Human Life of Washington Inc v. Brumsickle et al, No. 2:2008cv00590 - Document 82 (W.D. Wash. 2009)

Court Description: ORDER denying 66 67 Plaintiff's Motion for Summary Judgment by Judge John C Coughenour.(MD)

Download PDF

Human Life of Washington Inc v. Brumsickle et al Doc. 82 The Honorable John C. Coughenour 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 HUMAN LIFE OF WASHINGTON, INC., 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case No. C08-0590-JCC Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. CHAIR BILL BRUMSICKLE, VICE CHAIR KEN SCHELLBERG, SECRETARY DAVE SEABROOK, JANE NOLAND, AND JIM CLEMENTS, in their official capacities as officers and members of the Washington State Public Disclosure Commission, ROB MCKENNA, in his official capacity as Washington Attorney General, and DAN SATTERBERG, in his official capacity as King County Prosecuting Attorney, Defendants. This matter comes before the Court on Plaintiff’s Motion for Summary Judgment (Dkt. Nos. 66, 67), the State Defendants’ Response (Dkt. No. 70), and Plaintiff’s Reply (Dkt. No. 78). Having considered the parties’ briefing and supporting documentation, the Court has determined that oral argument is unnecessary and hereby finds and rules as follows. 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 1 Dockets.Justia.com 1 I. BACKGROUND 2 A. 3 In 1972, Washington voters passed Initiative Measure No. 276, which established the Washington State Disclosure Requirements 4 state’s Public Disclosure Commission (“PDC”) and laid the framework for Washington’s 5 campaign finance laws. Washington Revised Code § 42.17.010 states the public policy behind 6 the statutory framework, including: 7 8 9 10 (1) That political campaign . . . contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided. .... (10) That the public’s right to know of the financing of political campaigns . . . far outweighs any right that these matters remain secret and private. 11 Id. The policy declaration directs that the measure’s provisions “be liberally construed to 12 promote complete disclosure of all information respecting the financing of political campaigns 13 . . . so as to assure continuing public confidence of fairness of elections . . . and so as to assure 14 that the public interest will be fully protected.” Id. 15 The state’s current statutory framework contains special registration and disclosure 16 requirements for “political committees.” A “political committee” is defined as “any person 17 (except a candidate or an individual dealing with his or her own funds or property) having the 18 expectation of receiving contributions or making expenditures in support of, or opposition to, 19 any candidate or any ballot proposition.” WASH. REV. CODE § 42.17.020(39). This definition 20 contains two alternative prongs: an organization can qualify based on an expectation of 21 “receiving contributions” or an expectation of “making expenditures.” Evergreen Freedom 22 Found. v. Wash. Educ. Ass’n (EFF), 49 P.3d 894, 902–03 (Wash. Ct. App. 2002). However, 23 each of these prongs has been substantially narrowed through judicial construction. 24 Washington state courts have held that an organization will only qualify as a “political 25 committee” based on an expectation of receiving political contributions if its contributors have 26 “actual or constructive knowledge” that their funds will be used for electoral political activity. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 2 1 See id. at 905.1 To qualify as a “political committee” based on an expectation of making 2 political expenditures, an organization must have as “its primary or one of its primary 3 purposes” to support or oppose political campaigns. See id. at 903 (internal quotation omitted). 4 If a group qualifies as a “political committee,” it must appoint a treasurer and establish 5 a bank account in the state, WASH. REV. CODE § 42.17.050, .060, and must file a “statement of 6 organization” with the PDC disclosing the names of its officers and any related or affiliated 7 committees or persons, the candidate or ballot proposition that the committee is supporting or 8 opposing, and other information regarding the committee’s structure, id. § 42.17.040. If the 9 committee intends to raise and spend more than $5,000 in a calendar year or if it intends to 10 raise more than $500 from any one contributor (see Rippie Decl. ¶ 43 (Dkt No. 47 at 22)), that 11 committee must make regular reports disclosing, among other things, (1) its funds on hand; (2) 12 the value of any contributions received and the names and addresses of the contributors; and 13 (3) the amounts of any expenditures, the recipients of those expenditures, and the intended 14 purpose. WASH. REV. CODE § 42.17.080, 42.17.090. 15 Groups that do not qualify as “political committees” must still disclose certain political 16 expenditures. Washington Revised Code § 42.17.100 defines an “independent expenditure” as 17 “any expenditure that is made in support of or in opposition to any candidate or ballot 18 proposition” and is not already required to be disclosed under the rules governing political 19 committees. Id. § 42.17.100(1). If any entity incurs more than one hundred dollars of 20 “independent expenditures” in a single campaign or makes an independent expenditure whose 21 value cannot reasonably be estimated, the entity must report the values and recipients of the 22 23 24 25 26 1 For example, an organization becomes a “political committee” under this prong if it solicits contributions for a political purpose, if it segregates funds for political purposes, if its organizational documents indicate that it expects to receive political contributions and it has taken steps to implement that expectation, or if it self-identifies to the PDC as a “political committee.” (Rippie Decl. ¶ 35 (Dkt. No. 47 at 18).) ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 3 1 expenditures to the PDC within five days and must thereafter report any additional independent 2 expenditures for the remainder of the campaign in question. See id. § 42.17.100(2)–(4). 3 Washington’s statutory framework also contains special requirements for “political 4 advertising,” defined to include “any advertising displays, newspaper ads, billboards, signs, 5 brochures, articles, tabloids, flyers, letters, radio or television presentations, or other means of 6 mass communication, used for the purpose of appealing, directly or indirectly, for votes or for 7 financial or other support or opposition in any election campaign.” Id. § 42.17.020(38). All 8 radio and television political advertising must include its sponsor’s name; all written political 9 advertising must include its sponsor’s name and address; and all political advertising that 10 constitutes an independent expenditure must explain that it was not authorized by a candidate 11 and, if sponsored by an organization, must identify the organization’s top five contributors. Id. 12 § 42.17.510; see also WASH. ADMIN. CODE § 390-18-010. If political advertising “supporting 13 or opposing a candidate or ballot initiative” is presented to the public within twenty-one days 14 of the election and costs more than one thousand dollars, its sponsor must report the 15 expenditure to the PDC within twenty-four hours of the presentation. Id. § 42.17.103. 16 Finally, Washington Administrative Code § 390-16-206 explains when a “rating, 17 evaluation, endorsement or recommendation for or against a candidate or ballot proposition” 18 must be treated as a reportable expenditure. News media items, features, commentaries, 19 editorials, letters to the editor, and replies thereto, are not considered expenditures and need not 20 be reported as such. WASH. ADMIN. CODE § 390-16-206(1), 390-16-313(2)(b), 390-05-290; 21 WASH. REV. CODE § 42.17.020(15)(b)(iv), (21)(c). In all other cases, if and only if an entity 22 makes a “measurable expenditure of funds to communicate” a rating, evaluation, endorsement, 23 or recommendation, the entity must report it as an expenditure according to the general 24 reporting provisions of Washington Revised Code chapter 42.17 outlined above. WASH. 25 ADMIN. CODE § 390-16-206(1). 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 4 1 B. 2 Human Life of Washington (“Plaintiff” or “HLW”) is a nonprofit organization Human Life of Washington and Initiative I-1000 3 incorporated in Washington State. (Compl. ¶ 13 (Dkt. No. 1 at 4).) HLW’s “mission is to 4 reestablish throughout our culture, the recognition that all beings of human origin are persons 5 endowed with intrinsic dignity and the inalienable right to life from conception to natural 6 death.” (Id.) In 1980, HLW created the Human Life Political Action Committee (“HLPAC”), 7 “a political committee connected to Human Life” that would “participate directly in the 8 endorsement of and assistance to, both financially and through campaign involvement, 9 individual candidates running for office.” (Krier Decl. Exh. A-1 (Dkt. No. 74 at 6).) HLPAC 10 has, at various times, registered with the PDC as a “political committee,” (Parker Decl. ¶ 11 11 (Dkt. No. 53 at 9:4)), and has filed required disclosure reports with the PDC, (id. ¶ 7). 12 In 1991, Washington voters considered Initiative 119, which would have amended the 13 state constitution to legalize physician-assisted suicide. (Compl. ¶ 18 (Dkt. No. 1 at 5–6).) In 14 that campaign, HLPAC appears to have made numerous direct expenditures to oppose the 15 Initiative, and HLW itself also made contributions to several other political committees in 16 opposition. (Parker Decl. ¶ 8 (Dkt. No. 53 at 4–5).) The Initiative was ultimately defeated. 17 In 2008, Washington voters considered a similar ballot initiative, I-1000, which 18 proposed to “permit terminally ill, competent, adult Washington residents medically predicted 19 to die within six months, to request and self-administer lethal medication prescribed by a 20 physician.” (Compl. ¶ 20 (Dkt. No. 1 at 6–7).) HLPAC explicitly opposed I-1000. See Press 21 Release, Human Life PAC, HL PAC Endorsements (July 2008), available at 22 http://humanlife.net/view_reports.htm?rpid=31 (last visited Oct. 24, 2008). The initiative 23 appeared on the November 4, 2008 ballot and was passed. 24 HLW brought this lawsuit in April 2008, before I-1000 had officially qualified for the 25 ballot, against the five members of the PDC, Washington State’s attorney general, and King 26 County’s prosecuting attorney. (Compl. 1 (Dkt. No. 1).) In the complaint, HLW alleged that it ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 5 1 wished to engage in “issue advocacy” concerning physician-assisted suicide. (Id. ¶ 1.) 2 “Because Physician-assisted suicide is now especially in the public awareness and debate [in 3 light of I-1000], people will be particularly receptive to arguments about the physician-assisted 4 suicide issue, making 2008 an important time for HLW to advocate concerning prolife issues.” 5 (Id. ¶ 21.) Although the timing of HLW’s advocacy was meant to coincide with the I-1000 6 campaign, it allegedly would not explicitly oppose the initiative. (Id. ¶¶ 27–29.) 7 In the complaint, HLW proposed three specific avenues of advocacy that it intended to 8 pursue. (Id. ¶¶ 22–25.) First, the complaint attached an “issue-advocacy fundraising letter” that 9 HLW intended to post on its website and mail or e-mail to a list of potential donors. (Id. ¶ 22.) 