Appendix

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[Editing Note: Page numbers from the reported opin-ion, 649 F.3d 34, are indicated (*34).]

[Doc. 00116244739, filed 08/11/2011]

United States Court of AppealsFor the First Circuit

____________

Nos. 10-200010-2049

NATIONAL ORGANIZATION FOR MARRIAGE,Plaintiff, Appellant/Cross-Appellee,

American Principles in Action,Plaintiff,

v.

Walter F. McKEE, in his official capacity as memberof the Commission on Governmental Ethics and

Election Practices, ET AL.,Defendants, Appellees/Cross-Appellants,

MATTHEW DUNLAP, in his official capacity asSecretary of the State of Maine,

Defendant.____________

APPEALS FROM THE UNITED STATES DIS-TRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]____________

BeforeTorruella, Boudin, and Lipez, Circuit Judges.

____________

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*40 James Bopp, Jr., with whom Randy Elf, JosephA. Vanderhulst, James Madison Center for Free Speech,Stephen C. Whiting, and The Whiting Law Firm wereon brief, for appellant/cross-appellee.

Thomas A. Knowlton, Assistant Attorney General,with whom Janet Mills, Attorney General, and PhyllisGardiner, Assistant Attorney General, were on brief,for appellees/cross-appellants.

Lisa J. Danetz, Brenda Wright, DEMOS, and JohnBrautigam on brief for Maine Citizens for CleanElections, amicus curiae.

____________

August 11, 2011____________

LIPEZ, Circuit Judge. This appeal requires us toaddress the constitutionality of several Maine electionlaws governing, inter alia, the registration of politicalaction committees (“PACs”) and the disclosure andreporting of information about expenditures made forelection-related advocacy. Appellant National Organi-1

zation for Marriage (“NOM”), a New Jersey-basednonprofit corporation organized for the purpose ofproviding “organized opposition to same-sex marriagein state legislatures,” contends that Maine’s laws areunconstitutionally vague and overbroad. Claiming achill of its First Amendment-protected advocacy efforts*41 in Maine, NOM brought a facial and as-appliedchallenge seeking an injunction against the laws’

In a companion opinion filed today, we consider appel-1

lant’s challenges to a related provision of Rhode Island’selection laws. See Nat’l Org. for Marriage v. Daluz, No. 10-2304 (1st Cir.2011).

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enforcement and a declaration of their unconstitution-ality. On summary judgment, the district court largelyrejected NOM’s claims, agreeing only that the phrase“for the purpose of influencing,” which the court sev-ered from the provisions in which it appeared, was un-constitutionally vague.2

NOM renews here its arguments challengingMaine’s laws on vagueness and overbreadth grounds.NOM asks as well that we reverse a ruling by thedistrict court unsealing the trial record. In turn, thedefendants (various Maine officials) contend that thedistrict court erred in finding vague, and severing fromMaine’s statutes, the phrase “for the purpose of influ-encing.”

After careful consideration of the parties’ argu-ments and key precedents, we conclude that Maine’slaws pass constitutional muster. Central to our holdingis the nature of the laws NOM challenges here. Theseprovisions neither erect a barrier to political speech norlimit its quantity. Rather, they promote the dissemina-tion of information about those who deliver and financepolitical speech, thereby encouraging efficient opera-tion of the marketplace of ideas. As the Supreme Courtrecently observed, such compulsory “transparencyenables the electorate to make informed decisions andgive proper weight to different speakers and mes-sages.” Citizens United v. FEC,130 S.Ct. 876, 916(2010). While we acknowledge that disclosure can, insome cases, unduly burden or chill political speech,there is no evidence that the Maine laws at issue here

The court also held unconstitutional a regulation2

governing the timing of disclosures. That holding is not atissue in this appeal.

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have had such a deleterious effect on NOM or itsconstituents.

We agree with the appellees that the use of “for thepurpose of influencing” in the statutes at issue, giventhe appropriately limited reading offered by Maine’sCommission on Governmental Ethics and ElectionPractices, is not unconstitutionally vague, and there-fore we vacate the district court’s holding as to thatphrase and the consequent severance of portions ofMaine’s statutes. We otherwise affirm the districtcourt’s judgment in its entirety.

I. Statutory and Procedural Background

A. Maine’s Election Laws

Maine has enacted a comprehensive set of electionlaws that embraces, among other things, contributionlimits, a public financing system for state-office candi-dates, and various reporting and disclosure require-ments for those engaged in election-related advocacy.We have previously described the contribution limitand public financing aspects of Maine’s regulation ofelections—which are not at issue here—in some detail.See Daggett v. Comm’n on Governmental Ethics & Elec-tion Practices, 205 F.3d 445, 450–52 (1st Cir. 2000).The provisions challenged here, all relating solely toreporting and disclosure, fall into three categories:rules governing PACs, rules governing “independentexpenditures,” and general attribution and disclaimerrequirements.

1. PAC Provisions

Maine’s PAC provisions are, as the appellees aptlycharacterize them, “pure disclosure laws.” Maineimposes no limitation on the amount of money PACsmay *42 raise, nor does it cap the sum a PAC mayspend independently of a candidate or candidate

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committee. If they contribute money directly to acandidate, PACs are subject to the same per-candidatecontribution limits—$750 per election for gubernato-rial candidates and $350 per election for legislativecandidates—as any other donor. See Me. Rev. Stat. tit.21-A, § 1015(1), (2). The only PAC-specific require-ments relate to registration, recordkeeping, andreporting.

An organization may qualify as a PAC underMaine law in one of several ways, of which two arerelevant here. The first pertains to so-called “major-purpose” PACs. An organization that “has as its majorpurpose initiating, promoting, defeating or influencinga candidate election, campaign or ballot question” mustregister as a PAC in Maine if it receives contributionsor makes expenditures aggregating more than $1,500in a given calendar year for that purpose. Id.§§ 1052(5)(A)(4), 1053. The second relates to “non-major-purpose PACs,” which are subject to a signifi-cantly higher contribution/expenditure threshold forregistration. Specifically, Maine law requires that anorganization register as a PAC if it “does not have asits major purpose promoting, defeating or influencingcandidate elections but . . . receives contributions ormakes expenditures aggregating more than $5,000 ina calendar year for the purpose of promoting, defeatingor influencing in any way the nomination or election ofany candidate to political office.” Id. §§ 1052(5)(A)(5),1053.

