RIO GRANDE FOUNDATION, Plаintiff - Appellant, and ILLINOIS OPPORTUNITY PROJECT, Plaintiff, v. MAGGIE TOULOUSE OLIVER, in her official capacity as Secretary of State of New Mexico, Defendant - Appellee.
No. 24-2070
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
September 9, 2025
PUBLISH;
Jeffrey M. Schwab of Liberty Justice Center, Austin, Texas, for Plaintiff - Appellant.
Ellen L. Venegas, Assistant Solicitor General, Santa Fe, New Mexico (Raúl Torrez, New Mexico Attorney General; Seth C. McMillan, Deputy Solicitor General, Santa Fe, New Mexico; Alexander W. Tucker, Assistant Solicitor General, Albuquerque, New Mexico, with her on the brief), for Defendant - Appellee.
Before HARTZ, EID, and FEDERICO, Circuit Judges.
FEDERICO, Circuit Judge.
This case concerns First Amendment rights in the context of electioneering laws. Rio Grande Foundation (RGF) is a nonprofit advocacy group challenging an amendment to New Mexico‘s Campaign Reporting Act (CRA). It argues the CRA disclosure law unlawfully burdens its First Amendment rights and chills potential donors from making donations.1 RGF sought to enjoin New Mexico‘s Secretary of State (Secretary) from enforcing certain disclosure requirements in the amended CRA.
The district court ruled in favor of the Secretary and determined that the CRA disclosure requirements are substantially related and narrowly tailored to the governmental and public interest in knowing who is funding large election-related advertisements about a candidate or ballot measure shortly before an election. We agree with the district court.
I2
We proceed in this section by first explaining the CRA: who and what it covers, its limitations, and the applicable definitions. Next, we discuss RGF: what it is, what it does, and what it intends to do. Last, we set out the procedural history of this lawsuit to frame the current appeal.
A
Senate Bill 3 (2019) amended the CRA to include disclaimer and disclosure requirements for certain electioneering communications. Campaign Finance Reporting Act, ch. 262, 2019 N.M. Laws § 1. A violation of the CRA is a misdemeanor punishable “by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one year or both.”
The amended CRA requires “political committees” to register with the Secretary and to disclose (1) the name of the committee with any sponsoring organization and its address; (2) a statement of purpose; (3) the names and addresses of the officers of the committee; and (4) any bank account used for contributions or expenditures.
Further, an “expenditure” is defined as “a payment, transfer or distribution or obligation or promise to pay, transfer or distribute any money or other thing of value for a political purpose[.]”
The amended CRA also requires political committees to disclose the names and addresses of their donors if their “independent expenditures” exceed a certain amount:
A person who makes independent expenditures required to be reрorted under this section in an amount totaling more than three thousand dollars ($3,000) in a nonstatewide election or nine thousand dollars ($9,000) in a statewide election, in addition to reporting the information specified in Subsection C of this section, shall either:
(1) if the expenditures were made exclusively from a segregated bank account consisting only of funds contributed to the account by individuals to be used for making independent expenditures, report the name and address of, and amount of each contribution made by, each contributor who contributed more than two hundred dollars ($200) to that account in the election cycle; or
(2) if the expenditures were made in whole or part from funds other than those described in Paragraph (1) of this subsection, report the name and address of, and amount of each contribution made by, each contributor who contributed more than a total of five thousand dollars ($5,000) during the election cycle to the person making the expenditures; provided, however, that a contribution is exempt from reporting pursuant to this paragraph if the contributor requested in writing that the contribution not be used to fund independent or coordinated expenditures or to make contributions to a candidate, campaign committee or political committee.
The CRA defines an “independent expenditure” as one that is (1) “made by a person other than a candidate or campaign committee” and (2) “not a coordinated expenditure as defined in the [CRA].”
(a) expressly advocates the election or defeat of a clearly identified candidate
or the passage or defeat of a clearly identified ballot question; (b) is susceptible to no other reasonable interpretation than as an appeal to vote for or against a clearly identified candidate or ballot question; or
(c) refers to a clearly identified candidate or ballot question and is published and disseminated to the relevant electorate in New Mexico within thirty days before the primary election or sixty days before the general election at which the candidate or ballot question is on the ballot.