10 11 12 13 The letter provides: The assisted suicide issue just won’t go away. But neither will we. We are here to argue the prolife side on your behalf. However, as this grisly issue heats up again in 2008, Human Life of Washington needs your help to pay for some radio ads to educate the public. (Fundraising Letter at 1 (Dkt. No. 1 at 22).) The letter explicitly references Initiative 119 14 before stating that “[n]ow, while their minds are focused on the issue, is the opportune time to 15 educate [the people of Washington] on the dangers of assisted suicide—and on the value of 16 every life.” (Id.) The letter alleges several statistics and anecdotes about Oregon’s use of 17 physician-assisted suicide and then states that “The public needs to receive this sort of 18 information as assisted suicide advocates once again offer biased, inaccurate, and rosy 19 depictions of this grisly practice.” (Id.) Finally, the letter requests that donors send funds to 20 help support HLW’s advocacy efforts. (Id.) 21 Second, the complaint describes a “telephone fundraising script” that HLW intended to 22 use to solicit donors over the phone. (Compl. ¶ 23 (Dkt. No. 1 at 7).) After introducing 23 themselves as a representative from HLW, the caller would state: 24 25 26 Right now we are trying to reach every pro-life household in Washington with an urgent update. As you’ve probably heard, former Governor Booth Gardner is trying to get an initiative on the ballot this fall that would legalize physicianassisted suicide in the State of Washington. We fear that many Washingtonians ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 6 1 do not know the grisly facts about physician-assisted suicide and its devastating effect on the culture of life. 2 We need your help at this critical time to get the truth out. . . . 3 .... 4 We must protect the most vulnerable citizens of our state and we must ensure that patients can trust physicians. Physicians are to be care givers, not life takers. That is why we’re pleading for your help. 5 6 (Telephone Script (Dkt No. 1 at 24).) Third, the complaint includes the scripts of four hypothetical radio ads that HLW 7 8 intended to broadcast. (Compl. ¶ 24 (Dkt. No. 1 at 7).) One of the ads is entitled “Settled,” and 9 is a dialogue between a male and a female speaker: 10 M: F: M: F: M: F: M: Assisted suicide is back in the news! Didn’t we settle that issue? We rejected a ballot measure. Has anything changed? We know more about the dangers. Such as? A new study said one doctor did 23 of the 28 assisted suicides at an Oregon hospice. F: Sounds like a Kevorkian! M: And it said one man seemed rushed into it . . . then took hours to die after the drugs. Wife left . . . couldn’t take it . . . so depressed that she attempted suicide. F: All reasons not to reconsider the issue. Narrator: Paid for by Human Life of Washington. 11 12 13 14 15 16 17 18 (HLW Ads (Dkt. No. 1 at 25) (emphasis in original).) Another ad is entitled “Trust”: 19 F: M: Whatever happened to the Hippocratic Oath? You mean the part that says, “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect?” F: Exactly. It was a quantum leap in medicine when you knew that you could always trust your doctor. Before that, who knew whether he’d been hired by a family member to hurry up the inheritance? M: That trust is the foundation of medicine. F: Assisted suicide removes it . . . turns doctors into killers. That’s dangerous. Narrator: Paid for by Human Life of Washington. 20 21 22 23 24 25 (Id.) 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 7 1 The specific examples provided in the complaint were not intended to be exclusive; 2 rather, HLW allegedly intended to do “these and substantially-similar fundraising and public 3 communications in support of its Physician-assisted suicide issue advocacy in 2008.” (Compl. 4 ¶ 25 (Dkt. No. 1 at 7–8).) The complaint explained that the “substantially similar” fundraising 5 and communications had not yet been created and would vary as the public debate on the issue 6 evolved. (Id.) 7 HLW argues that it has a constitutional right to engage in this sort of “issue advocacy” 8 without submitting to Washington State’s disclosure requirements. (Id. ¶ 38.) HLW claims to 9 reasonably fear that the PDC would consider HLW to be a “political committee” under 10 Washington Revised Code § 42.17.020(39) if it undertook its proposed actions, or would 11 consider the individual actions themselves to be “independent expenditures” under Washington 12 Revised Code § 42.17.100, “political advertising” under § 42.17.020(38), or “rating[s], 13 evaluation[s], endorsement[s], or recommendation[s] for or against . . . a ballot measure” under 14 Washington Administrative Code § 390-16-206. (Id. ¶¶ 34–37.) Because any such 15 determinations by the PDC would subject HLW to disclosure requirements under Washington 16 State law and civil penalties for noncompliance, HLW claims that it is chilled from engaging in 17 protected First Amendment activities as a result of the State’s campaign finance laws. (Id. 18 ¶ 38.) 19 On April 18, 2008, HLW moved for a preliminary injunction to prohibit enforcement of 20 Washington State’s reporting and disclosure requirements, both facially and as applied to 21 Plaintiff and its proposed “issue advocacy.” (Dkt. No. 8.) The Court held that HLW had 22 standing to bring its claims (Prelim. Inj. Order at 3–5 (Dkt. No. 59)); however, it ultimately 23 denied the motion, finding that Plaintiff had failed to establish a probable likelihood of success 24 on the merits and that the interests of the State and the public outweighed the potential harm to 25 HLW, (id. at 5–9). 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 8 1 HLW now moves for summary judgment, claiming that “[t]here are no material facts in 2 dispute1 and HLW is entitled to judgment as a matter of law.” (Mot. 1 (Dkt. No. 67).) 3 II. DISCUSSION 4 A. 5 Under Federal Rule of Civil Procedure 56(c), the Court shall grant summary judgment Legal Standard 6 “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that 7 there is no genuine issue as to any material fact and that the movant is entitled to judgment as a 8 matter of law.” FED. R. CIV. P. 56(c). “In determining whether summary judgment is 9 appropriate, we view the facts in the light most favorable to the non-moving party and draw 10 reasonable inferences in favor of that party.” Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 11 784 (9th Cir. 2007). 12 B. 13 14 Justiciability 1. Ripeness and Standing Defendants first argue that “HLW has failed to state facts of sufficient specificity to 15 demonstrate an actual controversy,” (Response 12 (Dkt. No. 70)), as required under the 16 constitutional doctrines of ripeness and standing. See Thomas v. Anchorage Equal Rights 17 Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (“Whether the question is viewed as one of 18 standing or ripeness, the Constitution mandates that prior to our exercise of jurisdiction there 19 exist a constitutional ‘case or controversy,’ that the issues presented are definite and concrete, 20 21 22 23 24 25 26 1 HLW’s motion provides only cursory facts and instead sets forth its factual allegations in a separately-filed Statement of Material Undisputed Facts. (Dkt. No. 68). Defendants argue that the Statement of Material Undisputed Facts should be struck “[b]ecause this pleading is not among those authorized by Fed. R. Civ. P. 7 and Local Rule 7, and because this Court’s July 15 Minute Order (Dkt. No. 65) did not allow any overlength briefs.” (Response 2 (Dkt. No. 70).) The Court agrees, and hereby STRIKES Plaintiff’s Statement of Material Undisputed Facts. However, because the facts contained in this document were, for the most part, all presented in Plaintiff’s Verified Complaint, (Reply 1 (Dkt. No. 78) (noting that the Statement of Material Undisputed Facts merely “stat[es] in convenient form the facts from the Verified Complaint.”)), the Court’s summary judgment analysis is unaffected. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 9 1 not hypothetical or abstract.” (internal quotation omitted)). Defendants claim that HLW has not 2 specified with sufficient certainty the advocacy actions that it intended to take. (Response 11– 3 12 (Dkt. No. 70).) They note that the Complaint, after describing specific fundraising and 4 advertising scripts, states only that “HLW intends to do these and substantially-similar 5 fundraising and public communications.” (Compl. ¶ 25 (Dkt. No. 1 at 7–8) (emphasis added).) 6 They point to deposition testimony by HLW’s CEO that the organization was “not tied to those 7 four specific [advertising] scripts.” (Kennedy Dep.. 92:3–5 (Dkt. No. 71 at 31).) Finally, 8 Defendants note that the text of HLW’s proposed radio scripts were prepared “in discussion 9 with attorneys” (id. at 101), suggesting that the language was concocted specifically for this 10 11 legal challenge, (Response 12 (Dkt. No. 70).) The Court rejected a similar justiciability argument when ruling on HLW’s motion for 12 preliminary injunction. (Prelim. Inj. Order 3–5 (Dkt. No. 59).) The Ninth Circuit has 13 recognized that in First Amendment challenges, “the Supreme Court has dispensed with rigid 14 standing requirements.” Cal. Pro-Life Council, Inc. v. Getman (CPLC I), 328 F.3d 1088, 1094 15 (9th Cir. 2003). In such a case, “self-censorship” will constitute a “constitutionally sufficient 16 injury,” id. at 1093, if Plaintiff has established “an actual and well-founded fear” that the 17 challenged statute will be enforced against it, id. at 1095. A well-founded fear of prosecution 18 exists whenever the “intended speech arguably falls within the statute’s reach.” Id. 19 As the Court has already recognized, HLW’s proposed actions all “arguably” fall 20 within the reach of the challenged Washington disclosure statutes. (Prelim. Inj. Order 4–5 21 (Dkt. No. 59).) HLW intended to run advertisements opposing physician-assisted suicide just 22 as Washington voters were debating the legalization of that very conduct; as a result, HLW’s 23 actions were at least arguably made “in . . . opposition to” the I-1000 ballot initiative. If so, 24 HLW arguably would have qualified as a “political committee” under state law, see WASH. 25 REV. CODE § 42.17.020(39) (defining a “political committee” as “any person (except a 26 candidate or an individual dealing with his or her own funds or property) having the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 10 1 expectation of receiving contributions or making expenditures in support of, or opposition to, 2 any candidate or any ballot proposition”), and its intended advertising expenditures might have 3 qualified as “independent expenditures,” see id. § 42.17.100(1) (“[T]he term ‘independent 4 expenditure’ means any expenditure that is made in support of or in opposition to any 5 candidate or ballot proposition and is not otherwise required to be reported . . . .”), or as 6 “political advertising,” see id. § 42.17.020(38) (“‘Political advertising’ includes any 7 advertising . . . used for the purpose of appealing, directly or indirectly, for votes or for 8 financial or other support or opposition in any election campaign.”). Finally, although more of 9 a stretch, at least one of HLW’s proposed advertisements could arguably be considered a 10 “rating, evaluation, endorsement or recommendation” against I-1000 subject to Washington 11 Administrative Code § 390-16-206. (See, e.g., HLW “Settled” Ad (Dkt. No. 1 at 25) (noting 12 that “[a]ssisted suicide is back in the news” after Washington voters previously “rejected a 13 ballot measure” and providing several reasons “not to reconsider the issue” (emphasis in 14 original)).) 15 Plaintiff’s proposed actions are sufficiently concrete to render the case justiciable. 16 HLW produced (1) a written fundraising letter, (2) a telephone fundraising script, and (3) four 17 broadcast radio scripts. (Compl. ¶ 22–24 (Dkt. No. 1 at 7).) That HLW intended to engage in 18 “these and substantially-similar fundraising and public communications” (id. ¶ 25 (emphasis 19 added)) did not render the specific proposed actions any less concrete. Similarly, the Court 20 finds the case justiciable, even if HLW was “not tied to those four specific scripts.” (Kennedy 21 Dep.. 92:3–5 (Dkt. No. 71 at 31).) Plaintiff desired to engage in a broad debate with 22 Washington voters, but self-censored itself out of fear of government regulation. (Compl. ¶¶ 23 19, 34–37 (Dkt. No. 1).) To establish standing, Plaintiff need not predict every last expressive 24 position that it would have taken in the debate; that would set an impossibly high bar for 25 Plaintiffs, given the fluid nature of political and philosophical discourse. (See id. ¶ 25 (“[I]t is 26 in the nature of issue advocacy that the need to convey information and educate varies as ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 11 1 public debate on an issues varies, so . . . it is impossible to predict [exactly] what future issue- 2 advocacy might be required . . . .”) (internal quotation omitted).) To raise a justiciable claim, 3 Plaintiff need only provide a “concrete plan” of action that would implicate the government’s 4 regulatory scheme. See CPLC I, 328 F.3d at 1094. The Complaint maintained that all of 5 HLW’s issue advocacy would be “substantially similar” to the specifically proposed actions, 6 and nothing in the record suggests that any of HLW’s actions would have materially differed 7 from the scripts it provided. (Compl. ¶ 25 (Dkt. No. 1).) Therefore, the Court finds that HLW’s 8 proposed actions constituted a sufficiently “concrete plan” to bless Plaintiff with standing. 