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National Association for Gun Rights, Inc. v. Mangan

United States Court of Appeals, Ninth Circuit

August 12, 2019

National Association for Gun Rights, Inc., Plaintiff-Appellant,
v.
Jeff Mangan, in his official capacity as the Commissioner of Political Practices for the State of Montana; Timothy G. Fox, in his official capacity as Attorney General for the State of Montana; Leo J. Gallagher, in his official capacity as County Attorney for the County of Lewis and Clark, Defendants-Appellees.

          Argued and Submitted March 5, 2019 Portland, Oregon

          Appeal from the United States District Court No. 6:16-cv-00023-DLC for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

          David Warrington (argued), Kutak Rock LLP, Washington, D.C.; Matthew G. Monforton, Monforton Law Offices PLLC, Bozeman, Montana; for Plaintiff-Appellant.

          Jere Stuart Segrest (argued) and Matthew T. Cochenour, Assistant Attorneys General; Timothy Fox, Attorney General; Office of the Attorney General, Helena, Montana; for Defendants-Appellees.

          Randy Elf, Lakewood, New York, as Amicus Curiae.

          Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim, [*] District Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed in part and reversed in part the district court's summary judgment in favor of Montana defendants in an action brought by the National Association of Gun Rights, a non-profit advocacy group, challenging Montana's electioneering disclosure laws on First Amendment grounds.

         Under Montana law, an organization that makes an expenditure of more than $250 on a single electioneering communication must register as a political committee, subject to certain organizational and disclosure requirements. An electioneering communication is, in part, a paid communication made within 60 days of the initiation of voting in an election, that can be received by more than 100 recipients in a voting district and that refers to candidates, political parties or ballot issues. Mont. Code Ann. § 13-1-101(16). Plaintiff filed suit asserting that the State's definition of electioneering communication was both facially overbroad in violation of the First Amendment and unconstitutional as applied to plaintiff. Plaintiff alleged that the First Amendment permits states to require disclosure only of express advocacy and its functional equivalent. Plaintiff asserted that because its proposed mailers did not specifically advocate for or against a specific candidate, but just provided information about a candidate's position on Second Amendment issues, plaintiff could not constitutionally be required to comply with Montana's disclosure requirements.

         The panel held that the First Amendment does not limit states' election disclosure requirements solely to regulating express advocacy. The panel reasoned that requiring disclosure of information related to subtle and indirect communications likely to influence voters' votes was critical to the State's interest in promoting transparency and discouraging circumvention of its electioneering laws. Applying exacting scrutiny, the panel held that like the disclosure provisions that were approved in Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) and Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015), most of Montana's disclosure and related requirements were substantially related to important governmental interests connected with informing the electorate.

         The panel held that only Montana's requirement pursuant to §§ 13-37-203, that organizations designate a treasurer registered to vote in Montana, was constitutionally infirm. The panel held that the registered-Montana-voter requirement was not substantially related to any important governmental interest. The panel also held, however, that the registered-voter provision was severable from the rest of the Montana disclosure regime, which could remain in force. The panel therefore affirmed the district court's summary judgment in favor of Montana except with respect to the treasurer provision.

          OPINION

          BERZON, CIRCUIT JUDGE.

         The National Association of Gun Rights ("NAGR" or "the Association"), a non-profit advocacy group, challenges Montana's electioneering disclosure laws on First Amendment grounds. This appeal treads on familiar territory. In Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) ("HLW"), we upheld the State of Washington's disclosure regime, and in Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015), we rejected challenges to a similar regime in Hawaii. Montana's disclosure regulations closely resemble those of these other states.

         Like the disclosure provisions we approved in HLW and Yamada, most of Montana's disclosure and related requirements are substantially related to important governmental interests connected with informing the electorate. Only Montana's requirement that organizations designate a treasurer registered to vote in Montana is constitutionally infirm. We therefore affirm the district court's summary judgment in favor of Montana except with respect to that provision.