The amended CRA further imposes disclaimer requirements, requiring a “person who makes a campaign expenditure, a coordinated expenditure or an independent expenditure for an advertisement in an amount that exceeds one thousand dollars ($1,000), or in an amount that, when added to the aggregate amount of the campaign expenditures, coordinated expenditures and independent expenditures for advertisements made by the same person during the election cycle, exceeds one thousand dollars ($1,000),” to “ensure that the advertisement contains the name of the candidate, committee or other person who authorized and paid for the advertisement.”
B
RGF is a charitable organization pursuant to
The parties dispute the extent of RGF‘s concerns about the risks of donor disclosure. RGF fears that its members, supporters, and donors would be subject to harassment by “intolerant elements in society” due to the organization‘s controversial positions. Id. at 32. RGF‘s president, Paul Gessing, declared that he was personally aware of instances where donors to organizations with similar views were subject to retaliation and harassment, such as boycotts, online harassment, and social ostracism. Gessing also declared that donor disclosure requirements would lessen contribution from individuals, organizations, and corporations. He asserted that he knows of several donors who would not continue supporting RGF if it is subject to dоnor disclosure requirements.3
RGF filed a complaint against the Secretary in December 2019, and an amended complaint in February 2020, challenging the above disclosure and disclaimer requirements. In its amended complaint, RGF asserted that it hoped to send advertisements that would be subject to the amended CRA before the November 2020 general election. It requested injunctive and declaratory relief, claiming that requiring it to disclose its members and supporters violated its rights to free association and speech and that requiring it to register and disclose its sponsorship of issue advocacy also violated its free speech rights.
In August 2020, RGF moved for a preliminary injunction. The district court denied the motion, after which the parties proceeded to discovery. Both parties then filed cross-motions for summary judgment. Making a facial challenge to the amended CRA, RGF argued the disclosure and disclaimer requirements were unconstitutional. In its response and cross-motion, the Secretary argued that RGF lacked standing to bring a facial challenge because they were not injured by the challenged laws, alternatively arguing that the law withstands constitutional scrutiny.
The district court granted the Secretary‘s motion for summary judgment, determining RGF lacked Article III standing. RGF timely appealed and this court reversed in part, holding that RGF has standing to pursue its challenge to the disclosure requirement but lacks standing to pursue its challenge to the disclaimer requirement. Rio Grande Found. v. Oliver, 57 F.4th 1147, 1162, 1165 (10th Cir. 2023). We further concluded that the case was not moot because “determining the law‘s constitutionality would have a real effect on RGF.” Id. at 1165–66.
Following remand to the district court, both parties again filed cross-motions for summary judgment on the legality of the amended CRA‘s disclosure requirement. The district court denied RGF‘s motion while granting the Secretary‘s motion, reasoning that the disclosure requirements are substantially related and narrowly tailored to the governmental and public interest in knowing who is funding large election-related advertisements about a candidate or ballot measure shortly before an election.
RGF timely appeals, challenging the district court‘s interpretation of the CRA, as well as its decision to grant the Secretary summary judgment. We have jurisdiction over this appeal from
II
We review summary judgment decisions de novo and apply the same standard as the district court. Koel v. Citizens Med. Ctr., Inc., 128 F.4th 1329, 1333 (10th Cir. 2025). Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
When, as here, the parties filed cross motions for summary judgment, “we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes
RGF argues that the disclosure requirements under section 1-19-26(Q)(3)(c) are facially unconstitutional under a traditional facial analysis and an overbreadth analysis. For a traditional facial challenge to succeed, there must be no set of circumstances that exist under which the law would be valid, or the law must lack “a plainly legitimate sweep.” Americans for Prosperity Foundation v. Bonta, 594 U.S. 595, 615 (2021) (citation omitted). Facial challenges are disfavored, but we have said that they can best be understood as “a challenge to the terms of the [law], not hypothetical applications.” United States v. Supreme Court of New Mexico, 839 F.3d 888, 917 (10th Cir. 2016) (citation omitted). We do not “conjure up whether or not there is a hypotheticаl situation in which application of the [law] might be valid.” Id. (citation omitted). Likewise, in the First Amendment context, “a second type of facial challenge” has been recognized, “whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010) (internal quotation marks and citation omitted).
III
RGF‘s opposition to the amended CRA includes both a statutory construction argument and a constitutional challenge. We must first explore the meaning of the amended CRA and whether the district court erred in concluding that an advertisement that merely refers to a candidate or ballot question is made for a political purpose.4 We next examine whether the district court erred in granting the Secretary summary judgment, necessarily also concluding the amended CRA does not unlawfully violate RGF‘s First Amendment rights.