9 Finally, the Court finds it unremarkable that HLW’s advertising scripts were drafted in 10 “discussion with attorneys.” (Kennedy Dep. 101 (Dkt. No. 71 at 33).) This is a nuanced area of 11 the law, where the state has a well established power to regulate speech, see Buckley v. Valeo, 12 424 U.S. 1, 13 (1976) (per curiam), and where the state’s power sometimes turns on fine 13 distinctions in the content of the regulated speech, see, e.g., FEC v. Furgatch, 807 F.2d 857, 14 863–64 (9th Cir. 1987). Given the legal ramifications of HLW’s proposed phrasing, Plaintiff’s 15 discussion with its attorneys in drafting the language of its ads does not raise any suggestion of 16 bad faith. 17 18 2. Mootness Although the November 4, 2008, election has come and gone, HLW’s claim is not 19 moot. See Ala. Right to Life Comm. v. Miles (ARTLC), 441 F.3d 773, 779–80 (9th Cir. 2006); 20 CPLC I, 328 F.3d at 1095 n.4; Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). “[E]lection 21 cases often fall within the ‘capable of repetition, yet evading review’ exception to the mootness 22 doctrine . . . .” ARTLC, 441 F.3d at 779 (internal quotation omitted). That exception applies 23 where “(1) the challenged action was too short in duration to be fully litigated prior to its 24 cessation or expiration; and (2) there is a reasonable expectation that the same complaining 25 party will be subjected to the same action again.” Porter, 319 F.3d at 489–90. The Ninth 26 Circuit has repeatedly noted that “the inherently brief duration of an election is almost ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 12 1 invariably too short to enable full litigation on the merits.” Id. at 490; CPLC I, 328 F.3d at 2 1095 n.4 (quoting Porter, 319 F.3d at 490); ARTLC, 441 F.3d 779 (quoting CPLC I, 328 F.3d 3 at 1095 n.4). Moreover, HLW has asserted its continuing intention to advocate for an 4 “inalienable right to life from conception to natural death” “as it has in the past.” (Compl. ¶¶ 1, 5 13 (Dkt. No. 1).) The Court finds a reasonable expectation that HLW may, at some point, again 6 desire to advocate on the topic of a future Washington State ballot initiative in a manner 7 arguably covered by the State’s disclosure requirements. See ARTLC, 441 F.3d at 779–80. 8 Therefore, the instant action is not moot. 9 10 C. Merits Political speech is at the core of the First Amendment. A functioning democracy relies 11 on passionate advocacy, and a robust “marketplace of ideas” requires free and open debate 12 concerning issues of political concern. “Discussion of public issues and debate on the 13 qualifications of candidates are integral to the operation of the system of government 14 established by our Constitution,” and hence is afforded “the broadest protection” under the 15 First Amendment. Buckley, 424 U.S. at 14. 16 First Amendment protection, however, is not absolute. Id. at 25. The government may 17 regulate protected speech, so long as the restrictions are justified, meaning that they survive 18 judicial scrutiny under the applicable standard of review. “[T]he severity of the burden the 19 election law imposes on the plaintiff’s rights dictates the level of scrutiny applied by the 20 court.” Ala. Independence Party v. Alaska, 545 F.3d 1173, 1177 (9th Cir. 2008) (internal 21 quotation omitted). “Severe” burdens on protected speech are reviewed under strict scrutiny— 22 they must be narrowly tailored to serve a compelling state interest. Id. Lesser burdens on 23 protected speech have been reviewed under less rigorous scrutiny. See, e.g., McConnell v. 24 FEC, 540 U.S. 93, 136 (2003) (holding that contribution limits need only satisfy “the lesser 25 demand of being ‘closely drawn’ to match a ‘sufficiently important interest’” (internal 26 quotations omitted)); Buckley, 424 U.S. at 64 (subjecting disclosure requirements to “exacting ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 13 1 scrutiny,” whereby there must exist a “relevant correlation” or “substantial relation” between 2 the governmental interest and the burden imposed). Although courts have often treated these as 3 distinct standards, they are somewhat fluid in practice. Each standard considers the degree of 4 burden imposed on the speaker—the more significant the burden, the more compelling the 5 state interest needed to justify that burden. See, e.g., ARTLC, 441 F.3d at 791 (applying strict 6 scrutiny to reporting and disclosure requirements, but upholding the provisions in part because 7 the burdens were “not particularly onerous”). 8 Restrictions on speech must also not be unconstitutionally vague. Vagueness challenges 9 can take either of two forms. First, a statute’s phrasing might simply be “so indefinite [that it] 10 fails to clearly mark the boundary between permissible and impermissible speech.” Buckley, 11 424 U.S. at 41 (holding that the prohibition on certain expenditures “relative to” a candidate 12 was vague in this manner). These sorts of vagueness challenges are generally limited to 13 criminal statutes, see id. at 40–41; Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 14 Yale L. J. 853, 903–04 (1991) (“Vagueness doctrine, in its most familiar form, holds that 15 criminal prohibitions, at least, may not be enforced when they are so unclear that people of 16 ordinary intelligence would need to guess at whether their conduct was or was not 17 forbidden.”), and may be resolved through narrowing constructions, see, e.g., Buckley, 424 18 U.S. at 42 (reading “the phrase ‘relative to’ a candidate . . . to mean ‘advocating the election or 19 defeat of’ a candidate”). The second type of vagueness challenge is often described as a subset 20 of the related First Amendment overbreadth doctrine. See Fallon, supra, at 904; Kolender v. 21 Lawson, 461 U.S. 352, 358 n.8 (1983) (“[W]e have traditionally viewed vagueness and 22 overbreadth as logically related and similar doctrines.”). Under this theory, a statute is deemed 23 unconstitutional on its face if it “chills” a “substantial amount of legitimate speech.” Cal. 24 Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1152 (9th Cir. 2001) (“A statute’s 25 vagueness exceeds constitutional limits if its deterrent effect on legitimate expression is both 26 real and substantial, and if the statute is not readily subject to a narrowing construction by the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 14 1 state courts.” (internal quotation omitted)); see also Buckley, 424 U.S. at 42–44 (further 2 narrowing the definition of “advocating the election or defeat of” a candidate to include only 3 express advocacy because the broader definition could substantially chill the general 4 discussion of public issues). 5 HLW challenges Washington’s reporting requirements for “political committees,” 6 disclosure requirements for “independent expenditures” and “political advertising,” and its 7 treatment of “ratings, evaluations, endorsements, and recommendations.” The Court considers 8 each of these four challenges in turn. 9 10 1. Reporting Requirements for “Political Committees” HLW focuses its challenge primarily on Washington’s requirements for “political 11 committees,” which it refers to as “PAC-style” reporting and disclosure. (Mot. 4 (Dkt. No. 12 67).)2 Washington requires “political committees” to appoint a treasurer, establish a bank 13 account in the state, and register with the PDC by filing a “statement of organization,” which 14 must be updated as material facts change. WASH. REV. CODE § 42.17.040, .050, .060. For many 15 organizations—those that raise and spend less than $5,000 per year and that do not accept more 16 than $500 from any single contributor—these are the only requirements that attach from 17 “political committee” status. (Rippie Decl. ¶ 26 (Dkt. No. 47 at 14) (noting that such 18 organizations qualify for “mini reporting”).) All other, more active “political committees” must 19 file regular reports with the PDC to disclose their contributions, expenditures, and funds on 20 hand. WASH. REV. CODE § 42.17.080, .090. 21 To qualify as a “political committee,” an organization must satisfy either of two prongs. 22 First, an organization is a “political committee” if it has an “expectation of receiving 23 contributions . . . in support of, or opposition to, any candidate or any ballot proposition.” 24 WASH. REV. CODE § 42.17.020(39). To qualify under this prong, the organization must have 25 26 2 “PAC” stands for “political action committee.” ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 15 1 taken some step to give its contributors “actual or constructive knowledge” that donated funds 2 will be used for electoral political activity. EFF, 49 P.3d at 905. Second, an organization is a 3 “political committee” if it has “an expectation of . . . making expenditures in support of, or 4 opposition to, any candidate or any ballot proposition.” WASH. REV. CODE § 42.17.020(39). To 5 qualify under this second prong, the organization must have as “one of its primary purposes” to 6 support or oppose political campaigns. EFF, 49 P.3d at 903. 7 8 HLW argues that Washington’s PAC-style requirements do not survive strict scrutiny and that the state’s definition of “political committee” is vague and overbroad. 9 10 (a) “Strict Scrutiny” vs. “Exacting Scrutiny” As an initial matter, the parties disagree as to which standard the Court should employ 11 in considering whether Washington’s “political committee” requirements are justified. HLW 12 argues that the imposition of PAC-style requirements must satisfy “strict scrutiny,” i.e., it must 13 be “narrowly tailored” to achieve a “compelling” government interest. FEC v. Wis. Right to 14 Life, Inc. (WRTL), 127 S. Ct. 2652, 2664 (2007). In contrast, Defendants argue that it need only 15 meet “exacting scrutiny,” which requires a “substantial relation . . . between the governmental 16 interest and the information required to be disclosed.” ARTLC, 441 F.3d at 787 (internal 17 quotation omitted). 18 The Ninth Circuit has recognized that “the Supreme Court has been less than clear as to 19 the proper level of scrutiny” for PAC-style requirements, CPLC I, 328 F.3d at 1101 n.16; see 20 also ARTLC, 441 F.3d at 787 (noting again that the “degree of scrutiny . . . is somewhat 21 unclear”); however, it has resolved that ambiguity in favor of strict scrutiny. In CPLC I, the 22 Court held that California’s PAC-style requirements on ballot-initiative political committees 23 should be subjected to strict scrutiny and remanded to the district court to conduct the analysis 24 in the first instance. 328 F.3d at 1101 n.16, 1104. Later, in ARTLC, another Ninth Circuit panel 25 suggested that McConnell might have relaxed the degree of scrutiny since CPLC I, but the 26 Court nonetheless “assume[d] without deciding that strict scrutiny applie[d].” 441 F.3d 787– ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 16 1 88. Finally, in Cal. Pro-Life Council, Inc. v. Randolph (CPLC II), 507 F.3d 1172 (9th Cir. 2 2007), when the district court’s application of strict scrutiny was back to the Ninth Circuit on 3 appeal, the Court explicitly held that strict scrutiny should still apply. Id. at 1177–78. In a 4 footnote, the Court noted that it was “bound by the ‘law of the case’ to apply strict scrutiny,” 5 id. at 1177 n.5, but the opinion’s text also makes clear that CPLC I is still binding precedent. 