Within seven days of exceeding the relevantcontribution or expenditure threshold, a PAC mustregister with the Maine Commission on GovernmentalEthics and Election Practices (the “Commission”). Id.§ 1053. Registration requires that the organization

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supply a name and address for the PAC; identify itsform of organization and date of origin; name itstreasurer, principal officers, and primary fundraisersand decisionmakers; and indicate which candidates,committees, referenda, or campaigns it supports oropposes. Id. An organization need not make any formalchanges, such as forming a separate legal entity orcreating a segregated fund, to operate as a PAC inMaine.

Once registered, a PAC is subject to two ongoingobligations under Maine law. First, the PAC treasurermust maintain records of certain election-relatedexpenditures and contributions for four years followingthe election to which the records pertain. Id. § 1057.Second, the PAC must electronically file campaignfinance reports on a quarterly basis, with additionalreports due eleven days before any primary or generalelection and forty-two days after. Id. § 1059. Thecontents of the report vary by type of PAC. A major-purpose PAC must report any contribution to the PACof more than $50 (including the name, address, occupa-tion, and place of business of the contributor), while anon-major-purpose PAC reports only those contribu-tions made “for the purpose of promoting, defeating orinfluencing a ballot question or the nomination orelection of a candidate to political office.” Id. § 1060(6).The reporting of expenditures breaks down alongsimilar lines: major-purpose PACs report all expendi-tures, including operational and administrative ex-penses, whereas non-major-purpose PACs report “onlythose expenditures made for the purpose of promoting,defeating or influencing a ballot question or the nomi-nation or election of a candidate to political office.” Id.§ 1060(4), (5), (7).

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Maine law also explicitly requires PACs that areorganized in another state to comply with all applica-ble registration and reporting requirements. See id.§ 1053-B. *43 There is, however, a narrow exemption:out-of-state PACs may contribute to candidates, partycommittees, and PACs in Maine without registeringwith the Commission, provided that (1) such contribu-tions are the out-of-state PAC’s only financial activitywithin Maine and (2) the out-of-state PAC “has notraised and accepted any contributions during thecalendar year to influence an election or campaign” inMaine. Id.

2. “Independent Expenditure” Provision

In addition to its PAC-specific requirements,Maine’s election laws also require across-the-boardreporting of certain “independent expenditures.” At ageneral level, an “independent expenditure” is anypayment or obligation made “for the purpose of influ-encing the nomination or election of any person topolitical office” other than a direct contribution tocandidates and their campaign committees. Id.§§ 1012(3), 1019-B(1). Maine law provides that any in-dividual or entity making independent expendituresaggregating more than $100 over the course of aparticular candidacy must file a report with theCommission. Id. § 1019-B(3). That report must simplyidentify the expenditures by date, payee, and purpose,state whether the expenditures were made in supportof or opposition to the relevant candidate, and stateunder oath or affirmation whether the expenditureswere coordinated with a candidate or candidate com-mittee. Id.

An expenditure may qualify as an “independent ex-penditure” in one of two ways. First, an expenditure

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will fall within the independent expenditure reportingrequirement where it is made to finance a communica-tion that “expressly advocates the election or defeat ofa clearly identified candidate” and it is not a direct con-tribution to a candidate or candidate’s committee. Id.3

§ 1019-B(1)(A). Second, certain expenditures for com-munications made close to an election—twenty-onedays before a primary and thirty-five days before thegeneral election—are presumed to be “independent ex-penditures.” Id. The presumption applies only to an ex-penditure “made to design, produce or disseminate acommunication that names or depicts a clearly identi-fied candidate” in a race where at least one candidatehas accepted public financing. Id. § 1019-B(1)(B). Theperson making the expenditure is afforded a chance torebut the presumption by filing a written statementwith the Commission within forty-eight hours of theexpenditure “stating that the cost was not incurredwith the intent to influence the nomination, election ordefeat of a candidate.” Id. § 1019-B(2). Once a rebuttalstatement is filed, the Commission will determine bya preponderance of the evidence, after gathering rele-vant material, whether the expenditure was incurredwith such an intent. Id.

3. Attribution and Disclaimer Requirements

Finally, Maine law also requires that politicaladvertisements and certain other political messagescontain statements of attribution and disclaimer. Thegoverning statute provides that any “communicationexpressly advocating the election or defeat of a clearly

A candidate will be considered “clearly identified”3

where the name or a depiction of the candidate appears, orwhere the “identity of the candidate is apparent by unam-biguous reference.” Me. Rev. Stat. tit. 21-A, § 1012(1).

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identified candidate . . . clearly and conspicuouslystate” whether it has been authorized by the candidate(the disclaimer) and state the name and address of theperson who financed the communication (the state-ment of attribution). Id. *44 § 1014(1)-(2). These dis-claimer and attribution statements must also be in-cluded in any communication shortly before an elec-tion that “names or depicts a clearly identified candi-4

date,” unless the communication “was not made for thepurpose of influencing the candidate’s nomination forelection or election.” Id. § 1014(2-A).

4. Sanctions

The Commission may level a variety of sanc-tions—primarily in the form of fines—for violations ofthe provisions discussed above. An entity that fallswithin the definition of a PAC but fails to register maybe subject to a civil fine of $250, id. § 1062-A(1), and aPAC’s failure to file reports within thirty days of areporting deadline can result in a fine of up to $10,000or a criminal misdemeanor charge. Id. § 1062-A(8).Likewise, violations of the independent expenditurereporting requirement are punishable by a civil fine ofup to $5,000. Id. § 1020-A(5-A)(A). Finally, violationsof the attribution and disclosure requirements aresubject to lesser fines (up to $200 if made within 20days before an election, and no more than $100 atother times), but may be punished by a special fine ofup to $5,000 if the violation was committed with theintent to misrepresent the source or candidate authori-zation of the advertisement. Id. § 1014(4).

