NEW MEXICO YOUTH ORGANIZED, a project of the Center for Civic Policy, and Southwest Organizing Project, Plaintiffs-Appellees, v. Mary HERRERA, in her capacity as Secretary of State, Defendant-Appellant, James Madison Center for Free Speech, Amicus Curiae.
No. 09-2212.
United States Court of Appeals, Tenth Circuit.
June 30, 2010.
611 F.3d 669
Sara Berger, Freedman Boyd Hollander Goldberg Ives & Duncan, P.A., (with John W. Boyd and David H. Urias on the brief), Albuquerque, New Mexico, for Appellees.
James Bopp, Jr. and Randy Elf, James Madison Center for Free Speech, Terre Haute, IN, filed an amicus curiae brief on behalf of the James Madison Center for Free Speech on Behalf of Appellees.
Before BRISCOE, Chief Judge, HOLLOWAY and HENRY, Circuit Judges.
HENRY, Circuit Judge.
Mary Herrera, the Secretary of State of New Mexico, appeals the district court‘s grant of summary judgment in favor of the appellees, New Mexico Youth Organized and Southwest Organizing Project. The district court ruled that Secretary Herr
I. FACTUAL BACKGROUND
The New Mexico Youth Organized (“NMYO“) is a statewide project run by the Center for Civic Policy (“CCP“), a
Southwest Organizing Project (“SWOP“) is a nonpartisan project of Southwest Community Resources, Inc., a
B. Mailers
In March and April 2008, NMYO and SWOP mailed advertisements criticizing several incumbent state legislators. The mailings denounced certain initiatives the legislators proposed during the legislative session, pointed out that the sponsoring legislators had relied upon certain organizations for funding, and suggested that the legislators were beholden to corporate interests rather than actually working for the public good. Recipients were urged to contact the legislators to express their concern about the legislators’ votes and funding sources. The mailings were targeted to the legislators’ constituents, and each mailing mentioned an upcoming special legislative session focused on healthcare.
A typical mailer looked like the one sent to State Senator Shannon Robinson‘s constituents. This mailer had a child depicted on the front with a thermometer in her mouth and stated: “With a special session of the legislature this summer to address HEALTH CARE, it‘s important to find
NMYO sent out nine pieces of direct mail between March 22, 2008 and April 5, 2008. The organization has a $225,000 annual budget, of which $15,000 was spent on the direct mail campaign. Aplt‘s App. at 35.
SWOP sent out five pieces of direct mail between March 22, 2008 and April 5, 2008; these mailers were similar to those sent by NMYO and discussed positions taken by elected officials during the February 2008 legislative session and the sources of those officials’ campaign funding. SWOP has a $1,100,000 annual budget, of which it spent approximately $6,000 on the direct mailing campaign. Id. at 36.
C. Complaint and request to comply with the New Mexico Campaign Reporting Act
One of the targeted legislators, Senator Shannon Robinson, sent a letter of complaint to the New Mexico Secretary of State, Mary Herrera, and made a telephonic complaint to the New Mexico Attorney General. A second targeted legislator, Senator Bernadette Sanchez, also contacted the Attorney General. The complaints alleged that NMYO and SWOP failed to register as political committees under the New Mexico Campaign Reporting Act (“NMCRA“),
The NMCRA, in relevant part, provides as follows:
A. It is unlawful for any political committee that receives, contributes or expends in excess of five hundred dollars ($500) in any calendar year to continue to receive or make any contribution or expenditure for a political purpose unless that political committee appoints and maintains a treasurer and registers with the secretary of state.
B. A political committee shall register with the secretary of state within ten days of receiving, contributing or expending in excess of five hundred dollars ($500) by paying a filing fee of fifty dollars ($50.00) and filing a statement of organization under oath on a prescribed form showing:
(1) the full name of the political committee, which shall fairly and accurately reflect the identity of the committee, including any sponsoring organization, and its address;
(2) a statement of the purpose for which the political committee was organized;
(3) the name, address and relationship of any connected or associated organization or entity;
(4) the names and addresses of the officers of the committee; and
(5) an identification of the bank used by the committee for all expenditures or contributions made or received.
Furthermore, the NMCRA requires that [e]ach treasurer of a political committee shall file a report of expenditures and contributions ... until the treasurer files a report that affirms that the committee has dissolved or no longer exists and that its bank account has been closed.
The statute defines a “political committee” as:
two or more persons ... who are selected, appointed, chosen, associated, organized or operated primarily for a political purpose; and “political committee” includes: (1) political action committees or similar organizations composed of employees or members of any corporation, labor organization, trade or professional association or any other similar group that raises, collects, expends or contributes money or any other thing of value for a political purpose; ... (3) a person or an organization of two or more persons that within one calendar year expends funds in excess of five hundred dollars ($500) to conduct an advertising campaign for a political purpose.
The statute defines an “advertising campaign” as “an advertisement or series of advertisements used for a political purpose and disseminated to the public either in print, by radio or television broadcast or by any other electronic means, including telephonic communications, and may include direct or bulk mailings of printed materials.”
