Case Information
*4 Before MOTZ, DUNCAN, and FLOYD, Circuit Judges. Affirmed in part, reversed in part, and remanded by published opinion. Judge Floyd wrote the opinion, in which Judge Motz and Judge Duncan joined.
COUNSEL ARGUED: Anthony J. Majestro, POWELL & MAJESTRO, PLLC, Charleston, West Virginia, for Natalie H. Tennant, Gary Collias, William N. Renzelli, Robert Rupp, Cindy Smith, and Scott Ash. James Bopp, Jr., THE BOPP LAW FIRM, Terre Haute, Indiana; Thomas W. Kirby, WILEY REIN, LLP, Washington, D.C., for Center for Individual Freedom, Incorporated, West Virginians for Life, Incorpo- rated, and Zane Lawhorn. ON BRIEF: Silas B. Taylor, Senior Deputy Attorney General, OFFICE OF THE ATTOR- NEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Natalie H. Tennant, Gary Collias, William N. Renzelli, Robert Rupp, and Cindy Smith; Nicholas S. Preser- vati, Charleston, West Virginia, for Scott Ash. Andrew G. Woodson, WILEY REIN, LLP, Washington, D.C., for Center for Individual Freedom, Incorporated. Randy Elf, JAMES MADISON CENTER FOR FREE SPEECH, Terre Haute, Indiana, for West Virginians for Life, Incorporated, and Zane Lawhorn. David S. Turetsky, Mark Walsh, J. Porter Wiseman, DEWEY & LEBOEUF LLP, Washington, D.C.; Mark Ladov, Mimi Marziani, Adam Skaggs, David Earley, THE BREN- NAN CENTER FOR JUSTICE AT NYU, New York, New York, for Amici Curiae.
OPINION
FLOYD, Circuit Judge:
The First Amendment provides that "Congress shall make
no law . . . abridging the freedom of speech." U.S. Const.
amend. I. In its now-famous
Citizens United v. FEC
decision,
the Supreme Court recognized that the First Amendment "has
its fullest and most urgent application to speech uttered during
a campaign for political office." 130 S. Ct. 876, 898 (2010)
(quoting
Eu v. S.F. Cnty. Democratic Cent. Comm.
, 489 U.S.
214, 223 (1989)) (internal quotation marks omitted). How-
ever, at the same time, the Supreme Court has emphasized the
importance of providing the electorate with information about
the source of campaign spending—even when these disclo-
sure requirements burden election-related speech.
See, e.g.
,
McConnell v. FEC
, 540 U.S. 93, 196 (2003),
overruled on
other grounds by Citizens United
,
Appellee and Cross-Appellant Center for Individual Free- dom (CFIF) and Appellee West Virginians for Life (WVFL) are § 501(c)(4) organizations that engage in election-related speech. These organizations and Zane Lawhorn [1] —a West Vir- ginia resident who wishes to receive WVFL’s communica- tions—brought suit against West Virginia’s secretary of state, members of the West Virginia State Election Commission, and a class of West Virginia’s prosecuting attorneys, alleging that West Virginia’s campaign finance statutes were constitu- tionally impermissible. The district court struck down some of the provisions and upheld other portions of the statutory scheme, and both West Virginia [2] and CFIF appealed. We now affirm in part, reverse in part, and remand for further proceed- ings consistent with this opinion.
I.
A. Following the 2004 election, the West Virginia legislature acted to strengthen the state’s election statutes due to an "ex- plosion of expenditures by groups independent of candidates." These new laws required organizations to file reports with the West Virginia secretary of state and include disclaimers on their communications when they made certain election-related expenditures and engaged in campaign-related speech. CFIF and WVFL filed separate challenges to the new laws, alleging [1] For purposes of this opinion, we refer to WVFL and Lawhorn collec- tively as "WVFL."
[2] We refer to this case’s Defendants, Appellants, and Cross-Appellees as "West Virginia" for ease of reference. 7
that they feared prosecution under the statutes because they disseminated communications that fell within the laws’ scope but were unwilling to disclose the sources of their contribu- tions.
CFIF’s mission "is to protect and defend individual free- doms and individual rights guaranteed by the U.S. Constitu- tion." CFIF plans to use broadcast media, print media, and telephone banks "to speak to the public in the Southern Dis- trict of West Virginia on matters of litigation reform and related justice issues, including criminal law enforcement and sentencing, legal reform, and judicial decision-making." To this end, CFIF will "refer to West Virginia candidates to illus- trate its points and ask members of the public to contact the candidates and petition them to take or maintain certain posi- tions." WVFL, in turn, aims "to present information upon which individuals and the general public may make informed decisions about such topics as fetal development, abortion and its alternatives, and euthanasia." To further this purpose, "WVFL has distributed candidate-comparison fliers, placed candidate comparisons in ads for newspaper and television as well as on the Internet, and issued petitions and mailings." In sum, both CFIF and WVFL engage in election-related speech to promote their organizational goals.
B.
CFIF filed its initial complaint against Betty Ireland —West Virginia’s secretary of state—and a class of West Virginia’s prosecuting attorneys on March 21, 2008, challeng- ing West Virginia’s reporting and disclaimer requirements for (1) expenses associated with "advocating or opposing the nomination, election or defeat of any candidate;" (2) expendi- tures "in support of or opposition to the nomination or elec- [3] In 2009, Appellant and Cross-Appellee Natalie Tennant replaced for- mer Defendant Betty Ireland as West Virginia’s secretary of state. The dis- trict court substituted Tennant for Ireland on January 19, 2009. tion" of a candidate; and (3) "electioneering communication." By order, the district court permitted the West Virginia Edu- cation Association (WVEA), the West Virginia American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Robert M. Bastress, Jr., Margaret L. Workman, and Menis E. Ketchum to intervene as defendants. The West Virginia AFL-CIO and WVEA intervened due to their "con- crete interests, distinct from those of other parties, in uphold- ing the West Virginia campaign finance provisions at issue." Bastress, Workman, and Ketchum were each seeking nomina- tion for election to a seat on the West Virginia Supreme Court of Appeals and alleged that CFIF had targeted them through its communications.