6 Id. at 1178 (“Because . . . the McConnell decision [did not] call[] into question the analysis [of 7 the cases relied upon in CPLC I], we are not compelled to abandon the standard adopted in 8 [CPLC I].”). As a result, the Court finds that it is bound by CPLC I and CPLC II to apply strict 9 scrutiny to Washington’s PAC-style requirements. 10 (b) Strict Scrutiny Applied: Burdens and Interests 11 Although CPLC I and II make clear that strict scrutiny should apply to PAC-style 12 requirements, the cases do not explicitly demonstrate how to apply such scrutiny in practice. In 13 CPLC I, the Court remanded to the district court to apply strict scrutiny after further 14 development of the factual record. 328 F.3d at 1105, 1107. On remand, however, rather than 15 develop a factual record to support its regulations, the State of California simply argued that it 16 could impose its requirements on CPLC as a matter of law, pointing to federal campaign 17 finance laws that required “all groups organized in corporate form, including non-profit 18 corporations, to channel express campaign advocacy through PACs.” See CPLC II, 507 F.3d at 19 1187. On appeal, the Ninth Circuit acknowledged that courts had upheld broad imposition of 20 PAC-style requirements on corporate campaign speech, but noted that each of those cases 21 applied to candidate elections and explained that “it is not at all certain that the Supreme Court 22 would apply the same criteria to ballot measure advocacy.” Id. at 1187–88. Because this was 23 California’s sole argument, the Court found that the state had “not satisfied its burden” of 24 demonstrating that its PAC-style requirements were narrowly tailored to its compelling 25 informational interest. Id. at 1187. The Court made clear that one cannot “ignore the distinction 26 between candidate and ballot measure elections.” Id. at 1187. However, in holding California ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 17 1 to its failed burden, the Court never actually analyzed whether the state’s compelling interest 2 could have justified its PAC-style requirements in the ballot initiative context. 3 The Ninth Circuit did apply strict scrutiny to PAC-style requirements in ARTLC. 441 4 F.3d 773. Unlike CPLC I and CPLC II, that case did not involve ballot initiatives, but its 5 analysis is informative nonetheless. In ARTLC, the Court reviewed reporting and disclosure 6 requirements that applied to certain nonprofit, ideological corporations that wished to influence 7 the outcome of an election. Id. at 779. The State of Alaska required these corporations to 8 (1) register with the state’s election commission and make regular reports, (2) report all 9 expenditures and contributions, (3) notify contributors and potential contributors that 10 contributions may be used to influence an election, and (4) disclose the source of their 11 expenditures within the relevant communications. Id. at 789–91. In applying strict scrutiny, the 12 Court “‘look[ed] to the extent of the burden . . . place[d] on individual rights,’” id. at 791 13 (quoting Buckley, 424 U.S. at 68), and found that the burdens imposed under Alaska’s statute 14 were “not particularly onerous,” id. In upholding Alaska’s PAC-style requirements, the Court 15 emphasized that they did not impose any limits on the organization’s ability to solicit funds, 16 nor did they require broad structural changes like the use of “segregated funds” for political 17 activity. Id. at 791 (distinguishing Alaska’s requirements from those struck down by the 18 Supreme Court in FEC v. Mass. Citizens for Life (MCFL), 479 U.S. 238 (1986)). 19 ARTLC applied to candidate elections, so this Court is sensitive to not apply that 20 holding directly to ballot measures, where the state has somewhat different interests. See CPLC 21 II, 507 F.3d at 1188. That said, the burden of PAC-style requirements are the same regardless 22 of whether the organization’s advocacy relates to a candidate election or a ballot initiative. 23 Therefore, this Court gives great weight to the Ninth Circuit’s finding in ARTLC that PAC- 24 style requirements are “not particularly onerous.” 441 F.3d at 791. Washington’s “political 25 committee” requirements are similar to those upheld in ARTLC and contain neither of the more 26 severe burdens on solicitation or segregation of funds that the courts flagged in that case. See ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 18 1 id. The only notable difference between the Washington and Alaska provisions is that 2 Washington also requires “political committees” to (1) designate a treasurer (i.e., someone at 3 the committee who will be “responsible for . . . complying with the disclosure requirements” 4 (Response 15 (Dkt. No. 70))) and (2) maintain an in-state bank account. Defendants 5 convincingly argue that these minor burdens are necessary for enforcement and “nothing more 6 than the basic administrative infrastructure necessary to implement the disclosure 7 requirements.” (Id. at 18.) 8 9 Washington has also significantly narrowed its reporting and disclosure requirements to focus only on the most active political committees. First, to qualify as a political committee 10 under the “maker of expenditures” prong, the organization “must have as its primary or one of 11 the primary purposes to affect, directly or indirectly, governmental decision making by 12 supporting or opposing candidates or ballot propositions.” EFF, 49 P.3d at 903. To qualify 13 under the “receiver of contributions” prong, an organization must have taken some affirmative 14 step to give its contributors “actual or constructive knowledge that the organization is setting 15 aside funds to support or oppose a candidate or ballot proposition.” Id. at 904–05.3 Finally, 16 many of the organizations that technically qualify as “political committees” are exempted from 17 the regular reporting requirements and need only file the initial registration. (Rippie. Decl. ¶ 26 18 (Dkt. No. 47 at 14).) The full reporting requirements are limited to those committees that 19 expect to raise or spend more than $5000 or receive more than $500 from a single contributor. 20 (Id.) By imposing the more burdensome reporting requirements—which are still “not 21 particularly onerous,” ARTLC, 441 F.3d at 791—only on the most active political committees, 22 the state avoids unduly burdening the smaller or less active organizations that might be more 23 likely to self-censor their speech rather than comply with the state’s requirements. 24 25 26 3 HLW argues that Washington must go further and limit PAC-status to organizations whose single major purpose is campaign advocacy (Mot. 10 (Dkt. No. 67)) or who have received contributions that are explicitly earmarked for political advocacy (Id. at 18.) The Court addresses, and rejects, these arguments in sections II.C.1(d) and II.C.1(e), respectively. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 19 1 Having determined that Washington’s PAC-style requirements impose only relatively 2 minor burdens and focus those burdens on the political committees most able and willing to 3 comply, the Court must consider whether these burdens are justified by compelling state 4 interests. In Buckley, the Supreme Court identified three compelling rationales for requiring 5 disclosure of “campaign speech” in candidate elections. “First, disclosure provides the 6 electorate with information as to where political campaign money comes from and how it is 7 spent by the candidate, in order to aid voters in evaluating those who seek federal office.” 424 8 U.S. at 66–67 (internal quotation omitted). “Second, disclosure requirements deter actual 9 corruption and avoid the appearance of corruption by exposing large contributions and 10 expenditures to the light of publicity.” Id. at 67. “Third, and not least significant, 11 recordkeeping, reporting, and disclosure requirements are an essential means of gathering the 12 data necessary to detect violations of . . . contribution limitations . . . .” Id. at 67–68. In 13 ARTLC, the Ninth Circuit cited these same three interests in upholding Alaska’s PAC-style 14 requirements. See 441 F.3d at 792 (holding that Alaska’s minor registration and reporting 15 burdens were narrowly tailored to the state’s interest in “‘providing the electorate with 16 information, deterring actual corruption and avoiding any appearance thereof, and gathering 17 the data necessary to enforce more substantive electioneering restrictions.’” (quoting 18 McConnell, 540 U.S. at 196)). 19 In CPLC I, the Ninth Circuit noted that Buckley’s second and third rationales generally 20 do not apply in ballot initiative elections, where there is little threat of corruption and typically 21 no limit on contributions or expenditures. 328 F.3d at 1105 n.23 (9th Cir. 2003). However, the 22 Court held that the first “informational” interest “appl[ies] just as forcefully, if not more so, for 23 voter-decided ballot measures.” Id. at 1105. The Court explained: 24 25 26 “Even more than candidate elections, initiative campaigns have become a money game, where average citizens are subjected to advertising blitzes of distortion and half-truths and are left to figure out for themselves which interest groups pose the greatest threat to their self-interest.” David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money at 18 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 20 1 2 3 4 (2000). Knowing which interested parties back or oppose a ballot measure is critical, especially when one considers that ballot measure language is typically confusing, and the long-term policy ramifications of the ballot measure are often unknown. At least by knowing who backs or opposes a given initiative, voters will have a pretty good idea of who stands to benefit from the legislation. .... 7 Voters act as legislators in the ballot-measure context, and interest groups and individuals advocating a measure’s defeat or passage act as lobbyists; both groups aim at pressuring the public to pass or defeat legislation. [The voters], as lawmakers, have an interest in knowing who is lobbying for their vote, just as members of Congress may require lobbyists to disclose who is paying for the lobbyists’ services and how much. 8 Id. at 1105–06. The state’s interest in informing the electorate about “where political campaign 9 money comes from and how it is spent,” Buckley, 424 U.S. at 66 (internal quotation omitted), 10 is only amplified in the ballot initiative context as more and more money is poured into ballot 11 measures nationwide. See CPLC II, 328 F.3d at 1105; cf. Lisa Leff, California Gay Marriage 12 Ban a $73 Million Race, THE MERCURY NEWS, Nov. 3, 2008, available at 13 http://www.mercurynews.com/news/ci_10889066 (noting that California’s Proposition 8 was 14 “the costliest election this year outside the race for the White House”). The state therefore 15 retains an extremely compelling interest in “following the money” in ballot initiative elections 16 so that the electorate’s decision may be an informed one. 5 6 17 Defendants also raise a compelling interest in protecting the contributors of funds used 18 to advocate in support of or in opposition to a ballot initiative. (Rippie Decl. ¶ 29 (Dkt. No. 47 19 at 16).) Those contributors are entitled to verify that their funds were actually used for their 20 intended purpose. (See id. (describing a “high profile enforcement case . . . where the public’s 21 contributions to the ballot measure committee were unlawfully used by an officer for his 22 personal expenses for activities unrelated to the campaign, and those facts had been concealed 23 from the public by the treasurer and the committee”).) In this respect, the requirements that 24 Washington imposes on “political committees” serve the same goals as the registration and 25 disclosure requirements that most states impose on charities. (Id.) The Supreme Court has 26 “repeatedly recognized the legitimacy of government efforts to enable donors to make ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 21 1 informed choices about their charitable contributions.” Illinois v. Telemarketing Assocs., Inc., 2 538 U.S. 600, 623 (2003). The Court has also suggested that reporting and disclosure 3 provisions are among the “more benign and narrowly tailored options” available to address 4 these concerns. Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 800 (1988); see also 5 Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 638 (1980) (suggesting that 6 “disclosure of the finances of charitable organizations” could prevent fraud “by informing the 7 public of the ways in which their contributions will be employed”). “In accord with [these 8 cases], . . . in almost all of the states and many localities, charities and professional fundraisers 9 must register and file regular reports on activities, particularly fundraising costs.” See 10 Telemarketing Assocs., 528 U.S. at 623 (internal quotation omitted) (noting that “[t]hese 11 reports are generally available to the public”). The state’s interest in preventing fraudulent 12 misuse of contributed funds appears just as compelling when applied to an organization like 13 HLW as when applied to the charitable organizations discussed in Telemarketing Associates. 14 The Court holds that these two compelling interests—informing the public about the 15 source of political expenditures and protecting contributors from fraudulent misuse of 16 donations—more than justify the general imposition of PAC-style reporting and disclosure 17 requirements on organizations engaged in ballot measure advocacy. However, the Court must 18 still address several aspects of Washington’s specific framework that HLW argues are vague or 19 overbroad. 20 21 (c) “in support of, or opposition to” Under Washington’s statute, an organization becomes a “political committee” if it 22 expects to receive contributions or make expenditures “in support of, or opposition to, any 23 candidate or any ballot proposition.” WASH. REV. CODE. § 42.17.020(39). HLW first argues 24 that the “political committee” definition is unconstitutionally vague because the words 25 “support” and “opposition” are so indefinite that they do not “give the person of ordinary 26 intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 22 1 Rockford, 408 U.S. 104, 108 (1972). HLW also argues that the provision is unconstitutionally 2 broad because it could be read to include expenditures that do not “expressly” advocate for a 3 ballot initiative, but instead merely advocate as to an underlying “issue.” (Mot. 11–17 (Dkt. 4 No. 67).) 5 As to the ambiguity of the words themselves, there are several features of Washington’s 6 framework that partially alleviate any vagueness concerns. First, in addressing this sort of 7 vagueness argument, “[c]lose examination of the specificity of the statutory limitation is 8 required where . . . the legislation imposes criminal penalties.” Buckley, 424 U.S. at 40–41 9 (emphasis added). HLW concedes that, unlike the federal statute at issue in Buckley, 10 Washington’s PAC-style requirements do not carry criminal penalties. (Mot. 12 n.2 (Dkt. No. 11 67).) Second, Washington provides various ways to obtain advice or guidance from the PDC: 12 one can call a toll-free phone number, request an informal advisory opinion, request a formal 13 declaratory order, WASH. ADMIN. CODE § 390-12-250, request an interpretative statement, 14 WASH. REV. CODE § 34.05.230(1), or petition for formal rulemaking, WASH. ADMIN. CODE § 15 390-12-255. (Rippie Decl. ¶ 21–22 (Dkt. No. 47 at 11–12).) In Buckley, the Court suggested 16 that the wide availability of advisory opinions would alleviate many vagueness problems; 17 however, it did not apply in that case “because the vast majority of individuals and groups 18 subject to [the] criminal sanctions . . . do not have a right to obtain an advisory opinion from 19 the [FEC].” 424 U.S. at 40 n.47. In contrast, Washington’s framework appears to provide 20 ample opportunity to obtain a pre-enforcement interpretation from the PDC. 21 Furthermore, HLW’s vagueness argument would fail even without these considerations 22 because the Supreme Court has explicitly held that the words “support” and “oppose” are not 23 unconstitutionally vague. In McConnell, the Court considered certain limitations on 24 contributions and expenditures for “public communications” that “‘refer[] to a clearly 25 identified candidate for Federal office’ and ‘promote[],’ ‘support[],’ ‘attack[],’ or ‘oppose[]’ a 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 23 1 candidate for that office.” 540 U.S. at 162. The Court rejected an argument that these 2 limitations were unconstitutionally vague, holding: 3 4 5 The words “promote,” “oppose,” “attack,” and “support” clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision. These words “provide explicit standards for those who apply them” and “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” 6 Id. at 170 n.64 (quoting Grayned, 408 U.S. at 108–09); see also id. at 184–85 (rejecting the 7 same vagueness argument for a provision that did not involve party speakers). In light of 8 McConnell, this Court holds that the mere use of the terms “support” and “opposition” does not 9 render Washington’s definition of “political committee” unconstitutionally vague. See United 10 States v. Williams, 128 S. Ct. 1830, 1845 (2008) (“[P]erfect clarity and precise guidance have 11 never been required even of regulations that restrict expressive activity.” (internal quotation 12 omitted)). 13 HLW’s overbreadth argument, however, raises a closer question and requires more 14 extensive analysis. Essentially, Plaintiff argues that “issue advocacy”—political speech that 15 does not expressly advocate the election or defeat of a candidate or ballot initiative—can never 16 be regulated under the First Amendment. (Mot. 14 (Dkt. No. 67).) Under this theory, 17 Washington’s definition of “political committee” is unconstitutional because it could be read to 18 include expenditures for communications that do not expressly support or oppose the ballot 19 initiative in question. 20 The distinction between “express advocacy” and “issue advocacy” was first established 21 in Buckley. In that case, the Court considered the constitutionality of the Federal Election 22 Campaign Act of 1971 (FECA). Buckley, 424 U.S. at 6. In particular, the Court examined 23 provisions that (1) limited individual contributions to $1000 for any single candidate per 24 election; (2) limited individual or group expenditures “relative to a clearly identified 25 candidate” to $1000 per year; and (3) required disclosure and reporting of contributions and 26 expenditures above certain threshold levels. Id. at 7. The Court upheld the contribution limits, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 24 1 finding they had only a “limited effect upon First Amendment freedoms” and that these effects 2 were justified by “weighty interests.” 424 U.S. at 29. The expenditure ceiling, however, 3 “impose[d] significantly more severe restrictions on protected freedoms,” operating as an 4 outright prohibition of speech subject to criminal penalties. Id. at 19–20, 23. The Court initially 5 interpreted the indefinite phrase “relative to a candidate” to mean “advocating the election or 6 defeat of a candidate,” id. at 42 (internal quotation marks omitted); however, this narrowed 7 definition still raised First Amendment concerns. “Candidates, especially incumbents, are 8 intimately tied to public issues involving legislative proposals and governmental actions.” Id. 9 The only way to determine whether public discussion of these issues advocated for or against 10 the candidate would be to measure either the subjective intent of the speaker or the predicted 11 effect on the listener. Id. at 43. Because neither intent nor effect can be measured with any 12 certainty, the expenditure limits could chill speech on a huge range of issues. Id. Therefore, to 13 avoid vagueness and overbreadth concerns, the Court further narrowed the definition of 14 “expenditure” to cover only “communications that in express terms advocate the election or 15 defeat of a clearly defined candidate.” Id. at 44 (emphasis added). So narrowed, the Court 16 found the expenditure limits utterly ineffective, since groups and individuals could still 17 advocate for or against a candidate so long as they “eschew[ed] expenditures that [did so] in 18 express terms.” Id. at 45 (“The exacting interpretation of the statutory language necessary to 19 avoid unconstitutional vagueness thus undermines the limitation’s effectiveness . . . .”). 20 Because the expenditure ceiling did not effectively further the state’s interest, it did not survive 21 strict scrutiny. Id. at 50. Finally, in order to avoid similar overbreadth concerns, the Court 22 applied this same narrow definition of “expenditure” to the FECA’s disclosure requirements, 23 which it upheld. Id. at 80. 24 Since Buckley, the distinction between “express advocacy” and “issue advocacy” has 25 proved problematic. In McConnell, the Supreme Court considered a challenge to the Bipartisan 26 Campaign Reform Act of 2002 (BCRA), which was passed in part to address the proliferation ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 25 1 of “campaign advertising masquerading as issue ads.” 540 U.S. at 132 (internal quotation 2 omitted). To address this problem, the BCRA defined an “electioneering communication” as 3 any “broadcast, cable, or satellite communication” that “refers to a clearly identified 4 candidate;” is made within a certain period of time before an election, primary, or convention; 5 and, for regional candidates, is “targeted to the relevant electorate.” Id. at 189–90. The statute 6 required disclosure of “electioneering communications” and also prohibited corporations and 7 labor unions from financing such communications through their treasury funds. Id. at 190. The 8 challengers noted that this definition went far beyond the “express advocacy” approved in 9 Buckley and argued that the BCRA’s provisions therefore constituted impermissible regulation 10 of issue advocacy. Id. The Court rejected the notion that “Buckley drew a constitutionally 11 mandated line between express advocacy and so-called issue advocacy,” instead characterizing 12 the Buckley holding as a matter of statutory, rather than constitutional, interpretation. Id. at 13 190. The Court upheld the disclosure requirements, noting that they “do not prevent anyone 14 from speaking” and serve “an important function in informing the public about various 15 candidates’ supporters before election day.” Id. at 201 (emphasis in original) (internal 16 quotation omitted). The Court also upheld the prohibition for corporations and unions, holding 17 that the justifications for restricting such speech extended at least to all speech that was the 18 “functional equivalent of express advocacy,” which included for the “vast majority” of issue 19 ads. Id. at 206. 20 Four years later, however, the Supreme Court considered an as-applied challenge to the 21 same BCRA prohibition on corporate and union speech that it had facially upheld in 22 McConnell. WRTL, 127 S. Ct. at 2659. In the Court’s primary opinion, Chief Justice Roberts, 23 joined by Justice Alito, noted that McConnell had only explicitly upheld the prohibition for 24 communications that were the “functional equivalent of express advocacy.” Id. Whereas the 25 Court in McConnell appeared to take a broad view of this term, see McConnell, 540 U.S. at 26 126 (“While the distinction between ‘issue’ and express advocacy seemed neat in theory, the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 26 1 two categories of advertisements proved functionally identical in important respects.” 2 (emphasis added)); id. at 206 (finding that the “vast majority” of issue ads had an 3 “electioneering purpose” and hence were the functional equivalent of express advocacy), the 4 Chief Justice read the term far more narrowly. Expressing the same overbreadth concerns that 5 had troubled the Court in Buckley, he held that “an ad is the functional equivalent of express 6 advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to 7 vote for or against a specific candidate.” WRTL, 127 S. Ct. at 2667. He found that the interests 8 that justified the regulation of campaign speech did not, in that case, justify the regulation of all 9 genuine issue advertising. Id. at 2673. 