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,
24
"[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.
27