As with the independent expenditure reporting4

requirements, the relevant period is twenty-one days beforea primary and thirty-five days before a general election. Me.Rev. Stat. tit. 21-A, § 1014(2-A).

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B. Procedural History

NOM filed the initial complaint in this case inOctober 2009, shortly before a referendum election inMaine on a raft of issues that included same-sexmarriage. The complaint challenged the constitution-5

ality of a provision relating to ballot question commit-tees, Me. Rev. Stat. tit. 21-A, § 1056-B, and was ac-6

companied by motions for a temporary restraining or-der and a preliminary injunction. Following an expe-dited hearing, the district court denied NOM’s motionfor a temporary restraining order. NOM subsequentlyamended its complaint to add the claims at issue here:those targeting the constitutionality of Maine’s PACregistration, independent expenditure, and attributionand disclaimer laws.

The district court held a hearing on NOM’s motionfor a preliminary injunction, consolidated with a benchtrial on the merits, on August 12, 2010. The parties7

stipulated to a joint trial record, which was submittedunder seal. At the hearing, the district court expresseddoubt about the basis for sealing the record, and sub-

NOM was joined in its initial complaint by co-plaintiff5

American Principles in Action. The specific claims at issuein this appeal were only pursued by NOM, and, accordingly,American Principles in Action does not appear as anappellant.

The constitutionality of § 1056-B is not at issue in this6

appeal.

The hearing addressed solely the specific claims at7

issue in this appeal, leaving the challenges to § 1056-B fora later summary judgment hearing.

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sequently issued an order to show cause why the trialrecord should be maintained under seal.

In a decision issued on August 19, 2010, the dis-trict court largely denied NOM’s claims and upheld theconstitutionality of the challenged statutes. See Nat’lOrg. for Marriage v. McKee, 723 F. Supp. 2d 245 (D.Me. 2010). Finding that NOM had adequately demon-strated an interest in engaging in expressive activitythat was deterred by the prospect of regulation underMaine’s laws, the court held that NOM had *45 stand-ing to challenge the statutes at issue. Id. at 256–58.8

On the merits, the court found for NOM on only twopoints.

First, the court held the phrase “for the purpose ofinfluencing” to be unconstitutionally vague, citing thetreatment of similar language in the Supreme Court’sopinion in Buckley v. Valeo, 424 U.S. 1. Nat’l Org. forMarriage, 723 F. Supp. 2d at 261. The phrase (andvariants thereof) appears in several places throughoutthe challenged statutes, including in the definition ofa non-major-purpose PAC, the rebuttal provision for9

presumed independent expenditures (i.e., those made

The court declined, however, to reach the constitution-8

ality of the “major-purpose” PAC provision, § 1052(5)(A)(4),noting that the record showed no basis for concluding thatNOM would be subject to that regulation. See Nat’l Org. forMarriage, 723 F. Supp. 2d at 254.

See Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5) (defining9

non-major-purpose PAC to include “[a]ny organization that. . . receives contributions or makes expenditures aggregat-ing more than $5,000 . . . for the purpose of promoting,defeating or influencing in any way the nomination orelection of any candidate to political office”).

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shortly prior to an election), and in the provisions10

defining which communications are subject to dis-claimer and attribution requirements. The court11

determined that the appropriate remedy was to severthe phrase from the statutes. Id. The most significantimpact of this holding was on the independent expendi-ture statute. Because the rebuttal procedure forpresumed independent expenditures was dependent onthe term “influencing,” the court’s ruling severed the12

entire rebuttal procedure. Thus, the independentexpenditure presumption became conclusive for expen-ditures for communications clearly identifying acandidate made shortly before an election. The courtheld that the provision, as altered, nonetheless passedconstitutional muster, as recent Supreme Courtdecisions “have made the rebuttal exercise pointless.”Id. at 265.13

See Me. Rev. Stat. tit. 21-A, § 1019-B(2) (“A person10

presumed . . . to have made an independent expendituremay rebut the presumption by filing a signed writtenstatement . . . stating that the cost was not incurred withthe intent to influence the nomination, election or defeat ofa candidate. . . .”).

See Me. Rev. Stat. tit. 21-A, § 1014(2-A) (“[D]isclosure11

is not required if the communication was not made for thepurpose of influencing the candidate’s . . . election.”).

The other statutes contained additional advocacy-12

related terms that remained after “influencing” wasstricken—e.g., “promoting” and “defeating,” Me. Rev. Stat.tit. 21-A, § 1052(5)(A)(5)—whereas the independent expen-diture rebuttal procedure turned solely on the word “influ-ence,” see id. § 1019-B(2) (applying to expenditures made“with the intent to influence” candidate elections).

The district court reached this conclusion primarily on13

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Second, the court held one of the implementingregulations for the independent expenditure statuteunconstitutional, finding that it impermissibly bur-dened First Amendment speech. Id. at 266. The regula-tion was one of a pair governing the timing of reportingindependent expenditures. The first, which the courtupheld, required that independent expenditures of over$100 made within two weeks of an election be reportedto the Commission within twenty-four hours. See 94-270-001 Me. Code R. § 10(3)(A). The second required*46 the reporting within twenty-four hours of any inde-pendent expenditures aggregating over $250, regard-less of when made. Id. § 10(3)(B). Finding the shortreporting time frame mandated by both regulations tobe burdensome, the court held that the second regula-tion, unlike the first, could not be justified by a closerelationship to “the state’s interest in providing infor-mation to voters at precisely the time that such infor-mation can be of greatest use.” Nat’l Org. for Marriage,723 F. Supp. 2d at 266. The defendants do not chal-lenge this holding on appeal.

In addition to its merits holdings, the district courtalso ruled that the trial evidence must be unsealed.Explaining that it was “not willing to make a FirstAmendment decision based upon a sealed record,” the

the basis of Citizens United, which upheld a similar federal-law disclosure provision for advertisements made shortlybefore an election. The Court ruled that the statute, whichcontained no rebuttal provision analogous to Maine’s,passed First Amendment muster in light of a general“public . . . interest in knowing who is speaking about acandidate shortly before an election.” Citizens United, 130S. Ct. at 915.

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court ordered the parties to refile the record in publiclyavailable form. Id. at 249 n.4.14

This timely appeal followed.