A
The district court concluded that an advertisement published and disseminated shortly before an election, that refers to a candidate or ballot question, has a political purpose under the amended CRA. Aplt. App. at 173. RGF contends that this interpretation of the statute is flawed, and both parties agree this is a threshold question that we must decide first because it frames the constitutional anаlysis. In other words, because RGF argues the CRA is overbroad in its application, we must consider the scope of the speech that it captures.
RGF focuses its challenge on section 1-19-26(Q)(3)(c),5 contending that advertisements covered under this subsection of the definition of an “independent expenditure” cannot have a political purpose because this subsection necessarily excludes the advertisements found in the preceding two subsections. That is, section (3)(c) advertisements do not include those that are expressly political advertisements (the advertisements that fall under section (3)(a)),
Moreover, RGF argues that section (3)(c) sweeps up too much speech, is overly broad, and fails to achieve its intended objective because the “only reasonable interpretation of [section (3)(c)] is that it applies to all [advertisements], regardless of purpose, that simply mention, but do not advocate and cannot reasonably be interpreted as advocating for or against а candidate or ballot initiative within [thirty] days before a primary and [sixty] days before a general election.” Op. Br. at 29. But RGF‘s argument5
misconstrues section (3)(c) and is contradicted by both the text of the CRA and binding precedents.
We start with the text of the CRA, which in section (3)(c) provides that an “independent expenditure” includes paid advertisements that “refer[] to a clearly identified candidate or ballot question and [are] published and disseminated” to New Mexico residents shortly before an election.
To interpret section (3)(c) we must look to the entire definition of “independent expenditure.” Resolution Trust Corp. v. Love, 36 F.3d 972, 976 (10th Cir. 1994). Again, RGF does not challenge sections (3)(a) and (b), but they are relevant to оur reading and interpretation of section (3)(c) because we must read this section in light of the statutory scheme as a whole. Seminole Nursing Home, Inc. v. Comm‘r of Internal Revenue, 12 F.4th 1150, 1156 (10th Cir. 2021) (internal citations omitted).
Section (3)(a) covers express advocacy advertisements, whereas section (3)(b) covers implied advocacy that “is susceptible to no other reasonable interpretation” than to have a political purpose (or the functional equivalent of express advocacy). But there could also be implied advocacy advertisements that could be reasonably interpreted as having or not having a political purpose. Even if the advertisement may not be an obvious or express attempt to influence New Mexico voters by telling them how to vote, its more subtle political purpose may lie beneath.
Perhaps unwittingly, RGF acknowledges this distinction in its reply brief. When discussing the definition of “political purpose,” it says the purpose can be demonstrated by “an [advertisement] that either expressly advocates for or against a candidate or ballot initiative or can reasonably be interpreted as advocating for or against a candidate or ballot initiative.” Reply Br. at 10. Exactly right. Section (3)(c) advertisements are those that could reasоnably be interpreted to advocate for or against a candidate or ballot initiative, even if they are susceptible to another reasonable interpretation of their purpose. But there is also more to the section (3)(c) definition that ensures that any such advertisements are published for a political purpose.
More fatal to RGF‘s statutory construction argument is that it puts a spotlight only on the first portion of section (3)(c) but ignores or reads out of the
The district court correctly observed “[t]he timing of the expenditures on [advertisements] shortly before an election indicate the political purpose of such [advertisements].” Aplt. App. at 173. Section (3)(c) only covers those advertisements that, within the relevant thirty-day time frame (before a primary election) or sixty-day time frame (before a general election), are “disseminated to the relevant electorate in New Mexico.”
Both the temporal and distribution components of section (3)(c), ignored by RGF, are constitutional guardrails that significantly increase the likеlihood that any speech covered by section 3(c) is made for a political purpose. Reading the entirety of the definition of “independent expenditure” together with the definition of “expenditure” as a payment made “for a political purpose,”
RGF also argues that its reading of section (3)(c) prevails because an independent expenditure is traditionally understood to be express or tacit political advocacy, citing Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 319 (2010). But RGF misinterprets Supreme Court precedent. In Citizens United, the Court held that disclosure requirements are not limited to expressly political speech or its functional equivalent. See id. at 369 (“[W]e reject Citizens United‘s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.“). That is because a disclosure law “is a lеss restrictive alternative to more comprehensive regulations of speech.” Id.