On April 22, 2008, the district court entered an injunction preventing West Virginia from applying the campaign finance statutes to "anything other than communications that expressly advocate the election or defeat of a clearly identi- fied candidate" and restricting the definition of "electioneer- ing communication" to certain broadcast media. Ctr. for Individual Freedom, Inc. v. Ireland ( CFIF I ), No. 1:08-00190, 2008 WL 1837324, at *7 (S.D. W. Va. Apr. 22, 2008). Shortly thereafter, the West Virginia legislature amended the code sections that were the subject of the injunction, and West Virginia moved to dissolve the injunction, arguing that the amendments rendered it moot. The district court granted West Virginia’s motion and directed CFIF to seek a new injunction based on the amended language.
On September 30, 2008, WVFL filed its verified complaint and motion for a preliminary injunction raising challenges to the amended statutory provisions. Specifically, WVFL chal- lenged the statutory scheme’s reporting requirements and its definitions of "electioneering communication" and "expressly advocating." Less than a week later, CFIF filed a motion for a preliminary injunction and challenged many of the same provisions, and the district court consolidated the two cases: Center for Individual Freedom, Inc. v. Ireland , No. 1:08-cv- 00190, and West Virginians for Life, Inc. v. Ireland , No. 1:08- cv-0113. The district court issued its memorandum opinion and order regarding the preliminary injunction motions on October 17, 2008, and released its amended opinion and order on February 12, 2009. Notably, the district court held that (1) West Virginia’s definition of "expressly advocating" was vague and (2) its definition of "electioneering communica- tion" was overbroad because it applied to more media than the definition that appears in the federal Bipartisan Campaign Reform Act (BCRA), which—unlike West Virginia’s then- existing definition—includes only broadcast media. The court therefore granted CFIF’s and WVFL’s requests for prelimi- nary injunctions with respect to those provisions. See Ctr. for Individual Freedom, Inc. v. Ireland ( CFIF II ), 613 F. Supp. 2d 777, 790-92, 800-01 (S.D. W. Va. 2009).
After the district court ruled on their preliminary injunction motions, both CFIF and WVFL moved for summary judg- ment. However, due to pending petitions for rehearing en banc and a writ of certiorari in The Real Truth About Obama, Inc. v. FEC , 575 F.3d 342 (4th Cir. 2009), the district court granted WVFL’s motion to stay the case on September 16, 2009. The Supreme Court ultimately granted the certiorari petition, vacated this Court’s decision in Real Truth , and remanded the case in light of Citizens United , see The Real Truth About Obama, Inc. v. FEC , 130 S. Ct. 2371 (2010), causing the district court to dissolve the stay on May 26, 2010.
C.
In 2010, West Virginia’s legislature amended the provi- sions at issue in this case for a second time. The amendments went into effect on June 11, 2010, and concerned West Vir- ginia Code section 3-8-1, which states the purposes of the law; section 3-8-1a, which includes the definitions of "elec- tioneering communication" and "expressly advocating"; and section 3-8-2, which lays out the requirements for reporting election-related spending that is not coordinated with a candi- date or political party, also known as independent expendi- tures. Presumably to more closely comport with the October 2008 preliminary injunction order, [4] the West Virginia legisla- ture removed direct mailings, telephone banks, and billboard advertising from the "electioneering communication" defini- tion. See W. Va. Code § 3-8-1a(11)(A). In relevant part, the latest version of the statute requires individuals and organiza- tions to (1) file reports with West Virginia’s secretary of state if they make independent expenditures of a certain amount, id. § 3-8-2(b)(1), (c)(1)-(2), (d)(1)-(2); (2) file reports with West Virginia’s secretary of state if they engage in election- eering communication, which "means any paid communica- tion made by broadcast, cable or satellite signal, or published in any newspaper, magazine or other periodical," id. §§ 3-8- 1a(11)(A), 3-9-2b(a)(1)-(2); and (3) include disclaimers on electioneering communications and communications financed by independent expenditures identifying the individuals mak- ing the expenditure and indicating that a candidate or candi- date’s committee did not authorize the communication, id. §§ 3-8-2(2), 3-8-2b(e).
CFIF filed a renewed motion for summary judgment on September 14, 2010, and WVFL filed a second motion for summary judgment on the same day. Both organizations con- tended that the amendments failed to remedy the constitu- tional defects in the campaign finance regime. On August 3, 2011, the district court granted in part and denied in part their motions for summary judgment. See Ctr. for Individual Free- dom, Inc. v. Tennant ( CFIF III ), 849 F. Supp. 2d 659 (S.D. W. Va. 2011). In its opinion, the district court came to the fol- lowing pertinent conclusions:
[4]
The West Virginia legislature provides little, if any, formal legislative
history.
See Ctr. for Individual Freedom v. Tennant
,
1. The district court held that subsection (C) of the statute’s definition of "expressly advocating"—which defines "ex- pressly advocating" as "any communication that . . . [i]s susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate," W. Va. Code § 3-8-1a(12)(C)—was fatally vague. The court there- fore severed subsection (C) from the remainder of the defi- nition. CFIF III , 849 F. Supp. 2d at 685-87.
2. The district court held that West Virginia’s inclusion of
periodicals in its definition of "electioneering communica- tion" rendered the definition overbroad. Id. at 697. In reaching its conclusion, the district court emphasized the West Virginia legislature’s failure to develop a record or make findings that supported its inclusion of print media. See id. at 694-97. Consequently, the court severed West Virginia Code section 3-8-1a(11)’s reference to materials "published in any newspaper, magazine or other periodi- cal." Id. at 697.