II. Standing

We begin, as we must, with the defendants’ argu-ment that NOM lacks standing to prosecute some of itsconstitutional claims. We review a district court’sruling on the question of standing de novo. Sullivan v.City of Augusta, 511 F.3d 16, 24 (1st Cir. 2007).

The standing requirement—or, more accurately,requirements, as standing “comprises a mix of consti-tutional and prudential criteria,” Osediacz v. City ofCranston, 414 F.3d 136, 139 (1st Cir. 2005)—flowsfrom the limited nature of federal court jurisdiction,and specifically from the grounding of the federal judi-cial power in “Cases” and “Controversies.” U.S. Const.art. III, § 2; Ariz. Christian Sch. Tuition Org. v. Winn,131 S.Ct. 1436, 1441-42 (2011). The constitutionalaspect of standing embraces three core requirements:

“First, the plaintiff must have suffered an ‘in-jury in fact’—an invasion of a legally protectedinterest which is (a) concrete and particular-ized, and (b) ‘actual or imminent, not “conjec-tural” or “hypothetical.”’ Second, there must bea causal connection between the injury and theconduct complained of—the injury has to be‘fairly trace[able] to the challenged action ofthe defendant, and not . . . th[e] result [of] theindependent action of some third party notbefore the court.’ Third, it must be ‘likely,’ as

We subsequently stayed the unsealing order upon14

NOM’s emergency motion for a stay pending appeal.

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opposed to merely ‘speculative,’ that the injurywill be ‘redressed by a favorable decision.’”

Ariz. Christian Sch., 131 S. Ct. at 1442 (quoting Lujanv. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).The Supreme Court has overlaid these constitutionaldictates with several prudential limitations on stand-ing, including “‘the general prohibition on a litigant’sraising another person’s legal rights, the rule barringadjudication of generalized grievances more appropri-ately addressed in the representative branches, andthe requirement that a plaintiff’s complaint fall withinthe zone of interests protected by the law invoked.’”Osediacz, 414 F.3d at 139 (quoting Allen v. Wright, 468U.S. 737, 751 (1984)). In certain facial First Amend-ment challenges to a statute, we may relax theseprudential limitations, Osediacz, 414 F.3d at 141, butthe constitutional requirements apply with equal forcein every case, Sutliffe v. Epping Sch. Dist., 584 F.3d314, 326 n.6 (1st Cir. 2009).

*47 Defendants do not seek to dispose of the entiresuit on standing grounds, but instead surgically targetNOM’s standing to challenge Maine’s PAC-relatedelection laws. They assert that NOM lacks standing15

to bring the PAC claims because it failed to prove thatit came within the reach of Maine’s PAC laws, i.e., thatNOM’s activities would have qualified it as a PAC. Inlight of the fact that prudential limitations on standing

Such a targeted approach is consistent with the claim-15

specific nature of standing; “standing is not dispensed ingross,” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996), andthus a plaintiff must separately prove standing “for eachclaim he seeks to press.” DaimlerChrysler Corp. v. Cuno,547 U.S. 332, 352 (2006).

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may be relaxed in the context of First Amendmentchallenges—and because defendants cite the constitu-tional standards for standing in making their argu-ment—we construe this argument as a challenge to theadequacy of NOM’s Article III injury-in-fact showing.16

Preenforcement First Amendment challenges likethis one occupy a somewhat unique place in Article IIIstanding jurisprudence. By definition, such casespresent us with situations where the government hasnot yet applied the allegedly unconstitutional law tothe plaintiff, and thus there is no tangible injury.However, in these circumstances the Supreme Courthas recognized “self-censorship” as “a harm that can berealized even without an actual prosecution.” Virginiav. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988); seealso N.H. Right to Life Political Action Comm. v.Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (“[I]t is notnecessary that a person expose herself to arrest orprosecution under a statute in order to challenge thatstatute in a federal court.”). The chilling of protectedspeech may thus alone qualify as a cognizable, ArticleIII injury.

The mere allegation of a “chill,” however, will notsuffice to open the doors to federal court. See Laird v.Tatum, 408 U.S. 1, 13-14 (1972) (“Allegations of a sub-

Defendants do not appear to contest that the second16

and third prongs of the constitutional standing analysiswould be met here; to the extent that the plaintiff hassuffered a cognizable injury at all, the injury can “be tracedto the existence and threatened enforcement of the chal-lenged statutes,” and is redressable in an action against thedefendants here, who are charged with enforcing Maine’selection laws. N.H. Right to Life Political Action Comm. v.Gardner, 99 F.3d 8, 13 (1st Cir. 1996).

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jective ‘chill’ are not an adequate substitute for a claimof specific present objective harm or a threat of specificfuture harm. . . .”). Where, as here, the plaintiff claimsinjury based on such a chilling of speech, the plaintiffmust establish with specificity that she is “within theclass of persons potentially chilled.” Osediacz, 414 F.3dat 142. This burden will be satisfied by record evidencesupporting “an objectively reasonable possibility thatshe would be subject to the allegedly unconstitutional[law].” Id. at 143; see also N.H. Right to Life, 99 F.3d at14 (“A party’s subjective fear that she may be prose-cuted for engaging in expressive activity will not beheld to constitute an injury for standing purposesunless that fear is objectively reasonable.”).

NOM challenges three separate provisions ofMaine’s PAC laws: the major-purpose PAC definition,the non-major-purpose PAC definition, and the provi-sion governing out-of-state PACs. We examine in turnwhether the record supports an “objectively reasonablepossibility” that *48 each provision would be applied toNOM, Osediacz, 414 F.3d at 143, and then turn brieflyto a related inquiry specific to NOM’s vagueness chal-lenges to the PAC statutes.

