Lead Opinion
The Supreme Court’s decision in Citizens United v. FEC,
This case involves another such challenge. Plaintiff-appellant Center for Individual Freedom (the Center) seeks to invalidate Illinois disclosure requirements on the grounds that they are facially vague and overbroad restrictions of speech in violation of the First and Fourteenth Amendments. Illinois’s disclosure law is modeled on the federal one. It requires groups and individuals that accept “contributions,” make “expenditures,” or sponsor “electioneering communications” in excess of $3,000 to make regular financial disclosures to the State Board of Elections. See 10 ILCS 5/9-1.8. The Illinois Election Code drew the key definitions of “contribution,” “expenditure,” and “electioneering communication” from federal law. The only substantive differences are that the Illinois disclosure requirements (1) cover election activity relating to ballot initiatives, which have no federal analog; (2) do not exempt from regulation those groups that lack the “major purpose” of influencing electoral campaigns; and (3) cover campaign-related advertisements that appear on the Internet. The Center argues that these differences, and a few other terms in the Illinois statute, render its disclosure regime unconstitutionally vague and overbroad on its face.
To prevail in such a facial challenge, a plaintiff must cross a high bar. A
1. Factual and Procedural Background
The Center is a Virginia-based § 501(c)(4) nonprofit organization whose stated mission is “to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.” To that end, it broadcasts advertisements, maintains a website, publishes a weekly email newsletter, produces a bi-weekly radio show, and engages in other forms of mass media communications. Its tax exempt status under § 501(c)(4) is incompatible with partisan political activity, so the Center cannot endorse candidates or urge the public to “vote for so-and-so.” But apart from a need to avoid such “express advocacy,” in the lingo of campaign finance law, the Center and other § 501(c)(4) groups enjoy fairly wide latitude from the IRS. During election seasons, the Center runs advertisements that refer to the positions of candidates or to ballot issues and call on the audience to take actions such as contacting candidates.
The Center wished to engage in similar advocacy during the 2010 elections in Illinois and made plans to address “legal reform and other justice-related issues” in advertisements referring to incumbent officeholders who were candidates. But the Center feared that Illinois’s newly-amended campaign finance laws would require it to register as a “political committee” and to disclose its election-related expenditures and its significant contributors. According to the Center, its donors require assurances that their identities will not be disclosed, and this anonymity is a condition of their support. The Center says it had no choice but to forbear from its Illinois “issue advocacy” in 2010, so its political speech was chilled by Illinois’s disclosure laws.
These laws are codified in Article 9 of the Illinois Election Code. Article 9 is long and filled with the jargon of contemporary U.S. campaign finance law — “electioneering communications,” “independent expenditures,” etc. — which we detail in Part IV of this opinion. But Article 9’s basic provisions are fairly easy to summarize. Each political committee in Illinois must register with the Board of Elections, maintain records of every contribution received and expenditure made “in connection with” an election, 10 ILCS 5/9-7, and file a report of all such transactions each quarter, 10 ILCS 5/9 — 10(b). This quarterly report
Candidates’ campaign organizations and political parties of course must register as political committees. 10 ILCS 5/9-1.8(b), (c). But so too must outside groups and private individuals if, within any 12-month period, they accept contributions or make expenditures in excess of $3,000 “on behalf of or in opposition to” any candidate or ballot question. 10 ILCS 5/9 — 1.8(d), (e). Any entity other than a natural person must also register as a political committee if it makes “independent expenditures” of more than $3,000 within one year. 10 ILCS 5/9-8.6(b). Illinois has largely borrowed from federal law its definition of “electioneering communication,” which means a radio, television, or Internet broadcast that (1) refers to a “clearly identified” candidate, political party, or ballot issue; (2) is made within two months of a general election or one month of a primary election, (3) is “targeted to the relevant electorate,” and (4) is unambiguously an “appeal to vote” for or against a candidate, party, or ballot issue. 10 ILCS 5/9-1.14.
The Center argues that five of Article 9’s definitions — “electioneering communications,” “political committee,” “contribution,” “expenditure,” and “independent expenditure” — are facially vague and overbroad. In July 2010, the Center brought suit against the Illinois Attorney General and members of the Illinois State Board of Elections in their official capacities, see Ex parte Young,
II. Standing
We begin, as we must, with the state’s argument that the Center lacks standing to bring a constitutional challenge against Article 9. Although the state did not raise this issue in the district court, standing is a jurisdictional requirement that is not subject to waiver. United States v. Hays,
The standing requirement of Article III is part of the restriction of the federal judicial power to “Cases” and “Controversies.” U.S. Const. art. III, § 2; Arizona Christian School Tuition Org. v. Winn, - U.S. -,
First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Id. at 1442, quoting Lujan v. Defenders of Wildlife,
On appeal, the state contends that the Center lacks standing because it has neither been subject to any past regulation— it has not been ordered to register as a political committee, threatened with sanctions, or named in a Board complaint — nor “demonstrate^] any probability that its speech will trigger Article 9’s registration and reporting requirements” in the future. We construe this argument as a challenge to the Center’s injury-in-fact showing. (The state does not question whether the traceability and redressability prongs are satisfied here.)