3. The court determined that various exemptions to the "elec-
tioneering communication" definition were constitutional. First, the court upheld a "grassroots lobbying" exemption, which provides that "electioneering communication" does not include "communication[s] made while the Legislature is in session which, incidental to promoting or opposing a specific piece of legislation pending before the Legislature, urges the audience to communicate with a member or members of the Legislature concerning that piece of legis- lation." W. Va. Code § 3-8-1a(11)(B)(v); CFIF III , 849 F. Supp. 2d at 700-03. Second, the court declined to address the merits of CFIF’s challenge to an exemption for "bona fide news account[s]," which provides: (i) A news story, commentary or editorial dissemi- nated through the facilities of any broadcast, cable or satellite television or radio station, newspaper, maga- zine or other periodical publication not owned or controlled by a political party, political committee or candidate: Provided, That a news story disseminated through a medium owned or controlled by a political party, political committee or candidate is neverthe- less exempt if the news is: (I) A bona fide news account communi- cated in a publication of general circulation or through a licensed broadcasting facili- ty[.]
W. Va. Code § 3-8-1a(11)(B)(i). The court determined that CFIF lacked standing to challenge this exemption because CFIF failed to demonstrate that it intended to publish news stories or functioned as a "political party, political committee or candidate." CFIF III , 849 F. Supp. 2d at 707. Third, the court upheld a provision that exempts communications by § 501(c)(3) organizations because federal law prohibits these groups from engaging in express advocacy. Id. at 707-09. 4. The district court determined that the statutory scheme’s
twenty-four-hour and forty-eight-hour reporting and dis- claimer requirements could survive exacting scrutiny. CFIF III , 849 F. Supp. 2d at 711-15.
5. However, the district court concluded that the reporting
requirement for electioneering communications was
ambiguous insofar as it mandated disclosure of the "names
and addresses of any contributors who contributed a total
of more than one thousand dollars between the first day of
the preceding calendar year and the disclosure date and
whose contributions were used to pay for electioneering
communications
." W. Va. Code § 3-8-2b(b)(5) (emphasis
added);
CFIF III
,
D.
West Virginia now appeals the district court’s determina- tion that subsection (C) of the statute’s "expressly advocating" definition was vague, its decision to strike periodicals from the "electioneering communication" definition, and its deci- sion to apply an "earmarked funds" limiting construction to the reporting requirement for electioneering communications. Furthermore, West Virginia contends that the district court should have vacated the earlier injunctions as moot rather than barring prosecutions for violations that occurred when the injunctions were in effect. CFIF cross-appeals the court’s conclusion that it lacked standing to challenge the "bona fide news account" exemption and its determinations that the "grassroots lobbying" and § 501(c)(3) exemptions were con- stitutional. Although WVFL did not file a notice of appeal in this case, it contends that, if we uphold the statutory scheme’s "electioneering communication" and "expressly advocating" definitions, we should strike down the reporting and dis- claimer requirements due to these provisions’ alleged vague- ness and overbreadth. We have jurisdiction pursuant to 28 U.S.C. § 1291. The WVEA, the West Virginia AFL-CIO, Bastress, Workman, and Ketchum are not parties to this appeal.
We affirm the district court’s decisions to (1) strike "news- paper, magazine or other periodical" from West Virginia’s "electioneering communication" definition; (2) uphold the "electioneering communication" definition’s exemption for grassroots lobbying; (3) decline to consider the merits of CFIF’s challenge to the bona fide news accounts exemption because the organization lacks standing; and (4) prohibit pros- ecutions for violations that occurred while the earlier injunc- tions were in effect. However, we reverse the district court’s decision with respect to (1) its conclusion that subsection (C) of the "expressly advocating" definition is unconstitutional; (2) its choice to uphold the "electioneering communication" definition’s § 501(c)(3) exemption; and (3) its application of an "earmarked funds" limiting construction to the reporting requirement for electioneering communications. Because WVFL did not file a notice of appeal in this case, we cannot consider its challenge to the district court’s finding that the statutory scheme’s twenty-four- and forty-eight-hour report- ing requirements are constitutional. We consequently affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
II.
A court considering a summary judgment motion must
view the facts in the light most favorable to the nonmovant.
United States v. Diebold, Inc.
,
III.
First, we consider West Virginia’s contention that the dis- trict court erred in concluding that subsection (C) of the stat- ute’s definition of "expressly advocating" is unconstitutionally vague. Subsection (C) provides that "ex- pressly advocating" includes "any communication that . . . [i]s susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." W. Va. Code § 3-8-1a(12)(C). The statutory scheme incorporates the phrase "expressly advocating" into the definition of "indepen- dent expenditure" and does not include the phrase elsewhere. Pursuant to the statute, an "independent expenditure" is "an expenditure . . . [e]xpressly advocating the election or defeat of a clearly identified candidate" and "[t]hat is not made in concert or cooperation with or at the request or suggestion of such candidate, his or her agents, the candidates authorized political committee or a political party committee or its agents." W. Va. Code § 3-8-1a(15).
Relying on
FEC v. Wisconsin Right to Life, Inc.
, (
WRTL
II
),
Statutory provisions are unconstitutionally vague if they
fail to "give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited."
Grayned v. City of
Rockford
,
[w]hen taken as a whole and with limited reference to external events, such as the proximity to the elec- tion, could only be interpreted by a reasonable per- son as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because—
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
(2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.
Real Truth held that the differences between § 100.22(b) and the WRTL II "functional equivalent" test—which specifies that "a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reason- able interpretation other than as an appeal to vote for or against a specific candidate," WRTL II , 551 U.S. at 470- 71—were "not meaningful." Real Truth , 681 F.3d at 552. Because the WRTL II test and the portion of the West Virginia definition at issue here are identical, Real Truth ’s holding applies to this case. We therefore hold that subsection (C) is not unconstitutionally vague.