Citing Citizens for Responsible Gov‘t State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1194 (10th Cir. 2000), RGF insists that “the First Amendment shields communications that do not advocate the election or defeat of a candidate.” Op. Br. at 27. But if there is any tension between our decision in Davidson and Citizens United (decided ten years after Davidson), the latter prevails. In this case, we must and do faithfully apply Citizens United‘s rejection of the argument that only express advocacy, or its functional equivalent can be subject to disclosure requirements. See Citizens United, 558 U.S. at 369.
Although express and implicit political advocacy are protected by the First Amendment, this protection is not so absolute as to escape all state regulation. Independence Institute v. Williams, 812 F.3d 787, 791 (10th Cir. 2016) (Supreme Court precedent permits disclosure requirements for certain advertisements prior to an election even if they “make no obvious reference to a campaign.“).6 Applying this precedent
We agree with the district court that section (3)(c) properly carves out a third category of independent expenditures that are spent on
advertisements published for a political purpose. It is not as broad as RGF claims it to be. We again emphasize, however, that advertisements must be reasonably interpreted as advocacy (even if another reasonable mind would conclude otherwise) for those advertisements to properly fall within the purview of section (3)(c), whether through their timing or otherwise. Given this interpretation, we now move to RGF‘s constitutional challenge to the section (3)(c) of the CRA.
B
Given RGF‘s facial challenge, we must next decide whether section (3)(c) survives constitutional scrutiny.7 Neither party disputes that First Amendment rights are implicated by section (3)(c). Political speech is at the “highest rung of the hierarchy of First Amendment values.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (citation omitted). Also, the Supreme Court has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others.” Bonta, 594 U.S. at 606 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984)). The Court has explained that
“compelled disclosure of affiliation with groups engaged in advocacy” may constitute “a restraint on freedom of association” protected by the First Amendment. Id. (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)).
Exacting scrutiny “applies to First Amendment challenges to compelled disclosure.” Id. at 607; see also Citizens United, 558 U.S. at 366–67 (applying the exacting scrutiny standard to disclosure laws). Exacting scrutiny requires “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Id. (citation omitted).
To withstand exacting scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Id. (citation omitted). “Such scrutiny . . . is appropriate given the ‘deterrent effect on the exercise of First Amendment rights’ that arises as an ‘inevitable result of the government‘s conduct in requiring disclosure.‘” Id. (citation omitted). And although “exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the
1
We start with New Mexico’s interest in requiring disclosures of the donors who make qualifying independent expenditures. RGF concedes that there is an important governmental interest in the public knowing who is advocating for or against candidates and ballot questions. Op. Br. at 38. It nonetheless argues that advertisements under section (3)(c) do not advocate for or against candidates or ballot questions, so disclosures would tell “voters absolutely nothing.” Id. at 39. Which is to say, RGF contends that section (3)(c) only regulates speech that does not amount to election-related advocacy. But as we have already established, section (3)(c) covers only those advertisements that can reasonably be interpreted to have a political purpose. See
RGF publishes and disseminates to New Mexico voters a “Freedom Index,” which tracks New Mexico state legislators’ floor votes on bills important to RGF, and which RGF has described as a “report card.” Aplt. App. at 111. The Freedom Index gives numerical scores to each legislator. Legislators who supported legislation RGF deems favorable receive higher scores in green, while those who did not support this legislation receive lower scores in red.