It is well settled that pre-enforcement challenges to government regulations can be Article III cases or controversies. Brandt v. Village of Winnetka,
The injury-in-fact standard is often satisfied in pre-enforcement challenges to
The Center has made this showing. It has a history of broadcasting messages concerning public policy and political candidates across the United States. It has alleged that while it wishes to engage in similar advocacy in Illinois, it has curtailed its speech because it fears being regulated as a political committee. The Center’s President submitted an affidavit stating that but for Article 9, his organization would have spoken out during the 2010 Illinois elections using “the typical form of issue ad,” that “[fjunding was available,” and that its “wish to speak in Illinois remained live.” The Center’s standard issue advertisements are run during election season, identify an issue of public policy, give concrete examples to “illustrate the policy” using candidates with whom the public is familiar, and call on the audience to take some “action other than voting, e.g. contacting named candidates and encouraging them to continue or embrace the policy.” The Center’s typical issue ads meet enough of the statutory elements to qualify, at least arguably, as electioneering communications under Illinois law, and the Center would easily pass the $3,000 registration threshold. The Center’s self-censorship was based on an objectively reasonable, “actual[J and well-founded fear that the law will be enforced against” it. American Booksellers,
The state asserts that Wisconsin Right to Life, Inc. v. Paradise,
III. Scope of Review: Facial Challenge
Next we must clarify the scope of the legal challenge before us. The Center describes its suit as both a facial and an as-applied challenge, arguing that Article 9 is unconstitutionally vague and overbroad “both facially and as applied to independent issue advocacy groups such as CFIF.” It is true that facial challenges and as-applied challenges can overlap conceptually. See Doe v. Reed, — U.S. -,
This is not a case where a group has actually engaged in a particular form of speech that is subject to regulation and seeks to challenge the applicability of the law to itself and other groups who have engaged in similar expressive activity. Cf. FEC v. Wisconsin Right to Life,
Those standards set a high bar. In reversing a decision striking down a state election law in a facial challenge, the Supreme Court explained:
Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Ashwander v. TVA,297 U.S. 288 , 347 [56 S.Ct. 466 ,80 L.Ed. 688 ] (1936) (Brandeis, J., concurring). Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.
Washington State Grange v. Wash. State Republican Party,
IV. Overbreadth and Voidr-for-Vagueness Claims
The Supreme Court has recognized a particular type of facial challenge in the First Amendment context under which a law may be struck down entirely as impermissibly overbroad. Under this overbreadth doctrine, “a statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams,
Since its seminal modern campaign finance decision in Buckley v. Valeo,
In this case, the state interest at stake is that of “providing] the electorate with information as to where political campaign money comes from and how it is spent.” Buckley,
The Supreme Court has repeatedly recognized this informational interest and the unique role that disclosure plays in furthering it.
The avidity with which candidates for public office seek endorsements is evidence (as if any were needed) that the identity of a candidate’s supporters— and opponents — is information that the voting public values highly. In areas of inquiry where logic or exact observation is unavailing, a speaker’s credibility often depends crucially on who he is. As Aristotle said, “persuasion is achieved by the speaker’s personal character when the speech is so spoken as to make us think him credible. We believe good men more fully and more readily than others: this is true generally whatever the question is, and absolutely true where exact certainty is impossible and opinions are divided.”
Id., quoting Aristotle, Rhetoric, in 2 The Complete Works of Aristotle 2152, 2155 (Jonathan Barnes ed. 1984); see also Abrams v. United States,
Before doing so, however, we briefly describe the Center’s alternative theory, that certain provisions of Article 9 are unconstitutionally vague. Like the overbreadth doctrine, the void-for-vagueness doctrine protects against the ills of a law that “fails to provide a person of ordinary intelligence fair notice of what is
In sum, both the vagueness and overbreadth questions involve the same preliminary inquiry into whether the statute will have a substantial effect on constitutionally protected activity: “In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Flipside,
The Center has presented its over-breadth and vagueness claims as one undifferentiated argument, asserting that Article 9’s provisions are both “vague and overbroad.” This is not unusual, see Human Life,
Campaign finance disclosure requirements have existed at the federal level since 1910. See Campaign Expenses Publicity Act of 1910, Pub.L. No. 274, 36 Stat. 822. The modern federal disclosure regime was part of the Federal Election Campaign Act of 1971 (FECA), Pub.L. No. 92-225, 86 Stat. 3, as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub.L. No. 107-155, 116 Stat. 81 (2002) (codified as amended at 2 U.S.C. §§ 431-34). Because the Supreme Court has upheld FECA’s disclosure requirements, we need not invent the wheel in this case. Instead, we identify the ways in which Illinois’s disclosure law is broader or more vague than FECA and then consider whether each difference is constitutionally permissible. Article 9 differs from federal disclosure provisions in two significant respects. First, Article 9 extends the disclosure of expenditures and contributions to ballot initiative campaigns. Second, Article 9 regulates as a political committee any organization that exceeds the dollar-limit spending thresholds, while under federal law only those groups with the “major purpose” of influencing elections must register as political committees. In addition to these substantive differences, Article 9’s definitions of several key terms — “electioneering communication,” “expenditure,” “contribution,” and “independent expenditure” — differ slightly from their federal law analogs. We first analyze the two broader questions on ballot initiatives and the major-purpose test before turning to the statutory details.
A. Disclosures for Ballot Issue Campaigns
1. Contributions and Expenditures
In Illinois, individuals and groups must register as “ballot initiative committees” when they accept contributions or make expenditures in support of or in opposition to any question of public policy in amounts exceeding $3,000 in a 12-month period. 10 ILCS 5/9-1.8(e). Federal law does not provide for ballot initiatives and referenda, so FECA contains no corresponding requirements. The issue here is whether this additional feature of Article 9’s disclosure regime is substantially related to Illinois’s interest in maintaining an informed electorate.
Educating voters is at least as important, if not more so, in the context of initiatives and referenda as in candidate elections. In direct democracy, where citizens are “responsible for taking positions on some of the day’s most contentious and technical issues, ‘[v]oters act as legislators,’ while ‘interest groups and individuals advocating a measure’s defeat or passage act as lobbyists.’ ” Human Life,
Disclosure laws are substantially related to the public’s interest in information during ballot initiative campaigns. Research shows that one of the most useful heuristic
The Supreme Court long ago approved Congress’s authority to require federal lobbyists to make financial disclosures because “full realization of the American ideal of government by elected representatives depends to no small extent on [Congress’s] ability to properly evaluate [the] pressures” to which it is regularly subjected. See United States v. Harriss,
Although the Supreme Court has not directly passed on state disclosure requirements for ballot initiatives, it has discussed such laws approvingly. See Citizens Against Rent Control v. City of Berkeley,
To be sure, requiring disclosure in the ballot initiative context may burden First Amendment rights in two ways. First, disclosure requirements may deter contributions or expenditures by some individuals and groups who would prefer to remain anonymous. See Buckley v. Valeo,
On the record in this facial challenge, however, we must treat these burdens as modest. “[Disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities, and do not prevent anyone from speaking.” Citizens United,
Similarly, the record in this facial challenge does not support any prospect of retaliation that could bar application of
Article 9’s application to contributions and expenditures related to ballot initiatives is substantially related to Illinois’s strong interest in maintaining an informed electorate, and this interest strongly outweighs any burdens on protected speech, at least in the absence of facts that might be offered in support of a much narrower as-applied challenge.