On April 25, 2008, Secretary of State Herrera issued a letter stating that NMYO was not required to register as a political committee under the NMCRA. On May 22, 2008, Albert J. Lama, Chief Deputy Attorney General, wrote to Secretary Herrera, requesting that she amend her April 25, 2008 letter to reflect that the NMYO does fall under the NMCRA. Aplt‘s App. at 18-19.
On August 18, 2008, Secretary Herrera sent a letter to NMYO stating that “it appears that [NMYO] is operating as a political committee for purposes of the [NMCRA]” and thus must register and file reports with the Secretary of State‘s office. Id. at 20. The letter also stated that NMYO had ten business days to correct the matter, and that failure to comply with the NMCRA would subject the organization to mandatory penalties as prescribed under NMCRA. On August 28, 2008, Secretary Herrera sent a similar letter to SWOP stating that it was “operating as a political committee for purposes of the [NMCRA]” and demanding that it register as a political committee or face penalties. Id. at 21.
In response, on December 16, 2008, NMYO and SWOP filed a complaint for declaratory and injunctive relief. The complaint challenged various provisions of the NMCRA, both facially and as applied to them, and sought a preliminary injunction, ordering Secretary Herrera to halt enforcement of the NMCRA as it applies to them.
D. District Court‘s grant of summary judgment
After concluding that NMYO and SWOP had standing to challenge the NMCRA,
The district court then began by addressing the question of whether the mailings in question qualify in the former of the two categories. Secretary Herrera argued that because the mailings were sent for a political purpose, to influence or attempt to influence an election, they may be regulated. The district court first noted that, given well-established Supreme Court precedent, the NMCRA‘s definition of “political purpose,” see
The district court held that the communications by the NMYO and SWOP do not satisfy this narrow definition of political purpose. The court first established that the speech was not express advocacy. Next, the court found that such ads did not constitute the functional equivalent of express advocacy. The court pointed to the following facts: (1) the communications did not mention any future primary or general election in which the targeted legislators would be running; (2) the ads highlighted the legislators’ voting records; and (3) the ads warned that corporate interests were likely to try to influence the legislators’ positions on health care legislation and urged recipients to contact their legislators so that their voices could be heard. Thus, the court stated the “ads are susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Aplt‘s App. at 181 (quoting WRTL, 551 U.S. at 474 n. 7).
This conclusion was also buttressed by the fact that the ads were not mailed within 30 days of a primary election or 60 days of a general election. The court held that the fact that the communications were made “well outside of this period further informs the [c]ourts‘s findings that the ads
Finally, the court addressed the question of whether NMYO and SWOP can be properly classified as “political committees,” such that all of their speech may be properly subject to regulation. NMCRA defines a political committee as an organization operated primarily for a political purpose. The NMCRA also states that any organization that spends over $500 in one year on a political ad campaign constitutes such a political committee. Applying Buckley‘s major purpose test, the district court struck down the second part of the definition, stating that a spending trigger for “such insubstantial expenditures is not narrowly tailored and cannot survive exacting scrutiny.” Id. at 184. Applying circuit precedent, from CRLC, 498 F.3d at 1146, the court found that “[b]ecause NMCRA targets organizations as a whole, requiring a reporting of each expenditure and source of each contribution received by the ‘political committee,’ without regard to whether the expenditure was for an election-related expense, or whether the
contribution was made specifically for such a purpose, it differs in a material respect from valid laws governing regulation of only election-related transactions.” Aplt‘s App. at 185. Thus, the district court granted summary judgment for NMYO and SWOP. The district court also dismissed as moot the plaintiffs’ motion for a preliminary injunction.
II. ANALYSIS
In arguing that the organizations may be regulated under Buckley and its progeny, Secretary Herrera challenges the district court‘s grant of summary judgment on the basis that: (1) the mailers should be classified as the functional equivalent of express advocacy; and (2) the finding that the groups did not constitute political committees, under Buckley‘s major purpose test, is erroneous.3
“We review the district court‘s grant of summary judgment de novo, applying the same legal standard used by the district court.” Somoza v. Univ. of Denver, 513 F.3d 1206, 1211 (10th Cir.2008). Summary
The regulations at issue here require disclosure, thus distinguishing them from regulations that limit the amount of speech a group may undertake. See Buckley, 424 U.S. at 64 (“Unlike the overall limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities.“). As such, the regulations must pass “exacting scrutiny.” Id. (“We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest ... [w]e have required that the subordinating interests of the State must survive exacting scrutiny.“); Doe v. Reed, 561 U.S. 186, 130 S.Ct. 2811, 2818, 177 L.Ed.2d 493 (2010). “That standard requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest. To withstand this scrutiny, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Doe, at 2814 (internal quotation and citation omitted).
In Buckley, the Court held that the reporting and disclosure requirements then imposed by the Federal Election Campaign Act of 1971, as amended,
In Buckley, the Court held a political committee may “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.” 424 U.S. at 79. Given that Secretary Herrera concedes that the organizations here were not under the control of a political candidate, if NMYO and SWOP are to be deemed political committees it must be under “the major purpose” test. Id.; see FEC v. Akins, 524 U.S. 11, 29, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998).