At oral argument, RGF asserted that such color-coding is “meaningless.” Oral Arg. at 8:00–8:30. We cannot agree, and no New Mexico voter would be so easily fooled. There is no doubt that RGF intends for the “green” to signify a good or favorable candidate, while red signifies a bad or unfavorable candidate. After all, in this country we are hard-wired to know that green means go, and red means stop. The Freedom Index then combines the color coding with the numerical scores on a “report card,” which signal which legislators pass, and which legislators fail.8 The combination of the two, color-coding and a numerical “report card,” reflects an obvious intent by RGF to influence voters to vote for and against specific legislators.9
RGF attempts to create a parallel to McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), where the Supreme Court held that “Ohio’s informational interest [was] plainly insufficient to support the constitutionality of its disclosure requirement” because merely “providing voters with additional relevant information” is inadequate, and “in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the
The Secretary explains that the state has an informational interest in the disclosure of donors spending large amounts to fund advertisements covered by section (3)(c). See Wyoming Gun Owners v. Gray, 83 F.4th 1224, 1244 (10th Cir. 2023) (“The Supreme Court has long accepted the informational interest as an important one.“). In support, the Secretary again highlights the timing of such advertisements because they are published and disseminated shortly before elections. See Citizens United, 558 U.S. at 369 (“[T]he public has an interest in knowing who is speaking about a candidate shortly before an election.“); Gaspee Project v. Mederos, 13 F.4th 79, 93 (1st Cir. 2021) (“The fact that the [Citizens United] Court did not adopt the McIntyre framework in the election-law context speaks eloquently to its inapplicability.“). As discussed, independent expenditures under section (3)(c) are inherently made for a political purpose by their very definition. See
Importantly, in Independence Institute we explained that the “logic of Citizens United is that advertisements that mention a candidate shortly before an election are deemed sufficiently campaign-related to implicate the government’s interests in disclosure.” 812 F.3d at 796. We further noted that “the Court in Citizens United was nearly unanimous in applying . . . disclosure requirements both to Citizens United’s express advocacy and to [advertisements] that did not take a position on a candidacy.” Id.; see also Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) (“Given the Court’s analysis in Citizens United, and its holding that the government may impose disclosure requirements on speech, the position that disclosure requirements cannot constitutionally reach issue advocacy is unsupportable.“). Simply put, because we deem advertisements under section (3)(c) to be made for a political purpose, we have no trouble concluding that New Mexico has an important governmental interest to give the electorate useful information about who is paying for these advertisements.10
We next look to whether the Secretary has shown a substantial relаtionship between the CRA’s burden on speech and association and the interest described above. “[T]he strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 744 (2008)). The Secretary argues the government’s interest in disclosure is “critical,” and notes that several limitations were imposed in the amended CRA to tighten the regulation and ensure its relation to the important interest of New Mexico. Resp Br. at 34 (quoting Nat’l Assn. for Gun Rights, Inc. v. Mangan, 933 F.3d 1102, 1114 (9th Cir. 2019)).
Generally, requiring the disclosure of donor information related to advertisements intended to influence voters is important to the state’s “interest in promoting transparency and discouraging circumvention of its electioneering laws.” Mangan, 933 F.3d at 1114. RGF argues that the district court erred in “simply accept[ing]” the Secretary’s argument “because it applies to [advertisements] that mention a candidate or ballot initiative.” Op. Br. at 51. Here again, RGF’s argument is dependent upon its interpretation of the breadth of section (3)(c), which we reject. Rather, given the best textual interpretation of section (3)(c), the relationship between the state’s informational interest in election advocacy communications and the disclosures is somewhat self-evident.
Moreover, the Secretary correctly highlights the limitаtions placed on the CRA’s disclosure requirements. Expenditures that do not fall within certain monetary, temporal, and geographic ranges are not required to be disclosed. On top of this, the Secretary also highlights the CRA’s opt-out provision, which provides even more flexibility for potential donors. See
3
Lastly, we consider whether the CRA is narrowly tailored enough to withstand exacting scrutiny. RGF argues, again, that section (3)(c) “casts too wide a net and covers speech that is not relevant to the government’s informational interest.” Reply Br. at 25. It also contends that donors whose funds go to such advertisements will not “understand” the CRA’s opt-out provision or will require donors to “micromanage their donations.” Op. Br. at 46–47. Additionally, RGF argues that “social science shows that donor information is substantially less useful information for voters than party affiliation and major endorsements.” Id. at 55. These arguments fail to persuade us.
To demonstrate narrow tailoring, the Secretary must establish its need for the disclosure provisions in light of any less intrusive alternatives. Wyoming Gun Owners, 83 F.4th at 1247. The Secretary again points to the following: (1) temporal limitations, (2) monetary thresholds, (3)
RGF argues, and the dissent concludes, that this degree of narrow tailoring is insufficient to survive exacting scrutiny. The dissent proposes further limiting measures that New Mexico could have taken, dissent at 8, but “exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends[.]” Bonta, 594 U.S. at 608; see also McCutcheon v. Fed. Election Comm‘n, 572 U.S. 185, 218 (2014) (“[W]hen the Court is not applying strict scrutiny, we still require a fit that is not necessarily perfect, but reasonable[.]” (internal quotation marks omitted)).
The dissent states that (3)(c) advertisements do “not provide voters with quality information about who is commenting on a candidate or ballot question during election season” because it applies “even to general fund donors.” Dissent at 7. Additionally, the dissent concludes the CRA amounts to an overbroad inclusion of donors who do not support political advocacy but may donate to campaigns that “endeavor only to inform the electorate by disseminating information about candidates and ballot questions[.]” Id. at 9.