         I

         A

         NAGR is a tax-exempt non-profit organization under 26 U.S.C. § 501(c)(4); its principal place of business is in Colorado. NAGR's articulated mission is to "defend the right to keep and bear arms, and advance that God-given Constitutional right by educating the American people and urging them to action in the public policy process." NAGR reports that it has approximately 36, 000 members and supporters in Montana and 4.5 million members nationwide. To retain its federal tax status, NAGR cannot engage in "direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office." 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii).

         As part of its mission, NAGR seeks to "let[] the public know where legislators and governmental officials stand on issues related to the Second Amendment." "[D]uring [the 2020] election cycle," NAGR intends "to mail educational literature to Montanans . . . describing which public officials have supported the rights of citizens to keep and bear arms and engage in lawful self-defense, as well as those who have not done so."[1] NAGR represents that its proposed future mailer would cost more than $250 to distribute. The Association does not intend to distribute the literature, however, if the literature would be deemed an "electioneering communication," subjecting the organization to disclosure requirements under Montana law.

         B

         In 2015, the Montana State Legislature enacted S.B. 289 ("the Statute"), covering a category of speech, denominated "electioneering communications," with the purpose of "increasing transparency, informing Montanans about who is behind the messages vying for their attention, and decreasing circumvention" of campaign finance laws. The Statute defines "electioneering communication" as follows:

(a) "Electioneering communication" means a paid communication that is publicly distributed by radio, television, cable, satellite, internet website, newspaper, periodical, billboard, mail, or any other distribution of printed materials, that is made within 60 days of the initiation of voting in an election, that does not support or oppose a candidate or ballot issue, that can be received by more than 100 recipients in the district voting on the candidate or ballot issue, and that:
(i) refers to one or more clearly identified candidates in that election;
(ii) depicts the name, image, likeness, or voice of one or more clearly identified candidates in that election; or
(iii) refers to a political party, ballot issue, or other question submitted to the voters in that election.
(b) The term does not mean:
(i) a bona fide news story, commentary, blog, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, internet website, or other periodical publication of general circulation unless the facilities are owned or controlled by a candidate or political committee;
(ii) a communication by any membership organization or corporation to its members, stockholders, or employees;
(iii) a commercial communication that depicts a candidate's name, image, likeness, or voice only in the candidate's capacity as owner, operator, or employee of a business that existed prior to the candidacy;
(iv) a communication that constitutes a candidate debate or forum or that solely promotes a candidate debate or forum and is made by or on behalf of the person sponsoring the debate or forum; or
(v) a communication that the commissioner determines by rule is not an electioneering communication.

Mont. Code Ann. § 13-1-101(16).[2]

         An organization that makes an expenditure of more than $250 on a single electioneering communication must register as a "political committee."[3] Section 13-1-101(31)(a) defines "political committee" as:

[A] combination of two or more individuals or a person other than an individual who receives a contribution or makes an expenditure:
(i) to support or oppose a candidate or a committee organized to support or oppose a candidate or a petition for nomination;
(ii) to support or oppose a ballot issue or a committee organized to support or oppose a ballot issue; or
(iii) to prepare or disseminate an election communication, an electioneering communication, or an independent expenditure.

         Political committees ordinarily must abide by certain organizational requirements.[4] All such organizations must file a registration form with the Commissioner of Political Practices containing an organizational statement and the names and addresses of all officers, § 13-37-201(2)(b); appoint a treasurer registered to vote in Montana, §§ 13-37-201(1), -203; deposit all contributions received and expenditures to be disbursed into a bank authorized to transact business in Montana, § 13-37-205; abide by certain depository requirements, § 13-37-207; and keep up-to-date records of contributions and expenditures, § 13-37-208.

         In addition to meeting these organizational requirements, political committees are subject to disclosure requirements depending on their level of political activity. Montana law distinguishes among several types of political committees, § 13-1-101(31)(b), two of which are relevant to this ...


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