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Maine and Rhode Island’s campaign finance disclosure laws are constitutional, the U.S. Court of Appeals for the 1st Circuit has ruled, rejecting challenges from the National Organization for Marriage (NOM). The 1st Circuit issued two unanimous companion rulings on Aug. 11. The court’s ruling upholding Maine’s laws applied to a combined hearing of two cases: National Organization for Marriage Inc. v. McKee and National Organization for Marriage Inc. v. Adams. And its ruling in National Organization for Marriage Inc. v. Daluz upheld Rhode Island’s laws. Judge Kermit Lipez authored both rulings, joined by judges Michael Boudin and Juan Torruella. Both opinions relied on the 2010 U.S. Supreme Court ruling in Citizens United v. Federal Election Commission, which ruled that congressional restrictions on independent spending by corporations in federal elections is a First Amendment violation. In the Maine cases, NOM brought facial and as-applied challenges under the constitution’s First and 14th amendments to Maine’s campaign expenditure reporting law. NOM challenged the Maine law’s definition of political action committees (PACs), how it defined expenditures and its so-called express-advocacy definition, “which considers the context of speech.” NOM also challenged how Maine defines and regulates independent expenditures — spending that isn’t a contribution to a candidate or a candidate’s authorized political committee that “expressly advocates the election or defeat of a clearly identified candidate.” In August 2010, District of Maine Judge D. Brock Hornby ruled in favor of the state on the merits, except on two issues. Hornby ruled that the phrase “influence in any way” and the term “influence” and its variants in the law are “unconstitutionally vague and cannot be enforced.” Hornby also ruled that a regulatory provision requiring disclosures of independent expenditures larger than $250 within 24 hours, was “impermissibly burdensome,” but the defendants did not challenge that holding. The 1st Circuit ruling in McKee vacated the part of the district court’s judgment that found the terms “influencing” and “influence” unconstitutionally vague and remanded the case for a judgment for the defendants’ on those claims. The 1st Circuit also affirmed the rest of Hornby’s judgment. Lipez rejected NOM’s contention that Maine’s statutes are unconstitutionally overbroad because they regulate issue advocacy and not just express advocacy of a candidate’s election or defeat. Lipez wrote that, in Citizens United, “the Supreme Court has explicitly rejected an attempt to ‘import [the] distinction’ between issue and express advocacy into the consideration of disclosure requirements.” “The provisions before us are all effectively disclosure laws, in that they require the divulgence of information to the public or the Commission, but do not directly limit speech,” Lipez wrote. “We find it reasonably clear, in light of Citizens United, that the distinction between issue discussion and express advocacy has no place in First Amendment review of these sorts of disclosure-oriented laws.” Concerning Hornby’s holding for the plaintiffs, Lipez wrote that “the term ‘influencing’ does present some vagueness problems.” Lipez noted the defendants’ have offered a “fallback position,” that narrows the language based on written guidance by the Maine Commission on Governmental Ethics and Election Practices. That guidance relates to the phrase “for the purpose of influencing” in a separate statute regulating ballot question committees. The guidance states that the commission interprets the phrase as meaning “for the purpose of initiating, promoting, defeating or influencing in any way a campaign.” Lipez wrote that the narrowing guidance for the terms “influencing” and “influence” in the statutes at issue in the case would include only “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.” Lipez then quoted a 1972 Supreme Court case, Grayned v. City of Rockford, which discussed how vague laws could tread on First Amendment and due process rights. “We thus conclude that the provisions’ use of the terms “influencing” and “influence,” so limited, is not so vague as to offend due process,” Lipez wrote Thomas Knowlton, an assistant attorney general in Maine who argued at the 1st Circuit, said the Maine defendants are “pleased that the court has upheld these important Maine laws governing candidate collections and the campaign finance laws.” Knowlton said the Maine laws at issue require PACs and independent spenders to report certain expenditures, but they don’t restrict spending. “These are the kind of laws the courts have been upholding,” Knowlton said. Maine’s campaign finance laws “inform the public concerning who is influencing elections,” said Jonathan Wayne executive director of the Maine Commission on Governmental Ethics and Election Practices. “The Commission staff is pleased that the court acknowledged that these laws advance important public interests,” Wayne said. In Daluz, NOM challenged the district court’s rejection of its claim that the state’s political expenditure definition and expenditure-reporting requirements are unconstitutional on their face and as applied to NOM. Last October, Chief Judge Mary Lisi of the District of Rhode Island denied NOM’s preliminary injunction motion that would have stopped enforcement of the state law. The 1st Circuit holding in Daluz affirmed the district court’s order denying NOM’s preliminary injunction motion. “As the district court correctly concluded, Rhode Island’s independent expenditure law requires only disclosure, and, as a disclosure law, is adequately supported by a governmental interest in providing information to the electorate,” Lipez wrote. Lipez later noted that Rhode Island’s disclosure requirements “are substantially the same as those imposed by Maine’s independent expenditure provision, which we uphold today in our companion opinion. As with Maine’s law, the disclosures required by the provision here impose no great burden on the exercise of election-related speech.” Lipez also wrote that NOM’s arguments that some of Rhode Island’s independent expenditure provisions are unconstitutionally vague are “without merit.” Rhode Island is pleased with the ruling, said Bob Kando, executive director of the Rhode Island Board of Elections. The state was solely requiring a report of campaign expenditures, he said. “The state was saying ‘Please, just report,’” Kando said. “There was no limitation on their spending. It was puzzling to us when they filed their complaint.” “The 1st Circuit’s decision in this case is a victory for transparency in elections and will help ensure there is a more informed electorate,” said Rhode Island Attorney General Peter Kilmartin in a statement. James Bopp Jr., who argued for NOM in both cases, said that the organization is “quite surprised by the ruling.” His firm, Bopp, Coleson & Bostrom of Terre Haute, Ind., provides legal services to the Madison Center for Free Speech. He filed his brief as general counsel for the center. Bopp has worked on challenges of other states’ election laws. “The 1st Circuit has really gone out on a limb setting up a circuit split with about a half dozen circuits, most importantly the 4th and 10th, Bopp said. “The most surprising feature is that they don’t think the First Amendment requirements that have been imposed on federal law apply to state laws,” Bopp said. Bopp said the 10th Circuit ruling is the 2010 holding in New Mexico Youth Organized v. Herrera. The ruling affirmed summary judgment for two nonprofit plaintiffs, which argued that New Mexico’s secretary of state could not constitutionally regulate the organizations under the New Mexico Campaign Reporting Act. The 10th Circuit found that the two organizations did not qualify as political committees. A 2008 4th Circuit ruling in North Carolina Right to Life v. Leake, which predates Citizens United, held that various provisions of North Carolina’s campaign financing law violated the First and 14th amendments. NOM and American Principles in Action have also challenged Maine’s ballot-question-committee statute under the First and 14th amendments. That appeal, also styled National Organization for Marriage Inc. v. McKee, is slated for a 1st Circuit hearing in September. Sheri Qualters can be contacted at [email protected].

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