2. Electioneering Communications on Ballot Issues
Article 9 also requires groups to register as ballot initiative committees when they spend more than $3,000 on electioneering communications that advocate for or against ballot issues. 10 ILCS 5/9-1.8(e). This provision likewise advances the state’s interest in ensuring voters are informed about ballot initiatives. The Center argues that the requirement imposes significant burdens on speakers because the definition of electioneering communication does not adequately distinguish ballot initiative campaign advocacy from pure issue discussion. The Center’s argument relies principally on two Supreme Court cases — Buckley v. Valeo and FEC v. Wisconsin Right to Life, Inc.,
In Wisconsin Right to Life, the Supreme Court’s lead opinion held that the federal ban on corporate and labor disbursements for campaign-related broad
For two reasons, we disagree. First, Citizens United made clear that the wooden distinction between express advocacy and issue discussion does not apply in the disclosure context.
In Citizens United, which came after Wisconsin Right to Life, the Court explicitly rejected the plaintiffs attempt to graft the express advocacy/issue discussion
dichotomy onto the constitutional law of campaign finance disclosure.
disclosure is a less restrictive alternative to more comprehensive regulations of speech. In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures. In McConnell, three Justices who would have found § 441b to be unconstitutional nonetheless voted to uphold BCRA’s disclosure and disclaimer requirements. And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself. For these reasons, we reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.
Id. at 915 (citations omitted). Accordingly, mandatory disclosure requirements are constitutionally permissible even if ads contain no direct candidate advocacy and “only pertain to a commercial transaction.” Id. at 915. Whatever the status of the express advocacy/issue discussion distinction may be in other areas of campaign finance law, Citizens United left no doubt that disclosure requirements need not hew to it to survive First Amendment scrutiny. With just one exception, every circuit that has reviewed First Amendment challenges to disclosure requirements since Citizens United has concluded that such laws may constitutionally cover more than just express advocacy and its functional equivalents, and in each case the court upheld the law.
3. Vagueness
The Center’s final concern about Article 9’s regulation of ballot initiative activity is that it is triggered by contributions or expenditures received or made “with the purpose of securing a place on the ballot for, [or] advocating the defeat or passage of’ any ballot initiative, “regardless of whether petitions have been circulated or filed with the appropriate office or whether the question has been adopted and certified by the governing body.” 10 ILCS 5/9-1.8(e). The Center first argues
The Center also contends that the definition is vague because it could apply to advocacy on any issue that might one day become the subject of a ballot initiative, and the statute “provides no guidance ... for determining when such a policy issue becomes a regulated ‘question of public policy.’” For example, a group might spend $3,000 producing an ad that denounces high sales taxes, only to find six months later that a sales tax cut will be on the ballot as an initiative. The Center argues that under Article 9, that group might be found to have violated the statute if it failed to register as a ballot initiative committee and make required disclosures.
Courts do not decide facial challenges on the basis of such speculative hypotheticals. As the district court observed, campaign-related broadcasts are considered electioneering communications only when they are made within 60 days of a general election or 30 days of a primary, “at which point it would already be known if an initiative is on the ballot.” As for expenditures that are not for electioneering communications (for example, glossy mailers, bumper stickers, buttons, and other campaign paraphernalia), Article 9’s definition of “ballot initiative committee” is quite plainly aimed at regulating groups that are either campaigning in favor of or against actual ballot measures or actively advocating or opposing placing a specific question on the ballot. We have no reason to suppose the Board would construe or enforce the provision more expansively, so we cannot say that the definition of ballot initiative committee is substantially overbroad in relation to its plainly legitimate sweep, see United States v. Stevens, — U.S. -,
B. Definition of Political Committee: The “Major Purpose” Test
The Center argues that Illinois’s disclosure requirements are vague and over-broad because they regulate as political committees groups that do not have as their “major purpose” the election of a candidate. Recall that outside groups are required to register as political committees if -within a 12-month period they make or receive more than $3,000 worth of contributions, expenditures, or independent expenditures for electioneering communications. See 10 ILCS 5/9-1.8, 5/9-8.6(b). The Center contends that Supreme Court precedent strictly cabins regulation of political committees to organizations that are
Like the express advocacy/issue discussion distinction, the Center’s proposed major purpose test also has its origins in Buckley. The Buckley Court reviewed FECA’s reporting requirements on political committees, which the statute defined as “any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000.” Buckley,
To fulfill the purposes of the Act, [political committees] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of “political committees” so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.
Id. (emphasis added). The Court has referred to this narrowing construction in subsequent opinions. See, e.g., McConnell,
The argument reads Buckley too broadly. First, as is clear from the quoted portion, the “major purpose” limitation, like the express advocacy/issue discussion distinction, was a creature of statutory interpretation, not constitutional command. See National Org. for Marriage,
For four reasons, we do not think this limitation extends to Illinois’s disclosure requirements. First, when Buckley was decided, political committees faced much greater burdens under FECA’s 1974 amendments than Illinois’s disclosure requirements impose. For instance, FECA then included hard limits on the size of contributions to political committees, and on how much they could contribute to other political committees. See Buckley,
Second, Article 9 defines political committee more narrowly than FECA by covering only groups that accept contributions or make expenditures “on behalf of or in opposition to” a candidate or ballot initiative. This definition is more targeted to campaign-related speech than FECA’s definition of contribution and expenditure, which applies to anything of value given or received “for the purpose of ... influencing” an election. 2 U.S.C. § 431(8), (9). Again, in McConnell, the Court held that similar language (words such as “ ‘promote,’ ‘oppose,’ ‘attack,’ and ‘support’ ”) “provide[d] explicit standards” and was not vague. See
Third, as the First Circuit noted in upholding Maine’s campaign finance disclo
Fourth, limiting disclosure requirements to groups with the major purpose of influencing elections would allow even those very groups to circumvent the law with ease. Any organization dedicated primarily to electing candidates or promoting ballot measures could easily dilute that major purpose by just increasing its non-electioneering activities or better yet by merging with a sympathetic organization that engaged in activities unrelated to campaigning.