Although CFIF and WVFL argue that this Court’s decision
in
North Carolina Right to Life, Inc. v. Leake
,
Because the district court erred in invalidating subsection
(C) on vagueness grounds, we must consider whether the pro-
vision is impermissibly broad. WVFL argues in its reply brief
that subsection (C) is overbroad because it reaches beyond
express advocacy, and CFIF adopts this contention in its brief.
Real Truth
again controls our decision because the federal
regulatory provision at issue in that case is comparable to sub-
section (C) of West Virginia Code section 3-8-1a(12). In
Real
Truth
, this Court emphasized the Supreme Court’s
Citizens
United
decision, which explained that regulators need not
limit disclosure requirements to "speech that is the functional
equivalent of express advocacy."
Real Truth
,
IV.
Next, we consider the constitutionality of the West Virginia Code’s definition of "electioneering communication." Section 3-8-1a(11) defines the term as
any paid communication made by broadcast, cable or satellite signal, or published in any newspaper, mag- azine or other periodical that: (i) Refers to a clearly identified candidate for Gover- nor, Secretary of State, Attorney General, Treasurer, Auditor, Commissioner of Agriculture, Supreme Court of Appeals or the Legislature; (ii) Is publicly disseminated within: (I) Thirty days before a primary election at which the nomination for office sought by the candidate is to be determined; or (II) Sixty days before a general or special election at which the office sought by the candidate is to be filled; and (iii) Is targeted to the relevant electorate.
CFIF challenges the definition’s inclusion of materials "pub- lished in any newspaper, magazine or other periodical."
In
Citizens United
, the Supreme Court specified that courts
should apply "exacting scrutiny" to evaluate campaign
finance disclaimer and disclosure provisions, such as the
"electioneering communication" definition.
Governmental Interest
We first address CFIF’s argument that West Virginia has
no sufficiently important governmental interest that justifies
the statutory scheme’s application to non-broadcast media. In
Buckley v. Valeo
, the Supreme Court highlighted three state
interests that can justify disclosure requirements: (1) "provid[-
ing] the electorate with information" about the source of
campaign-related spending, (2) "deter[ring] actual corruption
and avoid[ing] the appearance of corruption," and (3) "gather-
ing the data necessary to detect violations of . . . contribution
limitations." 424 U.S. at 66-67. The second
inter-
est—preventing corruption and the appearance of corrup-
tion—does not apply to the case at hand because
"electioneering communication" does not include activity by
candidates or their committees.
See
W. Va. Code § 3-8-
1a(11)(B)(ii). "Electioneering communication"
therefore
includes only materials that third parties finance, and the
Supreme Court has held that third-party expenditures "do not
give rise to corruption or the appearance of corruption."
Citi-
zens United
, 130 S. Ct. at 909;
see also Leake
, 525 F.3d at
292 (explaining that "independent expenditures are made
without candidate consultation, rendering it unlikely that such
expenditures would be made in exchange for ‘improper com-
mitments from the candidate’" (quoting
Buckley
,
However, West Virginia can rely on the first interest: pro-
viding the electorate with election-related information.
Requiring organizations and individuals who engage in elec-
tioneering communication to file certain reports "alert[s] the
voter to the interests to which a candidate is most likely to be
responsive and thus facilitate[s] predictions of future perfor-
mance in office."
Buckley
,
Substantial Relation
Next, West Virginia must be able to demonstrate that
including materials "published in any newspaper, magazine or
other periodical" in its "electioneering communication" defi-
nition bears a substantial relation to the state’s interest in pro-
viding information. The district court concluded that West
Virginia failed to make this showing because the state legisla-
ture neglected to make findings regarding the need to regulate
non-targeted print communications, which rendered the "elec-
tioneering communication" definition fatally overbroad.
CFIF
III
, 849 F. Supp. 2d at 696-97. In
Turner Broadcasting Sys-
tem, Inc. v. FCC
, the Supreme Court explained that, "[e]ven
in the realm of First Amendment questions," legislatures
"must base [their] conclusions on substantial evidence." 520
U.S. 180, 196 (1997). The
Turner
Court pointed out that
courts must defer to legislative findings because legislatures
are "far better equipped than the judiciary to amass and evalu-
ate the vast amounts of data bearing upon legislative ques-
tions."
Id.
at 195 (quoting
Turner Broad. Sys., Inc. v. FCC
,
Nevertheless, we find that the district court correctly deter-
mined that West Virginia failed to demonstrate a substantial
relation between its interest in informing the electorate and its
decision to include periodicals—but not other non-broadcast
materials—in its "electioneering communication" definition.
However, recognizing that we may "affirm the district court
on any ground that would support the judgment in favor of the
party prevailing below,"
Everett v. Pitt Cnty. Bd. of Educ.
,
When combined with other materials in the record, the affi- davits discussed above provide ample support for including newspapers, magazines, and other periodicals in West Virgin- ia’s "electioneering communication" definition. The West Virginia Code specifies that the West Virginia legislature enacted the campaign finance regime to "serve[ ] a substantial governmental interest in informing the electorate." W. Va Code. § 3-8-1(a)(5). Furthermore, the statute explicitly men- tions the legislature’s fear that "[f]ailing to regulate non- broadcast media messages would permit those desiring to influence elections to avoid the principles and policies that are embodied in existing state law." Id. § 3-8-1(a)(7). The affida- vits explain that including non-broadcast media—such as periodicals—in the "electioneering communication" definition addresses these concerns. David H. Gold, the president of a direct mailing company, attested that "[t]he use of direct mail and other forms of non-broadcast media is and has been increasing" and that limiting disclosure rules to broadcast media causes "entities seeking to hide the source of their funds [to] shift their expenditures into direct mail and other cost effective non-broadcast media." In fact, as Pamela M. Van Horn—the executive director of the West Virginia Dem- ocratic Legislative Council—highlighted in her affidavit, CFIF itself shifted its spending from broadcast media to newspaper advertisements so it did not have to comply with West Virginia’s reporting requirements. These affidavits clearly support the informational purpose that the West Vir- ginia legislature enunciated in the statutory text, especially in light of our duty to defer to legislative judgments.