A. Standing to Challenge Major–Purpose PACProvision

It is plain that NOM has no objectively reasonableapprehension of being regulated as a major-purposePAC. Among other things, a major-purpose PAC musthave “as its major purpose initiating, promoting, de-feating or influencing a candidate election, campaignor ballot question” in Maine. Me. Rev. Stat. tit. 21-A,§ 1052(5)(A)(4). NOM identifies itself as a nonprofit ad-vocacy organization with a national scope, dedicated toproviding “organized opposition to same-sex marriage

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in state legislatures.” NOM’s advocacy efforts and ex-penditures have spanned the country, with significantexpenditures in California, Iowa, New York, and NewHampshire, among others. In 2009, the year of NOM’slargest expenditures in Maine (made to support repealof Maine’s same-sex marriage law), NOM spent $1.8million in Maine out of $8 million in total expendituresfor the year. In light of this record, NOM does not haveas its “major purpose” election advocacy in Maine, andit is accordingly not subject to regulation as a major-purpose PAC. NOM therefore lacks standing to chal-lenge § 1052(5)(a)(4).

B. Standing to Challenge Non–Major–PurposePAC Provision

It is a closer question whether the record revealsan objectively reasonable possibility that NOM wouldbe regulated as a non-major-purpose PAC under Mainelaw. To so qualify, NOM would have to anticipate re-ceiving contributions or making expenditures of morethan $5,000 in a year “for the purpose of promoting, de-feating or influencing in any way the nomination orelection of any candidate to political office.” Me. Rev.Stat. tit. 21-A, § 1052(5)(A)(5). The evidence is incon-clusive as to whether NOM actually crossed the $5,000threshold during the 2010 election cycle. However, we17

need not determine whether NOM in fact became sub-ject to the provision during the relevant period, be-cause NOM claims injury based upon self-censorship inanticipation of the law’s application to it, and not upon

At the time the district court issued its merits deci-17

sion in August 2010, “NOM ha[d] endorsed no one, d[id] not. . . plan to make expenditures, and did not even budget forexpenditures in [the 2010] Maine election cycle.” Nat’l Org.for Marriage, 723 F. Supp. 2d at 258.

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the actual burdens of the law. NOM’s executive direc-tor, Brian Brown, testified—consistently with the alle-gations in NOM’s complaint—that NOM’s fear of en-forcement of Maine’s election laws was curtailingNOM’s speech, and that “[u]ntil Maine’s law ischanged,” NOM was “not going to expend precious re-sources” becoming involved in campaigns in the state.The appropriate inquiry, then, is whether it was objec-tively reasonable for NOM to believe that the non-major-purpose PAC provision might apply to it andthat it would have to curtail its activities in Maine toavoid such a result.

The record evidence confirms that NOM’s fearswere objectively reasonable and led NOM to engage inself-censorship. The complaint, which was verified18

*49 by Brown, explained that NOM sought to engagein a variety of forms of election-related speech, includ-ing “radio ads, direct mail, and publicly accessible

As defendants note, NOM did expend some resources18

in two legislative races in September 2010 (after the districtcourt issued its opinion). Specifically, NOM sent outpostcards that read: “In May 2009, the Maine Legislatureapproved homosexual ‘marriage.’ Rep. Linda Valentino andRep. Donald Pilon voted to support same-sex ‘marriage.’Now it’s time to let Don Pilon and Linda Valentino know wedon’t agree with their decision to back same-sex ‘marriage.’Email [them] . . . and tell them they stand on the wrongside of House District[s] 133 and 134.” The other side of thepostcards contained pictures of the candidates’ opponents,identified them as “stand[ing] for marriage as between oneman and one woman,” and urged voters to email them to“thank them for standing for traditional marriage.” How-ever, because these mailings took place after NOM had filedits notice of appeal, they are not properly part of the recordhere and we do not consider them in our standing analysis.

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Internet postings of its radio ads and direct mail.”NOM alleged that some portion of these advertise-ments would relate to “clearly identified candidates forstate or local offices.” To this end, NOM discussed po-tential advertisements with a marketing vendor, andwent so far as to have the vendor create three templateadvertisements (specifically, copy for two broadcastadvertisements and one mailer) to be used in not-yet-identified candidate races. One such template, titled“Consequences,” raised fears that legalizing same-sexmarriage would lead to schools teaching children aboutsame-sex relationships, and concluded:

Legislator Z and some politicians in Mainecan’t fix the real problems in these troubledtimes, but they’ve got time to push gay mar-riage on Maine families? Call Legislator Z andtell him/her: “Don’t mess with marriage.”

While the record does not indicate how much the con-templated advertisements would cost, NOM allegedgenerally that each of its communications costs morethan $250. The advertisements were never used, inline with NOM’s claim to have curtailed its plannedspeech. The record also contained evidence that NOMhad made political expenditures in Maine in the past,including contributions of $1.8 million in 2009 to acommittee opposed to Maine’s same-sex marriage law.

We agree with the district court that, althoughNOM’s “showing certainly could have been stronger,”Nat’l Org. for Marriage, 723 F. Supp. 2d at 258, NOMhas met its standing burden with respect to its chal-lenge to § 1052(5)(A)(5). The burden of proving thatone’s speech was chilled is a modest one. See Osediacz,414 F.3d at 143. The record evidence adequately estab-lishes both “an objectively reasonable possibility” that

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NOM would be subject to Maine’s requirements fornon-major-purpose PACs if it engaged in its intendedspeech, and that NOM forwent political speech to avoidthe alleged burdens (and possible penalties for non-compliance) attending the non-major-purpose PACprovision. Id. Such self-censorship in the face of pos-sible legal repercussions suffices to show Article III in-jury. See N.H. Right to Life, 99 F.3d at 13 (“[A]n actualinjury can exist when the plaintiff is chilled fromexercising her right to free expression or forgoes ex-pression in order to avoid enforcement consequences.”).

C. Standing to Challenge Out–of–State PACProvision

We next examine NOM’s standing to challenge§ 1053–B, which provides generally that a “politicalaction committee organized outside of [Maine] shallregister and file reports with the [C]ommission” inaccordance with Maine’s PAC laws. *50 Me. Rev.19

Stat. tit. 21-A, § 1053-B. The question of whether NOMmight be considered a “political action committee” re-treads ground we have just covered. Maine law defines“political action committee” to include, among otherthings, a non-major-purpose PAC. Moreover, the recordshows that NOM, which operates from New Jersey, isorganized as a Virginia nonprofit. Thus, there is no

As described above, the provision also establishes a19

narrow exemption from registration and reporting for anout-of-state PAC if its “only financial activity within theState is to make contributions to candidates, party commit-tees, political action committees or ballot question commit-tees.” Me. Rev. Stat. tit. 21-A, § 1053-B. As NOM indicatedthat it intended to make independent expenditures forpolitical advertising, it would not fall within this exemp-tion.