In light of these considerations, the line-drawing concerns that led the Court to adopt the major purpose limitation for contribution and expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements of Article 9. Instead, as the Supreme Court has instructed in applying exacting scrutiny, our inquiry depends on whether there is a substantial relation between Illinois’s interest in informing its electorate about who is speaking before an election and Article 9’s regulation of campaign-related spending by groups whose major purpose is not electoral politics. We find that there is.
In Illinois, the voting “public has an interest in knowing who is speaking about a candidate shortly before an election,” Citizens United,
Amidst this cacophony of political voices — super PACs, corporations, unions, advocacy groups, and individuals, not to mention the parties and candidates themselves — campaign finance data can help busy voters sift through the information and make informed political judgments. Transparency in campaign finance allows
We conclude that Article 9’s regulation as political committees of groups that lack the major purpose of influencing elections does not condemn the disclosure law as unconstitutionally overbroad.
C. “Electioneering Communication”
In addition to its two major substantive challenges to Article 9, the Center asserts that several other provisions are facially vague and overbroad. The first is the definition of “electioneering communication,” which applies to expenditures and contributions to determine whether an entity is a regulated political committee that must disclose its finances and donors. Illinois defines “electioneering communication” as:
any broadcast, cable, or satellite communication, including radio, television, or Internet communication, that (1) refers to a clearly identified candidate ..., clearly identified political party, or a clearly identified question of public policy that -will appear on the ballot, (2) is made within 60 days before a general election ... or 30 days before a primary election, (3) is targeted to the relevant electorate, and (4) is susceptible to no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate ..., a political party, or a question of public policy.
10 ILCS 5/9-1.14 (some internal numbering omitted). This definition is taken almost verbatim from the federal definition that was upheld (to the extent it triggered disclosure requirements) in Citizens United. Federal law defines “electioneering communication” as:
any broadcast, cable, or satellite communication which—
(I) refers to a clearly identified candidate for Federal office;
(II) is made within—
(aa) 60 days before a general ... election candidate; or (bb) 30 days before a primary ... election ...; and
(III) ... is targeted to the relevant electorate.
... [A] communication which refers to a clearly identified candidate for Federal office is “targeted to the relevant electorate” if the communication can be received by 50,000 or more persons—
... in the district [or state] the candidate seeks to represent....
2 U.S.C.A. § 434(f)(3)(A)-(C).
The Center maintains that Article 9’s definition of “electioneering communication” is vague and overbroad. The Supreme Court has already found the federal definition to be neither overbroad nor vague in the context of disclosure requirements, see, e.g., Citizens United,
There are three differences between the federal and Article 9 definitions of “electioneering communications.” First, the Illinois statute covers communications related to ballot measure campaigns. We determined above that this element of Article 9 does not render the statute vague or overbroad, see parts IV.A.2 & .3, and do not repeat our analysis here. Second, Article 9 covers “Internet speech,” which is not regulated by the federal statute. Third, Illinois does not limit the phrase “targeted to the relevant electorate” by reference to minimum audience size. We now address these last two differences.
1. Internet Communications
The Center contends that Article 9’s regulation of certain Internet speech as electioneering communications renders it unconstitutionally broad because Internet speech, in contrast to radio and television broadcasts, is not confined to particular audience markets or moments in time. Without firm temporal or geographic limitations, the Center argues, Article 9 potentially sweeps in an untold amount of online speech that has nothing to do with Illinois elections. The Center notes that “many Internet communications” — for example, postings on the Center’s website, emails to the Center’s membership distribution lists, or messages through social networking sites — “are equally accessible from almost anywhere in the world” and may even persist forever in cyber-space through the use of a so-called ‘Way-Back Machine” that stores web sites even after they have been removed by their creators or sponsors. The consequence, it suggests, is that “politically-oriented websites around the world must review their content before each Illinois election to identify and remove any prior posting referring to someone who now is an Illinois candidate or something that now is an Illinois ballot question.” Keeping in mind that this is a facial challenge, we are not persuaded that this prospect invalidates the entire law.
First, requiring disclosure of genuinely campaign-related Internet communications undoubtedly advances Illinois’s important interest in informing its voters about who is speaking before an election. In recent years, a large and growing proportion of electioneering has been occurring online. In 2008, for the first time, “more than half the voting-age population used the internet to connect to the political process during an election cycle.”
On the other hand, we agree with the Center that the potential reach of Illinois’s disclosure law could be problematic if distant speakers were actually subject to regulation because their Internet postings inadvertently or obliquely coincided with the subjects of Illinois ballot measures. The state’s interest in informing its voters of the identities, financial outlays, and funding sources of such marginal political messengers does not rise to the importance the First Amendment demands. Yet the Center has identified no case in which the State Election Board has asked out-of-state speakers to register as political committees for disseminating emails, tweets, zombie web pages, or any other Internet communications that merely mentioned Illinois candidates or discussed issues related to Illinois ballot measures. Nor could the Board legally do so, for under Article 9 Internet ads count as electioneering communications only when they are both “targeted to the relevant [Illinois] electorate” and “susceptible to no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate ..., a political party, or a question of public policy.” 10 ILCS 5/9-1.14. The Center’s notion that the Board might consider an out-of-state advocacy group’s web ad generally endorsing low taxes to be an unambiguous appeal to vote for a “ballot question to balance the Illinois budget” sounds farfetched.