However, it is reasonable to infer that people who make larger donations to a political committee, such as RGF, are people who agree with its point of view and want to support its mission to promote that point of view to New Mexico’s citizens. Again, the purpose of (3)(c) is to notify the public who is financing a political advertisement prior to an election, which supports “the public’s interest ‘in knowing who is speaking about a candidate shortly before an election.’” Independence Institute, 812 F.3d at 796 (quoting Citizens United, 558 U.S. at 369).
Also, if the political committee’s endeavor is truly just to inform, then the advertisement would not have been made for a “political purpose” and would not count as an “independent expenditure.” See
By erecting guardrails and an opt-out, the CRA is narrowed to only capture larger expenditures that are express advocacy or made at a particular time and to a certain audience that make them the functional equivalent. RGF’s arguments about the wide net, donor confusion, and social science do not defeat the narrowness of the CRA’s structure. The CRA is properly, narrowly tailored and thus survives the application of exacting scrutiny.
As a final matter, RGF filed with the district court a declaration from its president, Paul Gessing, which generally describes how and why the CRA may chill potential donors who fear retaliation if they must disclose their contributions and associations. The district court analyzed the evidence of chilled speech when examining New Mexico’s informational interest in requiring disclosure. In other words, at the first analytical step during the application of exacting scrutiny.
RGF insists this was error because, relying on Bonta, it argues the burden of the chilled speech “outweighs the strength of the government’s interest only where a disclosure requirement has been found to be narrowly tailored.” Op. Br. at 56 (citing Bonta, 594 U.S. at 611, 617). In other words, a court must consider the burden only after it concludes that a disclosure law is narrowly tailored at the final step of the exacting scrutiny analysis. The Secretary disagrees and argues that Bonta “did not impose a particular order of operations,” and “the district court appropriately structured its opinion.” Resp. Br. at 35–36.
Bonta says, “that a reasonable assessment of the burdens imposed by disclosure should begin with an understanding of the extent to which the burdens are unnecessary, and that requires narrow tailoring.” 594 U.S. at 611. It thus implicitly invokes the government’s interest (after аll, if there is no interest then the burdens would be unnecessary) and it is the interest analysis which leads to a narrow tailoring requirement.
So far, we have assessed the CRA by putting the Secretary to the burden of demonstrating how the CRA withstands exacting scrutiny. But Bonta also discussed a potential burden on a plaintiff who brings a facial challenge to show “that donors to a substantial number of organizations will be subjected to harassment and reprisals.” Id. at 617. In this context, “plaintiffs may be required to bear this evidentiary burden where the challenged regime is narrowly tailored to an important government interest.” Id. (emphasis added).
This Bonta language is most certainly obiter dictum and responsive to an argument made by the dissent in that case. However, we are “bound by Supreme Court dicta almost as firmly as by the Courts’ outright holdings, particularly when the dicta is recent and not enfeebled by later statements.” Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015) (quoting United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007); Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008)).
Because we have found the CRA is narrowly tailored to an important government interest, RGF may be required to bear this evidentiary burden because it brings a facial challenge. And whether RGF’s evidence defeats New Mexico’s informational interest in requiring donor disclosure (as the district court analyzed) or otherwise dismantles our completed exacting scrutiny analysis is of no concern in this appeal. Either way, the district court was correct at some point to balance RGF’s evidence of chilled speech against the legislative interests invoked by the CRA.
More to the point, Gessing’s declaration does not establish a present harm to defeat the state’s informational interest, nor its narrowly-tailored disclosure law. Rather, his concerns were untethered from concrete facts that would permit a court to find “a reasonable probability that [the disclosure requirements] will subject them [donors] to threats, harassment, or reprisals.” Buckley v. Valeo, 424 U.S. 1, 74 (1976). Indeed, RGF admitted that it was not aware of any
IV
Because the Secretary has demonstrated a substantial relation between the CRA’s disclosure requirement and a sufficiently important governmental interest, as well as narrow tailoring, section (3)(c) withstands exacting scrutiny. Accordingly, we AFFIRM the district court’s order granting summary judgment to the Secretary and denying summary judgment for RGF.12
24-2070, Rio Grande Foundation v. Oliver
HARTZ, J., concurring
I join the opinion of Judge Federico in full because I believe it properly follows controlling precedent. I write separately, however, because I am uncomfortable with the scope of that precedent.
