National Organization for Marriage, Inc. v. McKee

United States Court of Appeals
For the First Circuit

No. 11-1196

NATIONAL ORGANIZATION FOR MARRIAGE, INC.,
and AMERICAN PRINCIPLES IN ACTION, INC.,

Plaintiffs, Appellants,

v.

WALTER F. McKEE, et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Selya, and Lipez, Circuit Judges.

James Bopp, Jr., with whom Stephen C. Whiting, The Whiting Law
Firm, Randy Elf, Jeffrey A. Gallant, Josiah S. Neeley, and James
Madison Center for Free Speech were on brief, for appellants.
Thomas A. Knowlton, Assistant Attorney General, with whom
Phyllis Gardiner, Assistant Attorney General, was on brief, for
appellees.
Mary L. Bonauto, Catherine R. Connors, and Pierce Atwood LLP
on brief for Amicus Gay & Lesbian Advocates & Defenders.

January 31, 2012
 LIPEZ, Circuit Judge. This appeal presents the second

chapter of a lawsuit challenging the constitutionality of Maine

laws imposing registration and disclosure requirements on entities

that finance election-related advocacy. In a recent decision, we

rejected claims made by one of the appellants here, the National

Organization for Marriage ("NOM"), asserting that Maine's laws

regulating political action committees ("PACs") are

unconstitutionally vague and overbroad in violation of the First

and Fourteenth Amendments. See NOM v. McKee, 649 F.3d 34 (1st Cir.

2011) ("NOM I"). We now consider similar contentions raised by NOM

and co-appellant American Principles in Action, Inc. ("APIA")

concerning the law applicable to ballot question committees

("BQCs"). See Me. Rev. Stat. Ann. tit. 21-A, § 1056-B. Our

decision in NOM I effectively disposes of most of appellants'

challenges to Maine's BQC requirements. On the only substantively

distinct issue — the constitutionality of the definition of

"contribution" in section 1056-B — we conclude that the BQC law,

like the PAC laws, is constitutional. We thus affirm in its

entirety the district court's grant of summary judgment for the

defendants.

I.

A. The BQC Law: Section 1056-B

Maine's BQC law, section 1056-B, imposes disclosure and

reporting requirements on certain individuals and organizations

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that "receive[] contributions or make[] expenditures," other than

through PACs, "for the purpose of initiating or influencing a

[ballot-measure] campaign." See Me. Rev. Stat. Ann. tit. 21-A,

§ 1056-B.1 Individuals and groups who receive or make aggregate

contributions or expenditures in excess of $5,000 for such a

purpose are required to file periodic reports with the Commission

on Governmental Ethics and Election Practices ("Commission").

Id. §§ 1001(1), 1056-B. They must register with the Commission as

a BQC within seven days of reaching the $5,000 threshold, and the

information provided on the registration form "must include

specification of a treasurer for the committee, any other principal

officers and all individuals who are the primary fund-raisers and

decision makers for the committee." Id. § 1056-B. The statute

requires BQCs to report contributions from, and expenditures to, "a

single source aggregating in excess of $100 in any election."

Id. § 1056-B(2).

Under section 1056-B(2-A), a contribution is defined to

include:

1
The statute was amended in 2010 to substitute the word
"campaign" for "ballot question," Me. Pub. Laws 2009, ch. 524,
§§ 8-13, and the "purpose of" phrase was streamlined in 2011 by
eliminating "promoting" and "defeating" as triggering activities in
addition to "initiating" and "influencing," Me. Pub. Laws 2011, ch.
389, § 38. Under Maine law, pending proceedings are not affected
by statutory amendments. See Me. Rev. Stat. Ann. tit. 1, § 302.
The changes do not in any event affect the outcome of this case,
and we follow the district court's lead in using the new language.
See Nat'l Org. for Marriage v. McKee, 765 F. Supp. 2d 38, 40 n.3
(D. Me. 2011).

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 A. Funds that the contributor specified were
given in connection with a campaign;

B. Funds provided in response to a
solicitation that would lead the contributor
to believe that the funds would be used
specifically for the purpose of initiating or
influencing a campaign;

C. Funds that can reasonably be determined to
have been provided by the contributor for the
purpose of initiating or influencing a
campaign when viewed in the context of the
contribution and the recipient's activities
regarding a campaign; and

D. Funds or transfers from the general
treasury of an organization filing a ballot
question report.

Persons or organizations filing reports under section 1056-B must

keep detailed records for four years following the election to

which the records pertain, including "a detailed account of all

contributions made to the filer for the purpose of initiating or

influencing a campaign and all expenditures made for those

purposes." Id. § 1056-B(4)(A).

B. Procedural Background

Section 1056-B was the original target of a complaint

filed by NOM and APIA in October 2009, shortly before an election

in which Maine voters were asked in a ballot question whether a

recent law permitting same-sex marriage in Maine should be

overturned. NOM is a national nonprofit advocacy organization

"dedicated to providing 'organized opposition to same-sex marriage

in state legislatures,'" NOM I, 649 F.3d at 48, and it played a

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substantial role in Maine's same-sex marriage referendum campaign,

see Nat'l Org. for Marriage v. McKee, 765 F. Supp. 2d 38, 43 (D.