10 Although WRTL suggests a renewed concern for the chilling effect of campaign finance 11 laws on the discussion of public issues, the breadth of its holding remains unclear. McConnell 12 limited the definition of “electioneering communication” to the “functional equivalent of 13 express advocacy” only as far as it applied to the prohibition on corporate and union speech, 14 540 U.S. at 206, and apparently not as it applied to the BCRA’s disclosure requirements, see 15 id. at 201 (stating, without reservation, that the BCRA’s “disclosure requirements are 16 constitutional”). Because WRTL’s as-applied challenge was limited to the BCRA’s corporate 17 speech prohibition, it is unclear whether the opinion’s logic extends to lesser burdens on non- 18 express advocacy. 19 More importantly, nothing in Buckley, McConnell, or WRTL suggests that “issue 20 advocacy” is fundamentally entitled to greater First Amendment protection than express 21 political advocacy. Indeed, in Buckley, the Court repeatedly emphasized that that the protection 22 of campaign speech was at the core of the First Amendment and it merited the same protection 23 as any speech regarding issues of public concern. 424 U.S. at 15 (“[I]t can hardly be doubted 24 that the [First Amendment] guarantee has its fullest and most urgent application precisely to 25 the conduct of campaigns for public office.” (internal quotation omitted)); id. at 48 (“Advocacy 26 of the election or defeat of candidates . . . is no less entitled to protection under the First ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 27 1 Amendment than the discussion of political policy . . . .”). The Supreme Court has protected 2 “issue advocacy” from the federal campaign finance laws not because that speech is sacred, but 3 simply because the rationales proffered for those laws have not justified imposing broad 4 burdens on public discourse. See WRTL, 127 S. Ct. at 2673 (finding the BCRA’s prohibition on 5 corporate speech unconstitutional as applied because “appellants identify no interest 6 sufficiently compelling to justify burdening WRTL’s speech”). 7 Buckley, McConnell, and WRTL each dealt with federal campaign finance laws that 8 were limited to the election of candidates, but ballot initiative elections present strikingly 9 different considerations. Indeed, the entire concept of “issue advocacy” takes on a different 10 meaning in ballot measure elections. In candidate elections, “campaign speech” and “issue 11 advocacy” are often difficult to distinguish in practice, but they are at least distinct in theory. 12 McConnell, 540 U.S. at 126. In that context, campaign speech is intended to influence the 13 listener to vote for or against a candidate, whereas issue advocacy is intended simply to 14 influence the voter’s opinion on an issue of public concern. The problem, of course, is that the 15 speaker’s “intent” is impossible to determine, so pure issue advocacy on any number of issues 16 might be mistaken for campaign speech. Buckley, 424 U.S. at 42. Any speaker stating a 17 position on an issue that happens to coincide with a candidate’s position could be deemed to be 18 “supporting” the candidate; similarly, any disagreement with a candidate’s position could be 19 misinterpreted as “opposition” to the candidate. Therefore, broad regulation of campaign 20 speech in a candidate election could potentially chill vast amounts of issue advocacy on a wide 21 range of public issues—indeed, any issue on which any candidate has taken a position. 22 In the ballot initiative context, however, there is little, if any, meaningful distinction 23 between issue and express advocacy. Ballot initiatives present a single issue for public 24 referendum. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“Referenda 25 are held on issues . . . .” (emphasis added)). “Campaign speech,” in this context, is speech 26 intended to influence the voter’s opinion as to the merits of this single issue—in other words, it ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 28 1 is “issue advocacy,” plain and simple. When an issue is presented to the public for referendum 2 in this manner, the legitimate state interest in determining and reporting “where [the] money 3 comes from,” Buckley, 424 U.S. at 66 (internal quotation omitted), extends to all public debate 4 on that issue. For example, I-1000 asks voters to decide a single, specific issue—namely, 5 whether Washington should allow physician-assisted suicide. In the lead up to the election, 6 voters are entitled to know who is lobbying to influence their opinion on that issue, and 7 whether the speaker has a vested interest in the outcome of ballot initiative.4 Similarly, when 8 HLW telephones pro-life households with “an urgent update” informing them of I-1000 and 9 “pleading for [their] help” “at this critical time to get the truth out” about physician-assisted 10 suicide, contributors have an interest in ensuring that HLW actually spends the donated funds 11 on the intended advocacy, whether that advocacy “expressly” mentions I-1000 or not. In short, 12 from the perspective of the state’s compelling interests, there is simply no difference between 13 speech that advocates for or against physician-assisted suicide and speech that advocates for or 14 against I-1000. 15 Regulation of ballot initiative campaign speech, defined broadly, will therefore 16 necessarily impose a burden on “issue advocacy”; however, it is a much more targeted and 17 limited burden than that which troubled the Court in Buckley and WRTL. Broad, ambiguous 18 regulation of campaign speech in a candidate election risks burdening issue advocacy that is 19 only peripherally related to the election. Moreover, it threatens to burden debate on a broad 20 21 22 23 24 25 26 4 Ballot initiatives also often concern proposed public works projects, where some private parties are almost certain to have a financial stake in the outcome. For example, consider any of the several ballot initiatives concerning the construction of a citywide monorail in Seattle—several parties (construction firms, owners of homes on the proposed line, etc.) have a financial interest in the outcome of such an election. The voters’ compelling interest in “knowing who is lobbying for their vote,” CPLC I, 328 F.3d at 1106, clearly justifies regulating an organization that publicly advocates passing the initiative, but it likewise justifies regulating an organization advocating for the “general” idea that Seattle should have a citywide monorail. The latter issue is fundamental to the ultimate question being put before the voters and implicates the same governmental interest in tracking and disclosing the sources of public expenditures. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 29 1 range of issues—indeed, any issue that is arguably “pertinent” to the election. See WRTL, 127 2 S. Ct. at 2669. In contrast, regulating campaign speech in a ballot measure election will burden 3 issue advocacy only as to the single issue put before the public, and only because such 4 campaign speech and issue advocacy are, both in practice and in theory, one and the same. In 5 that scenario, the disclosure of issue advocacy is not an unfortunate byproduct of the campaign 6 disclosure laws; it is its central and intended purpose. 7 Accordingly, the Court rejects HLW’s contention that there is a bright-line rule 8 prohibiting the regulation of “issue advocacy” and holds that the state’s compelling interests in 9 informing the electorate and protecting contributors justify requiring “political committees” to 10 report on and disclose all expenditures made “in support of, or opposition to . . . a ballot 11 proposition.” This holds even when “expenditure” is defined to include some advocacy as to 12 the “issue” underlying the proposition, as long as such regulations are limited to the specific 13 issue on which the public’s vote is being sought. 14 (d) “one of its primary purposes” 15 HLW also argues that the state’s definition of “political committee” is overbroad 16 because the “maker of expenditures” prong applies to any organization that has as “its ‘primary 17 or one of the primary purposes to affect, directly or indirectly, governmental decision making 18 by supporting or opposing candidates or ballot propositions.’” EFF, 49 P.3d at 903 (emphasis 19 added) (quoting State v. Dan Evans Campaign Comm., 509 P.2d 75, 79 (Wash. 1976)). HLW 20 claims that the State can only impose “PAC-style” reporting and disclosure requirements on 21 organizations whose single “major purpose” is the election or defeat of candidates or ballot 22 initiatives. 23 In Buckley, the Supreme Court considered the FECA’s disclosure requirements as they 24 applied to both “political committees” (who had to “register with the [FEC] and to keep 25 detailed records of both contributions and expenditures”) and individuals (who had to disclose 26 contributions or expenditures of over $100 per year, excluding contributions to a candidate or ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 30 1 political committee). 424 U.S. at 63–64. The Court raised the same overbreadth concerns that 2 had led it to strike down the FECA’s expenditure ceilings, noting that the requirements for 3 “political committees” “could raise similar vagueness problems” because the term “could be 4 interpreted to reach groups engaged purely in issue advocacy.” Id. at 79. However, the Court 5 noted that several lower courts had construed the FECA “to apply only to committees soliciting 6 contributions or making expenditures the major purpose of which is the nomination or election 7 of candidates.” United States v. Nat’l Comm. for Impeachment, 469 F.2d 1135, 1141 (2d Cir. 8 1972). The Supreme Court adopted this narrowing construction, noting that “[t]o fulfill the 9 purposes of the Act they need only encompass organizations that are under the control of a 10 candidate or the major purpose of which is the nomination or election of a candidate.” Buckley, 11 424 U.S. at 79. The Court found that the definition, so narrowed, no longer raised overbreadth 12 concerns; however, it never suggested that this was the only legitimate narrowing construction 13 that it could have adopted. 14 Subsequent Supreme Court opinions make clear that there is no “bright line” 15 requirement that PAC-style requirements only be imposed on organizations whose single 16 “major purpose” is campaign advocacy. One line of cases involved a provision in the FECA 17 that prohibited any corporation “from using treasury funds to make an expenditure ‘in 18 connection with’ any federal election . . . .” MCFL, 479 U.S. at 241. To make political 19 expenditures under the statute, a corporation needed to “administer[] a segregated political 20 fund,” “appoint a treasurer for its segregated fund, keep records for all contributions, file a 21 statement of organization containing information about the fund, and update that statement 22 periodically,” Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 657 (1990)—in other 23 words, the FECA essentially imposed “PAC-style” requirements on all corporations, regardless 24 of their major purposes. In MCFL, the Supreme Court considered an as-applied challenge to 25 this provision by a small, nonprofit, ideological corporation, 479 U.S. at 241–42, and noted 26 that the corporation faced “more extensive requirements and more stringent restrictions than it ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 31 1 would be if it were not incorporated.” Id. at 254. The Court suggested that there generally were 2 compelling state interests in regulating the campaign speech of corporations, who received 3 artificial, state-created advantages and whose ability to amass large sums of wealth might lead 4 to an unfair advantage in the political marketplace. Id. at 257. However, the Court found that 5 those interests did not apply in this narrow case because MCFL (1) “was formed for the 6 express purpose of promoting political ideas and cannot engage in business activities,” (2) 7 “ha[d] no shareholders or other persons affiliated so as to have a claim on its assets or 8 earnings,” and (3) “was not established by a business corporation or a labor union, and . . . [had 9 a] policy not to accept contributions from such entities.” Id. at 264 (noting that these “three 10 features [are] essential to our holding”). Later, in Austin, the Court reiterated that the MCFL 11 exception was narrow and applied only to corporations that “share[] these crucial features.” 