation of express advocacy, Citizens United, 130 S.
Ct. at 915, and thus this argument finds no support.
Second, NOM argues that Rhode Island lacks a sufficiently
important interest to support the $100 threshold at which the
independent expenditure reporting requirement applies, and
therefore the law fails exacting scrutiny. We reject an identical
argument with respect to Maine's $100 independent expenditure
reporting threshold in our companion opinion. As we note in that
case, this sort of monetary threshold for a disclosure law is not
subject to exacting scrutiny, but instead will be upheld unless it
is "'wholly without rationality.'" Vote Choice, Inc. v. DiStefano,
4 F.3d 26, 32 (1st Cir. 1993) (quoting Buckley, 424 U.S. at 83).
We cannot say that the $100 threshold fails that standard.
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Third, NOM challenges the requirement that independent
expenditure reports be provided to the candidate "on whose behalf"
the expenditure is made,4 R.I. Gen. Laws § 17-25-10(b), contending
that this aspect of the law bears no relation to the government's
interest in the disclosure of information.5 We disagree. To be
sure, the report-to-candidate requirement is not as closely related
to the government's informational interest as the report-to-Board
requirement. However, prompt notification to a candidate of the
expenditure of money on her behalf indirectly serves the
informational interest by permitting a candidate to distance
herself from individuals or organizations whose views she does not
share. As Buckley observed, "[t]he sources of a candidate's
financial support . . . alert the voter to the interests to which
a candidate is most likely to be responsive," 424 U.S. at 67, and
4
As we explain below, see infra Part II.B, the statutory
context makes plain that this language requires that a report be
provided to the candidate who stands to benefit from the
independent expenditure.
5
NOM relies for this argument on the Tenth Circuit's decision
in Citizens for Responsible Government State Political Action
Committee v. Davidson, 236 F.3d 1174, 1196-98 (10th Cir. 2000),
which held unconstitutional portions of a Colorado independent
expenditure reporting provision. Davidson provides little support
for NOM's argument. Not only did the court there incorrectly
subject the disclosure requirement to strict rather than exacting
scrutiny, but the requirement under review also imposed a far
greater burden than does Rhode Island's provision. Colorado's law
required submittal of a report to every candidate in a race, not
just the candidate on whose behalf the expenditure was made, and
specified that reports be submitted within twenty-four hours of an
independent expenditure (versus seven days under Rhode Island's
statute).
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thus the imperative for accurate information about electoral
candidates is well served by facilitating candidate response to
support from parties unaffiliated with the candidate's campaign.
The report-to-candidate requirement also contributes to the proper
functioning of Rhode Island's regulatory regime, as candidates are
required to report all expenditures on their behalf to the Board.
R.I. Gen. Laws § 17-25-10(b); cf. Buckley, 424 U.S. at 67-68
(noting the collection of data for purposes of enforcing a
regulatory regime to be an important government interest supporting
disclosure).6
In sum, NOM identifies no error of law or clear error of
fact-finding in the district court's holding that NOM did not
satisfy its burden of showing a likelihood of success on the First
Amendment challenge. Absent such error or other indicia of abuse
of discretion, NOM's arguments fail.
B. Vagueness Challenges
In denying preliminary relief, the district court did not
expressly address NOM's arguments that portions of Rhode Island's
independent expenditure provision are unconstitutionally vague.
6
NOM notes that candidates could simply obtain the reported
information from the Board, as the independent expenditure reports
are publicly available. While that may be so, the incremental
burden involved here is negligible -- the person making an
independent expenditure does not need to prepare a separate or
different report, but merely must send to the candidate a second
copy of a report already prepared for the Board -- and we see some
benefit in direct and prompt notification to the candidates of
expenditures on their behalf.
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Regardless, as we briefly explain, NOM's vagueness contentions are
without merit.7
NOM argues that two specific instances of language in the
independent expenditure provision raise vagueness problems: the
word "support," in the phrase "to support or defeat a candidate,"
and the phrase "on whose behalf." R.I. Gen. Laws § 17-25-10(b).