In addition to downplaying the relevance of these affida- vits, the district court also discredited a spreadsheet that Nich- olas Casey—the chairman of the West Virginia State Democratic Party—compiled and submitted. The spreadsheet details third-party spending during select 2006 and 2008 West Virginia elections. Because the spreadsheet specifies that only "a minuscule 0.4% of third-party spending" financed "print/newspaper" communications, the district court deter- mined that (1) including periodicals in the "electioneering communication" definition did not bear a substantial relation to the state’s interests and (2) the law is "severely underinclu- sive" because it neglects to include other, more prevalent forms of print media, such as direct mail. CFIF III , 849 F. Supp. 2d at 695. However, independent groups’ current eschewal of periodical advertising says nothing regarding the legislature’s fear that these organizations will shift from broadcast to print media to avoid the reporting and disclaimer requirements, thereby preventing the electorate from receiv- ing valuable information about the source of campaign-related spending. Consequently, regardless of how little electioneer- ing communication appears in periodicals, regulating this form of communication furthers the state’s interest in inform- ing the electorate.
The district court’s uneasiness about the "electioneering
communication" definition’s underinclusivity more closely
approximates our concern with that provision. We recognize
the Supreme Court’s admonition that "a statute is not invalid
under the Constitution because it might have gone farther than
it did, . . . a legislature need not strike at all evils at the same
time, and . . . reform may take one step at a time."
Buckley
,
We recognize that the West Virginia legislature likely elim-
inated direct mailings, telephone banks, and billboard adver-
tising from its "electioneering communication" definition to
comply with the district court’s October 2008 decision—a
decision we now see as erroneous because it found that West
Virginia could not regulate non-broadcast media as a general
matter.
See CFIF II
,
V.
Next, we consider CFIF’s argument that the district court erred in its decisions regarding three exemptions to West Vir- ginia’s "electioneering communication" definition. For the reasons we outline below, we find that the district court cor- rectly upheld the definition’s "grassroots lobbying" exemption and properly determined that CFIF lacked standing to chal- lenge the "bona fide news account" exemption. However, we conclude that the district court erred in finding that the § 501(c)(3) exemption could survive constitutional scrutiny. A.
CFIF raises two challenges to West Virginia’s "grassroots lobbying" exemption, which specifies that "electioneering communication" does not include "communication[s] made while the Legislature is in session which, incidental to pro- moting or opposing a specific piece of legislation pending before the legislature, urges the audience to communicate with a member or members of the Legislature concerning that piece of legislation." W. Va. Code § 3-8-1a(11)(B)(v). CFIF argues (1) that the phrase "promoting or opposing" and the word "incidental" are vague and (2) that the provision dis- criminates based on content and viewpoint. However, as dis- cussed below, CFIF’s contentions lack merit.
Vagueness Challenge
As noted above, statutes are unconstitutionally vague when
they fail to "give the person of ordinary intelligence a reason-
able opportunity to know what is prohibited."
Grayned
, 408
U.S. at 108. CFIF relies upon this Court’s decision in
North
Carolina Right to Life, Inc. v. Bartlett
to support its vagueness
argument.
As the district court correctly pointed out, the North Caro- lina statute at issue in Bartlett and the statute under consider- ation in this case use the word "incidental" in different manners. In Bartlett , this Court implied that "incidental" could mean "accidental" or "unplanned" in the context of the North Carolina statute when it explained that the word "ex- pressly sweeps within [the statute’s] ambit those groups that only incidentally engage in express advocacy." 168 F.3d at 712; see also The American Heritage College Dictionary 700 (4th ed. 2002) (defining "incidental" as "[o]ccurring or likely to occur as an unpredictable or minor accompaniment"). This reading of the statute essentially requires organizations seek- ing to comply with its requirements to discern when their communications unintentionally promote or oppose a candi- date or accidentally influence an election, which, understand- ably, a person of ordinary intelligence would find difficult. By contrast, the district court properly recognized that the West Virginia statute’s language—"incidental to promoting or opposing a specific piece of legislation"—clearly invokes the phrase "incident to" despite its inapt use of the word "inciden- tal." CFIF III , 849 F. Supp. 2d at 701. Black’s Law Dictio- nary defines "incident" as "[d]ependent upon, subordinate to, arising out of, or otherwise connected with." Black’s Law Dictionary 830 (9th ed. 2009). In light of the wording of West Virginia’s statute, it is clear that the legislature intended this meaning rather than the definition that this Court held to be vague in Bartlett . Consequently, the exemption’s incorpora- tion of the word "incidental" does not prevent a person of ordinary intelligence from understanding its import.
Next, CFIF alleges that the phrase "promoting or opposing" is impermissibly vague because it "turn[s] on the speaker’s perceived intent" and requires speculation regarding the "po- tential effect of the speech on listeners." To support its argu- ment, CFIF relies on Buckley v. Valeo , which held that the D.C. Circuit failed to cure an election statute’s vagueness when that circuit construed the statute to apply only to speech "advocating the election or defeat of" a candidate. 424 U.S. at 42-43. In Buckley , the Supreme Court determined that the D.C. Circuit’s clarification remained vague because it consti- tuted an impermissible "intent-and-effect" test that put speak- ers "at the mercy of the varied understanding of [their] hearers 27 and consequently of whatever inference may be drawn as to [their] intent and meaning." Id.
The district court countered CFIF’s argument by citing
footnote 64 of
McConnell v. FEC
, which explicitly held that
the words "promote" and "oppose" were not unconstitution-
ally vague.