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question that NOM is “organized outside of [Maine],”and there is a reasonable possibility that it would beconsidered a “political action committee” within themeaning of the statute. NOM therefore has standing tochallenge the out-of-state PAC provision.

D. Standing to Bring Vagueness Challenge

We last address a standing-related argument spe-cific to NOM’s vagueness claims. Defendants arguethat NOM cannot bring a vagueness challenge to thenon-major-purpose PAC definition, as well as to its cor-responding definition of the term “expenditure,” be-20

cause NOM’s advocacy efforts were clearly covered bythe provisions’ terms. In so arguing, defendants rely onthe well-established proposition that a “‘plaintiff whoengages in some conduct that is clearly proscribedcannot complain of the vagueness of the law as appliedto the conduct of others.’” Holder v. Humanitarian LawProject, 130 S. Ct. 2705, 2719 (2010) (quoting HoffmanEstates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,495 (1982)). Defendants contend that certain post21

“Expenditure,” which appears in the definition of a20

non-major-purpose PAC, is defined by another portion ofthe statute to include a “purchase, payment, distribution,loan, advance, deposit or gift of money or anything of value,made for the purpose of influencing the nomination orelection of any person to political office; or for the initiation,support or defeat of a campaign, referendum or initiative,including the collection of signatures for a direct initiative,in this State.” Me. Rev. Stat. tit. 21-A, § 1052(4)(A)(1).

While Supreme Court precedent does not explicitly21

brand this an issue of standing, see, e.g., HumanitarianLaw Project, 130 S. Ct. at 2719, it is conceptually related tostanding doctrine and has been so treated by a number ofcircuit courts. See, e.g., United States v. Tyler, 281 F.3d 84,

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cards NOM sent in September 2010 targeting statelegislative candidates were unambiguously covered bythe non-major-purpose PAC statute and expendituredefinition, i.e., that they were “for the purpose of pro-moting, defeating or influencing in any way” a candi-date election, Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5),and “for the purpose of influencing the . . . election ofany person to political office; or for the initiation, sup-port or defeat of a campaign,”id. § 1052(4)(A)(1).

The defendants’ argument is off-target for at leasttwo reasons. First, the question of whether the non-major-purpose PAC provisions clearly applied toNOM’s September mailings is irrelevant to NOM’sstanding to bring its vagueness claims. Because this isa preenforcement challenge based on conduct forgonedue to an alleged chill, the appropriate focus for thedefendants’ arguments would be on whether “the statu-tory terms are clear in their application to [NOM’s]proposed conduct.” Humanitarian Law Project, 130 S.Ct. at 2720 (emphasis added). Moreover, *51 the judg-ment in this case was entered and NOM’s appeal wasfiled in August 2010, and thus evidence of NOM’s Sep-tember 2010 advocacy efforts is not properly part of therecord on appeal. At the time of the hearing below,22

NOM had not yet engaged in any advocacy efforts inMaine in 2010.

91 n.6 (3d Cir. 2002); United States v. Hill, 167 F.3d 1055,1064 (6th Cir. 1999); see also Hunt v. City of Los Angeles,638 F.3d 703, 710 (9th Cir. 2011) (referring to the bar onvagueness challenges by those whose conduct is clearlycovered as a “special standing principle[ ]”).

See supra note 18.22

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Second, NOM’s claim is not simply a challenge tothe vagueness of the provisions as they would be ap-plied to its actual or intended advocacy efforts; NOMalso brings a facial challenge to the provisions underthe First Amendment overbreadth doctrine. The baragainst vagueness challenges by those whose conductthe law clearly proscribes is “relaxed . . . in the FirstAmendment context, permitting plaintiffs to argue thata statute is overbroad because it is unclear whether itregulates a substantial amount of protected speech.”United States v. Williams, 553 U.S. 285, 304 (2008).23

We thus see no bar to reaching the merits of NOM’svagueness challenge to the non-major-purpose PACprovisions.

III. First Amendment Overbreadth Challenges

Turning to the merits of NOM’s constitutionalchallenges, we first address its First Amendmentarguments that Maine’s election laws are unconstitu-tionally overbroad, reviewing those claims de novo.United States v. Morales–de Jesús, 372 F.3d 6, 8 (1stCir. 2004) (constitutional challenges are reviewed denovo). The First Amendment’s guarantee of free speech

Humanitarian Law Project is not to the contrary.23

Humanitarian Law Project simply noted, in the context ofan as-applied vagueness challenge to a federal criminalstatute, that the general rule prohibiting such challengeswhere the petitioner’s speech is clearly proscribed appliesin the First Amendment arena. Humanitarian Law Project,130 S. Ct. at 2719 (“Th[e] rule makes no exception forconduct in the form of speech.”). Consistent with Williams,however, Humanitarian Law Project noted that the peti-tioner’s vagueness arguments might make out a valid claimif framed as an “overbreadth claim under the First Amend-ment.” Id.

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applies with special vigor to discussion of public policyand the qualifications of political candidates. Buckley24

v. Valeo, 424 U.S. 1, 14 (1976). Indeed, “there is practi-cally universal agreement that a major purpose of [theFirst] Amendment was to protect the free discussion ofgovernmental affairs.” Mills v. Alabama, 384 U.S. 214,218 (1966). Accordingly, “[t]he First Amendment af-fords the broadest protection to such political expres-sion in order ‘to ensure [the] unfettered interchange ofideas for the bringing about of political and socialchanges desired by the people.’” Buckley, 424 U.S. at 14(alteration in original) (quoting Roth v. United States,354 U.S. 476, 484 (1957)).

NOM has framed its First Amendment challengesto Maine’s election laws as overbreadth claims, arguingthat each law is unconstitutional on its face. Under theoverbreadth doctrine, “a statute is facially invalid if itprohibits a substantial amount of protected speech.”Williams, 553 U.S. at 292. The overbreadth doctrine is“‘strong medicine’” that should be “employed . . . withhesitation, and then ‘only as a last resort.’” *52 NewYork v. Ferber, 458 U.S. 747, 769 (1982) (quotingBroadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). Forthat reason, courts “vigorously enforce[ ] the require-ment that a statute’s overbreadth be substantial, notonly in an absolute sense, but also relative to the sta-tute’s plainly legitimate sweep.” Williams, 553 U.S. at292.

The First Amendment is incorporated through the24

Fourteenth Amendment and thus applies to Maine’s laws.Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 31 (1st Cir. 1993)(citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 276–77(1964)).

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A. Distinction Between Issue Discussion andExpress Advocacy

We first address NOM’s arguments that thestatutes challenged here are overbroad because theymay reach discussion of issues as well as express advo-cacy of a candidate’s election or defeat. The divisionbetween pure “issue discussion” and “express advocacy”of a candidate’s election or defeat is a conceptual dis-tinction that has played an important, and at timesconfounding, role in a certain set of modern SupremeCourt election law precedents. Though the contours(and significance) of the distinction have never beenfirmly fixed, the core premise is that regulation ofspeech expressly advocating a candidate’s election ordefeat may more easily survive constitutional scrutinythan regulation of speech discussing political issuesmore generally.

Because a number of NOM’s arguments here raise,both directly and indirectly, this distinction between is-sue discussion and express advocacy, we pause brieflyto describe how the distinction arose and developed.We ultimately conclude, however, that the distinctionis not important for the issues addressed in this ap-peal.

1. Issue/Express Advocacy Distinction Gen-erally

The issue discussion/express advocacy distinctionhas its roots in the Supreme Court’s decision in Buck-ley v. Valeo. Perhaps the Court’s seminal decision inthe area of campaign finance regulation, Buckley re-solved a wide-ranging series of challenges to provisionsof the Federal Election Campaign Act of 1971(“FECA”). One of those challenged provisions, of rele-vance to our discussion here, imposed an absolute cap

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on independent expenditures, stating that “‘[n]o personmay make any expenditure . . . relative to a clearlyidentified candidate during a calendar year which,when added to all other expenditures made by suchperson during the year advocating the election or de-feat of such candidate, exceeds $1,000.’” Buckley, 424U.S. at 39 (alterations in original) (quoting 18 U.S.C.§ 608(e)).

Reviewing this language, the Court first noted thatthe “use of so indefinite a phrase as ‘relative to’ a can-didate” raised serious vagueness concerns. Id. at 41.The Court construed the phrase (by reference to itssurrounding terms) as limited to expenditures “advo-cating the election or defeat of” a candidate. However,this construction, in the Court’s estimation, merely“refocus[ed] the vagueness question.” Id. at 42. TheCourt’s evident concern was that the statute, even aslimited, failed to draw a sharp enough line between ad-vocacy of a candidate’s election and discussion of is-sues, and that the resulting uncertainty over what thestatute covered would “‘compel[ ] the speaker to hedgeand trim,’” id. at 43 (quoting Thomas v. Collins, 323U.S. 516, 535 (1945)):

[T]he distinction between discussion of issuesand candidates and advocacy of election or de-feat of candidates may often dissolve in practi-cal application. Candidates, especially incum-bents, are intimately tied to public issues in-volving legislative proposals and governmentalactions. Not only do candidates campaign *53on the basis of their positions on various publicissues, but campaigns themselves generate is-sues of public interest.

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Id. at 42. To avoid this uncertainty, the Court limitedthe scope of the statute to “expenditures for communi-cations that in express terms advocate the election or25

defeat of a clearly identified candidate for federaloffice.” Id. at 44.26

The constitutional basis for this concern with dis-tinguishing between laws that regulate advocacy of acandidate’s election and those that regulate pure issuediscussion has never been entirely clear. Buckley ex-plicitly framed its discussion in terms of unconstitu-tional vagueness under the Due Process Clause, andthere is, to be sure, a vagueness dimension to the anal-ysis. See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S.449 (2007) (Scalia, J., concurring in part) (referring tothe express advocacy portion of Buckley as the deci-sion’s “vagueness holding”). However, this interpreta-tion has its limits; the mere fact that a statute maycover issue discussion as well as candidate advocacydoes not alone render it vague under due process stan-dards, provided that the statute is reasonably clear inits coverage.

Perhaps for this reason, there are hints in Buckleythat the constitutional basis for the Court’s concern laymore in overbreadth—i.e., that statutes that reached

The Court provided specific examples of such “express25

terms,” including “‘vote for,’ ‘elect,’ ‘support,’ ‘cast yourballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [and]‘reject.’” Buckley, 424 U.S. at 44 n.52.

The Court grafted a similar limiting construction onto26

the language of a disclosure statute, 2 U.S.C. § 434(e), toaddress perceived problems with its use of the phrase “forthe purpose of influencing [a candidate election].” Buckley,424 U.S. at 80.

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issue discussion might be deemed to regulate imper-missibly a substantial amount of speech protected bythe First Amendment—than in vagueness. See, e.g.,424 U.S. at 80 (limiting a second, disclosure-relatedprovision of FECA to communications that “expresslyadvocate” a candidate’s election to “insure that thereach of [the provision] is not impermissibly broad”).This reading finds considerable support in subsequentauthority. See Osborne v. Ohio, 495 U.S. 103, 120 n.14(1990) (describing Buckley as a “case where a law wasconstrued to avoid potential overbreadth problems”);FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 248(1986) (stating that Buckley’s “express advocacy” limi-tation was imposed to “avoid problems of over-breadth”); cf. McConnell v. FEC, 540 U.S. 93, 192(2003) (noting that Buckley “narrowly read[ ] the FECAprovisions . . . to avoid problems of vagueness and over-breadth”), overruled on other grounds by CitizensUnited, 130 S. Ct. 876. Regardless of its origins, thedividing line between issue discussion and express ad-vocacy, as it evolved, came to be associated morestrongly with First Amendment overbreadth analysisthan with due process vagueness concerns. *54 See,27

e.g., Wis. Right to Life, 551 U.S. at 457 (noting that the

This is so to the extent that the line between issue27

advocacy and candidate advocacy was considered a validdistinction at all. Indeed, the majority in McConnellindicated that it was not “persuaded, independent of ourprecedents, that the First Amendment erects a rigid barrierbetween express advocacy and so-called issue advocacy,”noting that the “notion cannot be squared with our long-standing recognition that the presence or absence of magicwords cannot meaningfully distinguish electioneeringspeech from a true issue ad.” McConnell, 540 U.S. at 193.