Me. 2011).2 APIA, also a nonprofit advocacy organization that

operates nationwide, is "dedicated to promoting equality of

opportunity and ordered liberty." Second Am. Compl. ("Compl."),

¶ 7. Their complaint asserted that section 1056-B should be found

unconstitutional on multiple grounds: (1) it imposes substantial

burdens on political speech and association without adequate

justification, (2) it improperly requires entities to register as

BQCs without regard to whether their major purpose is the passage

or defeat of a ballot measure, (3) its definition of "contribution"

is unconstitutionally vague and overbroad, and (4) the $100

reporting threshold is not narrowly tailored to satisfy any

compelling government interest.

After the district court denied the plaintiffs' motion

for a temporary restraining order, see Nat'l Org. for Marriage v.

McKee, 666 F. Supp. 2d 193 (D. Me. 2009), NOM amended the complaint

to add claims targeting the constitutionality of Maine's PAC

registration, independent expenditure, and attribution and

disclaimer laws, NOM I, 649 F.3d at 44. Those additional claims,

pursued only by NOM, were resolved by the district court in August

2010, and we reviewed its PAC rulings in our decision in NOM I.

2
For clarity, we use NOM's full name in citations to the
district court decisions in this case, reserving the acronym "NOM"
for citations to our own opinion.

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Although we describe certain of our NOM I holdings in more detail

below, it suffices to say for now that we rejected all of NOM's

claims on appeal and upheld the constitutionality of the challenged

PAC statutes.3

Meanwhile, the parties filed cross-motions for summary

judgment on the original claims challenging the BQC law. While the

ruling on the PAC claims was pending on appeal, the district court

issued a thoughtful decision granting the defendants' motion for

summary judgment on the BQC claims and denying the plaintiffs'

parallel motion. See Nat'l Org. for Marriage, 765 F. Supp. 2d at

53.4 It concluded that: (1) the BQC registration and reporting

requirements are not unconstitutionally burdensome and are

justified by the State's compelling interest in "provid[ing]

important information to Maine voters about the interest groups

that are attempting to influence the outcome of a ballot question,"

id. at 46; (2) the "major purpose test" adopted by the Supreme

Court in the context of federal regulations is inapplicable in

"this quite different area of state regulation of ballot

3
The district court had held unconstitutional a regulation
governing the timing of disclosures. That ruling was not appealed.
See NOM I, 649 F.3d at 41 n.2.
4
In its February 2011 opinion on the merits, the district
court liberally incorporated the relevant analysis from its earlier
decision on the motion for a temporary restraining order. See
Nat'l Org. for Marriage, 765 F. Supp. 2d at 40. In quoting its
merits decision, we choose not to distinguish between new text and
portions reproduced verbatim from the earlier ruling and, hence, do
not identify the latter with double quotation marks.

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questions," id. at 49; (3) the definition of "contribution" is

neither vague nor overbroad, id. at 50-52; and (4) the $100

reporting threshold "is substantially related to Maine's compelling

interest in informing voters and narrowly tailored to avoid

unnecessary impositions on associational rights," id. at 53.

We decided NOM I in the interim between the district

court's February ruling on the BQC provision and the parties' oral

argument in this appeal. As we describe in Section II, with the

exception of appellants' challenges to the statute's definition of

"contribution," our decision in NOM I largely disposes of

appellants' contentions concerning the BQC statute. We thus

address those issues only briefly before considering appellants'

arguments concerning section 1056-B's definition of "contribution."

II.

A. First Amendment Overbreadth Challenge

Appellants argue that, under Supreme Court precedent,

Maine may define an entity as a BQC — thus triggering what they

characterize as the "onerous" requirements of BQC status — only if

the entity is under the control of a candidate for state or local

office or has as its "major purpose" the passage or defeat of a

ballot measure in Maine.5 They maintain that section 1056-B is

5
The "major purpose" test has its origins in Buckley v.
Valeo, 424 U.S. 1 (1976), where the Supreme Court narrowly read a
federal statute defining political committees to encompass only
"organizations that are under the control of a candidate or the
major purpose of which is the nomination or election of a

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unconstitutionally overbroad because it reaches entities outside

that "limited zone of permissible regulation." NOM I, 649 F.3d at

58-59.

This thesis, embracing the first two claims addressed by

the district court, is essentially the same argument we rejected in

NOM I with respect to similar disclosure and reporting requirements

for PACs.6 As an initial matter in NOM I, we discredited NOM's

assertion that its constitutional challenge did not arise from the

reporting and disclosure requirements per se, but from the

statutory definition of a PAC that determines whether a particular

entity is subject to the requirements. We noted that "[i]t is not

the designation as a PAC but rather the obligations that attend PAC

designation that matter for purposes of First Amendment review."

Id. at 56. Thus, we rejected "the claim that PAC status is somehow

candidate," id. at 79. Appellants have attempted to adapt the test
to apply to ballot question committees.
6
The provisions governing "non-major-purpose" PACs are
triggered when an entity receives contributions or makes
expenditures of more than $5,000 annually "for the purpose of
influencing" a candidate's nomination or election. Me. Rev. Stat.
Ann. tit. 21-A, § 1052(5)(A)(5). Upon reaching that threshold, the
entity must register with the Commission, maintain records of
certain expenditures and donor contributions aggregating more than
$50, and file quarterly and other reports. Id. §§ 1053, 1057,
1059-60. These requirements parallel those described above for
BQCs. Indeed, the district court noted that "plaintiffs argue that
Maine treats ballot question committees essentially like political
action committees." Nat'l Org. for Marriage, 765 F. Supp. 2d at
45.