With no evidence that the Board would actually construe Article 9 in this surprising way, such remote, hypothetical applications do not justify invalidating Illinois’s disclosure provisions for facial over-breadth. See Washington State Grange v. Wash. State Republican Party,
The Center complains that it is too difficult to know when an “electioneering communication” is “made” on the Internet. Timing is important because of the duties that apply during the 30-day and 60-day windows before elections. See 10 ILCS 5/9-1.14(a). The district court and the defendants assert that a communication is “made” on a website both when it is first posted and while it remains available on the website. That is a sensible reading, just as a physical billboard is considered a
We do not anticipate that Article 9 will restrict or chill a substantial amount of protected speech because it treats certain Internet speech as electioneering communications. On its face, this element of the statute is neither vague nor overbroad.
2. Targeted to the Relevant Electorate
Article 9 does not numerically define “targeting] the relevant electorate” as does FECA, which requires that the communication be capable of being “received by 50,000 or more persons.” 2 U.S.C. § 434(f)(3)(C). Illinois has good reasons for omitting a number. Its elections involve much smaller electorates, and it does not have an agency like the Federal Communications Commission that would let it monitor how large an audience a given broadcast reaches. This difference does not defeat Illinois’s substantial interest in informing its electorate for the purposes of this facial challenge. In adjudicating facial challenges, federal courts do not assume that state officials will construe state law in the most expansive way imaginable. On the contrary, it “is reasonable to assume ... that a state court presented with a state statute ... will attempt to construe the statute consistently with constitutional requirements.” City of Akron v. Akron Ctr. for Reproductive Health, Inc.,
D. Contribution and Expenditure
Article 9 defines “contribution” as a “gift ... or anything of value, knowingly received in connection with the nomination for election, election, or retention of any candidate or person to or in public office or in connection with any question of public policy.” 10 ILCS 5/9-1.4(A)(1). “Expenditure” means “gift of money, or anything of value, [made] in connection with the nomination for election, election, or retention of any person to or in public office or in connection with any question of public policy.” 10 ILCS 5/9-1.5(A)(1). The “transfer of funds by a political committee to another political committee” automatically qualifies as a contribution (for the transferee) and an expenditure (for the transferor). 10 ILCS 5/9-1.5(A)(3), 5/9— 1.4(A)(3). An expenditure “made in cooperation, consultation, or concert with another political committee” is considered a contribution to that committee. 10 ILCS 5/9-1.4(A)(5). The Center challenges three aspects of these definitions as unconstitutionally vague.
1. In Connection With, Supporting, or Opposing
First, the Center argues that the requirement that a contribution or expenditure be “in connection with” an election or ballot initiative is “so vague and broad
2. Transfer of Funds from One Political Committee to Another
Next, the Center attacks Article 9’s treatment of any “transfer of funds by a political committee to another political committee” as a contribution or expenditure. The Center claims this provision may apply to transfers with groups that qualify as political committees under the statute but have not yet registered, so it requires people “to judge whether a source or recipient of funds may later be judged to have made a $3,000 contribution, expenditure, or otherwise became a political committee.” Thus, the Center fears, it “could find itself classified as an Illinois political committee depending on how regulators later assess some other group’s speech or other activities that [the Center] could not have known about.” This result seems highly unlikely because it overlooks an important aspect of the transfer of funds provisions. A transfer counts as a contribution and expenditure only if it is already between two entities that each qualify as political committees. See 10 ILCS 5/9-1.4(A)3 and -1.5(A)(3). That makes sense only if they each already qualify as political committees independent of the particular transfer. The transfer to or from some other entity that is a political committee would not make the other entity a political committee. (Otherwise, for example, a contractor who produced an ad attacking a candidate for a political committee would itself be transformed into a political committee.) The mere possibility that the Board might enforce the statute in such an unfair way as the Center says it fears is a good example of the sort of “hypothetical or imaginary” situation with which courts do not concern themselves in facial challenges. Washington State Grange,
3. Coordinated Expenditures
Finally, the statute treats as a contribution any “electioneering communication made in concert or cooperation with or at the request, suggestion, or knowledge of a candidate, a political committee, or any of their agents.” 10 ILCS 5/9-1.4(A)(1.5) (emphases added). The Center contends that the italicized words are vague because
As for the word “knowledge,” we agree with the Center that standing alone, it would sweep in a wide range of expenditures as coordinated expenditures (and thus as indirect contributions to campaign committees). For instance, if a candidate learned that an outside group had produced a favorable TV ad, would the candidate have “knowledge” that the electioneering communication was made? This would not be enough to say that the ad was coordinated with the campaign. Recognizing this problem, the district court adopted the limiting construction that “affirmative acquiescence is required, not mere after the fact knowledge that the advocacy has occurred.” Although we are somewhat puzzled by the phrase “affirmative acquiescence,” we think the main thrust of this limiting construction is sound. Under the canon of noscitur a sociis, the fact that “several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.” Beecham v. United States,
In the context of “request” and “suggest,” the word “knowledge” may fairly be construed as requiring advance and nonpublic communication with the candidate or entity on whose behalf the electioneer
E. Independent Expenditures
An “independent expenditure” is an expenditure for an electioneering communication or any form of express advocacy that is not coordinated with a candidate or a campaign.
First, the “supporting or opposing” language has no effect on the scope or substance of these independent expenditure reporting requirements. Not just any uncoordinated campaign-related expenditure is an “independent expenditure” — only those made either (1) for “electioneering communications” or (2) for “expressly advocating for or against the ... election ... or defeat of a clearly identifiable public official or candidate.” 10 ILCS 5/9-1.15. Recall that a broadcast counts as an electioneering communication only if it “refers to a clearly identified candidate” and is “susceptible to no reasonable interpretation other than as an appeal to vote for or against” that candidate. 10 ILCS 5/9— 1.14(a). This standard — as well as the standard for express advocacy — is much
As for the phrase “public official,” we agree with the Center that a strictly literal interpretation of the provision would include independent expenditures made for “expressly advocating for or against the ... election or defeat of a clearly identifiable public official” who is not currently a candidate, but who may run for re-election in some future year.
Conclusion
‘Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, ... and all such matters relating to political processes.” Mills v. Alabama,
Although “disclosure is a less restrictive alternative to more comprehensive regulations of speech,” Citizens United,
The judgment of the district court is Affirmed.