Despite CFIF’s arguments that this Court’s decision in Leake "flatly rejected the notion that footnote 64 in McCon- nell applies to speech beyond that by political parties," Leake merely held that a statutory scheme incorporating the phrase "support or oppose" was unconstitutionally vague due to addi- tional language that does not appear in West Virginia’s stat- ute. 525 F.3d at 280-81, 285-86 (concluding that the statute was vague because it "determine[d] whether speech [was] regulable based on how a ‘reasonable person’ interpret[ed] the speech’s ‘essential nature’ in light of four ‘contextual fac- tors’"). Additionally, WRTL II does not require us to strike down the exemption because—contrary to CFIF’s asser- tions—that case has no effect on McConnell ’s conclusion regarding "promote and oppose"; WRTL II simply reiterated that intent-and-effect tests were impermissible while passing no judgment regarding McConnell ’s vagueness holding. 551 U.S. at 465. Consequently, pursuant to McConnell , the words "promote" and "oppose" do not render the grassroots lobbying exemption vague, allowing the exemption to survive CFIF’s vagueness challenge.
[5]
CFIF also argues that the phrase "urges the audience" is vague in its
reply brief. However, in its renewed motion for summary judgment, CFIF
Content and Viewpoint Discrimination Challenge
In addition to arguing that the grassroots lobbying exemp-
tion is impermissibly vague, CFIF contends that the provision
unconstitutionally discriminates based on communications’
content and viewpoint. In particular, CFIF points out that the
provision (1) exempts speech that occurs while the legislature
is in session but burdens speech that takes place at other
times, (2) exempts communications that concern specific,
pending legislation but burdens speech regarding other legis-
lation, (3) exempts speech urging contact with legislators but
burdens communications that encourage reaching out to non-
incumbents or executive branch officials, and (4) exempts
communications that support or oppose legislation but bur-
dens speech that requests other action, such as recommending
that a nominee be confirmed. Although the Supreme Court
typically applies strict scrutiny to content-based speech
restrictions,
see Brown v. Entm’t Merchants Ass’n
, 131 S. Ct.
2729, 2738 (2011), disclosure and disclaimer requirements
are subject to exacting scrutiny.
Citizens United
,
As explained above, the only sufficiently important interest at stake in this case is informing the electorate about the source of campaign-related spending. Thus, the "electioneer- ing communication" definition must bear a substantial relation failed to raise this vagueness challenge, and the district court did not address it. We therefore decline to discuss this argument. See Lovelace v. Lee , 472 F.3d 174, 202 n.10 (4th Cir. 2006); see also 10A Charles Alan Wright et al., Federal Practice & Procedure § 2716 (3d ed. 1998) (explaining that a party appealing a denial of its motion for summary judg- ment cannot "advance new theories or raise new issues in order to secure a reversal of the lower court’s determination").
to that interest to withstand exacting scrutiny; in other words, we will uphold the grassroots lobbying exemption if the com- munications that it encompasses do not bear a substantial rela- tion to providing the public with information. The district court reasoned that communications that relate to pending leg- islation and take place while the legislature is in session are more likely to be true issue advocacy—the regulation of which the Supreme Court has been loath to endorse—rather than express advocacy masquerading as issue advocacy. WRTL II , 551 U.S. at 455-57; CFIF III , 849 F. Supp. 2d at 703. The court therefore held that the exemption was neces- sary because the statutory scheme "imposes reporting require- ments on communications more likely to be ‘sham issue ads’ and because the exemption spares from reporting require- ments those communications least likely to be ‘sham issue ads.’" Id.
Although West Virginia offers weak evidentiary support for its argument that the legislature crafted this exemption to avoid burdening pure issue advocacy, considering the type of speech the legislature chose to exempt makes the legislature’s aim abundantly clear. Furthermore, the statute itself recog- nizes the importance of distinguishing issue advocacy from express advocacy by explaining that "[d]isclosure by persons and entities that make expenditures for communications that expressly advocate the election or defeat of clearly identified candidates" is a "reasonable and minimally restrictive method of furthering First Amendment values by public exposure." W. Va. Code § 3-8-1(a)(6). In all likelihood, if West Virginia had not included this exemption, CFIF would have challenged the regulatory scheme as overbroad due to its applicability to issue advocacy. Therefore, the district court correctly found that the grassroots lobbying exemption allows the "election- eering communication" definition to survive exacting scru- tiny, and the exemption does not impermissibly discriminate on the basis of communications’ content and viewpoint. B.
Next, CFIF alleges that the statute’s exemption for news
accounts is unconstitutionally vague due to its inclusion of the
phrase "bona fide news account." Under the exemption, "bona
fide news account[s]" that a speaker "disseminate[s] through
a medium owned or controlled by a political party, political
committee or candidate" are not electioneering communica-
tions. W. Va. § 3-8-1a(11)(B)(i). The district court held that
CFIF lacked standing to challenge this provision because
CFIF (1) does not publish or intend to publish news stories
and (2) does not function as a political party, political com-
mittee, or candidate.
CFIF III
, 849 F. Supp. 2d at 706-07.
Although CFIF correctly points out that it need not be a politi-
cal party, political committee, or candidate to disseminate a
news story through a medium that such an entity owns or con-
trols, it has never averred that it has published a news story
through one of these media outlets or that it plans to do so.
Furthermore, contrary to CFIF’s assertions, the fact that CFIF
is "an entity subject to West Virginia’s campaign finance
laws" does not give it carte blanche to challenge laws that are
inapplicable to its activities.
Members of City Council v. Tax-
payers for Vincent
,
C.
Finally, CFIF contends that the statute’s exemption for "communication[s] paid for by any organization operating under § 501(c)(3) of the Internal Revenue Code" unconstitu- tionally discriminates against § 501(c)(4) organizations such as CFIF. W. Va. Code § 3-8-1a(11)(B)(iv). Once again, we apply exacting scrutiny to determine if the exemption is con- stitutionally permissible, Citizens United , 130 S. Ct. at 914, and, as explained above, the only sufficiently important gov- ernmental interest at stake in this case is providing the elector- ate with information about the source of campaign-related spending. Consequently, because we are evaluating an exemption to the campaign finance regime, West Virginia must demonstrate that regulating communications that fall within the exemption does not bear a substantial relation to this governmental interest. For the reasons we outline below, West Virginia has failed to make this showing.