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inherently burdensome apart from the specific requirements it

entails." Id. at 58.

Turning to the obligations themselves, we concluded that

the "exacting scrutiny" standard applied to our review of the

statute, rather than the more rigorous strict scrutiny standard.

That is so because the provision "do[es] not prohibit, limit, or

impose any onerous burdens on speech, but merely require[s] the

maintenance and disclosure of certain financial information." Id.

at 56. We rejected the relevance of the Buckley "major purpose"

test — as it was merely "an artifact of the Court's construction of

a federal statute," id. at 59 — and concluded that the PAC statute

survived exacting scrutiny based on the government's "compelling

interest in identifying the speakers behind politically oriented

messages," id. at 57, 59.

Our NOM I analysis applies with equal force to our review

of the BQC provision. Here, as in NOM I, we reject appellants'

attempt to frame their constitutional claim as a challenge to the

BQC definition rather than to the reporting and disclosure

requirements themselves. Like Maine's PAC laws, section 1056-B

"imposes three simple obligations on an entity qualifying as a

[BQC]: filing of a registration form disclosing basic information,

quarterly reporting of election-related contributions and

expenditures, and simple recordkeeping." Id. at 56. No less than

in candidate elections, citizens evaluating ballot questions must

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"rely ever more on a message's source as a proxy for reliability

and a barometer of political spin." Id. at 57; see also, e.g.,

Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1105-06 (9th

Cir. 2003) ("'Even more than candidate elections, initiative

campaigns have become a money game, where 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 self-interest.'" (quoting David S.

Broder, Democracy Derailed: Initiative Campaigns and the Power of

Money 18 (2000))). The disclosure of information about the source

of political-advocacy funds thus "'enables the electorate to make

informed decisions.'" NOM I, 649 F.3d at 57 (quoting Citizens

United v. FEC, 130 S. Ct. 876, 916 (2010)).

We agree with the district court that such transparency

is a compelling objective "in a climate where the number of ballot

questions Maine voters face is steadily increasing." Nat'l Org.

for Marriage, 765 F. Supp. 2d at 46; see also id. at 52 (noting

that "'[k]nowing which interested parties back or oppose a ballot

measure is critical, especially when one considers that ballot-

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

ramifications of the ballot measure are often unknown'" (quoting

Getman, 328 F.3d at 1106)). Hence, like the non-major-purpose PAC

provision we upheld in NOM I, section 1056-B is consistent with the

First Amendment because its modest disclosure and reporting

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requirements are substantially related to "Maine's interest in

disseminating information about political funding to the

electorate." NOM I, 649 F.3d at 57.

In so concluding, we reject appellants' argument that our

decision in NOM I does not govern this case because the BQC

regulation is supported by only a single state interest — informing

the electorate — while additional interests may justify the

regulation of PACs. Our decision in NOM I rested solely on the

State's interest in "disseminating information about political

funding to the electorate," id. at 57-58 & n.34 — an interest

equally applicable to the BQC setting.

B. The $100 Reporting Threshold

Given the importance of transparency in the public

dialogue about ballot measures, and our decision in NOM I upholding

the $100 threshold in Maine's independent expenditure reporting

provision, see id. at 59-61, we can easily reject appellants'

challenge to section 1056-B's reporting requirement for

contributions from a single source that, in the aggregate, exceed

$100.

The applicable inquiry is whether the legislature's

judgment to set a $100 reporting threshold is "wholly without

rationality." Id. at 60. Our analysis in NOM I confirms that it

is not, see id. at 59-61, and the district court's clear

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articulation reveals why the $100 threshold is narrowly tailored to

meet Maine's compelling interest in informing voters:

The public has an interest in knowing . . .
that a ballot measure has been supported by a
multitude of gifts, even small gifts, from a
particular state or from a specific
profession. Such information could be crucial
in the context of ballot measures involving
public works projects or regulatory reform.
The issue is thus not whether voters clamor
for information about each "Hank Jones" who
gave $100 to support an initiative. Rather,
the issue is whether the "cumulative effect of
disclosure ensures that the electorate will
have access to information regarding the
driving forces backing and opposing each
bill."

Nat'l Org. for Marriage, 765 F. Supp. 2d at 52 (quoting

ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1197, 1211 (E.D. Cal.

2009)). Hence, the $100 threshold survives appellants'

constitutional attack.7

C. Due Process Vagueness

1. The Challenged Language

Appellants assert that two parts of Maine's definition of

"contribution" are unconstitutionally vague and that, by extension,

the BQC definition relying on that term also is flawed.

7
Contrary to appellants' assertion, the failure to index the
threshold to inflation does not render it faulty. See NOM I, 649
F.3d at 61 (rejecting NOM's challenge to the $100 PAC threshold
based on the failure to index and noting that "[n]either we nor the
Supreme Court has ever second-guessed a legislative decision not to
index a reporting requirement to inflation").

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Specifically, they challenge subsections B and C of section 1056-

B's four-part definition of contribution:

B. Funds provided in response to a
solicitation that would lead the contributor
to believe that the funds would be used
specifically for the purpose of initiating or
influencing a campaign;

C. Funds that can reasonably be determined to
have been provided by the contributor for the
purpose of initiating or influencing a
campaign when viewed in the context of the
contribution and the recipient's activities
regarding a campaign . . . .