Notes
. See National Org. for Marriage, Inc. v. Sec’y,
. In one TV spot, for instance, the Center criticized West Virginia Attorney General Darrell McGraw during his 2008 reelection campaign:
Announcer: They say you can’t teach an old dog new tricks. Twenty-eight years of controversy and Darrell McGraw is at it again, spending $10 million from a settlement meant to help workers and the elderly— instead, divvying it up between his trial lawyer buddies and a fund only controlled by McGraw. The Wheeling Intelligencer said, “Legislators should have put a leash on McGraw long ago.” But they say you can’t teach an old dog new tricks. Call Darrell McGraw. Tell him to return the people’s money.
Dkt. No. 73; CFIF Launches Public Education Effort in W. Va., Youtube, http://www.youtube. com/watch?v=vPMwR2gMNTE (last visited Aug. 29, 2012).
. The Board or any political committee may also seek injunctive relief in state court to compel compliance with Board orders or to enjoin an offending committee's operations. 10 ILCS 5/9-23, 5/9-24. Filing false or incomplete information in a campaign finance report may also constitute a "business offense” under the Criminal Code punishable by criminal fine of up to $5,000. See 10 ILCS 5/9-26.
. Article 9 expressly excludes from this definition any "news story, commentary, or editorial distributed through the facilities of any legitimate news organization.” 10 ILCS 5/9-1.14(b)(1). The Center does not challenge the reach or applicability of this exemption.
. See also ACLU of Illinois v. Alvarez,
. See also Dombrowski v. Pfister,
. Technically, the Paradise holding was on the redressability prong rather than the injury-in-fact prong of the standing rule. The only real potential threat of injury to the plaintiff came from private actors, whom the Wisconsin statute empowered to bring enforcement suits in state court against unregistered organizations that ran illegal campaign advertising. A potential injury from a decision by a state court in private litigation was not redressable by a
. See, e.g.. Citizens United,
. See also Doe v. Reed, - U.S. -,
. See also Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 Writings of James Madison 103 (Gaillard Hunt, ed. 1910)
. See, e.g., cases cited above in note 8.
. The state also invokes two other interests in support of Article 9, stating that disclosure laws both prevent corruption and its appearance and enable enforcement of other campaign finance laws, such as those imposing dollar limits on direct contributions to campaigns. Buckley recognized that disclosure requirements can advance these substantial interests, as well. See
. See also Kolender v. Lawson,
. A classic study of voting on insurance-related ballot initiatives compared three groups of voters: (1) voters who knew nothing about the initiatives’ details but knew the insurance industry’s preference, (2) highly informed voters who consistently gave correct answers to detailed questions about the subject matter, and (3) voters who knew nothing about the ballot question or about the insurance industry’s preferences. The first two groups of voters demonstrated similar voting patterns, while the third group that was completely in the dark had very different voting patterns. The study author concluded that the position of an economic group with known preferences on an issue can serve as an effective shortcut for ordinary voters, substituting for encyclopedic information about the electoral choice. See Arthur Lupia, Shortcuts Versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Elections, 88 Am. Pol. Sci. Rev. 63, 71-72 (1994).
. The McConnell Court gave examples of a few such stealthily-named groups, including "Citizens for Better Medicare,” which "was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers.”
. The failure of the Center's "broad based challenge does not foreclose success" on a future as-applied challenge to Article 9. See Doe,
. See National Org. for Marriage, Inc. v. Sec’y,
.Compare 2 U.S.C. § 434(f)(3)(A) ("any broadcast, cable or satellite communication”), with 10 ILCS 5/9-1.14(a) ("any broadcast, cable, or satellite communication, including radio, television, or Internet communication”).
. Compare 2 U.S.C. § 434(f) ($10,000 triggers reporting requirements), with 10 ILCS 5/9-8.6 ($3,000 triggers reporting requirements).
. Compare 2 U.S.C. § 434(f)(3)(A)(i)(II) (appears within 60 days of a general election or 30 days of a primary), with 10 ILCS 5/9— 1.14(a)(2) (same).
. Compare 2 U.S.C. § 434(f)(3)(A)(i)(III) ("is targeted to the relevant electorate”), with 10 ILCS 5/9-1.14(a)(3) (same).
. Compare 2 U.S.C. § 434(f)(3)(A)(i)(I) ("refers to a clearly identified candidate”), with 10 ILCS 5/9-1.14(a)(1) ("refers to a clearly identified candidate,” "political party,” or "question of public policy that will appear on the ballot”) (numbering omitted).
. See also Vermont Right to Life Committee, Inc. v. Sorrell,
. In Illinois's 2009 amendments to its campaign finance law, the legislature imposed hard limits on the amount political committees could accept from any one individual, entity, or other political committee. 10 ILCS 5/9-8.5(d). These limits went into effect in January 2011 but were invalidated as unconstitutional as applied to non-candidate, nonpolitical party "political action committees.” See Personal PAC v. McGuffage,
. See Human Life,
. The FEC applies the "major purpose” test on a "case-by-case” basis, see The Real Truth About Abortion,
.At the federal level, increasingly the outlets found by campaign money are blind alleys; the hydraulics of campaign finance have propelled funds to pseudonymous super PACs and § 501(c)(4) groups. See Dan Eggen, Behind the Ads, Faceless Donors, Wash. Post, Apr. 26, 2012, at A1. By one account, in the 2010 elections less than 10% of the $75 million outside groups spent on electioneering communications came from entities that disclosed their donors. See 2010 Outside Spending, by Groups, Center for Responsive Politics, http://www.opensecrets.org/outsidespending/ summ.php?disp=0 (last visited Aug. 29, 2012). And already this year, groups that do not disclose their donors have spent $172 million on television, radio, and Internet advertising. See Paul Blumenthal, Dark Money Hits $172 Million in 2012 Election, Half of Independent Group Spending, Huffington Post (July 29, 2012, 6:17pm), http://www. huffingtonpost.com/2012/07/29/dark-money2012-election_n_1708127.html. The reason
A district court recently invalidated the FEC-created loophole as an unreasonable construction of the FECA statute. See Van Hollen v. FEC,
. See Outside Spending, Center for Responsive Politics, http://www.opensecrets.org/ outsidespending/index.php (last visited Aug. 29, 2012).
