154 F.4th 1213
10th Cir.2025Background
- New Mexico amended its Campaign Reporting Act (CRA) in 2019 to add disclosure and disclaimer rules for certain "independent expenditures" and required registration for "political committees." Violations carry criminal and civil penalties.
- The CRA defines an "independent expenditure" to include (a) express advocacy, (b) speech "susceptible to no other reasonable interpretation" than advocacy, and (c) paid advertisements that "refer" to a candidate or ballot question and are disseminated to the relevant New Mexico electorate within 30 days before a primary or 60 days before a general election.
- The CRA requires political committees whose independent expenditures exceed monetary thresholds to disclose donor names and addresses (with an opt-out/earmarking exception for certain contributors); reports are published online in an "easily searchable" format.
- Rio Grande Foundation (RGF), a 501(c)(3) advocacy group that planned to distribute a partisan-styled "Freedom Index" near the 2020 election, sued the Secretary of State challenging the (3)(c) disclosure provision as facially overbroad and violative of First Amendment association and speech rights.
- The district court granted summary judgment for the Secretary; this appeal addresses statutory interpretation of §1-19-26(Q)(3)(c) and whether the disclosure regime survives exacting scrutiny. The Tenth Circuit affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1-19-26(Q)(3)(c) reaches speech made for a political purpose (statutory construction) | RGF: (3)(c) improperly sweeps in non-political mentions of candidates and thus is not within the definition of independent expenditures | Secretary: read in light of definitions ("expenditure" = for a political purpose) plus temporal/geographic limits; (3)(c) targets speech reasonably interpreted as advocacy | Held: (3)(c) captures advertisements reasonably interpretable as advocacy when combined with timing and dissemination limits; therefore they can have a political purpose |
| Whether disclosure requirement implicates First Amendment and which test applies | RGF: disclosure burdens association/speech; argued for strict scrutiny (preserved) but conceded exacting scrutiny | Secretary: exacting scrutiny applies (compelled-disclosure precedent) | Held: Exacting scrutiny applies to compelled disclosure claims here |
| Whether New Mexico’s informational interests are sufficiently important and substantially related to the disclosure requirement | RGF: (3)(c) speech tells voters "nothing"; McIntyre-style anonymous pamphlet analogy; public interest low for general-fund donors | Secretary: Important informational interest in knowing who funds near-election advocacy; timing makes it especially relevant | Held: State has an important informational interest in disclosure of major funders of near-election advertisements |
| Whether the disclosure regime is narrowly tailored under exacting scrutiny (including chilling evidence) | RGF: (3)(c) is overbroad, captures general-fund donors, creates chilling/retaliation risk; opt-out/earmarking inadequate; pointed to Gessing declaration | Secretary: CRA includes multiple guardrails (timing, thresholds, opt-out/earmarking, geographic limits); not required to be least restrictive | Held: Disclosure regime is narrowly tailored under exacting scrutiny; RGF’s evidence of chill was speculative and insufficient to overcome the State’s showing |
Key Cases Cited
- Americans for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021) (exacting scrutiny for compelled-disclosure requires a substantial relation to an important interest and narrow tailoring)
- Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) (disclosure regimes may reach speech that is not express advocacy; public interest in knowing who speaks shortly before elections)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (protection for anonymous political speech; informational interest insufficient in some anonymous leafleting contexts)
- Buckley v. Valeo, 424 U.S. 1 (1976) (disclosure may chill associational freedoms; need proof of reasonable probability of threats/harassment to show chill)
- Independence Institute v. Williams, 812 F.3d 787 (10th Cir. 2016) (timing of candidate mentions shortly before an election makes such ads campaign-related for disclosure purposes)
- Wyoming Gun Owners v. Gray, 83 F.4th 1224 (10th Cir.) (discussing informational interest and tailoring in disclosure context)