12 494 U.S. at 662. Austin makes perfectly clear that PAC-style requirements (extremely similar 13 to those at issue in this case) may be imposed on non-MCFL-like corporations who partake in 14 campaign activity even if it is not their single “major purpose.” See id.5 15 The Ninth Circuit has upheld the imposition of PAC-style requirements without regard 16 to a corporation’s “major purpose,” even when that corporation fits within MCFL’s narrow 17 exception. In ARTLC, the Court considered an Alaska campaign law that required MCFL-type 18 corporations to register and file regular reports with the state’s election commission. 441 F.3d 19 at 789–91. The Court upheld these PAC-style requirements, noting that they were “not 20 particularly onerous” and justified by the standard interests in disclosure that the Supreme 21 Court recognized in Buckley and McConnell. Id. at 791–92.6 22 5 23 24 25 26 HLW does not claim to fit within the exception set forth in MCFL. HLW appears to satisfy the first two elements of the test (see Compl. ¶ 13 (Dkt. No. 1) (“HLW is a nonstock, ideological . . . corporation . . . .”)); however, the record does not indicate whether HLW “accepts contributions from” “business corporation[s] or labor union[s],” see MCFL, 479 U.S. at 264. 6 HLW suggests that ARTLC was incorrectly decided. (See Mot. 9 (Dkt. No. 67) (arguing that ARTLC “ignores MCFL’s lengthy discussion of the organizational and conduct ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 32 1 HLW claims, somewhat disingenuously, that the Ninth Circuit held in CPLC II that 2 “PAC status may not be imposed on ‘multi-purpose organizations.’” (Mot. 7 (Dkt. No. 67).) In 3 fact, the Court in that case explicitly rejected CPLC’s argument that “because its major 4 purpose is not campaign advocacy, it was improper for California to ‘treat [CPLC] like a 5 PAC.’” 507 F.3d at 1180 n.11. The Court cited ARTLC for the proposition that “irrespective of 6 the major purpose of an organization, disclosure requirements may be imposed” and found 7 “CPLC’s argument to the contrary . . . unpersuasive.” Id. (emphasis added). 8 9 HLW’s only support comes from a nonbinding case from the Fourth Circuit. N.C. Right to Life, Inc. v. Leake (NCRTL), 525 F.3d 274 (4th Cir. 2008). That case involved North 10 Carolina’s campaign finance law, which defined a “political committee” to cover any 11 organization that has “a major purpose to support or oppose” a candidate for election. Id. at 12 286 (emphasis added). The majority held that Buckley had created a hard-and-fast rule: “an 13 entity must have ‘the major purpose’ of supporting or opposing a candidate to be designated a 14 political committee.” Id. at 288 (emphasis in original). It found the state statute overbroad, 15 because it would regulate too much “protected speech unrelated to elections.” Id. at 289. The 16 majority also found the statute unconstitutionally vague, because it did not expressly define 17 when a “purpose” became a “major purpose.” Id. at 290. 18 This Court respectfully disagrees with the Fourth Circuit’s analysis. Nothing in Buckley 19 or MCFL suggests a bright-line requirement that PAC-style requirements be reserved for 20 organizations whose single “major purpose” is election-related; indeed, Austin specifically 21 upheld similar requirements on a multi-purpose corporation. 494 U.S. at 662. The phrase “a 22 major purpose” is no more vague than “the major purpose.” See NCRTL, 525 F.3d at 328 23 (Michael, J., dissenting). Moreover, the Washington statute in this case creates only civil 24 penalties, and parties can request prior interpretations from the PDC (Rippie Decl. ¶ 21–22 25 26 burdens of PAC status”).) The Court disagrees, but notes that it would, of course, be bound to follow ARTLC even if it disagreed with the Ninth Circuit’s analysis. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 33 1 (Dkt. No. 47 at 11–12)), so there is little fear that any remaining ambiguity in the test will chill 2 protected speech. 3 Finally, there are compelling state justifications for extending PAC-style reporting to 4 multi-purpose organizations. First, Buckley’s “the major purpose” test “encourages advocacy 5 groups to circumvent the law by not creating political action committees and instead to hide 6 their electoral advocacy from view by pulling it into the fold of their larger organizational 7 structure.” NCRTL, 525 F.3d at 332 (Michael, J., dissenting) (emphasis in original). Second, 8 basing “political committee” status on an organization’s single “major purpose” discriminates 9 against small organizations, because advocacy that would constitute a small organization’s 10 major purpose might only be considered one of several primary purposes at a larger entity. By 11 considering the absolute amount of campaign activity as opposed to the relative amount of 12 such activity, the state can fairly treat like political expenditures alike, regardless of their 13 source. 14 Therefore, the Court holds that Washington’s definition of “political committee” is not 15 rendered overbroad simply by including organizations that make supporting or opposing an 16 election “one of [their] primary purposes.” The state has a compelling interest in regulating all 17 such organizations rather than simply those whose single major purpose is campaign activity. 18 There are advantages and disadvantages to both approaches, and neither is constitutionally 19 required. 20 21 (e) “actual or constructive knowledge” HLW also challenges the “political committee” definition based on its “receiver of 22 contributions” prong, which it likewise claims is overbroad. (Mot. 18 (Dkt. No. 67).) In 23 Buckley, the Supreme Court interpreted the FECA’s definition of “contribution” to only 24 include funds that were “earmarked for political purposes.” 424 U.S. at 23 n.24. HLW argues 25 that this limiting construction is constitutionally required, and that Washington’s definition is 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 34 1 overbroad because it applies whenever a contributor knows or reasonably should know that the 2 funds will be used for political purposes. EFF, 49 P.3d at 905. 3 Nothing suggests that states may only regulate contributions that are expressly made for 4 political purposes. In Buckley, the Supreme Court considered regulations that applied to 5 various transfers of funds made “for the purpose of influencing” a federal election or primary. 6 424 U.S. at 23. The statute did not define this phrase, so the Court relied on its “general 7 understanding of what constitutes a political contribution,” which included all funds provided 8 directly or indirectly to a candidate, political party, or campaign committee, and all funds 9 transferred to another person or organization “earmarked for political purposes.” Id. at 23 n.24. 10 Viewed in this light, the Court held that the FECA’s definition of “contribution” was not 11 unconstitutionally vague, see id. at 23 n.24, 78; however, it never suggested that states could 12 only regulate “earmarked” political contributions. 13 In fact, the Ninth Circuit has already rejected HLW’s argument. In CPLC II, the Court 14 considered California’s definition of “contribution,” which included any payment made when 15 “the donor knows or has reason to know that” the payment will be used to make other political 16 contributions or expenditures. 507 F.3d at 1181 (emphasis in original). CPLC argued that the 17 state could only regulate contributions “expressly made for political purposes,” but the Court 18 disagreed. Id. at 1183 (internal quotation omitted). The state explained why Buckley’s narrow 19 definition was insufficient to further its compelling informational interests: “By simply 20 discouraging donors from earmarking their donations . . . , any multi-purpose group could 21 escape classification as a [political committee] and thereby avoid the duty to disclose its 22 contributors . . . .” Id. at 1183 (internal quotation omitted). The Court held that California’s 23 definition of contribution was narrowly tailored to support its compelling government interest. 24 Id. at 1184. 25 Likewise, Washington’s “receiver of contributions” test does not render its PAC-style 26 requirements overbroad. The state’s compelling interest in informing the electorate about the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 35 1 source of political advocacy easily extends to contributions made with the knowledge that the 2 contributed funds will be used for political ends. Moreover, a contributor is only deemed to 3 have “constructive knowledge” of an organization’s political intentions if that organization has 4 taken some explicit action to make those intentions clear, such as (1) soliciting contributions 5 for political advocacy, (2) segregating funds for political purposes, (3) registering as a 6 “political committee” with the PDC, or (4) indicating in the organization’s bylaws that it 7 intends to receive political contributions. (Rippie Decl. ¶ 35 (Dkt. No. 47 at 18).) As a result, 8 Washington’s treatment of “contributions” is far less vague than that in the FECA, which 9 turned on the hard-to-discern “purpose” of the contribution. See Buckley, 424 U.S. at 23 n.24. 10 Therefore, by limiting its regulations to contributions made with “actual or constructive 11 knowledge that the organization is setting aside funds to support or oppose a candidate or 12 ballot proposition,” EFF, 49 P.3d at 904, the state has narrowly tailored its PAC-style 13 requirements while avoiding the ambiguities that the Court was concerned with in Buckley. See 14 CPLC II, 507 F.3d at 1183 (“The fact that California has more explicitly defined ‘contribution’ 15 does not weaken its legislation.”). 16 17 (f) “expectation” Finally, HLW notes that Washington defines “political committees” based on an 18 “expectation” of receiving contributions or making expenditures, and it argues that the term 19 “expectation” is unconstitutionally vague. (Mot. 17 (Dkt. No. 67) (“Is it a hope?—promise?— 20 understanding?—agreement?—contract?”).) The Court agrees that the term is ambiguous and 21 that, without guidance from the state courts, it might be difficult for a person of normal 22 intelligence to know at what point an organization “expected” to receive contributions or make 23 expenditures. However, as has already been made clear, the state courts and agencies have 24 significantly narrowed each of the definition’s prongs and, in the process, have stripped the 25 definition of ambiguity. 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 36 1 As described above, to qualify as a “receiver of contributions,” an organization must 2 have taken an affirmative step to give potential contributors “actual or constructive knowledge 3 that the organization is setting aside funds to support or oppose a candidate or ballot 4 proposition.” EFF, 49 P.3d at 904. After any of the specific triggering actions takes place, the 5 organization can “expect” to receive political contributions because its potential contributors 6 will “know or should know” that their contributions will be used for political activity. (Rippie 7 Decl. ¶ 35 (Dkt. No. 47 at 18–19).) 8 9 The definition of “political committee” has been similarly narrowed under the “maker of expenditures” prong by requiring that the organization “have as its primary or one of the 10 primary purposes” to support or oppose ballot propositions. EFF, 49 P.3d at 903 (internal 11 quotation omitted). Once the organization has made electoral political activity “one of its 12 primary purposes,” there is no doubt that it will “expect” to make expenditures in support of 13 that purpose. 14 These narrowing interpretations of the definition’s two prongs impose “political 15 committee” status only after concrete, discernible criteria have been met. In so narrowing the 16 definition, the state courts and agencies have eliminated any ambiguity initially presented by 17 the term “expectation.” 18 19 (g) Narrow Tailoring In sum, the Court finds that Washington’s PAC-style disclosure and reporting 20 requirements are narrowly tailored to serve the state’s compelling interests. Washington’s 21 “political committee” requirements are “not particularly onerous.” ARTLC, 441 F.3d at 791. 22 When Washington voters are asked to vote on an issue of public concern, they are entitled to 23 know who is lobbying to influence their opinion on that issue. Similarly, when Washington 24 residents contribute funds to an organization claiming to support or oppose a ballot initiative, 25 those contributors are entitled to verify that their funds were used for their intended purpose. 26 See Riley, 487 U.S. at 800 (explaining that compelling disclosure of contributions and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 37 1 expenditures is one of the “more benign and narrowly tailored” means to ensure that 2 organizations are appropriately using the public’s contributions). The State is justified in 3 extending these disclosure and reporting requirements to organizations that make campaign 4 advocacy “their primary or one of their primary purposes” and to organizations that give their 5 contributors “actual or constructive knowledge” that the donated funds will be used for 6 electoral political activity. Finally, by reserving its reporting requirements for the most active 7 political committees (see Rippie Decl. ¶ 26 (Dkt. No. 47 at 14)), the state has narrowly tailored 8 the provisions to avoids unduly chilling the speech of smaller or more reticent political 9 advocates. 10 Democracy depends on “uninhibited, robust, and wide-open” speech, which cannot 11 occur “when organizations hide themselves from the scrutiny of the voting public.” 12 McConnell, 540 U.S. at 197 (internal quotation omitted). The requirements that Washington 13 imposes on “political committees” enforce the disclosure necessary to maintain a well- 14 functioning political process, and no more. Therefore, the PAC-style requirements survive 15 strict scrutiny. 16 17 2. Disclosure Requirements for “Independent Expenditures” Any entity, regardless of whether it qualifies as a “political committee” under 18 Washington law, must disclose its “independent expenditures” to the PDC if the value of such 19 expenditures totals more than one hundred dollars or cannot reasonably be estimated. WASH. 20 REV. CODE § 42.17.100(2)–(4). An “independent expenditure” is defined as “any expenditure 21 that is made in support of or in opposition to any candidate or ballot proposition” and is not 22 already required to be disclosed under the rules governing political committees. Id. § 23 42.17.100(1). HLW challenges these disclosure requirements for the same reasons it challenges 24 the PAC-style reporting requirements: it argues that “support” and “opposition” are 25 unconstitutionally vague and that the definition as a whole is overbroad because it is not 26 limited to “express advocacy” as applied in Buckley. (Mot. 19–21 (Dkt. No. 67).) ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 38 1 The Court has already rejected both of these arguments. Moreover, HLW’s challenge is 2 particularly unpersuasive when directed at simple disclosure requirements, which are reviewed 3 under “exacting scrutiny.” See Davis v. FEC, 128 S. Ct. 2759, 2775 (2008); Buckley, 424 U.S. 4 at 64. The Court finds it evident that requiring disclosure of independent expenditures is 5 “substantially related” to Washington’s compelling interests; indeed, simple disclosure is one 6 of the least restrictive means of furthering the state’s interests. See McConnell, 540 U.S. at 201 7 (noting that disclosure requirements “do not prevent anyone from speaking” (internal quotation 8 omitted)). 9 3. Disclosure Requirements for “Political Advertising” 10 Washington also imposes special requirements on “political advertising,” and HLW 11 argues that the state’s definition of this term is vague and overbroad. (See Mot. 21–22 (Dkt. 12 No. 67).) “Political advertising” is defined to include “any advertising displays, newspaper ads, 13 billboards, signs, brochures, articles, tabloids, flyers, letters, radio or television presentations, 14 or other means of mass communication, used for the purpose of appealing, directly or 15 indirectly, for votes or for financial or other support or opposition in any election campaign.” 16 WASH. REV. CODE § 42.17.020(38). 17 First, HLW again claims that the terms “support” and “opposition” are vague and 18 overbroad because they could chill “issue advocacy.” (Mot. 21–22 (Dkt. No. 67).) This 19 argument is no more persuasive when applied to the definition of “political advertising” than 20 when applied to the definitions of “political committee” or “independent expenditure.” 21 Second, HLW argues that the phrase “directly or indirectly” is vague and overbroad. 22 (Id. at 21.) In ARTLC, however, the Ninth Circuit had “little trouble” upholding a statute that 23 contained this same term. 441 F.3d at 782–83. In that case, the Court considered Alaska’s 24 definition of “electioneering communication,” which resembled the federal definition except 25 that it applied when a communication “directly or indirectly identifies a candidate” whereas the 26 federal definition required that a candidate be “clearly” identified. Id. The Court explained: ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 39 1 2 3 The federal definition specifies no method of identification. The Alaska definition specifies that the method may be direct or indirect; however, since the words “direct and indirect” together describe the complete universe of possible methods of identification, the Alaska statute has the actual effect of requiring no specific methods of identification, just like the federal definition. 4 Id. at 783. As in ARTLC, the phrase “direct and indirect” neither expands nor contracts the 5 scope of Washington’s definition of “political advertising”—instead, it simply “describe[s] the 6 complete universe of possible” appeals. Id. Because the phrase does not change the definition’s 7 meaning, it cannot, by itself, render the definition vague or overbroad. 8 Finally, HLW notes, and the state concedes, that the statute does not define the term 9 “mass communication.” (Mot. 22 (Dkt. No. 67); Rippie Decl. ¶ 46 (Dkt. No. 47).) The Court 10 acknowledges that the term contains some ambiguity, but this ambiguity provides insufficient 11 grounds to find the definition of “political advertising” unconstitutional. HLW proposes to 12 solicit fundraising through letters and telephone calls and to issue “radio ads.” (Compl. ¶ 22– 13 24 (Dkt. No. 1).) The “political advertising” definition explicitly covers “letters” and “radio 14 and television presentations,” so the only relevant question to HLW’s as-applied challenge is 15 whether its proposed telemarketing solicitation would be considered “any . . . other means of 16 mass communication.” WASH. REV. CODE § 42.17.020(38). The Court finds that telemarketing 17 fits squarely within any reasonable definition of “mass communication,” especially now that 18 telephones are increasingly used both for fundraising and direct political advertising. See, e.g., 19 Carol Costello, Robocalls flood phone lines in battleground states, CNN, Oct. 23, 2008, 20 available at http://www.cnn.com/2008/POLITICS/10/23/robo.calls/. Moreover, HLW cannot 21 bring a facial challenge on overbreadth grounds unless it demonstrates that the ambiguity in the 22 definition will chill “substantial” amounts of protected speech. See Virginia v. Hicks, 539 U.S. 23 113, 119–20 (2003). HLW makes no attempt to prove that any speakers would self-censor their 24 protected speech out of fear that their method of communication might impermissibly be 25 deemed an “other means of mass communication,” much less than such a chilling effect would 26 be “substantial . . . relative to the scope of the law’s plainly legitimate applications.” Id. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 40 1 Accordingly, the Court finds that HLW has failed to carry its “heavy burden” of proving that 2 the potentially ambiguous “mass communication” term renders the definition of “political 3 advertising” overbroad. See McConnell, 540 U.S. at 207. 4 5 6 7 8 9 10 11 12 13 14 15 4. “Ratings, Evaluations, Endorsements and Recommendations” Finally, HLW challenges the treatment of ratings and endorsements under Washington Administrative Code § 390-16-206, which provides: (1) Any person making a measurable expenditure of funds to communicate a rating, evaluation, endorsement or recommendation for or against a candidate or ballot proposition shall report such expenditure including all costs of preparation and distribution in accordance with [Washington Revised Code] chapter 42.17. However, rating, endorsement or recommendation expenditures governed by the following provisions are not reportable: The news media exemptions provided in [Washington Revised Code §] 42.17.020(15)(b)(iv) and (21)(c), and [Washington Administrative Code §] 390-16-313(2)(b), and the political advertising exemption in [Washington Administrative Code §] 390-05-290. (2) A candidate or sponsor of a ballot proposition who, or a political committee which, is the subject of the rating, evaluation, endorsement or recommendation shall not be required to report such expenditure as a contribution unless the candidate, sponsor, committee or an agent thereof advises, counsels or otherwise encourages the person to make the expenditure. 16 Id. The record makes clear that this provision was not intended to create new reporting 17 requirements, but rather to clarify that certain “ratings, evaluations, endorsements, and 18 recommendations” would not need to be disclosed to the PDC or reported as contributions by 19 candidates or initiatives being endorsed. (See Rippie Decl. ¶ 50 (Dkt. No. 47 at 26).) In 20 particular, ratings and endorsements made without “a measurable expenditure of funds” or 21 made in the form of a news media item, commentary, editorial, etc., need not be disclosed as 22 expenditures or reported as contributions. (Id.) 23 HLW argues that § 390-16-206 is unconstitutional because it “relies on a vague 24 for/against test” and “regulat[es] a vast swath of protected issue advocacy.” (Mot. 22–23 (Dkt. 25 No. 67).) Again, the Court notes that “issue advocacy” is not entitled to absolute protection 26 under the First Amendment and can be regulated if the circumstances so justify. Moreover, the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 41 1 provision at issue in this challenge does not create new reporting requirements; instead, it 2 carves out an exception to the existing disclosure requirements in order to preserve the 3 traditional function of the news media and to allow non-journalistic individuals and 4 organizations “to evaluate and rank candidates and ballot measures without reporting so long 5 as they are not paying for advertisements or otherwise spending funds to communicate” the 6 ranking or evaluation. (Rippie Decl. ¶ 50 (Dkt. No. 47).) In carving out this commendable 7 exception, the state employs language no more vague than the “support” and “oppose” 8 language approved by the Supreme Court in McConnell. 540 U.S. at 170 n.64. In sum, the 9 Court holds that § 390-16-206 does not violate the First Amendment; instead, it is a laudable 10 attempt to protect traditional First Amendment interests within Washington State’s campaign 11 finance framework. 12 III. 13 14 15 16 17 18 19 CONCLUSION For the foregoing reasons, Plaintiff’s Motion for a Summary Judgment (Dkt. No. 67) is DENIED. SO ORDERED this 8th day of January, 2009. A John C. Coughenour United States District Judge 20 21 22 23 24 25 26 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE - 42

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.