933 F.3d 1102
9th Cir.2019Background
- NAGR, a Colorado-based 501(c)(4) advocacy group with Montana supporters, planned to mail issue-focused literature about candidates and elected officials during an election cycle but refrained fearing Montana’s electioneering-disclosure law.
- Montana’s 2015 S.B. 289 defines "electioneering communication" (time-limited communications referring to candidates/ballot issues) and triggers registration and reporting when an organization spends more than $250 on a single such communication.
- Political committees must register, designate a treasurer, keep records, use an in-state bank, and file periodic disclosures; independent committees face greater disclosure than incidental committees.
- NAGR sued, alleging Montana’s definition is facially overbroad under the First Amendment and that disclosure may apply only to express advocacy; district court granted summary judgment to Montana except on a separate compelled-vote-reporting claim not at issue here.
- On appeal, the Ninth Circuit reviewed whether (1) disclosure may constitutionally extend beyond express advocacy, (2) Montana’s regime satisfies exacting scrutiny, and (3) the registered-Montana-voter requirement for treasurers is constitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether states may condition electioneering disclosure only on express advocacy | NAGR: First Amendment permits disclosure only for express advocacy/its functional equivalent | Montana: Citizens United and later precedent allow disclosure of other electioneering communications under exacting scrutiny | Court: Rejected plaintiff; disclosure not limited to express advocacy; apply exacting scrutiny |
| Whether Montana’s disclosure regime is substantially related to important interests | NAGR: Regime is overbroad and not sufficiently tailored; burdens speech | Montana: Regime is time-limited, tiered by advocacy level, uses thresholds and limited reporting intervals—substantially related to transparency/enforcement | Court: Most provisions survive exacting scrutiny and are upheld |
| Requirement that a political committee’s treasurer be a registered Montana voter | NAGR: Imposes unjustified burden, especially on out-of-state organizations; not substantially related to interests | Montana: Registered-voter status ensures accountability and enforceability (e.g., subpoenaability) | Court: Requirement is not substantially related to the State’s interests and is unconstitutional |
| Remedy/severability of the unconstitutional treasurer requirement | NAGR: Could seek invalidation of scheme or severing | Montana: The registered-voter clause is integral or not; otherwise severable | Court: Treated as severable; remainder of statute remains in force |
Key Cases Cited
- Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) (upholding Washington disclosure regime; applied exacting scrutiny)
- Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015) (upholding Hawaii’s disclosure rules as materially similar to HLW)
- Citizens United v. FEC, 558 U.S. 310 (2010) (upheld disclosure/disclaimer requirements for certain electioneering communications)
- FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) (limited federal restrictions on expenditures to express advocacy in that context)
- Buckley v. Valeo, 424 U.S. 1 (1976) (distinguishing expenditure/contribution limits from disclosure rules)
- Doe v. Reed, 561 U.S. 186 (2010) (disclosure laws in electoral context subject to exacting scrutiny)
- Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2012) (upholding requirements to disclose small-dollar contributors as informative)
- Worley v. Florida Secretary of State, 717 F.3d 1238 (11th Cir. 2013) (upholding organizational requirements like designating a treasurer under exacting scrutiny)