Me. Rev. Stat. Ann. tit. 21-A, § 1056-B(2-A)(B), (C). Appellants

contend that the phrase "for the purpose of . . . influencing" that

appears in both subsections is vague, and they also argue that each

subsection is flawed by its reliance on a subjective factor (the

contributor's belief in subsection B and the contributor's purpose

in subsection C). They further challenge the invocation of context

in subsection C.

2. Standing

As a threshold matter, defendants assert that NOM and

APIA may not bring a Due Process vagueness challenge because they

undertook activities clearly covered by the statute. They rely on

the Supreme Court's recent decision in Holder v. Humanitarian Law

Project, 130 S. Ct. 2705 (2010), where the Court reaffirmed that

"[a] plaintiff who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of the law as applied

to the conduct of others." Id. at 2719 (quoting Hoffman Estates v.

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Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)

(alteration in original)). The principle extends to the First

Amendment context, even though "a heightened vagueness standard

applies." Id.

It is undisputed that NOM received contributions clearly

governed by section 1056-B and that APIA stated its intention to

solicit such contributions. Appellants' complaint lists thirteen

emails distributed by NOM between May and September 2009, most of

which referenced the Maine referendum effort and some of which

explicitly requested donations to help in the fight against same-

sex marriage in Maine and elsewhere. See Compl., ¶¶ 26-38; see

also Nat'l Org. for Marriage, 666 F. Supp. 2d at 211 (reproducing

portions of seven of the emails).8 The complaint also states that

APIA intended to solicit donations to defray the cost of running

two television ads opposing gay marriage "during the current

election cycle and in future elections." Compl., ¶ 51; see also

Nat'l Org. for Marriage, 765 F. Supp. 2d at 44 (describing the

proposed APIA broadcast advertisements). Funds generated in

response to explicit solicitations clearly would fall within the

definitions of "contribution" articulated in subsections B and C of

8
The complaint also lists an article in a NOM newsletter
that described the organization's participation in the Maine
ballot-measure campaign, and stated: "Your support [for] NOM is
critical to the success of this effort." The newsletter included
a donation card and a return envelope for donations. Compl., ¶ 40;
see also Docket No. 114-4, at 4.

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section 1056-B. Requests for donations to support the campaign

against same-sex marriage in Maine could only reasonably lead a

responding contributor to believe that the money would be used for

that purpose (triggering subsection B) and also would reasonably

lead the solicitor to conclude that they were given with that

purpose in mind (triggering subsection C). Indeed, appellants

acknowledge that the contribution definition is not vague as

applied to all of their speech.

Given the statute's acknowledged clear application to

"some" of appellants' activities, defendants are correct insofar as

they insist that appellants may not bring a facial vagueness

challenge to section 1056-B. See Humanitarian Law Project, 130 S.

Ct. at 2719; Parker v. Levy, 417 U.S. 733, 756 (1974) ("One to

whose conduct a statute clearly applies may not successfully

challenge it for vagueness."). In this context, however, it does

not necessarily follow that the statute's undisputed application to

some of appellants' financial dealings means that they cannot

succeed with an as-applied vagueness challenge focused on other

activities. Section 1056-B's enforcement mechanism is not

necessarily triggered when entities engage in one or more instances

of financial activity within the scope of the statute. The

disclosure and reporting obligations do not attach until

contributions or expenditures reach the $5,000 threshold.

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 Appellants' complaint asserts the incremental importance

of each individual contribution:

43. Depending on which, if any, of the
donations for the above listed emails and
newsletters are considered "contributions" for
purposes of section 1056-B, NOM is either near
or has already exceeded the $5,000 threshold
for ballot question committee status.

44. NOM intends to distribute further
emails and newsletters mentioning Maine and
soliciting donations, which will exceed
$5,000, both during the current election cycle
and in future elections. However, NOM fears
enforcement under section 1065-B based on any
such future activities, as well as for
activities already engaged in.

Compl., ¶¶ 43, 44. Hence, if contributions clearly within the

statute's scope fall short of the $5,000 mark, appellants

theoretically may succeed with as-applied vagueness challenges

based on other donations that they fear may bring their covered

funds up to $5,000.

Appellants, however, do not address in their brief the

vagueness problem with respect to donations received following any

specific communication they distributed or proposed. Rather, they

assert in conclusory language that subsections B and C of

section 1056-B "are unconstitutionally vague as applied to most of

Plaintiffs' speech." They make glancing reference to the content

of the emails, noting that "some of NOM's solicitations mentioned

Maine," and query whether, as a result of those mentions, donors'

knowledge of the Maine ballot measure would be enough to make their

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donations covered "contributions" and NOM a BQC. They do not

explain why they were unable, or would be unable, to link

particular contributions received to their advocacy efforts on the

Maine referendum, focusing their arguments instead on the language

of the statute generally.9

Thus, appellants are not only unable to bring a facial

vagueness challenge to section 1056-B, but their failure to develop

their as-applied challenges also would allow us to reject those

claims summarily if we were so inclined.10 See Harron v. Town of

Franklin, 660 F.3d 531, 535 n.2 (1st Cir. 2011); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Given the importance of

