38 F.4th 1163
9th Cir.2022Background
- Ed Butcher and Lonny Bergstrom operated "Legistats," a website ranking Montana Republican legislators, and gave unpaid presentations to local GOP groups across Montana in 2019–2020, incurring travel, meal, and one-night lodging expenses.
- A citizen complaint led Montana Commissioner Jeffrey Mangan to find they formed a political committee on June 7, 2019, because one trip’s expenses exceeded $250, triggering registration, reporting, and potential civil penalties.
- Montana law defines a "political committee" broadly and treats any "expenditure" ("anything of value") as potentially forming a committee, but exempts expenditures under $250 and "de minimis acts." The Commissioner may define "de minimis" by rule.
- Mont. Admin. R. 44.11.603 lists five factors the Commissioner "may consider" in deciding de minimis status and provides examples of items that "may, depending on the circumstances, be considered de minimis," including (2)(g): "expenses associated with volunteer services or efforts, including the cost of gas, parking, and meals."
- The district court granted summary judgment for the State. On appeal the Ninth Circuit (majority) held Rule 44.11.603 unconstitutionally vague as applied to Butcher and Bergstrom and reversed, reasoning the rule failed to give fair notice that their volunteer travel expenses would not be treated as de minimis and invited arbitrary enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mont. Admin. R. 44.11.603(2)(g) is unconstitutionally vague as applied | Butcher: lacked fair notice that travel expenses for unpaid presentations would not qualify as de minimis/volunteer expenses | State: the rule lists non-exclusive examples and factors; no safe harbor but provides guidance tied to circumstances/factors | Held vague as applied; plaintiffs lacked fair notice and rule permits arbitrary enforcement; reversal of district court |
| Whether Canyon Ferry forecloses plaintiffs' vagueness challenge | Butcher: post-Canyon Ferry statutory/regulatory amendments change the analysis; Canyon Ferry doesn’t preclude as-applied challenge | State: Canyon Ferry already validated Montana scheme and amendments only clarify matters | Held: Canyon Ferry does not control here; post-Canyon Ferry changes and different facts require fresh as-applied analysis |
| Whether plaintiffs reasonably qualified as "volunteers" under rule (2)(g) | Butcher: they spoke unpaid at groups' invitations and thus fit common meaning of "volunteer," so related expenses are de minimis | State: they advocated for candidates and used resources to support/opposed candidates—thus not volunteers | Held: a reasonable person could view them as volunteers; Montana gave no fair notice that such unpaid advocacy would be excluded from the volunteer example |
| Whether Rule 44.11.603(1) factors cure any vagueness | State: the five factors supply objective criteria and link "circumstances" to subsection (2) examples | Butcher: the factors conflict with the volunteer example—most volunteers meet factors (ascertainable value, out-of-pocket detriment, multiple occurrences)—so factors create more uncertainty | Held: factors do not supply adequate, predictable guidance; they permit arbitrary, subjective application and do not cure vagueness as applied |
Key Cases Cited
- Canyon Ferry Baptist Church v. Unsworth, 556 F.3d 1021 (9th Cir. 2009) (prior Ninth Circuit as-applied vagueness invalidation of Montana’s pre-amendment expenditure rule)
- FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012) (void-for-vagueness principles; need for fair notice and limits on arbitrary enforcement)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness doctrine and chilling effect on protected expression)
- Buckley v. Valeo, 424 U.S. 1 (1976) (First Amendment importance of political speech and scrutiny of disclosure regimes)
- McCutcheon v. FEC, 572 U.S. 185 (2014) (political speech occupies highest rung of First Amendment protection)
- NAACP v. Button, 371 U.S. 415 (1963) (vague statutes enable selective enforcement against unpopular speech)
- Chalmers v. City of Los Angeles, 762 F.2d 753 (9th Cir. 1985) (conflicting/contradictory ordinances may be impermissibly vague as applied)
- Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (overbroad enforcement discretion due to open-ended factor lists)