It seems to me that the infringements on free speech imposed by disclosure requirements for expenditures in support of or opposed to ballot initiatives are not only unjustified but are harmful to the public interest. The “reason” to require disclosure is presumably to inform the electorate of who supports or opposes the initiative so that voters can make a better choice. As one circuit court has put it, “[T]he relevant informational goal is to inform voters as to who backs or opposes a given initiative financially, so that the voters will have a pretty good idea of who stands to benefit from the legislation.” Canyon Ferry Baptist Church v. Unsworth, 556 F.3d 1021, 1033 (9th Cir. 2009) (internal quotation marks omitted).
But experience demonstrates that the most likely effect of disclosures is to facilitate ad hominem arguments. As the Supreme Court recognized 30 years ago when it protected anonymous leafleting regarding a proposed tax levy: “Anonymity . . . provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her mеssage simply because they do not like its proponent.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995).
Why else did the authors of the Federalist Papers publish anonymously? Each of the authors would have brought some baggage to the debate. They preferred that voters address their arguments on the merits. Yet despite nondisclosure of the authors’ identities, the nation somehow has survived. Again quoting McIntyre:
Don‘t underestimate the common man [or woman]. People are intelligent enough to evaluate the source of anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is responsible, what is valuable, and what is truth.
514 U.S. at 348 n.11 (internal quotation marks omitted).
Anyone who is distressed by the political discourse in this country, which often amounts to no more than identifying which public figures support (or oppose) a proposition and choosing sides accordingly, may wish to reconsider the wisdom of laws mandating disclosure of expenditures on ballot initiatives.
No. 24-2070, Rio Grande Foundation v. Oliver
EID, J., dissenting.
Under New Mexico’s Campaign Reporting Act (the “CRA“), political committees must disclose the names and addresses of certain donors if the funds from those donors are used to pay for advertisements that mention a candidate or ballot question in the weeks preceding an election. See
Viewing the CRA through rose-colored glasses, the majority concludes that Section (3)(c) satisfies the stringent “exacting” scrutiny standard set forth in Americans for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021). I disagree. In my view, Section (3)(c) fails at the narrow-tailoring step of the analysis because it casts too wide a net: It unnecessarily burdens core political speech, ignores serious concerns of retaliation against donors, and disproportionately harms those who hold unpopular beliefs. This far exceeds the bounds of permissible First Amendment regulation and overlooks less restrictive alternatives for furthering the government’s interеst in informing the electorate. I respectfully dissent.
I.
The First Amendment prohibits the government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”
These real-world effects undoubtedly chill speech by disincentivizing political activity that would trigger disclosure requirements.2 To account for the seriousness of these burdens, the Supreme Court has instructed us to review disclosure requirements under “exacting” scrutiny.3 See Citizens United, 558 U.S. at 366. The government bears the burden to show that a disclosure regime survives exacting scrutiny. Wyo. Gun Owners v. Gray, 83 F.4th 1224, 1247 (10th Cir. 2023). “If the government fails to make that showing, it cannot prevail.” Id. (quotation omitted).
Understanding—and then applying—any level of First Amendment scrutiny is
Although the addition of a narrow-tailoring requirement does not dissolve the doctrinal haze, one thing is certain: Narrow tailoring gives the exacting scrutiny standard “real teeth.” Id. at 622 (Alito, J., concurring in part and concurring in the judgment). Accordingly, we must be vigilant in ensuring that disclosure laws not only advance an important interest, but are also “proportion[ate] to the interest served.” Id. at 609 (quotation omitted). Our thorough review is essential “where First Amendment activity is chilled—even if indirectly—‘because First Amendment freedoms need breathing space to survive.’” Id. (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)).
II.
Applying these principles here, Section (3)(c) cannot withstand exacting scrutiny. Even assuming the disclosure requirement for Section (3)(c) advertisements bears a substantial relation to a sufficiently important informational interest, New Mexico has not shown the disclosure requirement is narrowly tailored to that interest. Accordingly, I would conclude that Section (3)(c) is facially unconstitutional.5
At the outset, I recognize that New Mexico has taken at least some measures to tailor its disclosure laws to serve the public’s informational interest. For example, Section (3)(c) includes temporal limitations: Disclosure is required only where the advertisement is disseminated “to the relevant electorate [ ] within thirty days before the primary election or sixty days before the general election at which the candidate or question is on the ballot.”