. Aaron Smith, The Internet’s Role in Campaign 2008 3 (Pew Internet & Amer. Life Project, Apr. 2009), available at http:// pewresearch.org/pubs/1192/internet-politicscampaign-2008.
. See Obama Outspends Romney on Online Ads, CNN (June 3, 2012), http://www.cnn. com/2012/06/03/politics/online-campaign-spending/index.html.
. Sasha Issenberg, The Creepiness Factor, Slate (Apr. 26, 2012), http://www.slate.com/ articles/news_and_politics/victory_lab/2012/ 04/web_based_politicaLads_why_they_scare_ the_obama_and_romney_campaigns.html.
. This construction is especially appropriate given that the "knowledge” requirement is omitted from an otherwise parallel provision of Article 9 defining "independent expenditure.” See 10 ILCS 5/9-1.15 (defining "independent expenditure” as an expenditure for electioneering communication "that is not made in connection, consultation, or concert with or at the request or suggestion of the public official or candidate, ..., political committee, ... campaign, ... or [any] agent [thereof]”).
. For example, the FEC’s regulations on coordinated expenditures state that the definition "is not satisfied if the information material to the creation, production, or distribution of the communication was obtained from a publicly available source,” but that "[a]greement or formal collaboration between the person paying for the communication and the candidate ... is not required.” 11 C.F.R. § 109.21(d)(2), (e).
. Article 9 defines "independent expenditure” as "any payment, gift, donation, or expenditure of funds (i) by a natural person or political committee for the purpose of making electioneering communications or of expressly advocating for or against the nomination for election, election, retention, or defeat of a clearly identifiable public official or candidate or for or against any question of public policy to be submitted to the voters and (ii) that is not made in connection, consultation, or concert with or at the request or suggestion of the public official or candidate, the public official’s or candidate's designated political committee or campaign, or the agent or agents of the public official, candidate, or political committee or campaign.” 10 ILCS 5/9-1.15.
. After exceeding the threshold, any natural person making such independent expenditures “must file a written disclosure with the State Board of Elections within 2 business days ... identifying] the natural person, the public official or candidate supported or opposed, the date, amount, and nature of each independent expenditure, and the natural person's occupation and employer.” 10 ILCS 5/9-8.6(a). "Any entity other than a natural person that makes expenditures of any kind in an aggregate amount exceeding $3,000 during any 12-month period supporting or opposing a public official or candidate must organize as a political committee” and "report all such independent expenditures as required under” Article 9. 10 ILCS 5/9-8.6(b), (c).
. It could not apply to expenditures made for "electioneering communications,” of course, because these require reference to a "clearly identified candidate " and an unambiguous "appeal to vote” for or against that candidate. 10 ILCS 5/9-1.14(a) (emphasis added).
Concurrence Opinion
concurring in part and dissenting in part.
I agree with much in the majority opinion, but several provisions of the Illinois statute seem to me to burden the plaintiffs freedom of speech unduly; we should invalidate them.
The Center for Individual Freedom is a nonprofit organization engaged in public advocacy. It makes advertisements and disseminates them in television, print, online, and other media; it maintains a website; and it produces a radio show. It conducts some of its activities during election campaigns, often commending to the electorate candidates whom it thinks likely if elected to support the policies it advocates. But it is not affiliated with and does not coordinate its activities with any candidate, campaign, or political party and is thus an “independent” advocacy group within the meaning of Citizens United v. Federal Election Commission,
Illinois regulates what it calls “political committees,” and the term includes not only partisan committees but also any independent organization or individual that “accepts contributions or makes expenditures during any 12-month period in an aggregate amount exceeding $3000 on behalf of or in opposition to a candidate or candidates for public office” or “in support of or in opposition to any question of public policy to be submitted to the electors,” or that “makes electioneering communications,” exceeding the monetary threshold, that are “related to” a candidate or to a question of public policy. 10 ILCS 5/9-1.8(d), (e). A “contribution” is among other things “anything of value that constitutes an electioneering communication made in concert or cooperation with or at the request, suggestion, or knowledge of a candidate, a political committee, or any of their agents,” or “a transfer of funds received by a political committee from another political committee.” 10 ILCS 5/9-1.4(A)(1.5), (3). An “expenditure” is anything of value given “in connection with the nomination for election, election, or
A political committee must register with the Illinois Board of Elections, 10 ILCS 5/9-3(a), and file quarterly reports that open its finances to public scrutiny. For each report must reveal “all financial activity,” as the state website puts it (Illinois State Board of Elections, “Political Committee Report Filing Forms,” http:// elections.il.gov/CampaignDisclosure/ PoliticalCommittee.aspx (visited Aug. 23, 2012)), in the previous quarter — must reveal the total contributions it received, along with all other receipts, and the total expenditures it made, including investments and loans; along with the names, addresses, and other identifying details of donors, and of recipients of the committee’s expenditures. 10 ILCS 5/9 — 10(b), -11(a).
Having to disclose the names of donors is the most onerous requirement that the statute imposes on a political committee because many donors don’t want to be publicly identified as contributing to an organization engaged in public advocacy regarding issues of public policy, which usually are controversial. Indeed CIF alleges without contradiction that its donors require assurances that their identities will not be disclosed, and that this anonymity is a condition of their support. So CIF very much does not want to be classified as a political committee and one way to avoid that fate is to avoid any activity that might, even if there is no certainty that it would, require CIF to register.