The Internal Revenue Code prohibits § 501(c)(3) organiza- tions from "participat[ing] in, or interven[ing] in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." 26 U.S.C. § 501(c)(3). As noted above, West Virginia exempts these organizations from complying with reporting and disclaimer requirements that other organizations engaging in electioneering communication must satisfy. West Virginia’s § 501(c)(3) exemption is identical to a since- repealed regulatory provision that the FEC promulgated to enforce the BCRA. 11 C.F.R. § 100.29(c)(6) (repealed Jan. 19, 2006). In light the fact that the Internal Revenue Code prohibits § 501(c)(3) organizations from engaging in express advocacy, the FEC noted that commentators had concluded that the "‘BCRA’s application to 501(c)(3)s [would] prohib- it[ ] activity that is already forbidden,’ and the activities the Internal Revenue Service permits 501(c)(3) organizations to engage in are activities ‘that BCRA was not intended to reach.’" 67 Fed. Reg. 65,190-01, 65,199 (Oct. 23, 2002) (alteration in original). The district court relied on this logic when upholding the West Virginia exemption. See CFIF III , 849 F. Supp. 2d at 707-08.
However, the district court erred in finding that the
§ 501(c)(3) exemption could withstand exacting scrutiny for
at least two reasons. First, exemptions such as the one at issue
in this case assume that campaign finance laws and
§ 501(c)(3) are coextensive in terms of the electioneering
communication that they prohibit, which may not be the case.
See Shays v. FEC
,
CFIF contends that, if any of the exemptions is constitu-
tionally impermissible, we must invalidate the entire regula-
tory scheme affecting electioneering communications because
striking the exemption would burden more speech than the
legislature intended to restrict. Although CFIF correctly sug-
gests that "when a section of a statute is declared void, the
statute cannot be given effect as though the legislature had not
enacted the conditions limiting its operation,"
Quinn v.
Comm’r
,
VI.
In addition to challenging the definitional portions of West Virginia’s campaign finance laws, CFIF also challenges one of the statutory scheme’s substantive requirements. In rele- vant part, the West Virginia Code requires individuals who engage in electioneering communication to comply with the following reporting requirements: 1. Every person who spends a total of $5,000 or more during
any calendar year on electioneering communication must file reports with West Virginia’s secretary of state within twenty-four hours of the "disclosure date," which is the date when the individual spends $5,000 on electioneering communication in a calendar year. Individuals must file these reports each time they spend $5,000. W. Va. Code §§ 3-8-1a(9), 3-8-2b(a)(1).
2. Every person who spends a total of $1,000 or more dur-
ing the two weeks immediately preceding an election must file a report with West Virginia’s secretary of state. Individuals must file these reports within twenty-four hours of the "disclosure date," which West Virginia defines in the same manner for both electioneering com- munication reporting requirements. Id. §§ 3-8-1a(9), 3-8- 2b(a)(2).
West Virginia also requires electioneering communications to feature certain disclaimers. The disclaimers must (1) clearly indicate that a candidate or candidate’s committee did not authorize the communication and (2) clearly identify the per- son making the expenditure. Id. § 3-8-2b(e). CFIF’s challenge focuses on the reporting requirements for electioneering com- munications rather than the disclaimer requirements.
CFIF specifically contends that West Virginia Code section 3-8-2b(b)(5) is ambiguous. That provision mandates disclo- sure of the "names and addresses of any contributors who contributed a total of more than one thousand dollars between the first day of the preceding calendar year and the disclosure date whose contributions were used to pay for electioneering communications" but provides no clear guide for determining when an organization "used" a contribution "to pay for elec- tioneering communications." See W. Va. Code § 3-8-2b(b)(5). In light of this alleged ambiguity, CFIF argues that the provi- sion requires cautious organizations to disclose the names and addresses of all contributors who donate more than $1,000 within the applicable timeframe, even when they contributed to the organization’s general treasury. CFIF then maintains that requiring organizations to file reports regarding their gen- eral treasury contributions does not serve West Virginia’s interest in informing the electorate, precluding the reporting requirement from surviving exacting scrutiny. West Virginia, in turn, asserts that section 3-8-2b(b)(5) is not ambiguous and that the provision can survive exacting scrutiny even if we accept CFIF’s broad interpretation.
Like all campaign finance-related disclosure requirements,
West Virginia Code section 3-8-2b(b)(5) is subject to exacting
scrutiny.
Citizens United
, 130 S. Ct. at 914. As previously
noted, this standard requires regulatory provisions to bear a
"substantial relation" to a "sufficiently important" governmen-
tal interest.
Id.
(quoting
Buckley
,
The district court agreed with CFIF’s contention that West Virginia code section 3-8-2b(b)(5)’s ambiguity prevented it from surviving exacting scrutiny. The court determined that compelling expansive disclosure of treasury contributions would result in a "flood of information" about donors who may not have directly financed electioneering communica- tions. The court reasoned that, rather than furthering West Virginia’s interest in informing the electorate, providing information about corporate treasury donations could hinder West Virginia’s goal by inundating the public with marginally relevant information. The district court also feared that a broad disclosure requirement would be so administratively onerous for organizations such as CFIF that it would discour- age them from speaking at all. To avoid overwhelming the public with information and unduly burdening groups who engage in electioneering communication, the district court restricted the reporting requirement to contributions from "in- dividuals who respond to a solicitation for electioneering communications or earmark their contributions for such use," a solution that it drew from an FEC regulation. CFIF III , 849 F. Supp. 2d at 717-19 (citing 72 Fed. Reg. 72,899, 72,910 (Dec. 26, 2007)). As discussed below, we find that the court erred in determining that West Virginia code section 3-8- 2b(b)(5) could not survive exacting scrutiny and in circum- scribing its scope via the "earmarked funds" limiting con- struction.