But the narrow-tailoring inquiry does not ask whether the government has “made some effort” to limit the scope of a disclosure regime. Our precedents demand more: As explained, government regulation of First Amendment rights must be “proportion[ate] to the interest served.” Ams. for Prosperity Found., 594 U.S. at 609 (quotation omitted); id. (“In the First Amendment context, fit matters.” (quotation omitted)); see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348 (1995) (“The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit.“). Further, “[b]eyond proving a balanced relationship between the disclosure scheme’s burdens and the government’s interests, the government must ‘demonstrate its need’ for the disclosure regime ‘in light of any less intrusive alternatives.’” Wyo. Gun Owners, 83 F.4th at 1247 (quoting Ams. for Prosperity Found., 594 U.S. at 614). And here, even accounting for New Mexico’s tailoring efforts, there is a “dynamic mismatch” between the informational interest and “the disclosure regime that [New Mexico] has implemented in service of that end.” Ams. for Prosperity Found., 594 U.S. at 612.
To begin, the disclosure requirement for advertisements under Section (3)(c) does not provide voters with quality information about who is commenting on a candidate or ballot question during election season. Section (3)(c) applies even to general-fund donors—many of whom support “the totality of [an] organization’s activities,” but may not endorse a specific advertisement. Aplt. Br. at 45. Yet the CRA subjects these donors to the same disclosure requirements as those who directly fund a specific advertisement. And because the CRA draws no distinctions, the electorate has no way to differentiate between general and specific donors.
This result does not comport with New Mexico’s interest in informing the electorate. Consider a situation where an organization spends $5,000 on an advertisement during election season that merely describes, in simple terms, a ballot question. If a single donor contributed $4,500 with instructions to produce the Sеction (3)(c) advertisement, and twenty other donors each contributed $5,000 to the organization’s general fund during election season, the CRA would require the organization to disclose for publication the names and addresses of all twenty-one donors, as well as the amounts of their contributions. A member of the electorate who wishes to identify the source of the message could not differentiate between the twenty-one names; by numbers alone, she would overestimate the influence of the twenty donors and underestimate the influence of the single donor on the advertisement.6
This mismatch casts doubt on New Mexico’s claim that the regime is narrowly tailored to serve the state’s interest in informing the electorate. But perhaps
New Mexico does not explain why this alternative—which not only burdens less speech, but also “better serves the state’s informational interest,” id.—is beyond its reach.7 Although we do not categorically require legislatures to include an earmarking provision to survive narrow tailoring in the disclosure context, see id. at 1249 n.8, New Mexico’s other efforts at tailoring the CRA fall short.
The opt-out provisions, for example, cannot save the disclosure requirement for Section (3)(c) advertisements. Indeed, because some organizations do not use their funds for express advocacy or its functional equivalent (and instead endeavor only to inform the electorate by disseminating information about candidates and ballot questions), donors may not understand the need to opt out of advertisements they do not recognize as advocacy.8 See generally Button, 371 U.S. at 438 (“Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.“); Wyo. Gun Owners, 83 F.4th at 1247 (concluding a Wyoming statute’s disclosure regime was not narrowly tailored in part because it “burden[ed] an advocacy group with muddling through ambiguous statutory text that fails to offer guidance on compliance“). And though the monetary thresholds and timing requirements tighten the scope of the disclosure requirement for advertisements under Section (3)(c), they do not “‘demonstrate [New Mexico’s] need’ for the disclosure regime ‘in light of [the] less intrusive alternative[]’” of an earmarking system. Wyo. Gun Owners, 83 F.4th at 1247 (quoting Ams. for Prosperity Found., 594 U.S. at 614).
The lack of tailoring to New Mexico’s informational interest “is categorical—present in every case,” Ams. for Prosperity Found., 594 U.S. at 615—as are the severe burdens Section (3)(c) places on associational freedom, see Ward v. Thompson, 2022 WL 14955000, at *3 (9th Cir. Oct. 22, 2022) (unpublished) (Ikuta, J., dissenting) (“As Americans for Prosperity Foundation made clear, whenever the government compels disclosure of members’ identities, it burdens the First Amendment right of expressive association.“). See supra pp. 1–3. Accordingly, I would hold that
III.
“The government may regulate in the First Amendment area only with narrow specificity, and compelled disclosure regimes are no exception.” Ams. for Prosperity Found., 594 U.S. at 610 (citation modified). The disclosure requirement for Section (3)(c) advertisements blatantly contradicts this directive: It does not comport with New Mexico’s interest in informing the electorate; it unnecessarily burdens core political speech; and it disproportionately harms those who hold unpopular beliefs. The majority’s сontrary conclusion is irreconcilable with the Supreme Court’s recent imposition of a narrow-tailoring requirement. I respectfully dissent.