The vagueness of a number of key provisions of the Illinois law is therefore worrisome. A vague statute can deter lawful activity. Cautious persons will want to avoid even a small probability of being found to have violated it, and the safest way to do that is to avoid lawful activity that is just across the line from the unlawful — to create a buffer zone around the statutory core, just as cautious men decide not to have sex with young-looking women who probably are not below the age of consent but may be. When the lawful activity likely to be deterred by a vague statute is not extramarital sex but the exercise of free speech — a right at the apex of modern constitutional solicitude — a finding of vagueness is apt to doom the statute. FCC v. Fox Television Stations, Inc., -U.S. -,
Nor can a federal court make a binding interpretation of a state statute, endeavoring to trim its vague provisions; if it attempts a narrowing interpretation that deviates widely from the statute’s apparent meaning it is taking a big risk that the state will reject the interpretation. Stenberg v. Carhart,
These are the vague provisions:
1. A transfer of funds from a political committee to a political committee qualifies as a contribution regardless of amount. A political committee must report all receipts, not just contributions as defined by the statute, see 10 ILCS 5/9-ll(a)(10), and in addition must report “the name and address of each political committee from which the reporting committee received, or to which that committee made, any transfer of funds.” 10 ILCS 5/9-ll(a)(6). So if by virtue of other contributions or other activities CIF were to be classified as a political committee, it would have to identify any other political committees from which it received money. It might not know a donor was a political committee, and that would be no defense, because the statute does not require knowledge or even suspicion that the transferor is a political committee — there is no state of mind requirement at all. The transferee would have to investigate the financial activity of each donor (including an individual, who as a “natural person” can constitute a political committee) to determine whether the donor was a political committee. It might be a committee that had improperly failed to register; that would be no defense. Yet it would be afraid to list a donor as a political committee unless confident that it was one, as otherwise it might get into trouble with the donor. Damned if it does, damned if it doesn’t.
An unregistered entity doesn’t have to disclose its contributions and expenditures, so it would rarely be clear whether an entity qualified as a political committee. Very little of the information required to determine the status of a donor is public. This is an additional reason why advocacy groups like CIF might forgo donations from unfamiliar donors. But by reducing the group’s resources, this cautious response to the vagueness of the statute would curtail its advocacy.
An alternative reading of the “transfer of funds” provision is that receipt of money from a political committee makes the recipient a political committee. Illinois may have been concerned that interest groups would transfer money in chains ending with a committee that didn’t have to register; to target those chains and thus close a potential loophole in the statute, the Illinois courts might read the statute to reach all members of the chain. This interpretation would have an even greater tendency to discourage an advocacy group from accepting donations from unfamiliar individuals or organizations.
2. Any “electioneering communication” made with the “knowledge” of a candidate is an expenditure that if it exceeds the low statutory threshold makes the advertiser a political committee. The word “knowledge” can’t be interpreted to require that the advertiser have communicated with the candidate, because knowledge can be acquired in other ways. My colleagues think the Illinois courts would interpret the word “knowledge,” which appears at the end of the sequence “request, suggestion, and knowledge,” to mean the same thing as the two preceding words because it is the “more general word.” But it’s no more general than the other words; the three words are simply different from one another. It’s not like a statute that refers to “automobiles, trucks, tractors, motorcy
So an organization that wanted to avoid crossing the $3000 threshold would if cautious refrain from broadcasting ads entirely, rather than just avoid coordinating their ads with the candidate.
The district judge was troubled by this provision and to save it interpreted “knowledge” to mean “affirmative acquiescence.” But what does that mean? That the candidate was delighted to learn of an ad that praised him or a policy he was pushing?
3. If an “electioneering communication” is deemed to be “made” whenever a user accesses a website, cf. Flava Works, Inc. v. Gunter,
The Illinois courts might interpret “made” to refer only to the original posting of the ad. But this would open up a loophole; the advocacy group might have posted the ad shortly before the 30- or 60-day cutoff and deleted it just before the cutoffs, confident that the campaign favored by the ad would copy it and post it so that it would be seen right up to election day. Because the state courts might well decide to close this loophole by interpreting “made” to include the initial posting, advocacy groups would be running a legal risk by posting online ads even long before the date of the election, and might therefore be deterred from doing so.
4. Any payment “in connection with” an election (including payment for ads) counts as an expenditure. “In connection with” could apply to communications not made for the purpose of influencing the election, such as speech on issues of policy that happen to be salient in the campaign. An advocacy group might intend its message to reach a wider audience. It might even be advocating a position embraced by neither candidate. Disclosure of such a group’s finances would not be closely related to the state’s interest in informing the electorate about a candidate’s supporters. Yet the statute may require it.
Speech can have all sorts of connections to an election: it may mention an election, describe a candidate and his positions, or simply refer to a policy that is at issue in the campaign. A dry discussion of economic indicators might be seen as being “in connection with” an election in which the main issue was economic policy. Because disclosure requirements are not constitutionally limited to express advocacy
5. Expenditures made “in connection with” an election count towards the $3000 threshold for registering only if they are made “on behalf of or in opposition to” a candidate, and that might seem to take care of the concerns I just expressed with respect to “in connection with.” But speech supporting or opposing a policy associated with a candidate could be seen as being on behalf of or in opposition to that candidate, especially if the policy is the candidate’s signature issue. The term thus does not clearly exclude most issue advocacy, and groups such as CIF might therefore avoid speaking on issues that could be associated with a particular candidate. Imagine a single-issue candidate: a songbird enthusiast, he wants the owners of cats to be forbidden to allow their pets out of doors, since cats, indifferent to avian beauty and melody, kill birds for food and sport. If the humane society buys ads that declare its passionate support for the songbirds, isn’t there a sense in which it is advocating for the election of the songbirds’ candidate and therefore making an expenditure on his behalf and in opposition to his opponent? Or should “on behalf of’ be interpreted to mean motivated by a desire to help the candidate rather than the cause the candidate supports? Who knows?
McConnell v. Federal Election Commission,
The more arbitrary the meaning that must be assigned to a state statute to avoid constitutional problems, the less confident we can be that the state courts would adopt it. If independent advocacy groups share these doubts, caution may make them steer well clear of the statutory conditions for having to register as a political committee, with all the burdens entailed by registration.
When the five vague statutory provisions that I have been discussing are considered in combination, it becomes apparent that their cumulative effect on advocacy by CIF and similar organizations could be considerable. To avoid the burden of registration, such groups may take measures to curb their advocacy even if those measures may not in fact (that is, in law) be required in order to avoid having to register. That is the vice of vagueness — that it causes an organization or an individual to give a law a wide