As we explain in our companion opinion, "a statute is
unconstitutionally vague only if it 'prohibits . . . an act in
terms so uncertain that persons of average intelligence would have
no choice but to guess at its meaning and modes of application.'"
United States v. Councilman, 418 F.3d 67, 84 (1st Cir. 2005) (en
banc) (quoting United States v. Hussein, 351 F.3d 9, 14 (1st Cir.
2003)). Measured against this standard, neither phrase challenged
by NOM offends due process.
7
We note that two of the vagueness arguments NOM makes before
this court were never presented to the district court, and thus
cannot be pressed on appeal. See Banco Bilbao Vizcaya Argentaria v.
Wiscovitch-Rentas (In re Net-Velázquez), 625 F.3d 34, 40 (1st Cir.
2010). These arguments both focus on a regulation interpreting the
independent expenditure statute. The regulation defines the phrase
"expressly advocating" to include communications or words "which
[i]n context can have no other meaning than to urge the election or
defeat of one or more clearly identified candidates." 23-1 R.I.
Code R. § 25:2(6). NOM argues that this definition is
unconstitutionally vague due to its use of a purportedly proscribed
"appeal-to-vote test" and because it allows reference to context in
determining whether a communication qualifies as express advocacy.
NOM may be able to raise these issues before the district court --
though we note that we reject substantially identical arguments in
the companion case -- but we will not consider them in this appeal.
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Rhode Island's independent expenditure statute requires
the reporting of expenditures aggregating over $100, made
independently of a candidate, "to support or defeat a candidate."
R.I. Gen. Laws § 17-25-10(b). In this context, the word "support"
"clearly set[s] forth the confines within which potential . . .
speakers must act in order to avoid triggering the provision."
McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003), overruled on other
grounds by Citizens United, 130 S. Ct. 876. Both we (in our
companion opinion) and the Supreme Court have held, in very similar
statutory settings, that the word "support" is sufficiently clear.
See id. Particularly when paired with the word "defeat," "support"
"'provide[s] explicit standards for those who apply them' and
'give[s] the person of ordinary intelligence a reasonable
opportunity to know what is prohibited." Id. (quoting Grayned v.
City of Rockford, 408 U.S. 104, 108-09 (1972)).8
Nor do we find "on whose behalf" lacking clarity. The
provision requires that reports of independent expenditures be
submitted to the Board and "to the campaign treasurer of the
8
Though we find "support" to be clear on its face, we note as
well that the Board has promulgated regulations further narrowing
and sharpening the text. Those regulations provide that the
reporting requirement is triggered when an expenditure is made
"expressly advocating the support or defeat of a candidate," 23-1
R.I. Code R. § 25:3, and define "expressly advocating" to include
"communications of slogans or individual words which [i]n context
can have no other reasonable meaning than to urge the election or
defeat of one or more clearly identified candidates," id. §
25:2(6).
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candidate . . . on whose behalf the expenditure . . . was made."
R.I. Gen. Laws § 17-25-10(b). The legislature's failure to
expressly define the phrase "on whose behalf" does not, as NOM
suggests, render the phrase vague. As we have noted, "[t]he mere
fact that a regulation requires interpretation does not make it
vague." Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 93 (1st
Cir. 2004); see also Ward v. Rock Against Racism, 491 U.S. 781, 794
(1989) ("[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.").
In the context of the statute, which requires reporting of
expenditures "to support or defeat a candidate," the meaning of
this phrase is plain: a report must be submitted to the candidate
who stands to benefit from the independent expenditure's advocacy.
Because NOM's vagueness arguments are without merit, the
district court did not abuse its discretion in denying preliminary
relief without explicitly reaching the question of vagueness.
III.
For the reasons set forth above, we affirm the district
court's order denying NOM's motion for a preliminary injunction.
So ordered.
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