NMCRA regulates speech by organizations “operated primarily” for a political purpose.
The NMCRA requires that organizations “operated primarily” for the purpose of “influencing or attempting to influence an election” must register with the Secretary of State as “political committees,” pay a filing fee, and file reports disclosing their activities and contributors.
There are two methods to determine an organization‘s “major purpose“: (1) examination of the organization‘s central organizational purpose; or (2) comparison of the organization‘s electioneering spending with overall spending to determine whether the preponderance of expenditures is for express advocacy or contributions to candidates. CRLC, 498 F.3d at 1152.
Under either approach of the major purpose test, the organizations here do not qualify as political committees. First, looking to the central purposes of the organizations, neither qualifies as a political committee. “Neither NMYO nor CCP has ever advocated for the election or defeat of any candidate for office.” Aplt‘s App. at 98. NMYO‘s express goal is to educate young New Mexicans regarding issues of importance to them. NMYO also engages in research, leadership development, and nonpartisan get-out-the-vote activities. Similarly, “SWOP has never advocated for the election or defeat of any candidate for office.” Id. at 100. SWOP‘s primary purpose is to empower the New Mexico communities, including Latino and other people of color, low-income individuals, and young people to realize racial and gender equality and social and economic justice. SWOP also engages in other educational activities, nonpartisan get-out-the-vote activities, training and leadership development, and community development. Thus, neither has a central organizational purpose that is campaign or election related.
Second, there is no indication that either group spends a preponderance of its expenditures on express advocacy or contributions to candidates. Indeed, there is no evidence in the record to contradict the declarations from the parties that they do not engage in advocacy for candidates or make contributions to them, nor to establish that election related expenses make up a preponderance of the organizations’ expenditures. Thus, even to the extent that Secretary Herrera attempts to classify either NMYO or SWOP as a “political committee,” based upon the fact that it spends at least $500 a year for political purposes, see
In similar circumstances, this court, in CRLC, held that a $200 trigger, standing alone, is incompatible with a “major purpose” test. CRLC, 498 F.3d at 1153. In CRLC, the court considered the constitutionality of a provision that defined a political committee as any group that spends more than $200 in a year to support or oppose the nomination or election of one or more candidates and subjected such groups to various administrative, organizational, and reporting requirements. The court there held that the $200 trigger was unconstitutional as applied to the Colorado Right to Life Committee because it was an unacceptable proxy for the major purpose test: “[T]he amount of money an organization must accept or spend—$200—is not substantial and would, as a matter of common sense, operate to encompass a variety of entities based on an expenditure that is insubstantial in relation to their overall budgets.” Id. (alteration in original) (quoting Colo. Right to Life Comm., Inc. v. Davidson, 395 F.Supp.2d 1001, 1021 (D.Colo.2005)).
Similarly, here, an organization that spends $500 on an election-related expense is automatically subject to the reporting requirements and other limitations imposed on a political committee, regardless of what percentage of operating funds that $500 constitutes or what else the organization spends its resources on. To automatically classify such organizations as political committees contradicts the Supreme Court‘s repeated admonition that only organizations that have “the major purpose” of electing or defeating a candidate may be forced to register as political organizations. As the district court noted:
NMYO‘s yearly budget is approximately $225,000. SWOP‘s yearly budget is approximately $1,100,000. Thus, under NMCRA, these organizations would be classified as “political committees” if they spent as little as 2/10 of one percent and 5/100 of one percent of their budgets, respectively, on electioneering communications. Taking it out of the realm of the hypothetical, in this case, NMYO spent approximately $15,000 on the mailings, which amounts to less than seven percent of its budget, and SWOP spent approximately $6,000 on the mailings, which amounts to just over 1/2 of one percent of its budget. Such proportionally small expenditures, standing alone, cannot justify characterizing an organization‘s “major purpose” as electioneering.
Aplt‘s App. at 184. NMYO and SWOP are correct in their assertion that: “the New Mexico statute in question is not different in any meaningful way from the Colorado constitutional amendment that this [c]ourt held was unconstitutional as applied because it defined an organization‘s ‘major purpose’ by reference to a small dollar amount of expenditures rather than by reference to the actual activities of the organization.” Aples’ Br. at 21. Thus, we hold that the attempt to regulate NMYO and SWOP as political committees is unconstitutional as applied.
III. CONCLUSION
For the foregoing reasons we AFFIRM the district court‘s grant of summary judgment in favor of NMYO and SWOP.
ROBERT H. HENRY
UNITED STATES CIRCUIT JUDGE
Notes
(i) 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, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.
(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term “electioneering communication” means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.
Here, neither side has briefed whether this provision is facially unconstitutional. Thus, we do not address the question. Similarly, in CRLC, the court decided not to address the facial challenge, finding that the “as applied” challenge adequately addressed the group‘s concerns and that it was not necessary to formulate a broader rule. CRLC, 498 F.3d at 1156 (“[W]ithout more, we cannot say that in every application [the statute] will be unconstitutional and we decline to formulate a rule of constitutional law broader than is required.“).