First Circuit Rejects Anti-Same-Sex Marriage Group's Constitutional Challenges to State Election Laws
Yamuna Bhaskaran | Bloomberg Law
In two companion opinions, the U.S. Court of Appeals for the First Circuit rejected an anti-gay marriage group’s challenge to the disclosure requirements under Maine and Rhode Island election laws, holding that the statutes, which established certain reporting and bookkeeping requirements, were not unconstitutionally vague or overbroad.
Plaintiff National Organization for Marriage (NOM) is a New Jersey-based nonprofit corporation that coordinates “organized opposition to same-sex marriage in state legislatures.” NOM filed a verified complaint against election agencies in Maine in late 2009, shortly before a referendum election involving same-sex marriage issues, seeking to enjoin enforcement of certain election laws and to have them declared unconstitutional. NOM also filed a lawsuit against Rhode Island election agencies asserting substantially similar claims. On appeal, the First Circuit issued separate opinions in both matters, but provided the bulk of its analysis in its evaluation of the Maine statute and referenced and relied upon that opinion in its review of the Rhode Island statutes.
Maine Laws Regulating PACs
Under Maine law, a “major-purpose” political action committee (PAC), which “has as its major purpose initiating, promoting, defeating or influencing a candidate election, campaign or ballot question,” must register if it meets certain expenditure thresholds. Me. Rev. Stat. Tit. 21-A, 1052(5)(A)(4), 1053. At issue, however, were the disclosure requirements imposed upon a “non-major-purpose PAC,” which does not have as its major purpose “promoting, defeating or influencing candidate elections,” but meets expenditure thresholds significantly higher than those of a major purpose PAC. Id., 1052(5)(A)(5), 1053. One week after exceeding the applicable monetary threshold, the PAC must register with the Maine Commission on Governmental Ethics and Election Practices (the Commission) and comply with ongoing reporting requirements and record-keeping obligations.
First Amendment Overbreadth Challenges
Instead of applying the more rigorous strict scrutiny standard to NOM’s First Amendment claims, the Court held that it would review the case under the exacting scrutiny standard. The lower standard was appropriate, the Court reasoned, because the challenged regulations involved disclosure of information, which, “unlike contribution and expenditure limits, impose no ceiling on campaign-related activities, and thus are a less restrictive alternative to more comprehensive regulations of speech.” (Internal citations and quotations omitted.)
— Rejecting the Issue Discussion and Express Advocacy Dichotomy in Disclosure-Oriented Laws
The First Circuit rejected NOM’s attempt to argue that Maine’s disclosure requirements were overbroad because they allegedly infringed on speech that included both issue discussion and express advocacy, a distinction developed in Buckley v. Valeo, 424 U.S. 1 (1976). As described by the First Circuit, “the core premise” of the issue discussion/express advocacy framework is that “the regulation of speech expressly advocating a candidate’s election or defeat may more easily survive constitutional scrutiny than regulation of speech discussing political issues more generally.”
Acknowledging the ambiguity in both the distinction itself and the constitutional basis for it, the First Circuit observed that Buckley may have been more concerned with potentially overbroad restrictions on speech under the First Amendment than its stated concern of vagueness under Due Process. Regardless, in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), the U.S. Supreme Court expressly rejected the application of the issue discussion/express advocacy distinction to disclosure laws. The dichotomy was irrelevant to the Maine disclosure requirements because they are “effectively disclosure laws, in that they require the divulgence of information to the public or the Commission, but do not directly limit speech.” Therefore, the First Circuit held the issue discussion/express advocacy distinction was irrelevant to NOM’s appeal and, more generally, had “no place in First Amendment review of . . . disclosure-oriented laws.”
Asserting a facial challenge to the statute, NOM argued that the very definition of a non-major-purpose PAC was overbroad based in part on the issue discussion/express advocacy dichotomy in Buckley. Under NOM’s argument, only a group that was under the control of a candidate and that had the “major purpose” of nominating or electing a candidate would be required to register as a PAC, and any regulation of a group that did not have that “major purpose” would be prohibited. Reiterating its earlier rejection of the dichotomy, the First Circuit found NOM’s position without merit, observing that no such major purpose test had ever applied to a state statute regulating PACs. Moreover, NOM’s interpretation would yield a perverse result in that a non-major-purpose PAC could contribute millions of dollars and avoid registration while a major-purpose PAC contributing a much smaller amount to the same cause would be forced to register.
— Independent Expenditures
Maine also requires reporting certain “independent expenditures,” which are payments over $100, other than those made directly to a candidate or their campaign committee, that are made “for the purpose of influencing the nomination or election of any person to political office.” Me. Rev. Stat. Tit. 21A, 1012(3), 1019-B(1). Under certain circumstances, payments over $100 for communications naming or depicting a clearly identified candidate within approximately one month of a primary or general election are presumptively considered “independent expenditures,” but the presumption can be rebutted.
The First Circuit found no merit in NOM’s argument that the independent expenditures statute was unconstitutional because its monetary threshold was not indexed to inflation. Following Buckley, the Court granted “judicial deference to plausible legislative judgments as to the appropriate location of a reporting threshold, and . . . upheld such legislative determinations unless they are wholly without rationality.” (Internal quotations omitted.) As such, the Court could not conclude that the $100 threshold, which was double the amount that it had upheld in another case 11 years before, was unconstitutional.
— Disclaimer and Attribution
The First Circuit also rejected NOM’s overbreadth challenge to Maine’s disclaimer and attribution laws. Under Maine law, a political advertisement or other message must contain a clear and conspicuous disclaimer stating whether it was endorsed by the candidate, as well as the name and address of the person to whom the advertisement may be attributed. In the Court’s view, the laws were, “on their face, unquestionably constitutional,” and bore “a close relation to Maine’s interest in dissemination of information regarding the financing of political messages.”
Due Process Vagueness Challenges
The vagueness doctrine seeks to “ensure that persons of ordinary intelligence have fair warning of what a law prohibits, prevent arbitrary and discriminatory enforcement of laws by requiring that they provide explicit standards for those who apply them, and in cases where the statute abuts upon sensitive areas of basic First Amendment freedoms, avoid chilling the exercise of First Amendment rights.” (Internal quotations and alteration omitted.)
The lower court held that the term “influencing” in the Maine statutes was unconstitutionally vague and severed it, as well its variants, from the statutes in which it appeared. The First Circuit acknowledged that the phrase was problematic because, unlike other more “result-oriented” phrases such as “promote” or “defeat,” the term “influence” covered a “wide range of objectives.” Because the context in which the term appeared did not always provide adequate clarification, the Court instead looked to written guidance from the Commission. Using the Commission’s language, the Court narrowed the construction of “influence” to “communications and activities that expressly advocate for or against a candidate or that clearly identify a candidate by apparent and unambiguous reference and are susceptible of no reasonable interpretation other than to promote or oppose the candidate.”
The First Circuit held that the disclosure requirements for PACs under Maine’s laws did not infringe on the First Amendment or violate Due Process. For similar reasons, Rhode Island’s disclosure requirements also survived constitutional scrutiny.
This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. Bloomberg Finance L.P. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.
© 2011 Bloomberg Finance L.P. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of Bloomberg Finance L.P.