To combat CFIF’s argument that West Virginia code sec-
tion 3-8-2b(b)(5) is unconstitutional, West Virginia points to
McConnell
, in which the Supreme Court upheld a similar stat-
ute that imposed reporting requirements on "[e]very person
who makes a disbursement for the direct costs of producing
and airing electioneering communications." 2 U.S.C.
§ 434(f)(1);
McConnell
, 540 U.S. at 196. Specifically, the
McConnell
Court found that the state interests that
Buckley
enumerated—including providing the public with informa-
tion—"amply support[ed]" imposing reporting requirements
on organizations that engaged in electioneering communica-
tion.
McConnell
,
At the time the Supreme Court decided McConnell , the BCRA barred corporations from using general treasury funds to finance electioneering communications and required them to establish a "separate segregated fund" for such expendi- tures. 2 U.S.C. § 441b(b)(2), invalidated by Citizens United , 130 S. Ct. 876; McConnell , 540 U.S. at 195 & n.79. Conse- quently, when the Supreme Court decided McConnell , § 434(f)(1) could not suffer from the same purported ambigu- ity that allegedly prevents West Virginia Code section 3-8- 2b(b)(5) from surviving exacting scrutiny, even though aver- age individuals could just as easily interpret § 434(f)(1) to encompass general treasury donations absent the "separate segregated fund" requirement. However, in Citizens United , the Supreme Court ruled that federal law’s ban on using cor- porate treasury funds to engage in express advocacy was unconstitutional while simultaneously approving of McCon- nell ’s conclusion that 2 U.S.C. § 434(f)(1) was facially valid. See Citizens United , 130 S. Ct. at 913-14. Citizens United therefore demonstrates that the Supreme Court’s conclusion regarding § 434(f)(1)’s constitutionality was not tied to the prohibition regarding corporate treasury funds. Accordingly, even if we assume for the sake of argument that section 3-8- 2b(b)(5) is ambiguous, McConnell compels us to find that the provision is constitutional. We therefore reverse the district court’s conclusion that section 3-8-2b(b)(5) cannot survive exacting scrutiny and its decision to impose an "earmarked funds" limiting construction to cure the provision’s alleged unconstitutionality.
VII.
Like CFIF, WVFL also raises certain challenges to the stat-
utory scheme’s substantive requirements. Specifically, WVFL
contends in its reply brief that the electioneering communica-
tion reporting and disclaimer requirements described above
and the similar reporting and disclaimer requirements for
groups that make independent expenditures
[6]
are "patently
unreasonable" and "severely burden First Amendment rights."
However, we cannot consider this issue because WVFL did
not file an appeal in this case.
See
Fed. R. App. P. 4(a)(3);
Thurston v. United States
,
1. A person who makes independent expenditures totaling more than
$1,000 during a calendar year must file a report with West Virginia’s secretary of state. W. Va. Code § 3-8-2(b)(1).
2. Any person who makes or contracts to make independent expenditures
aggregating $10,000 or more at any time before an election must file a report with West Virginia’s secretary of state within forty-eight hours. Id. § 3-8-2(d)(1). Thereafter, the person must file an additional report for each aggregate $10,000 he or she spends within forty-eight hours of the expenditure. Id. § 3-8-2(d)(2).
3. Any person who makes or contracts to make independent expenditures
within the two weeks before an election aggregating either $1,000 (for multi-county or statewide elections) or $500 (for single-county or municipal elections) must file a report describing the expenditure with West Virginia’s secretary of state within twenty-four hours. Id. § 3-8- 2(c)(1). The person must file an additional report for each aggregate $1,000 or $500 he or she spends within twenty-four hours of the expen- diture. Id. § 3-8-2(c)(2).
Finally, West Virginia imposes the same disclaimer requirements on both independent expenditures and electioneering communications. As noted above, these disclaimers must (1) clearly indicate that a candidate or can- didate’s committee did not authorize the communication and (2) clearly identify the person making the expenditure. Id. §§ 3-8-2(e), 3-8-2b(e). VIII.
Finally, West Virginia contends that the district court
should have vacated as moot its earlier injunctions because
West Virginia had repealed the statutory provisions that were
subject to the injunctions. Instead of vacating the injunctions,
the court reiterated the decision it made when it dissolved the
April 2008 injunction: "‘dissolution of this court’s prelimi-
nary injunction order . . . does not mean that either the new
or old versions of West Virginia’s Election Code may be
applied to violations that are alleged to have occurred prior to’
the date of dissolution."
CFIF III
,
Under West Virginia law, the state can enforce a repealed
law after the repeal becomes effective as long as the offense
occurred while the statute was in effect. W. Va. Code § 2-2-
8. Therefore, if we vacate the injunctions as moot, West Vir-
ginia will have the power to punish organizations for earlier
violations of the statute. In
Jacobus v. Alaska
, on which CFIF
relies, the Ninth Circuit explained that, "[d]espite superseding
events, an issue is not moot if there are present effects that are
legally significant."
In this case, West Virginia’s secretary of state attested that her "office will not seek to enforce those provisions of said Articles that have been repealed." CFIF relies primarily on a statement that another official made during a radio broadcast in 2008 and an election law complaint that West Virginia’s attorney general filed over three years ago to support its argu- ment. We admit that this evidence does not overwhelmingly demonstrate that the repealed provisions remain "legally sig- nificant," especially in light of the secretary of state’s affida- vit. However, as discussed above, we review the district court’s decision regarding the preliminary injunction for abuse of discretion. See Conservation Council of N.C. , 528 F.2d at 251-52. Despite the weakness of the evidence in favor of CFIF’s argument, we decline to go so far as to find that the district court abused its discretion when it decided to dissolve the injunctions rather than vacating them as moot. We there- fore affirm the district court’s decision to prohibit West Vir- ginia from prosecuting individuals who violated the enjoined campaign finance provisions while the injunctions were in effect.
IX.
For the foregoing reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opin- ion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED