1182 786 federal reporter, 3d series...1182 786 federal reporter, 3d series the more general...

1182 786 FEDERAL REPORTER, 3d SERIES

the more general requirement that statesattain national air quality standards byspecific dates. We decline to extend theCAA’s citizen-suit provision beyond what itsays by providing for general attainment-forcing remedies when the CAA does not.See 42 U.S.C. § 7604(a) (authorizing citi-zen suits to obtain remedies for, amongother things, violations of ‘‘emission stan-dard[s] or limitation[s].’’). If Californiadoes not fulfill a commitment to proposeand adopt emission control measures or toachieve aggregate emission reductions, thepublic can seek a remedy for such specificviolations. If, on the other hand, Califor-nia does not attain required air qualitystandards, EPA may use means availableunder other parts of the CAA to ensurethat the state attains the relevant nationalair quality standard. See, e.g., 42 U.S.C.§§ 7413, 7509.

Because California’s commitments topropose and adopt emission control meas-ures and to achieve aggregate emissionreductions are neither aspirational goalsnor unenforceable as a matter of discretionor practicality, we conclude that thesecommitments are enforceable emissionstandards or limitations, and that EPA’sapproval of them into the Plans was notarbitrary or capricious and did not violatethe CAA. We deny this portion of thepetition for review.

V

We grant the petition for review in partand remand the matter to EPA for furtherproceedings consistent with our decision.

Petitioners may recover from EPA thecosts and fees incurred in this litigation.42 U.S.C. § 7607(f). Determination of anappropriate amount of fees and costs isreferred to the Appellate Commissioner,who shall conduct whatever proceedings hedeems appropriate, and who shall haveauthority to enter an order awarding the

same. See Ober v. EPA, 84 F.3d 304, 316(9th Cir.1996).

PETITION GRANTED in part, DE-NIED in part, and REMANDED.

,

Jimmy YAMADA; RussellStewart, Plaintiffs,

and

A–1 A–Lectrician, Inc., Plaintiff–Appellant,

v.

William SNIPES, in his official capacityas chair and member of the HawaiiCampaign Spending Commission,Tina Pedro Gomes, in her official ca-pacity as vice chair and member of theHawaii Campaign Spending Commis-sion; and Eldon Ching, Gregory Sho-da and Adrienne Yoshihara, in theirofficial capacities as members of theHawaii Campaign Spending Commis-sion, Defendants–Appellees.

Jimmy Yamada; Russell Stewart,Plaintiffs–Appellants,

and

A–1 A–Lectrician, Inc., Plaintiff,

v.

William Snipes, in his official capacityas chair and member of the HawaiiCampaign Spending Commission;Tina Pedro Gomes, in her official ca-pacity as vice chair and member of theHawaii Campaign Spending Commis-sion; and Eldon Ching, Gregory Sho-

1183YAMADA v. SNIPESCite as 786 F.3d 1182 (9th Cir. 2015)

da and Adrienne Yoshihara, in theirofficial capacities as members of theHawaii Campaign Spending Commis-sion, Defendants–Appellees.

Nos. 12–15913, 12–17845.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 9, 2013.

Filed May 20, 2015.

Background: Individual and corporatedonors to non-candidate committees filed§ 1983 action against Hawaii CampaignSpending Commission alleging that Hawaiicampaign finance laws violated their FirstAmendment and due process rights. TheUnited States District Court for the Dis-trict of Hawaii, J. Michael Seabright, J.,permanently enjoined $1,000 contributionlimit as applied to individual donors, butentered summary judgment in Commis-sion’s favor on remaining claims, 872F.Supp.2d 1023, and granted in part do-nors’ motion for attorney fees, 2012 WL6019121. Donors appealed.

Holdings: The Court of Appeals, Fisher,Circuit Judge, held that:

(1) statutes’ definitions of ‘‘expenditure’’and ‘‘noncandidate committee’’ werenot impermissibly vague;

(2) definition of ‘‘advertisement’’ was notimpermissibly vague;

(3) noncandidate committee reporting anddisclosure requirements did not undulyburden corporation’s free speechrights;

(4) requirement that political advertisinginclude disclaimer as to advertiser’s af-filiation with candidate or candidatecommittee did not violate FirstAmendment;

(5) corporation lacked standing to chal-lenge Hawaii’s electioneering commu-nications reporting requirements;

(6) ban on political contributions by gov-ernment contractors did not violateFirst Amendment as applied; and

(7) district court was authorized to awardattorney fees incurred in defendingagainst state’s interlocutory appeal.

Affirmed in part and reversed in part.

For additional opinion, see 604 Fed.Appx.579.

1. Constitutional Law O3905Law is unconstitutionally vague under

Due Process Clause when it fails to pro-vide person of ordinary intelligence fairnotice of what is prohibited, or is so stan-dardless that it authorizes or encouragesseriously discriminatory enforcement.U.S.C.A. Const.Amend. 14.

2. Constitutional Law O1022In determining whether statute is void

for vagueness under Due Process Clause,court must consider any limiting construc-tion that state court or enforcement agen-cy has proffered. U.S.C.A. Const.Amend.14.

3. Constitutional Law O1025, 1026In determining whether statute is void

for vagueness under Due Process Clause,court may impose limiting construction onstatute only if it is readily susceptible tosuch construction, and will not insert miss-ing terms into statute or adopt interpreta-tion precluded by its plain language.U.S.C.A. Const.Amend. 14.

4. Constitutional Law O4232, 4236 Election Law O195, 202(1)

Definitions of ‘‘expenditure’’ and ‘‘non-candidate committee’’ in Hawaii campaignfinance laws were not impermissiblyvague, in violation of due process, eventhough definitions relied on whether ex-penditures were intended to ‘‘influence’’election, where Hawaii Campaign Spend-


ing Commission reasonably limited term‘‘influence’’ to ‘‘communications or activi-ties that constitute express advocacy or itsfunctional equivalent.’’ U.S.C.A. Const.Amend. 14; HRS § 11–302.

5. Constitutional Law O4236 Election Law O195

Definition of ‘‘advertisement’’ in Ha-waii campaign finance laws was not imper-missibly vague, in violation of due process,where statute referred only to ‘‘nominationor election of the candidate.’’ U.S.C.A.Const.Amend. 14; HRS § 11–302.

6. Constitutional Law O1701, 1706 Election Law O202(2)

Hawaii’s noncandidate committee re-porting and disclosure requirements didnot unduly burden corporation’s freespeech rights, even if requirements wereinconvenient, and did not require that po-litical advocacy be organization’s primarypurpose, where corporation was self-fi-nanced and did not receive contributions,corporation had been complying with non-candidate committee requirements for sev-eral years without difficulty, requirementsserved important government interests inproviding electorate with information, inavoiding corruption or its appearance inelectoral politics, and in gathering datanecessary to detect violations of campaignfinance laws, and statutes’ $1,000 thresholdensured that organization would be morethan incidentally engaged in political advo-cacy before it would be required to regis-ter and file reports as noncandidate com-mittee. U.S.C.A. Const.Amend. 1; HRS§§ 11–302, 11–321, 11–323, 11–324, 11–326,11–331, 11–336, 11–339, 11–351(a), 11–352,11–353, 11–355, 11–356, 11–358.


Hawaii’s requirement that political ad-vertising include disclaimer as to advertis-

er’s affiliation with candidate or candidatecommittee did not violate First Amend-ment rights of noncandidate committeethat placed political advertisements innewspapers; disclaimer requirement im-posed only modest burden, and requiringdisclaimer was closely related to state’simportant governmental interest in dis-semination of information regarding fi-nancing of political messages. U.S.C.A.Const.Amend. 1; HRS § 11–391(a)(2).

8. Election Law O195Corporation lacked standing to chal-

lenge Hawaii’s electioneering communica-tions reporting requirements, where corpo-ration was not subject to electioneeringcommunication reporting requirements asof date its complaint was filed. HRS§ 11–341.


Hawaii’s ban on political contributionsby government contractors was closelydrawn to meet state’s interest in combat-ing corruption and appearance of corrup-tion, and thus did not violate FirstAmendment as applied to contributions tolegislators who neither awarded nor over-saw contracts; ban served sufficiently im-portant governmental interests by combat-ing both actual and appearance of quidpro quo corruption, it targeted direct con-tributions from contractors to officehold-ers and candidates, which were mostclosely linked to actual and perceived quidpro quo corruption, ban was in response topast ‘‘pay to play’’ scandals and wide-spread appearance of corruption that ex-isted at time of legislature’s actions, and itwas not possible to predict with certaintyat time contributions were made whichcandidates would not become involved incontract award or oversight process.U.S.C.A. Const.Amend. 1; HRS § 11–355(a).


10. Civil Rights O1492

District court was authorized to awardattorney fees incurred by successful plain-tiffs in § 1983 action in defending againstdefendants’ interlocutory appeal of ordergranting their motion for preliminary in-junction, even though defendants dis-missed their interlocutory appeal, andCourt of Appeals did not transfer fee re-quest to district court; plaintiffs were notyet prevailing parties when defendants dis-missed their interlocutory appeal andcould not have requested fees at that time,and plaintiffs’ challenge was not renderedmoot until district court entered final judg-ment in their favor. 42 U.S.C.A. §§ 1983,1988.

Randy Elf (argued), Lakewood, NY, &James Bopp, Jr., James Madison Centerfor Free Speech, Terre Haute, IN; JamesHochberg, Honolulu, HI, for Plaintiff–Ap-pellant.

Justin L. McAdam (argued), Jeffrey P.Gallant & James Bopp, Jr., The Bopp LawFirm, P.C., Terre Haute, IN; JamesHochberg, Honolulu, HI, for Plaintiffs.

Deirdre Marie–Iha (argued), Deputy So-licitor General, Robyn B. Chun, DeputyAssistant Attorney General & David M.Louie, Attorney General, Department ofthe Attorney General, Honolulu, HI, forDefendants–Appellees.

Paul S. Ryan, J. Gerald Hebert, TaraMalloy & Megan McAllen, WashingtonD.C., for Amicus Curiae The CampaignLegal Center.

Appeal from the United States DistrictCourt for the District of Hawaii, J. Mi-chael Seabright, District Judge, Presiding.D.C. No. 1:10–cv–00497–JMS–RLP.

Before: ALEX KOZINSKI,RAYMOND C. FISHER and PAUL J.WATFORD, Circuit Judges.

OPINION

FISHER, Circuit Judge:

This appeal concerns the constitutionali-ty of four provisions of Hawaii’s campaignfinance laws under Citizens United v. Fed-eral Election Commission, 558 U.S. 310,130 S.Ct. 876, 175 L.Ed.2d 753 (2010), andrelated authority. A–1 A–Lectrician, Inc.(A–1), a for-profit corporation, appeals thedistrict court’s summary judgment in favorof members of Hawaii’s Campaign Spend-ing Commission (‘‘the Commission’’). Re-lying on Human Life of Washington Inc.v. Brumsickle, 624 F.3d 990 (9th Cir.2010),we hold that the challenged laws satisfythe First and Fourteenth Amendments.

I. Background

The plaintiffs are Jimmy Yamada, Rus-sell Stewart and A–1. Before the 2010general election, Yamada and Stewart eachsought to contribute $2,500 to the AlohaFamily Alliance–Political Action Commit-tee (AFA–PAC), a registered ‘‘noncandi-date committee’’ that makes independentcampaign expenditures in Hawaii elections.They were forbidden from doing so, how-ever, by Hawaii Revised Statute (HRS)§ 11–358, which prohibits any person from‘‘mak[ing] contributions to a noncandidatecommittee in an aggregate amount greaterthan $1,000 in an election.’’

Plaintiff A–1 is a Hawaii electrical-con-struction corporation that makes campaigncontributions and engages in politicalspeech. Yamada is its CEO. During the2010 election, A–1 contributed over $50,000to candidates, candidate committees andparty committees. It also purchased threenewspaper advertisements at a cost of$2,000 to $3,000 each. Under the heading‘‘Freedom Under Siege,’’ these advertise-


ments declared that Hawaiians had ‘‘lostour freedom’’ because ‘‘we have represen-tatives who do not listen to the people.’’One advertisement asserted State HouseMajority Leader Blake Oshiro and otherrepresentatives were ‘‘intent on the de-struction of the family.’’ Another accusedOshiro and his colleagues of ‘‘disre-spect[ing] the legislative process and thepeople.’’ In accordance with Hawaii law,see HRS § 11–391(a)(2)(B), all three ad-vertisements included a disclaimer thatthey were ‘‘[p]ublished without the approv-al and authority of the candidate.’’

As a result of these expenditures andcontributions, Hawaii law required A–1 toregister as a ‘‘noncandidate committee’’ asdefined by HRS § 11–302. Section 11–302imposes reporting and disclosure require-ments on any organization that has ‘‘thepurpose of making or receiving contribu-tions, making expenditures, or incurringfinancial obligations to influence [elec-tions]’’ over $1,000 in the aggregate for anelection cycle. Id.; see HRS § 11–321(g).A–1, which plans to run similar advertise-ments and to make similar contributions tocandidates in the future, objects to boththe disclaimer requirement and the non-candidate committee registration and re-porting requirements.

If A–1 is relieved of the obligation ofregistering as a noncandidate committee, itcould be subject to reporting requirementsassociated with ‘‘electioneering communi-cations’’ because it seeks to publish news-paper advertisements that mention candi-dates by name shortly before an election.See HRS § 11–341. Every entity thatmakes a disbursement for an electioneer-ing communication, such as A–1’s newspa-per advertisements, must report certainidentifying information to the Commission

within 24 hours of certain disclosure dates.See id. Under the regulations in effectwhen A–1 filed this action, if A–1 were toremain a noncandidate committee, howev-er, it would not have to file an electioneer-ing communications report or comply withthe provisions of HRS § 11–341. SeeHaw. Admin. Rule (HAR) § 3–160–48.1

Finally, A–1 is often a state governmentcontractor, and when it has such contracts,Hawaii law prohibits it from making cam-paign contributions to candidates or candi-date committees. See HRS § 11–355. A–1 challenges that prohibition as applied toits speech, although it declares it seeks tocontribute only to lawmakers who neitheraward nor oversee its public contracts.

Shortly before the 2010 primary elec-tion, Yamada, Stewart and A–1 filed anine-count complaint challenging the con-stitutionality of five provisions of Hawaiicampaign finance law. Yamada and Stew-art challenged the $1,000 limit on contribu-tions to noncandidate committees, HRS§ 11–358, and A–1 challenged four otherprovisions: (1) the requirement that it reg-ister as a noncandidate committee and theassociated expenditure definition, HRS§ 11–302; (2) if it does not have to registeras a noncandidate committee, the require-ment that it report identifying informationwhen it makes an electioneering communi-cation, HRS § 11–341; (3) the require-ment that its advertisements include cer-tain disclaimers, HRS § 11–391; and (4)the ban on contributions from governmentcontractors to state legislative candidates,HRS § 11–355.

In October 2010, the district court pre-liminarily enjoined enforcement of the$1,000 contribution limit, HRS § 11–358,as applied to Yamada’s and Stewart’s pro-

1. On November 5, 2014, an amendment toHRS § 11–341 went into effect, requiring reg-istered noncandidate committees to file elec-

tioneering communications statements. See2013 Haw. Sess. L. Act 112.


posed $2,500 contributions to AFA–PAC, anoncandidate committee. See Yamada v.Kuramoto, 744 F.Supp.2d 1075, 1078, 1087(D.Haw.2010) (Yamada I ). The court de-nied A–1’s motion for a preliminary injunc-tion on its first, second and third claims.See Yamada v. Kuramoto, No. 10–cv–00497, 2010 WL 4603936, at *20 (D.Haw.Oct. 29, 2010) (Yamada II ). A–1 did notseek to enjoin the government contractorban. The defendants appealed the prelim-inary injunction of § 11–358 but dismissedtheir appeal before argument.

On the parties’ cross-motions for sum-mary judgment, the district court perma-nently enjoined the $1,000 contributionlimit, HRS § 11–358, as applied to Yama-da’s and Stewart’s contributions to AFA–PAC and rejected each of A–1’s constitu-tional challenges. See Yamada v. Weaver,872 F.Supp.2d 1023, 1027–28, 1063(D.Haw.2012) (Yamada III ). A–1 appealsthe denial of summary judgment on itsclaims. The defendants have not cross-appealed the court’s invalidation of § 11–358.

Yamada and Stewart sought their attor-ney’s fees under 42 U.S.C. § 1988 basedon their successful constitutional challengeto the $1,000 contribution limit. The dis-trict court awarded them $60,152.65 in feesand $3,623.29 in costs. Yamada and Stew-art appeal that award in several respects,including the district court’s denial of thefees they incurred defending against thedefendants’ abandoned appeal of the pre-liminary injunction ruling.

We have jurisdiction under 28 U.S.C.§ 1291 and review A–1’s constitutionalchallenges de novo. See Human Life, 624F.3d at 1000. A–1 raises three groups ofissues on appeal: (1) whether the expen-diture, noncandidate committee and ad-vertisement definitions are unconstitution-ally vague; (2) whether the noncandidatecommittee definition and advertising dis-

claimer and electioneering communica-tions reporting requirements impose un-constitutional burdens on speech; and (3)whether the ban on contributions by gov-ernment contractors is unconstitutional asapplied to A–1’s proposed contributions.Yamada and Stewart also appeal the par-tial denial of attorney’s fees. We addressthese issues in turn.

II. Due Process Vagueness Challenge

[1] We begin by addressing A–1’s ar-gument that § 11–302’s definitions of ‘‘ex-penditure,’’ ‘‘noncandidate committee’’ and‘‘advertisement’’ are unconstitutionallyvague under the Due Process Clause of theFourteenth Amendment. A law is uncon-stitutionally vague when it ‘‘fails to providea person of ordinary intelligence fair noticeof what is prohibited, or is so standardlessthat it authorizes or encourages seriouslydiscriminatory enforcement.’’ UnitedStates v. Williams, 553 U.S. 285, 304, 128S.Ct. 1830, 170 L.Ed.2d 650 (2008). Thisdoctrine ‘‘addresses at least two connectedbut discrete due process concerns: first,that regulated parties should know what isrequired of them so they may act accord-ingly; second, precision and guidance arenecessary so that those enforcing the lawdo not act in an arbitrary or discriminato-ry way.’’ FCC v. Fox Television Stations,Inc., ––– U.S. ––––, 132 S.Ct. 2307, 2317,183 L.Ed.2d 234 (2012). Where, as here,First Amendment freedoms are involved,‘‘rigorous adherence to those requirementsis necessary to ensure that ambiguity doesnot chill protected speech.’’ Id. Even forregulations of expressive activity, however,‘‘perfect clarity and precise guidance’’ arenot required, Ward v. Rock Against Rac-ism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105L.Ed.2d 661 (1989), because ‘‘we can neverexpect mathematical certainty from ourlanguage,’’ Human Life, 624 F.3d at 1019(quoting Grayned v. City of Rockford, 408


U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d222 (1972)) (internal quotation marks omit-ted).

[2, 3] In evaluating A–1’s challenges,we must consider ‘‘any limiting construc-tion that a state court or enforcementagency has proffered.’’ Ward, 491 U.S. at796, 109 S.Ct. 2746 (quoting Vill. of Hoff-man Estates v. Flipside, Hoffman Estates,Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186,71 L.Ed.2d 362 (1982)) (internal quotationmarks omitted). We may impose a limit-ing construction on a statute, however,‘‘only if it is ‘readily susceptible’ to such aconstruction.’’ Reno v. ACLU, 521 U.S.844, 884, 117 S.Ct. 2329, 138 L.Ed.2d 874(1997) (quoting Virginia v. Am. Booksel-lers Ass’n, 484 U.S. 383, 397, 108 S.Ct. 636,98 L.Ed.2d 782 (1988)). We will not ‘‘in-sert missing terms into the statute oradopt an interpretation precluded by theplain language of the ordinance.’’ Foti v.City of Menlo Park, 146 F.3d 629, 639 (9thCir.1998).

A. Hawaii’s Expenditure and Noncan-didate Committee Definitions AreNot Vague Given the Commission’sNarrowing Construction

A–1’s first vagueness challenge is to theexpenditure and noncandidate committeedefinitions. Section 11–302 defines an ‘‘ex-penditure’’ to include:

(1) Any purchase or transfer of moneyor anything of value, or promise oragreement to purchase or transfer mon-ey or anything of value, or paymentincurred or made, or the use or con-sumption of a nonmonetary contributionfor the purpose of:

(A) Influencing the nomination forelection, or the election, of any personseeking nomination for election orelection to office, whether or not theperson has filed the person’s nomina-tion papers;

(B) Influencing the outcome of anyquestion or issue that has been certi-fied to appear on the ballot at the nextapplicable electionTTTT

HRS § 11–302 (emphasis added). It de-fines a ‘‘noncandidate committee’’ as:

[A]n organization, association, party, orindividual that has the purpose of mak-ing or receiving contributions, makingexpenditures, or incurring financial obli-gations to influence the nomination forelection, or the election, of any candidateto office, or for or against any questionor issue on the ballotTTTT

Id. (emphasis added). Noncandidate com-mittees are Hawaii’s version of indepen-dent expenditure committees, similar tothe Washington ‘‘political committee’’ defi-nition we addressed in Human Life. See624 F.3d at 997.

A–1 challenges these definitions underBuckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct.612, 46 L.Ed.2d 659 (1976) (per curiam),which held that the terms ‘‘influencing’’and ‘‘for the purpose of influencing’’ wereunconstitutionally vague when used to de-lineate types of speech subject to regula-tion. Id. at 77–82, 96 S.Ct. 612. If bothdefinitions are unconstitutionally vague,Hawaii cannot constitutionally impose non-candidate committee status and the accom-panying registration and reporting bur-dens on A–1.

[4] Like the district court, we assumewithout deciding that the term ‘‘influence’’may be vague under some circumstances.‘‘Conceivably falling within the meaning of‘influence’ are objectives as varied as advo-cacy for or against a candidate’s election;championing an issue for inclusion in acandidate’s platform; and encouraging allcandidates to embrace public funding.’’Nat’l Org. for Marriage v. McKee, 649F.3d 34, 65 (1st Cir.2011). But the Com-mission has offered and the district court


applied a limiting construction on the term‘‘influence’’ in § 11–302’s definitions of ‘‘ex-penditure’’ and ‘‘noncandidate committee,’’eliminating this potential vagueness. Un-der the Commission’s interpretation, ‘‘in-fluence’’ refers only to ‘‘communications oractivities that constitute express advocacyor its functional equivalent.’’ This inter-pretation significantly narrows the statuto-ry language, because ‘‘express advocacy’’requires words ‘‘such as ‘vote for,’ ‘elect,’‘support,’ ‘cast your ballot for,’ ‘Smith forCongress,’ ‘vote against,’ ‘defeat,’ ‘reject,’ ’’Buckley, 424 U.S. at 44 n. 52, 96 S.Ct. 612,and communications are the ‘‘functionalequivalent of express advocacy’’ only whenthey are ‘‘susceptible of no reasonable in-terpretation other than as an appeal tovote for or against a specific candidate,’’Fed. Election Comm’n v. Wisconsin Rightto Life, Inc., 551 U.S. 449, 469–70, 127S.Ct. 2652, 168 L.Ed.2d 329 (2007) (opinionof Roberts, C.J.).

A–1 argues that the proffered limitingconstruction does not render § 11–302 con-stitutional because (1) it is inconsistentwith the plain language of the statute, thusbarring us from adopting it, and (2) even ifwe could adopt it, the challenged defini-tions remain unconstitutionally vague. Wefind neither argument persuasive.

1.

The Commission’s proffered construc-tion is not inconsistent with the plain lan-guage of the statute. We have previouslynoted that the term ‘‘influencing’’ is sus-ceptible to a narrowing construction, seeACLU of Nev. v. Heller, 378 F.3d 979, 986n. 5 (9th Cir.2004), and the Commission’sinterpretation of ‘‘influence’’ is consistentwith Buckley, which construed the phrase‘‘for the purpose of TTT influencing’’ tomean ‘‘communications that expressly ad-vocate the election or defeat of a clearlyidentified candidate,’’ 424 U.S. at 79, 80, 96

S.Ct. 612 (footnote omitted). Given thesubstantial similarity between the statuto-ry language in Buckley and the languageat issue here, the Commission’s gloss isentirely reasonable. Compare 2 U.S.C.§ 431(f) (1971), with HRS § 11–302.

Moreover, the Commission reasonablyconstrues the statute as referring not onlyto express advocacy but also to its func-tional equivalent. After Buckley, case lawand Federal Election Commission regula-tions have broadened the concept of ex-press advocacy to include its ‘‘functionalequivalent,’’ as defined in Wisconsin Rightto Life, 551 U.S. at 469–70, 127 S.Ct. 2652.See 11 C.F.R. § 100.22; Real Truth AboutAbortion, Inc. v. Fed. Election Comm’n,681 F.3d 544, 550–53 (4th Cir.2012) (dis-cussing the evolution of the ‘‘functionalequivalent of express advocacy’’ concept).Elsewhere, Hawaii’s Commission hasadopted a regulation defining express ad-vocacy with reference to its functionalequivalent, or as communications that are‘‘susceptible to no other reasonable inter-pretation but as an exhortation to vote foror against a candidate.’’ HAR § 3–160–6.The Commission’s proposed construction isconsistent with Buckley, subsequent Su-preme Court decisions, federal regulationsand other Commission regulations. Theproposed construction, therefore, is neitherunreasonable nor foreclosed by the plainlanguage of the statute. See WisconsinRight To Life, Inc. v. Barland, 751 F.3d804, 832–34 (7th Cir.2014) (limiting ‘‘for thepurpose of influencing the election or nom-ination for election of any individual tostate or local office’’ to express advocacyand its functional equivalent); McKee, 649F.3d at 66–67 (construing ‘‘influencing’’and ‘‘influence’’ in Maine campaign financestatutes to include only communicationsthat constitute express advocacy or itsfunctional equivalent).

The legislative history of Hawaii’s non-candidate committee and expenditure def-

U0010783

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initions lends further validity to the Com-mission’s interpretation. In 1979, theHawaii legislature revised state campaignfinance laws to harmonize them withBuckley. See 1979 Haw. Sess. L. Act224; Conf. Comm. Rep. No. 78, in Haw.H.J. 1137, 1140 (1979). The legislaturewas ‘‘mindful’’ that Buckley ‘‘narrowlyconstrued the operation of the federalspending and contribution disclosure re-quirements’’ to encompass only ‘‘commu-nications that expressly advocate theelection or defeat of a clearly identifiedcandidate.’’ Conf. Comm. Rep. No. 78, inHaw. H.J. 1137, 1140 (1979). Thus, asthe district court concluded, ‘‘[i]t is rea-sonable to infer TTT that Hawaii’s Legis-lature adopted terminology such as ‘to in-fluence’ in reliance on the SupremeCourt’s interpretation of the same termi-nology in federal law.’’ Yamada III, 872F.Supp.2d at 1046. We agree.2

A–1 nonetheless contends we should notadopt the narrowing construction becauseit would not bind a state court and there-fore provides insufficient protection forFirst Amendment values. We again dis-agree. By adopting a ‘‘ ‘readily apparent’constitutional interpretation,’’ we provideA–1 and other parties not before the court‘‘sufficient protection from unconstitutionalapplication of the statute, as it is quitelikely nonparty prosecutors and statecourts will apply the same interpretation.’’Planned Parenthood of Idaho, Inc. v.

Wasden, 376 F.3d 908, 932 (9th Cir.2004);see also Valle del Sol Inc. v. Whiting, 732F.3d 1006, 1022 n. 15 (9th Cir.2013).3

We hold that the Commission’s prof-fered construction is neither unreasonablenor the product of ‘‘strained statutory con-struction.’’ Wasden, 376 F.3d at 932. Wetherefore adopt it.

2.

We also reject A–1’s argument that§ 11–302’s definitions of ‘‘expenditure’’ and‘‘noncandidate committee’’ are unconstitu-tionally vague even with this limiting con-struction in place. With the narrowinggloss, these definitions are sufficiently pre-cise to provide ‘‘a person of ordinary intel-ligence fair notice of what is prohibited.’’Williams, 553 U.S. at 304, 128 S.Ct. 1830.Only expenditures for communications thatexpressly advocate for a candidate or are‘‘susceptible of no reasonable interpreta-tion other than as an appeal to vote for oragainst a specific candidate’’ can triggernoncandidate committee registration, re-porting and disclosure requirements under§ 11–302. There is no dispute that ‘‘ex-press advocacy’’ is not a vague term, andthe controlling opinion in Wisconsin Rightto Life held the ‘‘functional equivalent’’ or‘‘appeal to vote’’ component of this testalso meets the ‘‘imperative for clarity’’ thatdue process requires. 551 U.S. at 474 n. 7,127 S.Ct. 2652. That close cases may arisein applying this test does not make it

2. A–1 draws a different inference from thislegislative history, arguing that the legisla-ture’s retention of the word ‘‘influence’’ afterBuckley suggests that the legislature did notintend to limit the law to express advocacyand its functional equivalent. See Va. Soc’yfor Human Life, Inc. v. Caldwell, 152 F.3d268, 271 (4th Cir.1998). We disagree, buteven if the legislative history is debatable, theCommission’s reasonable limiting interpreta-tion merits our deference. See Vill. of Hoff-man Estates, 455 U.S. at 504, 102 S.Ct. 1186;McKee, 649 F.3d at 66.

3. Like federal courts, Hawaii courts construestate statutes to avoid constitutional infirmi-ties whenever possible. See, e.g., KapiolaniPark Pres. Soc’y v. City & Cnty. of Honolulu,69 Haw. 569, 751 P.2d 1022, 1028 (1988)(‘‘Legislative acts TTT are not to be held inval-id, or unconstitutional, or unconscionable, ifsuch a construction can reasonably be avoid-ed.’’). We would therefore expect Hawaiicourts to adopt the same limiting construc-tion.


unconstitutional, given there will always bean inherent but permissible degree of un-certainty in applying any standards-basedtest. See Williams, 553 U.S. at 306, 128S.Ct. 1830 (‘‘Close cases can be imaginedunder virtually any statute.’’); Real Truth,681 F.3d at 554–55. We therefore join theFirst, Fourth and Tenth Circuits in hold-ing that the ‘‘appeal to vote’’ language isnot unconstitutionally vague. See FreeSpeech v. Fed. Election Comm’n, 720 F.3d788, 795–96 (10th Cir.2013); Real Truth,681 F.3d at 552, 554 (‘‘[T]he test in Wis-consin Right to Life is not vague.’’);McKee, 649 F.3d at 70.

A–1 resists this conclusion, advancingtwo arguments why the ‘‘appeal to vote’’language is impermissibly vague. Neitheris persuasive.

First, A–1 contends the test is unconsti-tutionally vague because Hawaii’s law ap-plies to a broader range of communicationsthan the provision upheld in WisconsinRight to Life. Wisconsin Right to Lifesustained the functional equivalent testagainst a vagueness challenge to the feder-al definition of electioneering communica-tions, which covers only broadcast commu-nications, see 551 U.S. at 474 n. 7, 127S.Ct. 2652; 2 U.S.C. § 434(f)(3) (2000 ed.,Supp. IV), whereas Hawaii’s noncandidatecommittee and expenditure definitions ex-tend to speech in printed form, see HRS§ 11–302. The statute at issue in Wiscon-sin Right to Life also regulated only com-munications run shortly before an election,whereas Hawaii’s statute applies to com-munications without strict temporal limita-tions. But these differences are immateri-al. Regardless of when a communicationis aired or printed and whether it appearsin print or in a broadcast medium, thepurveyor of the advertisement has fair no-tice that the regulations reach only thoseads that clearly advocate for an identifiedcandidate. Like the Fourth Circuit, we

hold that the functional equivalent lan-guage is not unconstitutionally vaguemerely because it applies more broadlythan the federal provision upheld in Wis-consin Right to Life. See Ctr. for Individu-al Freedom, Inc. v. Tennant, 706 F.3d 270,280–81 (4th Cir.2013).

Second, the validity of the functionalequivalent test has not been underminedby Citizens United, which struck down thefederal electioneering communication defi-nition, see 2 U.S.C. § 434(f)(3), for whichthe test was first developed. As the FirstCircuit explained in rejecting an identicalargument:

The basis for Citizens United ’s holdingon the constitutionality of the election-eering expenditure statute had nothingto do with the appeal-to-vote testTTTT

Instead, the decision turned on a recon-sideration of prior case law holding thata corporation’s political speech may besubjected to greater regulation than anindividual’s. The opinion offered noview on the clarity of the appeal-to-votetest. In fact, the Court itself relied onthe appeal-to-vote test in disposing of athreshold argument that the appealshould be resolved on narrower, as-ap-plied grounds.

McKee, 649 F.3d at 69 (citations omitted);see also Nat’l Org. for Marriage v. Rob-erts, 753 F.Supp.2d 1217, 1220 (N.D.Fla.2010), aff’d, 477 Fed.Appx. 584, 585 (11thCir.2012) (per curiam). We also have re-lied on the appeal to vote test, albeit indicta, since Citizens United. See HumanLife, 624 F.3d at 1015. We could not havedone so if the test was unconstitutionallyvague.

Accordingly, we sustain Hawaii’s non-candidate committee and expenditure defi-nitions from A–1’s vagueness challenges.The term ‘‘influence’’ is readily and rea-sonably interpreted to encompass only‘‘communications or activities that consti-


tute express advocacy or its functionalequivalent.’’ As construed, the definitionsare not unconstitutionally vague.

B. Hawaii’s Advertising Definition isNot Unconstitutionally Vague

A–1 argues that § 11–302’s advertisingdefinition is unconstitutionally vague be-cause it uses the terms ‘‘advocates,’’ ‘‘sup-ports’’ and ‘‘opposition.’’ This provisionspells out when an advertisement mustinclude a disclaimer as to whether the adwas disseminated with or without the ap-proval of a candidate. See HRS § 11–391.In relevant part, Hawaii law defines an‘‘advertisement’’ as:

any communication, excluding sundryitems such as bumper stickers, that:

(1) Identifies a candidate directly orby implication, or identifies an issue orquestion that will appear on the ballotat the next applicable election; and(2) Advocates or supports the nomina-tion, opposition, or election of the can-didate, or advocates the passage ordefeat of the issue or question on theballot.

HRS § 11–302 (emphasis added).

Applying a narrowing construction tothis definition, as before, the district courtlimited the reach of ‘‘advocates or supportsthe nomination, opposition, or election ofthe candidate’’ to express advocacy or itsfunctional equivalent. See Yamada III,872 F.Supp.2d at 1054. With this limitingconstruction, the district court concludedthat Hawaii’s definition of an advertise-ment was not unconstitutionally vague.A–1 contends that the district court imper-missibly adopted a limiting constructionfor the same reasons it argues a limitingconstruction was inappropriate for thenoncandidate committee and expendituredefinitions. It further argues that with or

without the limiting construction, the chal-lenged definition is unconstitutionallyvague under Buckley and McConnell v.Federal Election Commission, 540 U.S. 93,124 S.Ct. 619, 157 L.Ed.2d 491 (2003),overruled on other grounds by CitizensUnited, 558 U.S. at 365–66, 130 S.Ct. 876.The Commission responds that the defini-tion is not vague even without a limitingconstruction.

[5] We agree with the Commissionthat Hawaii’s advertising definition is suffi-ciently precise without a limiting construc-tion and therefore decline to adopt one.The words ‘‘advocates or supports’’ and‘‘opposition’’ as used here are substantiallysimilar to the words ‘‘promote,’’ ‘‘oppose,’’‘‘attack’’ and ‘‘support’’ that survived avagueness challenge in McConnell.There, the Court considered a statute de-fining ‘‘Federal election activity’’ as ‘‘apublic communication that refers to aclearly identified candidate for Federal of-fice TTT and that promotes or supports acandidate for that office, or attacks oropposes a candidate for that office (regard-less of whether the communication ex-pressly advocates a vote for or against acandidate).’’ 2 U.S.C. § 431(20)(A)(iii).The Court noted that ‘‘[t]he words ‘pro-mote,’ ‘oppose,’ ‘attack,’ and ‘support’clearly set forth the confines within whichpotential party speakers must act in orderto avoid triggering the provision.’’McConnell, 540 U.S. at 170 n. 64, 124 S.Ct.619. Because ‘‘[t]hese words ‘provide ex-plicit standards for those who apply them’and ‘give the person of ordinary intelli-gence a reasonable opportunity to knowwhat is prohibited,’ ’’ the Court held thatthe provision was not unconstitutionallyvague. Id. (quoting Grayned, 408 U.S. at108–09, 92 S.Ct. 2294).4 McConnell sup-

4. Joining the First, Second and Fourth Cir- cuits, we reject A–1’s argument that McCon-


ports the conclusion that Hawaii’s adver-tisement definition is not unconstitutionallyvague.

Decisions in other circuits also supportthat conclusion. In McKee, the First Cir-cuit turned away a vagueness challenge toa Maine law using the terms ‘‘promoting,’’‘‘support’’ and ‘‘opposition’’ in several cam-paign finance provisions. The terms werenot impermissibly vague because theywere tied to an ‘‘election-related object’’—either ‘‘candidate,’’ ‘‘nomination or electionof any candidate’’ or ‘‘campaign.’’ McKee,649 F.3d at 64. Maine’s expenditure stat-ute, for example, ‘‘instructs that reportssubmitted pursuant to the provision ‘muststate whether the expenditure is in sup-port of or in opposition to the candidate.’ ’’Id. at 63 n. 41 (quoting Me.Rev.Stat. tit.21–A, § 1019–B(3)(B)). The Second,Fourth and Seventh Circuits have reachedsimilar conclusions. See Vermont Right toLife Comm., Inc. v. Sorrell, 758 F.3d 118,128–30 (2d Cir.2014) (holding that ‘‘pro-motes,’’ ‘‘supports,’’ ‘‘attacks’’ and ‘‘oppos-es’’ were not vague with reference to a‘‘clearly identified candidate’’); Tennant,706 F.3d at 286–87 (holding that ‘‘promot-ing or opposing’’ was not vague); Ctr. forIndividual Freedom v. Madigan, 697 F.3d464, 485–87, 495 (7th Cir.2012) (holdingthat ‘‘promote’’ and ‘‘oppose’’ were notvague).

As in McKee, Hawaii’s statutes are tiedto an election-related object—the terms‘‘advocates,’’ ‘‘supports’’ and ‘‘opposition’’refer only to ‘‘the nomination TTT or elec-tion of the candidate.’’ HRS § 11–302.So too does the federal law upheld inMcConnell, which used the words ‘‘pro-mote,’’ ‘‘oppose,’’ ‘‘attack’’ and ‘‘support’’only in relation to a ‘‘clearly identified

candidate for Federal office.’’ 2 U.S.C.§ 431(20)(A)(iii). Although the terms ‘‘ad-vocate,’’ ‘‘support’’ and ‘‘opposition’’ maynot, in isolation, offer sufficient clarity asto what advertisements must include a dis-claimer, their proximity to ‘‘nomination’’ or‘‘election of the candidate’’ make clear thesort of campaign-related advertising forwhich a disclaimer must be included.Read as a whole and in context, the adver-tisement definition is sufficiently clear to‘‘give the person of ordinary intelligence areasonable opportunity to know what isprohibited.’’ Grayned, 408 U.S. at 108, 92S.Ct. 2294.

Finally, we reject A–1’s argument that‘‘advocates,’’ a term that McConnell didnot consider, makes Hawaii’s advertisingdefinition unconstitutionally vague. A–1relies on Buckley, which considered a pro-vision that prohibited any person or groupfrom making ‘‘any expenditure TTT relativeto a clearly identified candidate during acalendar year which, when added to allother expenditures TTT advocating theelection or defeat of such candidate, ex-ceeds $1,000.’’ 424 U.S. at 42, 96 S.Ct.612. Buckley held that this provision—which imposed a severe restriction on in-dependent spending by all individuals andgroups other than political parties andcampaign organizations—was impermissi-bly vague because of its potential breadth,extending to the discussion of public issuesuntethered from particular candidates.See id. at 40, 42, 96 S.Ct. 612. The Courttherefore construed the provision ‘‘to applyonly to expenditures for communicationsthat in express terms advocate the electionor defeat of a clearly identified candidatefor federal office.’’ Id. at 44, 96 S.Ct. 612.

nell ’s vagueness holding is limited to lawsthat regulate campaign finance for politicalparties. See Vermont Right to Life Comm.,Inc. v. Sorrell, 758 F.3d 118, 128 (2d Cir.

2014); Tennant, 706 F.3d at 287 (‘‘[T]heCourt TTT did not limit its holding to situa-tions involving political parties.’’); McKee,649 F.3d at 63.


A–1’s contention that ‘‘advocates’’ is un-constitutionally vague in this context doesnot survive the Supreme Court’s post-Buckley discussion of nearly identical lan-guage in McConnell, 540 U.S. at 170 n. 64,124 S.Ct. 619. For candidate elections, Ha-waii’s definition uses the word ‘‘advocates’’only in relation to a communication that (1)identifies a candidate and (2) ‘‘advocates orsupports the nomination, opposition, orelection of [that] candidate.’’ HRS § 11–302. Although the word ‘‘advocates’’ wasnot at issue in McConnell, there is nothingunconstitutionally vague about ‘‘advocate’’when used in Hawaii’s advertising defini-tion to refer to communications that identi-fy a candidate for state office and ‘‘plead infavor of’’ that candidate’s election. Web-ster’s Third New International Dictionary32 (2002). A–1’s vagueness challenge tothe Hawaii advertising definition thereforefails.

III. First Amendment Claims

A–1 brings First Amendment challengesto (1) the registration, reporting and dis-closure requirements that Hawaii placeson ‘‘noncandidate committees’’ and (2) therequirement that political advertisementsinclude a disclaimer stating whether theyare broadcast or published with the ap-proval of a candidate. Because the chal-lenged laws provide for the disclosure andreporting of political spending but do notlimit or ban contributions or expenditures,we apply exacting scrutiny. See FamilyPAC v. McKenna, 685 F.3d 800, 805–06(9th Cir.2011); Human Life, 624 F.3d at1005. To survive this scrutiny, a law mustbear a substantial relationship to a suffi-ciently important governmental interest.See Doe v. Reed, 561 U.S. 186, 196, 130S.Ct. 2811, 177 L.Ed.2d 493 (2010); Hu-

man Life, 624 F.3d at 1008. Put different-ly, ‘‘the strength of the governmental in-terest must reflect the seriousness of theactual burden on First Amendmentrights.’’ Doe, 561 U.S. at 196, 130 S.Ct.2811 (quoting Davis v. Fed. ElectionComm’n, 554 U.S. 724, 744, 128 S.Ct. 2759,171 L.Ed.2d 737 (2008)) (internal quotationmarks omitted).

A. The Noncandidate Committee Re-porting and Disclosure Require-ments Survive Exacting Scrutiny AsApplied to A–1

[6] We first consider whether thenoncandidate committee reporting anddisclosure requirements satisfy exactingscrutiny as applied to A–1. Looking tothe burden side of the balance, the dis-trict court found that the ‘‘registrationand disclosure requirements that comewith noncandidate committee status donot present an undue burden on A–1.’’Yamada III, 872 F.Supp.2d at 1052. Weagree.

The noncandidate committee is Hawaii’smethod for monitoring and regulating in-dependent political spending in state elec-tions. In relevant part, a noncandidatecommittee is broadly defined as an organi-zation ‘‘that has the purpose of making orreceiving contributions, making expendi-tures, or incurring financial obligations toinfluence’’ Hawaii elections. HRS § 11–302.5 To paraphrase the statute, and in-corporating the Commission’s narrowingconstruction we adopted earlier (see page20), the noncandidate committee definitionis limited to an organization that:

Has ‘‘the purpose’’ of making or receiv-ing contributions, or making expendi-

5. Although noncandidate committee statusalso extends to an individual who makes con-tributions or expenditures not of his or herown funds, see HRS § 11–302, the parties

focus solely on noncandidate committee sta-tus for organizations, and we shall do thesame.


tures, for communications or activitiesthat constitute express advocacy or itsfunctional equivalent (i.e., that are sus-ceptible of no reasonable interpretationother than as an appeal to vote for oragainst a specific candidate to office, orfor or against any question or issue onthe ballot).

Expenditures are further defined as pay-ments or nonmonetary contributions madefor the purpose of communications or ac-tivities that constitute express advocacy orits functional equivalent. See id.; HRS§ 11–302.

Noncandidate committee status is trig-gered only when an organization receivescontributions or makes or incurs qualifyingexpenditures totaling more than $1,000during a two-year election cycle. See HRS§ 11–321(g). Within 10 days of reachingthis threshold, the organization must regis-ter as a noncandidate committee by filingan organizational report with the Commis-sion. Id. In addition to registering, theorganization must file an organizational re-port, designate officers, disclose its bankaccount information, and designate a trea-surer responsible for recording contribu-tions and expenditures and maintainingrecords for five years. See HRS §§ 11–321, 11–323, 11–324, 11–351(a). The com-mittee’s contributions must be segregatedfrom its other funds. See HAR § 3–160–21(c).

Every committee must also comply withreporting requirements tied to election pe-riods. These requirements include dis-closing contributions made and received,expenditures by the committee and the as-sets on hand at the end of the reportingperiod. See HRS §§ 11–331 (filing of re-

ports), 11–335 (noncandidate committee re-ports), 11–336 (timing of reports for non-candidate committees), 11–340 (penaltiesfor failure to file a required report).6 Thereports must be filed no later than 10 daysbefore an election, 20 days after a primaryelection and 30 days after a general elec-tion; additional reports must be filed onJanuary 31 of every year and July 31 afteran election year. See HRS § 11–336(a)–(d). If a noncandidate committee has ag-gregate contributions and expenditures of$1,000 or less in an election period, it needonly file a single, final election-period re-port, or it may simply request to terminateits registration. See HRS §§ 11–326, 11–339(a).

A–1’s argument that these burdens aresubstantial is foreclosed by Human Life,which held that the burdens of compli-ance with Washington State’s materiallyindistinguishable registration and report-ing requirements were ‘‘modest’’ and ‘‘notunduly onerous.’’ 624 F.3d at 1013–14.Indeed, the majority of circuits have con-cluded that such disclosure requirementsare not unduly burdensome. See Sorrell,758 F.3d at 137–38 (rejecting the argu-ment that ‘‘registration, recordkeepingnecessary for reporting, and reporting re-quirements’’ are onerous as a matter oflaw); Worley v. Fla. Sec’y of State, 717F.3d 1238, 1250 (11th Cir.2013) (holdingthat Florida’s analogous ‘‘PAC regulationsdo not generally impose an undue bur-den’’); McKee, 649 F.3d at 56 (holdingthat Maine’s analogous PAC regulations‘‘do not prohibit, limit, or impose any on-erous burdens on speech’’); Family PAC,685 F.3d at 808 n. 6 (noting the generally‘‘modest’’ administrative burdens imposed

6. The Hawaii Legislature slightly revised thereporting requirements after the district courtgranted summary judgment to the Commis-sion. See 2013 Haw. Sess. Laws 209–10 (S.B.31) (amending HRS §§ 11–335, 11–336). We

consider the version of the reporting statutesin effect at the time this suit was filed. In anyevent, the minor amendments do not affectour constitutional analysis.


on ballot committees by Washington law);SpeechNow.org v. Fed. Election Comm’n,599 F.3d 686, 697–98 (D.C.Cir.2010) (hold-ing that the organizational, administrativeand continuous reporting requirementsapplicable to federal political committeeswere not unduly burdensome); AlaskaRight to Life Comm. v. Miles, 441 F.3d773, 789–92 (9th Cir.2006) (holding thatregistration, reporting and disclosure re-quirements applicable to Alaskan politicalcommittees were not ‘‘significantly bur-densome’’ or ‘‘particularly onerous’’).

A–1 would distinguish Human Life ’sburden analysis on the ground that a non-candidate committee in Hawaii is subjectto additional limits on the kinds of contri-butions it may receive. Specifically, A–1points to Hawaii law limiting contributionsto noncandidate committees (HRS § 11–358), and banning contributions from par-ticular sources, including bans on contribu-tions made in the name of another (HRS§ 11–352), anonymous contributions (HRS§ 11–353), or prohibitions on contributionsfrom government contractors and foreignnationals (HRS §§ 11–355, 11–356).These differences do not distinguish Hu-man Life. First, because A–1 is self-fi-nanced and does not receive contributions,any funding limits or bans have no bearingon our as-applied constitutional analysis.

Second, none of these limits imposes asubstantial burden. The Commission con-cedes that the only constitutionally suspectlimit A–1 identifies—the $1,000 limit oncontributions to noncandidate commit-tees—is unconstitutional as applied tocommittees making only independent ex-penditures. The other limits apply to A–1regardless of its status as a noncandidatecommittee. Thus, there are no materialdifferences between the burdens of non-candidate committee status in Hawaii andpolitical committee status in Washington.7

A–1 has been complying with the non-candidate committee requirements for sev-eral years without difficulty. No separateorganization need be created, as long asrecords are kept tracking financial activityby the noncandidate committee, see HAR§ 3–160–21(c), and filing of the brief, re-quired reports may be performed electron-ically at infrequent intervals, see HRS§ 11–336. As the district court concluded,‘‘[a]lthough the requirements might be in-convenient, the record does not indicatethe burdens on A–1 are onerous as mat-ters of fact or law.’’ Yamada III, 872F.Supp.2d at 1053.

Turning to the governmental interestsside of the equation, there is no questionthat Hawaii’s noncandidate committee re-quirements serve important government

7. The burdens of noncandidate committeestatus in Hawaii are also distinguishable fromthe burdens of federal ‘‘PAC status’’ that A–1labels ‘‘onerous,’’ citing to the SupremeCourt’s decisions in Federal Election Commis-sion v. Massachusetts Citizens for Life, Inc.(MCFL ), 479 U.S. 238, 248, 107 S.Ct. 616, 93L.Ed.2d 539 (1986), and Citizens United, 558U.S. at 337–39, 130 S.Ct. 876. The federalPAC status in MCFL required corporations toset up a separate legal entity and create asegregated fund before engaging in any directpolitical speech, and further prohibited anorganization from soliciting contributions be-yond its ‘‘members.’’ See McKee, 649 F.3d at56; see also Madigan, 697 F.3d at 488 (distin-guishing MCFL ’s PAC burdens); Human Life,

624 F.3d at 1010 (same); Alaska Right to Life,441 F.3d at 786–87, 791–92 (same). But seeWisconsin Right To Life, Inc. v. Barland, 751F.3d 804, 839–42 (7th Cir.2014) (describingthe ‘‘heavy administrative burdens’’ of Wis-consin’s analogous, but more detailed, ‘‘PAC-like disclosure program,’’ which ‘‘in criticalrespects [was] unchanged from Buckley ’sday’’). Like Maine’s political committee pro-vision, Hawaii law ‘‘imposes three simple ob-ligations’’ on a qualifying entity that are notnearly as onerous as those considered inMCFL: ‘‘filing of a registration form disclos-ing basic information, TTT reporting of elec-tion-related contributions and expenditures,and simple recordkeeping.’’ McKee, 649 F.3dat 56.


interests. The Hawaii legislature createdthese requirements to ‘‘expand the scopeof public scrutiny relative to the financialaspects of the campaign process’’ and toavoid corruption or its appearance in elec-toral politics. House Stand. Comm. Rep.No. 188, H.B. No. 22, in Haw. H.J. 840(1973). Subsequent amendments to Ha-waii’s disclosure scheme reaffirmed the im-portant ‘‘informational value’’ served byreporting and disclosure requirements, aswell as the state’s interest in ‘‘deterr[ing]TTT corruption’’ and ‘‘gathering data neces-sary to detect violations’’ of campaign fi-nance laws. Conf. Comm. Rep. No. 78, inHaw. H.J. 1137, 1140 (1979). When Ha-waii revised its campaign finance laws in1995, the legislature cited the importanceof ‘‘reforming the campaign spending lawTTT to restor[e] the public’s confidence inthe political process.’’ S. Stand. Comm.Rep. No. 1344, H.B. No. 2094, Haw. S.J.1346 (1995). The legislature found that‘‘[m]aking candidates, contributors, andothers more accountable by requiring thefiling of reports TTT and specifying whatinformation must appear in these reportsgo[es] a long way to accomplishing thesegoals.’’ Id.

Thus, Hawaii’s noncandidate committeeregulations serve all three interests thatthe Supreme Court has recognized as‘‘important’’ in the context of reportingand disclosure requirements: ‘‘providingthe electorate with information, deterringactual corruption and avoiding any ap-pearance thereof, and gathering the datanecessary to enforce more substantiveelectioneering restrictions.’’ Canyon Fer-ry Rd. Baptist Church of E. Helena, Inc.v. Unsworth, 556 F.3d 1021, 1031 (9th Cir.2009) (quoting McConnell, 540 U.S. at196, 124 S.Ct. 619).

First, the reporting and disclosure obli-gations provide information to the elector-ate about who is speaking—information

that ‘‘is vital to the efficient functioning ofthe marketplace of ideas, and thus to ad-vancing the democratic objectives underly-ing the First Amendment.’’ Human Life,624 F.3d at 1005; see also McCutcheon v.Fed. Election Comm’n, ––– U.S. ––––, 134S.Ct. 1434, 1459–60, 188 L.Ed.2d 468(2014); Citizens United, 558 U.S. at 368–69, 130 S.Ct. 876; Family PAC, 685 F.3dat 806, 808. ‘‘This transparency enablesthe electorate to make informed decisionsand give proper weight to different speak-ers and messages,’’ Citizens United, 558U.S. at 371, 130 S.Ct. 876, making disclo-sure of this information a ‘‘sufficiently im-portant, if not compelling, governmentalinterest,’’ Human Life, 624 F.3d at 1005–06. Second, Hawaii’s reporting and disclo-sure obligations ‘‘deter actual corruptionand avoid the appearance of corruption byexposing large contributions and expendi-tures to the light of publicity.’’ Buckley,424 U.S. at 67, 96 S.Ct. 612; see alsoMcCutcheon, 134 S.Ct. at 1459. Third, theregistration, record keeping, reporting anddisclosure requirements provide a meansof detecting violations of valid contributionlimitations, preventing circumvention ofHawaii’s campaign spending limitations,including rules that bar contributions byforeign corporations or individuals, seeHRS § 11–356, or that prohibit contribu-tions from government contractors, seeHRS § 11–355. See Buckley, 424 U.S. at67–68, 96 S.Ct. 612; SpeechNow.org, 599F.3d at 698 (holding that ‘‘requiring disclo-sure TTT deters and helps expose violationsof other campaign finance restrictions’’).Thus, Hawaii’s noncandidate committee re-porting and disclosure requirements indis-putably serve important governmental in-terests.

A–1 nonetheless contends these report-ing and disclosure requirements are notsufficiently tailored to survive exactingscrutiny because they apply to any organi-zation that has ‘‘the purpose’’ of engaging


in political advocacy, HRS § 11–302, rath-er than applying more narrowly to organi-zations having a primary purpose of en-gaging in such activity. A–1 concedes thatHawaii may impose reporting and disclo-sure requirements on organizations thatmake political advocacy a priority but ar-gues that it only incidentally engages insuch advocacy.

A–1’s argument rests on Human Life,which considered the Washington disclo-sure regime whereby an organization qual-ifies as a political committee if its ‘‘primaryor one of [its] primary purposes is to af-fect, directly or indirectly, governmentaldecision making by supporting or opposingcandidates or ballot propositions.’’ 624F.3d at 1008 (internal quotation marks andcitation omitted). First, Human Life re-jected the argument that this definitionwas facially overbroad because ‘‘it coversgroups with ‘a’ primary purpose of politicaladvocacy, instead of being limited togroups with ‘the’ primary purpose of politi-cal advocacy.’’ 624 F.3d at 1008–11 (em-phasis added). It explained that Buckleyand Federal Election Commission v. Mas-sachusetts Citizens for Life, Inc. (MCFL ),479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539(1986), did not hold that an entity musthave the sole, major purpose of politicaladvocacy ‘‘to be deemed constitutionally apolitical committee.’’ Human Life, 624F.3d at 1009–10 (citing Buckley, 424 U.S.at 79, 96 S.Ct. 612). Next, Human Lifeheld that Washington’s political committeedefinition withstood exacting scrutiny be-cause there was ‘‘a substantial relationshipbetween Washington State’s informationalinterest and its decision to impose disclo-sure requirements on organizations with aprimary purpose of political advocacy.’’Id. at 1011. We reasoned that the defini-tion:

does not extend to all groups with ‘‘apurpose’’ of political advocacy, but in-stead is tailored to reach only those

groups with a ‘‘primary’’ purpose of po-litical activity. This limitation ensuresthat the electorate has information aboutgroups that make political advocacy apriority, without sweeping into its pur-view groups that only incidentally en-gage in such advocacy. Under this stat-utory scheme, the word ‘‘primary’’—notthe words ‘‘a’’ or ‘‘the’’—is what is con-stitutionally significant.

Id. at 1011 (emphasis added).

A–1 correctly points out that the provi-sion at issue in Human Life applied toorganizations with a primary purpose ofpolitical advocacy, whereas Hawaii’s lawapplies to an organization with ‘‘the pur-pose’’ of political advocacy. Human Life,however, did not ‘‘hold that the word ‘pri-mary’ or its equivalent [was] constitution-ally necessary.’’ Id. It held only that thislimitation was ‘‘sufficient’’ for Washing-ton’s political committee definition to with-stand First Amendment scrutiny. Id. Hu-man Life is therefore not controlling, and,reaching an issue we did not addressthere, we conclude that Hawaii’s noncandi-date committee reporting and disclosurerequirements are sufficiently tailored asapplied to A–1 even without a ‘‘primary’’modifier.

First, because Hawaii’s definition ex-tends only to organizations having ‘‘thepurpose’’ of political advocacy, it avoidsreaching organizations engaged in onlyincidental advocacy. Under the Commis-sion’s narrowing construction, noncandi-date committee status applies to organiza-tions that have the purpose of making orreceiving contributions, or making expen-ditures, for express advocacy or its func-tional equivalent. Cf. Madigan, 697 F.3dat 488 (holding that Illinois’ political com-mittee definition’s ‘‘limit of ‘on behalf ofor in opposition to’ confines the realm ofregulated activity to expenditures and


contributions within the core area of gen-uinely campaign-related transactions’’).8

Second, Hawaii’s registration and re-porting requirements are not triggered un-til an organization makes more than $1,000in aggregate contributions and expendi-tures during a two-year election period.See HRS § 11–321(g); HAR § 3–160–21(a). This threshold also ensures that anorganization must be more than incidental-ly engaged in political advocacy before itwill be required to register and file reportsas a noncandidate committee. Third, anorganization that ‘‘raises or expends fundsfor the sole purpose of producing and dis-seminating informational or educationalcommunications’’—even if it also engagesin limited political advocacy costing lessthan $1,000 in the aggregate—need notregister as a noncandidate committee. SeeHRS §§ 11–302; 11–321(g). Fourth, if anorganization registers as a noncandidatecommittee, but subsequently reduces itsadvocacy activity below the $1,000 thresh-old, it need only file a single report per

election period or can terminate its regis-tration. HRS § 11–339.9

Given these limits and the extent of A–1’s past and planned political advocacy, wehave little trouble concluding that the reg-ulations are constitutional as applied to A–1. A–1, which made more than $50,000 incontributions and spent more than $6,000on political ads in 2010, clearly engages inmore than incidental political advocacy.Although A–1 now pledges to limit its indi-vidual contributions to $250 and to contrib-ute only to candidates, these proposed ac-tivities—combined with A–1’s expenditureson its political ads—plainly exceed inciden-tal activity. Hawaii thus has a stronginterest in regulating A–1.

Hawaii’s choice of a $1,000 registrationand reporting threshold is also a far cryfrom the zero dollar threshold invalidatedin Canyon Ferry, 556 F.3d at 1033–34.See also Worley, 717 F.3d at 1251 (notingthat ‘‘federal PAC requirements kick in

8. Hawaii’s definition is distinguishable fromthe Wisconsin regulation struck down in Bar-land, 751 F.3d at 822, 834–37, which treatedan organization as a political committee if it,inter alia, spent more than $300 to communi-cate ‘‘almost anything TTT about a candidatewithin 30 days of a primary and 60 days of ageneral election.’’ Hawaii’s more tailoreddisclosure regime only extends to organiza-tions with the purpose of engaging in expressadvocacy or its functional equivalent. SeeSorrell, 758 F.3d at 137–38 (distinguishingBarland and upholding Vermont’s politicalcommittee regime, which applied only togroups that accepted contributions and madeexpenditures over $1,000 ‘‘for the purpose ofsupporting or opposing one or more candi-dates’’).

9. The reporting requirements of Hawaii laware more narrowly tailored than the ‘‘oner-ous’’ and ‘‘potentially perpetual’’ reporting re-quirement preliminary enjoined in MinnesotaCitizens Concerned for Life, Inc. v. Swanson,692 F.3d 864, 873–74 (8th Cir.2012) (enbanc). In Minnesota, an organization must

register as a political committee once itspends $100 in the aggregate on political ad-vocacy, and once registered, it must ‘‘file fivereports during a general election year’’ even ifthe committee makes no further expenditures.Id. at 873, 876; see also Iowa Right to LifeComm., Inc. v. Tooker, 717 F.3d 576, 596–98(8th Cir.2013) (striking down Iowa’s ongoingreporting requirements that were untetheredto any future political spending). We do notagree that such reporting requirements are‘‘onerous’’ as a general matter. See HumanLife, 624 F.3d at 1013–14. Moreover, unlikein Minnesota, an organization need not regis-ter as a noncandidate committee in Hawaiiuntil it crosses the $1,000 threshold for a two-year election cycle, see HRS § 11–321(g), anda committee with aggregate contributions andexpenditures of $1,000 or less in any subse-quent election cycle need only file a single,final election-period report, see HRS § 11–326. Hawaii’s reporting regime is thus con-tingent on an organization’s ongoing contri-butions and expenditures, reflecting its closertailoring to Hawaii’s informational interestthan Minnesota’s analogous regime.


once a group has raised $1000 during acalendar year to influence elections andTTT these requirements have not been heldunconstitutional’’ (citing 2 U.S.C.§ 431(4)(a) (2012))). Although we careful-ly scrutinize the constitutionality of a legis-lature’s chosen threshold for imposing reg-istration and reporting requirements, seeRandall v. Sorrell, 548 U.S. 230, 248–49,126 S.Ct. 2479, 165 L.Ed.2d 482 (2006)(plurality opinion), the precise ‘‘line is nec-essarily a judgmental decision, best left inthe context of this complex legislation to[legislative] discretion,’’ Family PAC, 685F.3d at 811 (quoting Buckley, 424 U.S. at83, 96 S.Ct. 612); see also Worley, 717F.3d at 1253 (‘‘Challengers are free topetition the legislature to reset the report-ing requirements for Florida’s PAC regu-lations, but we decline to do so here.’’). Atleast as applied to A–1, Hawaii’s $1,000threshold adequately ensures that politicalcommittee burdens are not imposed on‘‘groups that only incidentally engage’’ inpolitical advocacy. Human Life, 624 F.3dat 1011.

A–1’s argument that regulations shouldreach only organizations with a primarypurpose of political advocacy also ignoresthe ‘‘fundamental organizational realitythat most organizations do not have justone major purpose.’’ Human Life, 624F.3d at 1011 (internal quotation marks andcitation omitted). Large organizationsthat spend only one percent of their fundson political advocacy likely have many oth-er, more important purposes—but thissmall percentage could amount to tens orhundreds of thousands of dollars in politi-cal activity, depending on the size of theorganization. See id.; see also Madigan,697 F.3d at 489–90; McKee, 649 F.3d at59. The $1,000 threshold appropriatelyreaches these multipurpose organizations’participation in the political process.

A–1’s political advocacy underscores thispoint. Although A–1’s political spendingmay be limited in proportion to its overallactivities, the strength of Hawaii’s infor-mational interest does not fluctuate basedon the diversity of the speaker’s activities.Hawaii has an interest in ensuring thepublic can follow the money in an electioncycle, regardless of whether it comes froma single-issue, political advocacy organiza-tion or a for-profit corporation such as A–1. The Commission makes the reportedinformation freely available in searchabledatabases on its website, which providesHawaiians with a vital window into theflow of campaign dollars.10 This prompt,electronic disclosure of contributions andexpenditures ‘‘can provide TTT citizenswith the information needed to hold corpo-rations and elected officials accountable fortheir positions and supporters,’’ CitizensUnited, 558 U.S. at 370, 130 S.Ct. 876, and‘‘given the Internet, disclosure offers muchmore robust protections against corrup-tion,’’ McCutcheon, 134 S.Ct. at 1460.Thus, the distinction between A–1, a for-profit electrical contractor, and a grouplike Human Life of Washington, a ‘‘non-profit, pro-life advocacy corporation,’’ 624F.3d at 994, is not constitutionally signifi-cant here. A–1 may not make politicaladvocacy a priority, but it nonetheless hasbeen a significant participant in Hawaii’selectoral process, justifying the state’s im-position of registration and reporting bur-dens.

Furthermore, Hawaii’s noncandidatecommittee definition, by extending beyondorganizations making political advocacy apriority, avoids the circumvention of validcampaign finance laws and disclosure re-quirements. See Human Life, 624 F.3d at1011–12. As the Seventh Circuit has ex-plained:

10. See http://ags.hawaii.gov/campaign/nc/.


[L]imiting disclosure requirements togroups with the major purpose of influ-encing elections would allow even thosevery groups to circumvent the law withease. Any organization dedicated pri-marily to electing candidates or promot-ing ballot measures could easily dilutethat major purpose by just increasing itsnon-electioneering activities or betteryet by merging with a sympathetic or-ganization that engaged in activities un-related to campaigning.

Madigan, 697 F.3d at 489. Hawaii’s defi-nition addresses the ‘‘hard lesson of cir-cumvention’’ in the campaign finance are-na, by including within its reach any entitythat has political advocacy as one of itsgoals. McConnell, 540 U.S. at 165, 124S.Ct. 619. As the district court explained:

[A–1] has purposely not created a sepa-rate organizational structure for elec-tion-related activity, choosing instead toregister itself (A–1 A–Lectrician, Inc.)as a noncandidate committee. If it wereallowed to avoid registration merely be-cause its political activity is small pro-portionally to its overall activities (as anelectrical contractor and perhaps as apure issue advocacy organization), itwould encourage any affiliated noncandi-date committee to avoid disclosure re-quirements by merging its activities intoa larger affiliated organization.

Yamada III, 872 F.Supp.2d at 1052 (cita-tion omitted).11

In sum, the noncandidate committee def-inition and accompanying reporting anddisclosure requirements are substantially

related to Hawaii’s important interests ininforming the electorate, preventing cor-ruption or its appearance, and avoiding thecircumvention of valid campaign financelaws. Because the burden of complyingwith this disclosure scheme is modest com-pared to the significance of the interestsbeing served, we uphold Hawaii’s noncan-didate committee reporting and disclosurerequirements as applied to A–1.

In doing so on an as-applied basis, wehave no occasion to consider whether Ha-waii law would withstand exacting scrutinyas applied to another business or nonprofitgroup that seeks to engage in less substan-tial political advocacy than A–1. We declineto ‘‘speculate about ‘hypothetical’ or ‘imagi-nary’ cases.’’ Wash. State Grange v.Wash. State Republican Party, 552 U.S.442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151(2008). Based on the record before us, wehold only that noncandidate committee sta-tus may be extended to organizations, suchas A–1, even though their primary purposeis not political advocacy. The burdens at-tending such a status are modest and sub-stantially related to important governmentinterests.

B. The Disclaimer Requirement forAdvertisements is Constitutional

Under Citizens United

A–1 contends that Hawaii’s requirementthat political advertising include a dis-claimer as to the affiliation of the advertis-er with a candidate or candidate committeecannot survive exacting scrutiny. ‘‘Adver-tisements’’ for purposes of Hawaii election

11. Although not directly relevant to A–1’schallenge—because A–1’s political activitiesare self-financed and it receives no contribu-tions—we also note the heightened impor-tance of noncandidate committee disclosurerequirements now that the limit on contribu-tions to noncandidate committees has beenpermanently enjoined. A single contributormay provide thousands of dollars to indepen-

dent committees, and yet avoid disclosing itsidentity if the committee makes all the expen-ditures itself. The noncandidate committeedefinition acts to ensure that the contributor’sidentity will be disclosed to the voting public.Hawaii’s efforts to provide transparencywould be incomplete if disclosure was notrequired in such circumstances.


law are print and broadcast communica-tions that (1) identify a candidate or ballotissue directly or by implication and (2)‘‘advocate[ ] or support[ ] the nomination,opposition, or election of the candidate, oradvocate[ ] the passage or defeat of theissue or question on the ballot.’’ HRS§ 11–302. The challenged disclaimer ruleprovides that an advertisement must in-clude a ‘‘notice in a prominent location’’that ‘‘[t]he advertisement has the approvaland authority of the candidate’’ or ‘‘has notbeen approved by the candidate.’’ HRS§ 11–391(a)(2).12,13 The rule thus advisesvoters whether an advertisement is coordi-nated with or independent from a candi-date for elected office. The fine for violat-ing this section is $25 per advertisement,not to exceed $5,000 in the aggregate. SeeHRS § 11–391(b).

A–1 seeks to place advertisements that(1) mention a candidate by name; (2) runin close proximity to an election; and (3)include language stating that particularcandidates ‘‘are representatives who do notlisten to the people,’’ ‘‘do not understandthe importance of the values that made ournation great’’ or ‘‘do not show the alohaspirit.’’ It argues the disclaimer require-ment is unconstitutional because it regu-lates the content of speech itself and istherefore an even greater incursion on itsFirst Amendment rights than reportingrequirements. A–1 further contends a dis-claimer can be mandated only for speechthat is a federal electioneering communica-tion, as defined by federal law, or that isexpress advocacy, not including its func-tional equivalent.

[7] We agree with the district courtthat the disclaimer requirement survivesexacting scrutiny as applied to A–1’s news-

paper advertisements. Like the noncandi-date committee requirements, the dis-claimer serves an important governmentalinterest by informing the public about whois speaking in favor or against a candidatebefore the election and imposes only amodest burden on First Amendmentrights. A–1’s arguments to the contraryare all but foreclosed by Citizens United,558 U.S. at 366–69, 130 S.Ct. 876.

First, the disclaimer requirement impos-es only a modest burden on A–1’s FirstAmendment rights. Like disclosure re-quirements, ‘‘[d]isclaimer TTT require-ments may burden the ability to speak, butthey impose no ceiling on campaign-relatedactivities and do not prevent anyone fromspeaking.’’ Id. at 366, 130 S.Ct. 876 (cita-tion and internal quotation marks omitted).Hawaii’s disclaimer requirement is nomore burdensome than the one for tele-vised electioneering communications up-held in Citizens United. See id. at 366–69,130 S.Ct. 876. That rule required a state-ment as to who was responsible for thecontent of the advertisement ‘‘be made in a‘clearly spoken manner,’ and displayed onthe screen in a ‘clearly readable manner’for at least four seconds,’’ along with afurther statement that ‘‘the communication‘is not authorized by any candidate or can-didate’s committee.’ ’’ Id. at 366, 130 S.Ct.876 (quoting 2 U.S.C. § 441d(d)(2), (a)(3)).Similarly, all that is required here is ashort statement stating that the advertise-ment is published, broadcast, televised, orcirculated with or without the approval andauthority of the candidate. See HRS§ 11–391(a).

Second, requiring a disclaimer is closelyrelated to Hawaii’s important governmen-

12. A–1 does not challenge the related require-ment that all political advertisements disclosethe name and address of the person or entitypaying for the ad. See HRS § 11–391(a)(1).

13. This provision was amended during thependency of this appeal, but the minorchanges are immaterial. See 2014 HawaiiLaws Act 128 (H.B. 452).


tal interest in ‘‘dissemination of informa-tion regarding the financing of politicalmessages.’’ McKee, 649 F.3d at 61. A–1’spast advertisements ran shortly before anelection and criticized candidates by nameas persons who did not, for example, ‘‘lis-ten to the people.’’ As the district courtfound, these advertisements—published onor shortly before election day—are notsusceptible to any reasonable interpreta-tion other than as an appeal to voteagainst a candidate. Yamada III, 872F.Supp.2d at 1055. Such ads are the verykind for which ‘‘the public has an interestin knowing who is speaking,’’ CitizensUnited, 558 U.S. at 369, 130 S.Ct. 876, andwhere disclaimers can ‘‘avoid confusion bymaking clear that the ads are not fundedby a candidate or political party,’’ id. at368, 130 S.Ct. 876. See also Worley, 717F.3d at 1253–55 (rejecting a challenge toan analogous disclaimer requirement);McKee, 649 F.3d at 61 (same); AlaskaRight to Life, 441 F.3d at 792–93 (same).And contrary to A–1’s argument, nothingin Citizens United suggests that a statemay not require disclaimers for politicaladvertising that is not the functional equiv-alent of a federal electioneering communi-cation. In applying the federal disclaimerrequirement to an advertisement urgingvoters to see a short film about a presiden-tial candidate, Citizens United explainedthat ‘‘[e]ven if the ads only pertain to acommercial transaction, the public has an

interest in knowing who is speaking abouta candidate shortly before an election.’’558 U.S. at 369, 130 S.Ct. 876.14

Accordingly, the disclaimer requirementdoes not violate the First Amendment asapplied to A–1’s political advertisements.

C. A–1 Lacks Standing to Challengethe Electioneering Communications

Reporting Requirements

[8] A–1 acknowledges that, at the timeit filed this action, it lacked standing tochallenge the electioneering communica-tions law if it must continue to register asa noncandidate committee. See Washing-ton Envtl. Council v. Bellon, 732 F.3d1131, 1139 (9th Cir.2013) (‘‘A plaintiff mustdemonstrate standing for each claim he orshe seeks to press and for each form ofrelief sought.’’) (citing DaimlerChryslerCorp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct.1854, 164 L.Ed.2d 589 (2006)). A–1 ar-gues, however, that it now has standingbecause Hawaii law was amended as ofNovember 5, 2014, to require registerednoncandidate committees to comply withelectioneering communications reportingrequirements. See 2013 Haw. Sess. L. Act112. But, ‘‘[s]tanding is determined as ofthe commencement of litigation.’’ Biodi-versity Legal Found. v. Badgley, 309 F.3d1166, 1171 (9th Cir.2002); see also Wilburv. Locke, 423 F.3d 1101, 1107 (9th Cir.2005) (‘‘As with all questions of subject

14. We reject A–1’s comparison to the dis-claimer invalidated by the Supreme Court inMcIntyre v. Ohio Elections Commission, 514U.S. 334, 340, 115 S.Ct. 1511, 131 L.Ed.2d426 (1995), which prohibited the distributionof pamphlets without the name and addressof the person responsible for the materials, orto the disclosure provision invalidated by thiscourt in ACLU of Nev. v. Heller, 378 F.3d 979,981–82 (9th Cir.2004), which required per-sons paying for publication of any material‘‘relating to an election’’ to include theirnames and addresses. Citizens United ’s post-McIntyre, post-Heller discussion makes clear

that disclaimer laws such as Hawaii’s may beimposed on political advertisements that dis-cuss a candidate shortly before an election.See 558 U.S. at 368–69, 130 S.Ct. 876; seealso Worley, 717 F.3d at 1254 (rejecting theargument that McIntyre dictated the demiseof Florida’s analogous disclaimer require-ment). An individual pamphleteer may havean interest in maintaining anonymity, but‘‘[l]eaving aside McIntyre-type communica-tions TTT there is a compelling state interestin informing voters who or what entity istrying to persuade them to vote in a certainway.’’ Alaska Right to Life, 441 F.3d at 793.


matter jurisdiction except mootness, stand-ing is determined as of the date of thefiling of the complaintTTTT The party in-voking the jurisdiction of the court cannotrely on events that unfolded after the filingof the complaint to establish its standing.’’(alteration in original) (internal quotationmarks omitted)), abrogated on othergrounds by Levin v. Commerce Energy,Inc., 560 U.S. 413, 130 S.Ct. 2323, 176L.Ed.2d 1131 (2010); Lujan v. Defendersof Wildlife, 504 U.S. 555, 569 n. 4, 112S.Ct. 2130, 119 L.Ed.2d 351 (1992) (‘‘Theexistence of federal jurisdiction ordinarilydepends on the facts as they exist whenthe complaint is filed. It cannot be that,by later participating in the suit, the StateDepartment and AID retroactively createda redressability (and hence a jurisdiction)that did not exist at the outset.’’ (citationand internal quotation marks omitted)).Accordingly, because we conclude the non-candidate committee requirements can beconstitutionally applied to A–1, and A–1was not subject to the ‘‘electioneering com-munication’’ reporting requirements as ofthe date the complaint was filed, we do notconsider A–1’s constitutional challenge tothose requirements. See HRS § 11–341.15

D. The Contractor Contribution Ban isConstitutional Even As Applied toContributions to Legislators WhoNeither Award nor Oversee Con-tracts

A–1’s final First Amendment challengeis to Hawaii’s ban on contributions by gov-ernment contractors. The challenged pro-vision makes it

unlawful for any person who enters intoany contract with the State, any of thecounties, or any department or agencythereof either for the rendition of per-sonal services, the buying of property,or furnishing of any material, supplies,or equipment to the State, any of thecounties, any department or agencythereof, or for selling any land or build-ing to the State, any of the counties, orany department or agency thereof, ifpayment for the performance of the con-tract or payment for material, supplies,equipment, land, property, or building isto be made in whole or in part fromfunds appropriated by the legislativebody, at any time between the executionof the contract through the completionof the contract, to:

TTT Directly or indirectly make any con-tribution, or promise expressly or impli-edly to make any contribution to anycandidate committee or noncandidatecommittee, or to any candidate or to anyperson for any political purpose or use;

HRS § 11–355(a).

A–1 does not challenge the ban as ap-plied to contributions it makes to lawmak-ers or legislative candidates who eitherdecide whether it will receive a contract oroversee its performance of a contract. In-stead, A–1 asserts it intends to make con-tributions only to lawmakers or candidateswho will neither award nor oversee itscontracts, and it argues the governmentcontractor contribution ban is unconstitu-tional solely as applied to those intendedcontributions.16

15. Nothing we say today (other than as amatter of stare decisis) precludes A–1 frombringing a future challenge to the electioneer-ing communication reporting requirements towhich, it claims, it is now subject.

16. A–1 challenges only its right to make con-tributions to state legislative candidates whileacting as a state government contractor. It

does not distinctly argue, for example, that§ 11–355(a) impermissibly infringes its rightto contribute to county or municipal officialswhile serving as a state contractor. We there-fore have no occasion to decide whether theban would survive First Amendment scrutinyas applied to those circumstances.


Contribution bans are subject to ‘‘closelydrawn’’ scrutiny. See Fed. ElectionComm’n v. Beaumont, 539 U.S. 146, 161–63, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003)(applying the closely drawn standard inupholding a federal law banning campaigncontributions made by corporations);Thalheimer v. City of San Diego, 645 F.3d1109, 1124 & n. 4 (9th Cir.2011) (applyingclosely drawn scrutiny to a city ordinancemaking it unlawful for ‘‘non-individuals’’ tocontribute directly to candidates). A regu-lation satisfies closely drawn scrutinywhen ‘‘the State demonstrates a sufficient-ly important interest and employs meansclosely drawn to avoid unnecessaryabridgement of associational freedoms.’’McCutcheon, 134 S.Ct. at 1444 (quotingBuckley, 424 U.S. at 25, 96 S.Ct. 612)(internal quotation marks omitted).17

A–1 does not argue that Hawaii’s gov-ernment contractor contribution ban is un-constitutional as a general matter. TheSecond Circuit confronted a similar ban inGreen Party of Connecticut v. Garfield,616 F.3d 189 (2d Cir.2010). There, thecourt turned away a First Amendmentchallenge to Connecticut’s ban on cam-paign contributions by state contractors,holding that it furthered a ‘‘ ‘sufficientlyimportant’ government interest[ ]’’ by‘‘combat[ing] both actual corruption andthe appearance of corruption caused bycontractor contributions.’’ Id. at 200. Thecourt further held that the ban was ‘‘close-ly drawn’’ because it targeted contribu-tions by current and prospective state con-tractors—the contributions associated

most strongly with actual and perceivedcorruption. See id. at 202. Recognizing aban on contributions by government con-tractors, rather than a mere limit on theamount of those contributions, was ‘‘adrastic measure,’’ the court held that theban was closely drawn because it ad-dressed a perception of corruption broughtabout by recent government-contractor-re-lated corruption scandals in Connecticut.See id. at 193–94, 204–05. The ban ‘‘un-equivocally addresses the perception ofcorruption’’ because, ‘‘[b]y totally shuttingoff the flow of money from contractors tostate officials, it eliminates any notion thatcontractors can influence state officials bydonating to their campaigns.’’ Id. at 205;see also Ognibene v. Parkes, 671 F.3d 174,185 (2d Cir.2011) (‘‘When the appearanceof corruption is particularly strong due torecent scandals TTT a ban may be appro-priate.’’).

[9] The same reasoning applies here.Hawaii’s government contractor contribu-tion ban serves sufficiently important gov-ernmental interests by combating both ac-tual and the appearance of quid pro quocorruption. Green Party, 616 F.3d at 200;see also McCutcheon, 134 S.Ct. at 1450(reaffirming that a legislature may limitcontributions to prevent actual quid proquo corruption or its appearance); cf.Preston v. Leake, 660 F.3d 726, 736–37(4th Cir.2011) (upholding a complete banon contributions by lobbyists ‘‘as a prophy-lactic to prevent not only actual corruptionbut also the appearance of corruption infuture state political campaigns’’). It is

17. We previously noted that Beaumont andother cases applying the closely drawn stan-dard to contribution limits remained goodlaw after Citizens United. See Thalheimer,645 F.3d at 1124–25. This remains true afterMcCutcheon. There, the Supreme Court con-sidered the constitutionality of ‘‘aggregatelimits’’ under federal law, which ‘‘restrict[ed]how much money a donor [could] contribute

in total to all candidates or committees’’ in agiven election period. See 134 S.Ct. at 1442(citing 2 U.S.C. § 441a(a)(3)). Because theCourt held that the aggregate limit for federalelections failed even under less stringent,‘‘closely drawn’’ scrutiny, the Court declinedto revisit the proper standard of review forcontribution limits. See id. at 1445–46.


closely drawn because it targets directcontributions from contractors to office-holders and candidates, the contributionsmost closely linked to actual and perceivedquid pro quo corruption. See Green Par-ty, 616 F.3d at 202; see also McCutcheon,134 S.Ct. at 1452 (noting that the ‘‘risk ofquid pro quo corruption or its appearance’’is greatest when ‘‘a donor contributes to acandidate directly’’).18 And as in Connecti-cut, Hawaii’s decision to adopt an outrightban rather than mere restrictions on howmuch contractors could contribute was jus-tified in light of past ‘‘pay to play’’ scandalsand the widespread appearance of corrup-tion that existed at the time of the legisla-ture’s actions. See Yamada III, 872F.Supp.2d at 1058–59 nn. 26–27 (summar-izing the evidence of past scandals and theperception of corruption). Thus, as a gen-eral matter, Hawaii’s ban on contributionsby government contractors satisfies closelydrawn scrutiny.

A–1’s narrower argument that the con-tractor contribution ban is unconstitutionalas applied to its contributions to lawmak-ers and candidates who neither award noroversee its contracts is also without merit.Hawaii’s interest in preventing actual orthe appearance of quid pro quo corruptionis no less potent as applied to A–1’s pro-posed contributions because the Hawaiilegislature as a whole considers all billsconcerning procurement. Thus, althoughan individual legislator may not be closelyinvolved in awarding or overseeing a par-ticular contract, state money can be spent

only with an appropriation by the entirelegislature. See Haw. Const. art. VII,§§ 5, 9. Hawaii reasonably concluded thatcontributions to any legislator could giverise to the appearance of corruption.

In essence, A–1 contends that Hawaii’scontractor ban should be tailored morenarrowly, but narrower tailoring is notrequired here. There is no question theban is closely drawn to the state’s anticor-ruption interest as a general matter, andwe decline to revisit the legislature’s judg-ment not to craft a still narrower provi-sion. Closely drawn scrutiny requires ‘‘afit that is not necessarily perfect, but rea-sonable,’’ and Hawaii’s contractor contribu-tion ban is a reasonable response to thestrong appearance of corruption that exist-ed at the time of the legislature’s actions.McCutcheon, 134 S.Ct. at 1456 (quotingBoard of Trustees of State Univ. of N.Y. v.Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106L.Ed.2d 388 (1989)) (internal quotationmarks omitted). We need not ‘‘determinewith any degree of exactitude the preciserestriction necessary to carry out the stat-ute’s legitimate objectives’’ to uphold thecontribution ban. Randall, 548 U.S. at248, 126 S.Ct. 2479.

Even if narrower tailoring were re-quired, A–1’s proposal for a narrower banis unworkable. A–1 does not explain howit would determine, before the election,which candidates would neither award noroversee any of its contracts. The member-ship of the various legislative committees

18. Hawaii’s contractor contribution ban isnarrower than many others. The ban upheldin Green Party, for example, applied not onlyto contractors but also to principals of thatcontractor and to family members of a con-tractor or of a principal of a contractor. SeeGreen Party, 616 F.3d at 202–03. The federalban is also broader than the Hawaii ban; itapplies not only to existing contractors butalso to prospective contractors. See 2 U.S.C.§ 441c. Hawaii’s law does not prohibit A–1

from making contributions as a prospectivecontractor, A–1’s principals (such as plaintiffYamada) from making contributions or A–1from making independent expenditures on be-half of the candidates it seeks to support. Cf.Beaumont, 539 U.S. at 161 n. 8, 123 S.Ct.2200 (‘‘A ban on direct corporate contribu-tions leaves individual members of corpora-tions free to make their own contributions,and deprives the public of little or no materialinformation.’’).


can change with each election, and a differ-ent committee—whether the EducationCommittee or Public Safety, GovernmentOperations, and Military Affairs Commit-tee—may serve a greater or lesser over-sight role on a particular project. Thereis, therefore, a ‘‘clear fallacy’’ in A–1’slogic:

[During the 2011 Legislative Session],A–1 testified TTT in favor of a construc-tion and procurement-related bill re-garding the University of Hawaii. Atleast three Legislators that served oncommittees that considered the bill (andvoted in favor of it) also received cam-paign contributions from A–1 in the 2010elections. And A–1 made contributionsto opponents of fifteen other Legislatorswho considered the bill.

Yamada III, 872 F.Supp.2d at 1061 n. 30(citation omitted). Simply put, A–1 cannotpredict with certainty which candidateswill not become involved in the contractaward or oversight process when it makesits contributions. Moreover, A–1’s contri-butions to candidates who do not becomedirectly involved in contract award andoversight could still create the appearanceof ‘‘the financial quid pro quo: dollars forpolitical favors.’’ Citizens United, 558U.S. at 359, 130 S.Ct. 876 (quoting Fed.Election Comm’n v. Nat’l ConservativePolitical Action Comm., 470 U.S. 480, 497,105 S.Ct. 1459, 84 L.Ed.2d 455 (1985))(internal quotation marks omitted).

For these reasons, we hold that Hawaii’sgovernment contractor contribution bansurvives closely drawn scrutiny even asapplied to A–1’s proposed contributions tocandidates who neither decide whether A–1 receives contracts nor oversee A–1’s con-tracts.

IV. Attorney’s Fees

Finally, we consider the district court’sfee award to Yamada and Stewart (the

plaintiffs) for their successful constitution-al challenge to the $1,000 limit on contribu-tions to noncandidate committees, HRS§ 11–358. Under 42 U.S.C. § 1988(b), thedistrict court had discretion to award ‘‘theprevailing party TTT a reasonable attor-ney’s fee.’’ We review the award for anabuse of discretion, but any element oflegal analysis that figures into the districtcourt’s decision is reviewed de novo. SeeWatson v. Cnty. of Riverside, 300 F.3d1092, 1095 (9th Cir.2002). The plaintiffs’primary contention, with which we agree,is that the district court erred by refusingto award the fees they incurred in success-fully defending against the defendants’ in-terlocutory appeal. We address the plain-tiffs’ other contentions in a concurrentlyfiled memorandum disposition.

In October 2010, the district courtgranted a preliminary injunction in favorof the plaintiffs on their claim that HRS§ 11–358, limiting to $1,000 contributionsto noncandidate committees, violates theFirst Amendment. The defendants thenfiled an interlocutory appeal. After theparties finished briefing in this court,however, the defendants dismissed the ap-peal, presumably in light of an interveningdecision upholding a preliminary injunc-tion of a similar contribution limit. SeeThalheimer, 645 F.3d at 1117–21. In sub-sequent district court proceedings, the de-fendants offered to stipulate to a perma-nent injunction against § 11–358. Theparties, however, were unable to reachagreement on the form of an injunction,and on the parties’ subsequent cross-mo-tions for summary judgment, the districtcourt permanently enjoined § 11–358 asapplied to the plaintiffs’ proposed contri-butions.

Based on their successful constitutionalchallenge to § 11358, Yamada and Stewartsought attorney’s fees and costs, includingthose fees incurred in defending against


the defendants’ interlocutory appeal, under§ 1988. The district court granted in partand denied in part their fee request. Asrelevant here, it concluded it had ‘‘no au-thority’’ to award fees pertaining to theinterlocutory appeal because (1) the plain-tiffs became prevailing parties when thedefendants abandoned their appeal of thepreliminary injunction, see Watson, 300F.3d at 1095 (stating that, under certaincircumstances, ‘‘a plaintiff who obtains apreliminary injunction is a prevailing partyfor purposes of § 1988’’), and (2) underNinth Circuit Rule 39–1.6 and Cummingsv. Connell, 402 F.3d 936, 940 (9th Cir.2005)(Cummings II ), ‘‘[a] district court is notauthorized to award attorney’s fees for anappeal unless we transfer the fee requestto the district court for consideration.’’Because it assumed the plaintiffs couldhave requested fees from the Ninth Circuitas prevailing parties when the defendantsdismissed their appeal, the court concludedit had no authority to award fees for theappeal.

[10] The plaintiffs contend, and weagree, that the district court’s analysis wasflawed for two reasons. First, contrary tothe district court’s analysis, Yamada andStewart were not yet prevailing partieswhen the defendants dismissed their inter-locutory appeal and could not have re-quested fees at that time. A court mayaward attorney’s fees under § 1988 only toa ‘‘prevailing party,’’ and a plaintiff pre-vails for purposes of § 1988 only ‘‘whenactual relief on the merits of his claimmaterially alters the legal relationship be-tween the parties by modifying the defen-dant’s behavior in a way that directly ben-efits the plaintiff.’’ Higher Taste, Inc. v.

City of Tacoma, 717 F.3d 712, 715 (9thCir.2013) (quoting Farrar v. Hobby, 506U.S. 103, 111–12, 113 S.Ct. 566, 121L.Ed.2d 494 (1992)) (internal quotationmarks omitted). This requires an ‘‘endur-ing’’ change in the parties’ relationship,Sole v. Wyner, 551 U.S. 74, 86, 127 S.Ct.2188, 167 L.Ed.2d 1069 (2007), that has‘‘ ‘judicial imprimatur’ TTT such as a judg-ment on the merits or a court-orderedconsent decree,’’ Watson, 300 F.3d at 1096(quoting Buckhannon Bd. & Care Home,Inc. v. W. Va. Dep’t of Health & HumanRes., 532 U.S. 598, 600, 121 S.Ct. 1835, 149L.Ed.2d 855 (2001)).

The district court concluded that theplaintiffs were prevailing parties underWatson, but Watson is distinguishable.As explained in Higher Taste, Watsonstands for the proposition that, ‘‘when aplaintiff wins a preliminary injunction andthe case is rendered moot before finaljudgment, either by the passage of time orother circumstances beyond the parties’control, the plaintiff is a prevailing partyeligible for a fee award.’’ Higher Taste,717 F.3d at 717 (emphasis added). Here,the plaintiffs’ challenge to HRS § 11–358was not ‘‘rendered moot’’ until the districtcourt entered final judgment against theCommission on that claim. A plaintiffdoes not become a prevailing party until itobtains relief that is ‘‘no longer subject tobeing ‘reversed, dissolved, or otherwiseundone by the final decision in the samecase.’ ’’ Id. (quoting Sole, 551 U.S. at 83,127 S.Ct. 2188). Here, that occurred whenthe district court entered a final judgmenton the plaintiffs’ § 11–358 claim, not whenthe Commission abandoned its appeal ofthe adverse preliminary injunction ruling.19

19. Higher Taste extended Watson ’s prevailingparty analysis to circumstances in which aplaintiff obtains a preliminary injunction andthen the case is dismissed upon the parties’stipulation following settlement, when the set-

tlement agreement provides the plaintiff with‘‘what it had hoped to obtain through a per-manent injunction.’’ 717 F.3d at 717–18.Here, however, the parties did not reach asettlement agreement at the time of the pre-


The defendants argue Yamada andStewart were nonetheless prevailing par-ties at the time the defendants dismissedtheir interlocutory appeal because the pre-liminary injunction issued by the districtcourt was not an ‘‘ephemeral’’ victory atall, but ‘‘a published opinion, resolving aconstitutional question, enjoining a cam-paign finance law weeks before an elec-tion.’’ That the preliminary injunctionwould be converted into a permanent oneappeared to be a ‘‘foregone conclusion’’ tothe parties and the district court, particu-larly once we issued our decision in Thal-heimer.

We disagree. Because the preliminaryinjunction order could be negated by afinal decision on the merits, it was aninterlocutory order that did not confer pre-vailing party status on the plaintiffs whenthe defendants dismissed their appeal.

Furthermore, because the plaintiffswere not yet prevailing parties when thedefendants dismissed the interlocutory ap-peal, the district court erred by relying onCummings II to deny them attorney’s feesfor the appeal. Cummings II was thesecond appeal before this court in a caseproceeding under § 1983. The districtcourt granted summary judgment to theplaintiffs in the underlying case, and thedefendant appealed that final order. InCummings v. Connell, 316 F.3d 886, 898–99 (9th Cir.2003) (Cummings I ), we up-held the grant of summary judgment as tothe defendant’s liability, thus preservingthe plaintiffs’ status as prevailing parties

on the merits, but remanded for reconsid-eration of damages. On remand, the dis-trict court awarded an additional $30,000in attorney’s fees the plaintiffs had in-curred defending against the defendant’sprior appeal in Cummings I. CummingsII, 402 F.3d at 942, 947. The partiescross-appealed again. We held that thefees related to the first appeal were im-properly awarded ‘‘because plaintiffs failedto file their request with the court of ap-peals as required by Ninth Circuit Rule39–1.6.’’ Id. at 947. In short,

[p]laintiffs’ application for attorneys’fees and expenses incurred on appeal inCummings I should have been filed withthe Clerk of the Ninth Circuit. NinthCircuit Rule 39–1.8 authorizes us totransfer a timely-filed fees-on-appeal re-quest to the district court for consider-ation, but the decision to permit thedistrict court to handle the matter restswith the court of appeals. In the ab-sence of such a transfer, the districtcourt was not authorized to rule on therequest for appellate attorney’s fees.

Id. at 947–48.20 See Natural Res. Def.Council, Inc. v. Winter, 543 F.3d 1152,1164 (9th Cir.2008) (‘‘In Cummings [II ],we held that appellate fees requested pur-suant to 42 U.S.C. § 1988 must be filedwith the Clerk of the Ninth Circuit in thefirst instance, not with the district court.’’).Accordingly, we reversed the attorney’sfees award for the first appeal, holdingthat the plaintiffs’ request for fees was

liminary injunction appeal or any time there-after.

20. Ninth Circuit Rule 39–1.6(a) reads:Absent a statutory provision to the contrary,a request for attorneys’ fees shall be filed nolater than 14 days after the expiration of theperiod within which a petition for rehear-ing may be filed, unless a timely petition forrehearing is filed. If a timely petition for

rehearing is filed, the request for attorneysfees shall be filed no later than 14 days afterthe Court’s disposition of the petition.

This amended version of Ninth Circuit Rule39–1.6 omits the ‘‘shall be filed with theClerk’’ language of the prior version, but asthe district court correctly concluded, theamendment did not alter the substance of therule.


untimely. See Cummings II, 402 F.3d at948.

Cummings II, however, did not considera situation in which a party prevails oninterlocutory review and only subsequentlybecomes entitled to attorney’s fees under afee-shifting statute such as § 1988. Whena plaintiff is not entitled to attorney’s feesafter an interlocutory appeal, as was thecase here, it cannot immediately requestattorney’s fees from this court. Shouldthe plaintiff subsequently become a pre-vailing party, however, it should presump-tively be eligible for attorney’s fees in-curred during the first appeal, becausethat appeal likely contributed to the suc-cess of the underlying litigation. SeeCrumpacker v. Kansas, Dep’t of HumanRes., 474 F.3d 747, 756 (10th Cir.2007)(Title VII) (holding that ‘‘parties who pre-vail on interlocutory review in this court,and who subsequently become prevailingparties TTT are implicitly entitled to rea-sonable attorneys’ fees related to the inter-locutory appeal’’); cf. Cabrales v. Cnty. ofL.A., 935 F.2d 1050, 1053 (9th Cir.1991)(holding that ‘‘a plaintiff who is unsuccess-ful at a stage of litigation that was anecessary step to her ultimate victory isentitled to attorney’s fees even for theunsuccessful stage’’).

Here, because Yamada and Stewart pre-vailed in an interlocutory appeal, and sub-sequently became prevailing parties afterthe district court entered judgment intheir favor, the district court erred byfailing to consider whether to award themreasonable appellate attorney’s fees. Wehold that Yamada and Stewart are entitled

to attorney’s fees arising from the priorappeal. The matter is referred to theNinth Circuit Appellate Commissioner todetermine the amount of fees to be award-ed.21

V. Conclusion

We affirm the judgment of the districtcourt on the merits of A–1’s constitutionalclaims. We vacate the district court’s feeaward to Yamada and Stewart in part andrefer the matter to the Ninth Circuit Ap-pellate Commissioner for a determinationof the proper fee award arising out of theinterlocutory appeal. Each party shallbear its own costs on appeal.

AFFIRMED IN PART, REVERSEDIN PART; REFERRED TO THE AP-PELLATE COMMISSIONER WITH IN-STRUCTIONS.

,

Etumai Felix MTOCHED, Petitioner,

v.

Loretta E. LYNCH, AttorneyGeneral, Respondent.

No. 13–70295.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 9, 2014.

Filed May 22, 2015.

Background: Citizen of Palau and resi-dent of Commonwealth of the Northern

21. The plaintiffs further argue Ninth CircuitRule 39–1.6 cannot restrict the jurisdiction ofthe district court to award attorney’s feesrelated to a prior appeal where a fee-shiftingstatute, such as § 1988, does not preclude thedistrict court from awarding such fees. TheEighth Circuit agreed with this position inLittle Rock School District v. State of Arkan-

sas, 127 F.3d 693, 696 (8th Cir.1997), whereit held that, despite an analogous Eighth Cir-cuit rule to our Rule 39–1.6, ‘‘the districtcourts retain jurisdiction to decide attorneys’fees issues that we have not ourselves under-taken to decide.’’ Although the plaintiffs’ ar-gument has some appeal, we are bound byour contrary holding in Cummings II.

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