the issues raised, however, and the resources expended by all

parties in this extensive litigation, we choose to explain why

their vagueness contentions would in any event be substantially, if

not entirely, unavailing. See Costa-Urena v. Segarra, 590 F.3d 18,

30 (1st Cir. 2009) (noting that "in certain circumstances we have

9
Appellants invoke the specific communications they
disseminated merely by citing to the paragraphs of their complaint
describing NOM's email messages and newsletter article, and APIA's
proposed television ads (i.e., "See A[ppendix] 30-A[ppendix] 36").
The citation includes a parenthetical excepting three of the emails
and the newsletter piece from their argument — presumably the
speech that they concede elicited contributions clearly covered by
section 1056-B. Two of those three emails are reproduced in
section II.C.5.
10
Indeed, APIA appears to lack standing to bring an as-applied
challenge. Its proposed activities – to air broadcast advertising
plainly aimed at influencing the ballot question campaign and to
raise funds for that purpose – involve expenditures and
contributions clearly covered by section 1056-B.

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the discretion to overlook waiver by inadequate argument" (citation

omitted)); cf. Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d

622, 628 (1st Cir. 1995) (noting that the presence of a

constitutional issue is "a factor that favors review

notwithstanding . . . procedural default"); In re Two Appeals

Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d

956, 961 (1st Cir. 1993) ("To the extent that an issue is one of

law rather than fact, can be resolved without doubt on the existing

record, and is likely to arise in other cases, an appellate court

may, in the interests of justice, choose to overlook a procedural

default.").

3. Standard of Review

Our task when evaluating a due process vagueness

challenge to a statute affecting First Amendment freedoms is "to

ensure that persons of ordinary intelligence have 'fair warning' of

what [the] law prohibits," that the law "provide[s] explicit

standards for those who apply" it, and that the law "avoid[s]

chilling the exercise of First Amendment rights." NOM I, 649 F.3d

at 62 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972) (internal quotation mark omitted)). Precision is not

expected; "[t]he mere fact that a regulation requires

interpretation does not make it vague." Id. (quoting Ridley v.

Mass. Bay Transp. Auth., 390 F.3d 65, 93 (1st Cir. 2004)); see also

Humanitarian Law Project, 130 S. Ct. at 2719 (noting that, when a

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law burdens First Amendment rights, "a more stringent vagueness

test should apply . . . [b]ut perfect clarity and precise guidance

have never been required even of regulations that restrict

expressive activity" (quoting Hoffman Estates, 455 U.S. at 499;

United States v. Williams, 553 U.S. 285, 304 (2008) (quoting Ward

v. Rock Against Racism, 491 U.S. 781, 794 (1989)))). The test is

whether the statute "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." NOM I, 649 F.3d at

62 (quoting United States v. Councilman, 418 F.3d 67, 84 (1st Cir.

2005) (en banc)) (internal quotation marks omitted). Our review is

de novo. NOM I, 649 F.3d at 62.

4. "Influencing"

In NOM I, where we faced essentially the same vagueness

challenge to the use of the word "influencing" in the PAC

provisions, we relied on a narrowing construction adopted by the

Commission for section 1056-B – i.e., the provision that is now

before us. As we explained there, the Commission's written

Guidance clarifying section 1056-B stated that the various action

terms in the then-current version of the provision – "initiating,

promoting, defeating or influencing in any way" – applied to

communications and activities which expressly
advocate for or against a ballot question or
which clearly identify a ballot question by
apparent and unambiguous reference and are
susceptible of no reasonable interpretation

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 other than to promote or oppose the ballot
question.

NOM I, 649 F.3d at 66 (quoting Me. Comm'n on Governmental Ethics &

Election Practices, Guidance on Reporting as a Ballot Question

Committee).11 We held that the PAC provisions' use of the term

"influencing," "so limited, is not so vague as to offend due

process." Id. at 67. A fortiori, given that the Guidance was

generated to clarify section 1056-B, our conclusion there — that

the narrowed formulation "succeeds both in 'provid[ing] explicit

standards for those who apply' the provision[] . . . and in

ensuring that persons of average intelligence will have reasonable

notice of the provision[']s[] coverage" — applies here as well.

Id. (quoting Grayned, 408 U.S. at 108).

In their reply brief, appellants assert that the Guidance

is unconstitutionally vague because it incorporates the "appeal-to-

vote" test, which they claim is itself unconstitutionally vague.

We rejected this unfavorable view of the appeal-to-vote test in NOM

I. See id. We likewise reject appellants' contention here that

the Guidance is unclear because it describes the regulated conduct,

in part, in appeal-to-vote terms — i.e., communications and

activities "susceptible of no reasonable interpretation other than

11
The Guidance provides answers to a series of questions about
the BQC law and is available on the Commission's website at
http://www.maine.gov/ethics/bqcs/guidance.htm (last visited Jan.
25, 2012). The Guidance has been revised in accordance with the
current statutory language and no longer includes the words
"promoting" or "defeating" in its explanation.

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to promote or oppose [a] ballot question." See FEC v. Wis. Right

to Life, Inc., 551 U.S. 449, 469-70 (2007) (articulating the

appeal-to-vote test in holding that an advertisement could be

regulated without triggering overbreadth concerns if it were

"susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate"). Indeed, as

we noted in NOM I, the Supreme Court relied on the appeal-to-vote

test in its most recent campaign-finance decision. See NOM I, 649

F.3d at 69 (citing Citizens United, 130 S. Ct. at 889-90); see also

Wis. Right to Life, 551 U.S. at 474 n.7 (explaining that the

appeal-to-vote formulation meets the "imperative for clarity" in

regulation of political speech).

Moreover, as the district court recognized, the phrase

"for the purpose of influencing" was of concern in the context of

candidate elections because of the possibility that it would be

understood to cover issue advocacy as well as express advocacy for

the election or defeat of a candidate. See Nat'l Org. for

Marriage, 765 F. Supp. 2d at 53 n.86. "For state ballot question

committees, however, only issue advocacy is involved, and there is

no vagueness." Id.

-21-
 5. Subsection B ("Funds provided in response to a
solicitation that would lead the contributor to believe that the
funds would be used specifically for the purpose of initiating or
influencing a campaign")

Appellants assert that subsection B articulates a

standard that "focus[es] on what those who hear speech understand,"

and argue that they cannot know "for sure" whether solicitations

"would lead the contributor to believe" that funds would be used

for advocacy concerning a ballot measure. They contend that the

provision places the speaker "'wholly at the mercy of the varied

understanding[s] of [their] hearers,'" which has the impermissible

chilling effect of self-censorship. Appellants' Br. at 24

(quoting Buckley, 424 U.S. at 43) (second alteration in original).

As we have explained, a facial vagueness challenge to the

statute is unavailable because appellants concede that the

contribution definition is not "impermissibly vague in all of its

applications." Hoffman Estates, 455 U.S. at 497. Although we have

chosen to respond to appellants' as-applied challenge in part, we

decline to examine in detail each of the communications listed in

appellants' complaint to evaluate the clarity of section 1056-B's

application to subsequently received donations. Appellants did not

undertake such a particularized analysis, and we are unwilling to

excuse the deficiencies in their briefing by developing the

argument for them. Instead, we can explain the flaws in their

contentions about the statute's constitutionality by reviewing a

selection of the NOM emails identified in the complaint.

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 At least half of NOM's thirteen listed emails paired

information about the organization's efforts to overturn the

pending Maine law allowing same-sex marriage with explicit requests

for financial support – clearly constituting "solicitation[s] that

would lead the contributor to believe that the funds [donated]

would be used specifically for the purpose of initiating or

influencing a campaign." Me. Rev. Stat. Ann. tit. 21-A, § 1056-

B(2-A)(B). Among those emails, for example, are two that NOM

appears to concede do not raise vagueness problems. The first of

those, sent on May 6, 2009, stated:

Your support today will allow us to start the
referendum process immediately when the law is
signed, ensuring that the measure does not
take effect before the people of Maine have
had their say. Can you afford a gift of $35,
$50 or $100 today to help stop same-sex
marriage not just in Maine, but in New
Hampshire, Iowa, and other states as well?
Please use this hyperlink to make a secure
online donation today.

Docket No. 114-2, at 2-3. NOM estimated that it received

approximately $2,469 as a result of this communication. Compl.,

¶ 26. The second of the pair, sent on July 10, described efforts

"to repeal Maine's hastily enacted gay marriage statute" and

stated:

The National Organization for Marriage worked
hard with StandforMarriageMaine [a Maine PAC]
to make this happen. But it could not have
happened without your help! You are the ones
who made this happen . . . and we need you to
help secure this victory. Can you help us
with $10, $25, or $100 so that Maine – and our

-23-
 country – can recover the true meaning of
marriage?

Docket No. 114-2, at 14. NOM estimated that this email produced

approximately $350 in donations. Compl., ¶ 32.

Two other emails apparently not within NOM's concession

present similar messages. An email sent on May 8, 2009 described

activities in the District of Columbia, Maine, and New Hampshire

and included the following solicitation, in boldface type:

You can fight back! Can you help defend
marriage in Maine and across the country, by
donating $5, $10, or even, if God has given
you the means, $100 or $500?

Docket No. 114-2, at 4. NOM estimated receiving about $1,055 in

donations in response to the email. Compl., ¶ 27. Another email

on August 28, 2009, which drew an estimated $395 in donations,

described a recent article about NOM executive director Brian Brown

and highlighted events in Iowa. The email included the following

sentence: "Help us fight to protect marriage in Iowa, Maine and

everywhere across this great land – donate today!" Compl., ¶ 37;

Docket No. 114-3, at 12. A reasonable contributor could not help

but believe that donations made in response to these and similar

solicitations "would be used specifically for the purpose of

initiating or influencing a [Maine] campaign." Me. Rev. Stat. Ann.

tit. 21-A, § 1056-B(2-A)(B).12

12
Appellants have not challenged the statute on appeal based
on the failure to pro rate contributions among the states mentioned
in the solicitations. See Nat'l Org. for Marriage, 666 F. Supp. 2d

-24-
 Drawing on the language quoted above from Buckley and

noting its repetition in Wisconsin Right to Life, appellants

emphasize that a regulation of political speech must focus on the

content of the message itself and not on the hearer's

understanding. Even if that requirement were categorical – and NOM

does not say it is – it would be fulfilled by subsection B. The

question asked is whether the words spoken – the "solicitation" –

would lead a contributor to believe that the funds will be used to

initiate or influence a campaign. The answer does not require an

assessment of what any particular contributor actually believed, an

inquiry that could turn on the hearer's education, culture, or

other background factors. Rather, whether a communication is

covered depends on the objectively reasonable meaning of the

language of the solicitation; hence, the only relevant hearer is

the hypothetical "reasonable person."

We acknowledge, as appellants argue, that a standard may

be both objective and vague. As applied to the communications

described above, however, there is nothing imprecise about the

at 212 (noting that "[t]he clear language of the statute requires
reporting the entire amount"). Appellants summarily assert that
section 1056-B improperly regulates speech outside Maine, but link
that assertion only to the district court's conclusion that Maine
may require "organization-wide reporting" so the Commission "can
assess the legitimacy of how the organization reports its
information." Nat'l Org. for Marriage, 765 F. Supp. 2d at 49 n.76.
To the extent appellants claim the statute has improper
extraterritorial impact, the argument is undeveloped and, hence,
forfeited.

-25-
language or the target of the provision. Subsection A, which is

not challenged here, governs contributions that "the contributor

specified were given in connection with a campaign" – i.e.,

earmarked donations. Subsection B governs contributions that, in

effect, are earmarked by the solicitor – those that the contributor

would understand as intended for use in ballot campaigns because of

the solicitor's "earmarking" words. As the district court

observed, rejecting subsection B as a lawful complement to

subsection A "would allow the solicitor to propose all the relevant

limitations and conditions in the solicitation, then argue unfairly

that the resulting gift that did not expressly repeat those

limitations and conditions could not be characterized as to

purpose." Nat'l Org. for Marriage, 765 F. Supp. 2d at 51.

We have no difficulty concluding that organizations like

NOM and APIA can be fairly required by Maine law to determine

whether a reasonable listener would understand their advocacy as an

invitation to contribute to a specific ballot question campaign.

The scope of subsection B "may not be clear in every application,"

Humanitarian Law Project, 130 S. Ct. at 2720, but appellants have

identified no circumstances in which they would be unable to

recognize contributions that the Commission would deem within the

statute's scope based on the perspective of a reasonable

-26-
contributor. Hence, we reject appellants' argument that subsection

B is unconstitutionally vague as applied to them.13

6. Subsection C ("Funds that can reasonably be
determined to have been provided by the contributor for the purpose
of initiating or influencing a campaign when viewed in the context
of the contribution and the recipient's activities regarding a
campaign")

Subsection C triggers somewhat closer examination because

it relies by its terms not only on words spoken by the solicitor or

donor, but also on context. In addressing an as-applied challenge

to campaign finance regulations, the Supreme Court cautioned lower

courts against examining background information where such scrutiny

could become "an excuse for discovery or a broader inquiry" that

might chill "core political speech." Wis. Right to Life, 551 U.S.

at 474, 468.14 The Court acknowledged, however, that "basic

13
Appellants also appear to argue that the definitions of
"contribution" in subsections B and C are overbroad because they
extend to donations beyond those expressly earmarked by donors to
support or oppose ballot measures. Unsurprisingly, appellants
offer no support for the contention that the State may regulate
only explicitly earmarked funds. Such a limitation would allow
entities to easily evade disclosure requirements by guiding the
content of donors' messages, defeating the State's compelling
interest in informing voters. See Nat'l Org. for Marriage, 765 F.
Supp. 2d at 51. We reject any such argument out of hand.
14
In Wisconsin Right to Life, the Court addressed an as-
applied challenge to Section 203 of the Bipartisan Campaign Reform
Act of 2002 ("BCRA"), which barred corporations from disseminating
communications via broadcast media that targeted voters and named
a candidate for federal elected office. 551 U.S. at 455-56. The
Court held that the statute was unconstitutional in its application
to three radio and television ads because they constituted issue
advocacy rather than campaign speech. In so concluding, the Court
held that "the proper standard for an as-applied challenge to [the
statute] must be objective, focusing on the substance of the

-27-
background information" may be necessary to put a communication in

context, and it mentioned the factor of timing — "such as whether

an ad describes a legislative issue that is either currently the

subject of legislative scrutiny or likely to be the subject of such

scrutiny in the near future" — as one possibly relevant

consideration. Id. at 474 (internal quotation mark omitted).

Assuming the Supreme Court's caution regarding the use of

background facts may be imported from its setting involving a

content restriction on speech to this vagueness challenge to a

disclosure law, that limitation does not concern us. The language

of subsection C — though "clumsy," Nat'l Org. for Marriage, 765 F.

Supp. 2d at 51 — is clear enough: it targets contributions that the

recipient would reasonably understand to be "for the purpose of

initiating or influencing a campaign," Me. Rev. Stat. Ann. tit. 21-

A, § 1056-B(2-A)(C), in circumstances where there is no explicit

request from the solicitor (covered by subsection B) or express

communication rather than amorphous considerations of intent and
effect." Id. at 469. The Court then elaborated:

It must entail minimal if any discovery, to allow parties
to resolve disputes quickly without chilling speech
through the threat of burdensome litigation. And it must
eschew "the open-ended rough-and-tumble of factors,"
which "invit[es] complex argument in a trial court and a
virtually inevitable appeal." In short, it must give the
benefit of any doubt to protecting rather than stifling
speech.

Id. (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 513 U.S. 527, 547 (1995)) (alteration in original) (citations
omitted).

-28-
earmarking by the donor (covered by subsection A). The statute

does not require inquiry into what the parties in fact understood,

avoiding the pitfalls of subjective standards. Cf. Wis. Right to

Life, 551 U.S. at 468 ("[A]n intent-based test would chill core

political speech by opening the door to a trial on every ad . . .

on the theory that the speaker actually intended to affect an

election, no matter how compelling the [contrary] indications[.]").

Rather, the statute's applicability turns on an objective

assessment of what a reasonable recipient would have concluded, and

that assessment necessarily will be based primarily on the

recipient's own conduct and communications, i.e., its "activities

regarding a campaign."

Here, for example, NOM's list of emails includes one

distributed on July 31, 2009 that, according to the complaint,

"focused on events related to same-sex marriage in Maine, and

mentioned that 'StandforMarriageMaine.com has turned in an

extraordinary 100,000 signatures to overturn gay marriage.'"

Compl., ¶ 34. As described in the complaint, this communication

did not include an explicit solicitation and, hence, might be

thought to fall outside the scope of subsection B's coverage of

"[f]unds provided in response to a solicitation."15 Me. Rev. Stat.

15
In fact, however, the full email reproduced in the record
contained multiple requests for donations. After noting NOM's
efforts in the Maine signature drive, the July 31 email stated:

[I]t is your financial sacrifices which have made our

-29-
Ann. tit. 21-A, § 1056-B(2-A)(B). Whether or not subsection B

applies, subsection C plainly does. In "context" — i.e., in light

of NOM's ongoing role in the effort to overturn the Maine gay

marriage law by referendum — the $255 in donations that NOM

attributed to the email could only "reasonably be determined to

have been provided by the contributor for the purpose of . . .

influencing" the Maine campaign and similar efforts elsewhere. Id.

§ 1056-B(2-A)(C); Compl., ¶ 34.

Other similarly inexplicit emails in NOM's list would

necessarily lead to the same conclusion. To give one more example,

NOM distributed a communication on September 4, 2009 stating that

"[m]arriage is now officially on the ballot in Maine this November"

and that "[m]oney is going to be critical to getting the message

out." Compl., ¶ 38; Docket No. 114-3, at 14. The email asked

readers to donate to Stand for Marriage Maine. Although we think

that a reasonable contributor who sent money to NOM in response to

initial victory possible. When you donate to NOM, you're
creating the next round of good news! Can you give $5,
$25, or even $100 today to win the next victory for
marriage?

Docket No. 114-3, at 4. Later in the email, after a paragraph
explaining why "Maine is about more than Maine" in the campaign
against same-sex marriage, the reader was told that "ordinary
people like you can still make a difference! Even a small donation
— maybe a monthly pledge of just $10 — can help us make your voice
heard." Id. In addition, this message, like each of the twelve
other emails listed in the complaint, contained a hyperlinked
"Donate" button that sent potential donors to the donations screen
at NOM's website. Compl., ¶ 39.

-30-
this communication would expect NOM to use the funds to influence

the referendum campaign – thus triggering subsection B – subsection

C eliminates any doubt that such contributions, even though

prompted by an explicit solicitation on behalf of a separate

organization, would fall within the scope of section 1056-B. Given

NOM's prominent role in the Maine campaign and the urgent tone of

the message, NOM reasonably could predict that donations it

received as a result of this email would be classified by the

Commission as "for the purpose of" influencing the upcoming Maine

election.

Moreover, in evaluating any such donations, it is also

significant that the relationship between NOM and Stand for

Marriage Maine was extremely close during the 2009 campaign. NOM's

executive director was a member of Stand for Marriage Maine's

executive committee, and he was identified as one of the PAC's

"primary decision-makers and fundraisers." Nat'l Org. for

Marriage, 666 F. Supp. 2d at 200. NOM provided a total of $1.6

million to the PAC as of October 20, 2009. Id.; see also NOM I,

649 F.3d at 48 (noting that NOM spent $1.8 million in Maine in

2009). Such objective information, along with the timing of the

contributions relative to the election, reasonably should inform

"the context of the contribution." Me. Rev. Stat. Ann. tit. 21-A,

§ 1056-B(2-A)(C). Indeed, in keeping with the illustrative

permissible background information cited by the Court in Wisconsin

-31-
Right to Life, timing is a particularly key contextual clue that a

contribution should be deemed within the scope of subsection C.

In sum, we see no constitutional problem with expecting

entities like appellants to make pragmatic, objective judgments

about the nature of the contributions they receive where their own

conduct and communications are the primary elements in the

determination. Appellants have not demonstrated that subsection C

is unconstitutionally vague as applied to any of their actual or

anticipated contributions. Hence, as presented here, their

vagueness challenge to subsection C fails. Cf. Humanitarian Law

Project, 130 S. Ct. at 2720 (noting that "the scope of the . . .

statute may not be clear in every application[,] [b]ut the

dispositive point here is that the statutory terms are clear in

their application to plaintiffs' proposed conduct").

III.

For the reasons set forth above, we conclude that section

1056-B satisfies constitutional standards. Appellants have

demonstrated no circumstances in which the statute fails to provide

them fair warning of its reach. Hence, we reject their due process

vagueness claim. The provision's $100 reporting threshold is

narrowly tailored to meet Maine's compelling interest in an

informed electorate. The statute is not overbroad in violation of

the First Amendment. Accordingly, we affirm the judgment of the

district court.

So ordered.

-32-