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“law in this area requires us . . . to draw such a line,because we have recognized that the interests held tojustify the regulation of campaign speech [under theFirst Amendment] . . . ‘might not apply’ to the regula-tion of issue advocacy” (quoting McConnell, 540 U.S. at206 n.88)).

2. Application to Maine’s Election Statutes

Drawing on these cases, NOM argues that the stat-utes before us are unconstitutionally overbroad be-cause they reach issue advocacy as well as expressadvocacy of a candidate’s election or defeat. NOM’sargument presumes that the distinction between issuediscussion and express advocacy is relevant to thereview of the statutes here. That is not the case for acouple of reasons.

First, the issue/express advocacy dichotomy hasonly arisen in a narrow set of circumstances notpresent here. From the beginning, the distinction’sprimary purview has been cases scrutinizing limits onindependent expenditures. The statute that prompted28

the Buckley Court to introduce the “express advocacy”construction was a blanket $1,000 limit on independ-ent expenditures. 424 U.S. at 41-44. The more recentSupreme Court precedents to make use of the express/issue advocacy distinction addressed a narrower feder-al law prohibiting corporations and labor unions fromemploying general treasury funds to pay for “election-eering” communications targeting candidates for elec-tion. See McConnell, 540 U.S. at 189-209; Wis. Right to

In FEC v. Akins, 524 U.S. 11, 27 (1998), the Court28

explicitly entertained the possibility, but did not decide,that Buckley’s “express advocacy” narrowing constructionwas limited to addressing “the First Amendment problemspresented by regulation of ‘independent expenditures.’”

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Life, 551 U.S. at 464-82. This line of cases came to adefinitive end with Citizens United, which held limita-tions on such expenditures by corporations and unionsto be unconstitutional, and thus effectively prohibitedany law limiting independent expenditures regardlessof the identity of the regulated entity. 130 S. Ct. at896-913. As the present case does not involve a limit onindependent expenditures, the relevance of these casesis limited at best.

Second, and more fundamentally, the SupremeCourt has explicitly rejected an attempt to “import[the] distinction” between issue and express advocacyinto the consideration of disclosure requirements. Id.at 915; see also id. (“[W]e reject Citizens United’s con-tention that the disclosure requirements must be limit-ed to speech that is the functional equivalent of ex-press advocacy.”). The provisions before us are all effec-tively disclosure laws, in that they require the divul-gence of information to the public or the Commission,but do not directly limit speech. We find it reasonably29

Of the provisions at issue here, Maine’s requirement29

that non-major-purpose PACs register with the Commissionis, on its face, the furthest from a traditional disclosure law.In function, however, it too is first and foremost a disclosureprovision. The registration requirement does not obligatethe PAC to form a separate entity, create a segregated fund,or make any substantive change to its operation or form;the law merely requires the reporting of certain informationabout the PAC after it crosses the applicable contribu-tion/expenditure threshold (along with certain other deminimis requirements, such as ongoing maintenance ofrecords). See Me. Rev. Stat. tit. 21-A, § 1053.

Moreover, Citizens United may be read to suggest thatthe Court views this type of information-gathering registra-tion requirement as akin to a disclosure requirement. In

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clear, in *55 light of Citizens United, that the distinc-tion between issue discussion and express advocacyhas no place in First Amendment review of these sortsof disclosure-oriented laws. Accord Human Life ofWash. Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir.2010) (“Given the Court’s analysis in Citizens United,and its holding that the government may impose dis-closure requirements on speech, the position that dis-closure requirements cannot constitutionally reachissue advocacy is unsupportable.”).

Thus, to the extent that NOM’s overbreadth argu-ments turn on the distinction between issue discussionand express advocacy, we reject them.

B. Standard of Scrutiny

Since Buckley, the Supreme Court has distin-guished in its First Amendment jurisprudence betweenlaws that restrict “the amount of money a person orgroup can spend on political communication” and lawsthat simply require disclosure of information by thoseengaging in political speech. 424 U.S. at 19, 64. TheCourt has recognized that disclosure laws, unlike con-tribution and expenditure limits, “impose no ceiling oncampaign-related activities,” id. at 64, and thus are a“less restrictive alternative to more comprehensiveregulations of speech.” Citizens United, 130 S. Ct. at

explaining why it was not importing the express advocacylimitation into its analysis of the disclosure law before it,the Court cited a case upholding against First Amendmentchallenge a federal law that imposed both disclosure andregistration requirements on lobbyists, noting that suchrequirements were found permissible “even though Con-gress has no power to ban lobbying itself.” Citizens United,130 S. Ct. at 915 (citing United States v. Harriss, 347 U.S.612, 625 (1954)).

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915; see also Buckley, 424 U.S. at 68 (“[D]isclosure re-quirements certainly in most applications appear to bethe least restrictive means of curbing the evils ofcampaign ignorance and corruption that Congressfound to exist.”). For that reason, disclosure require-ments have not been subjected to strict scrutiny, butrather to “‘exacting scrutiny,’ which requires a ‘sub-stantial relation’ between the disclosure requirementand a ‘sufficiently important’ governmental interest.”Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424U.S. at 64, 66); see also Doe v. Reed, 130 S. Ct. 2811,2818 (2010).30

While NOM concedes that exacting scrutiny ap-plies to review of Maine’s independent expenditure anddisclaimer and attribution laws, it contends thatMaine’s PAC definitions are subject to strict scrutiny.In fact, NOM suggests that any law defining an organi-zation as a PAC is subject to strict scrutiny, because,“[a]s a matter of law, not fact,” PAC status is burden-some and subjects an entity to “extensive regulations.”NOM’s argument here reflects two contradictorypoints. On the one hand, NOM seeks to *56 justify theapplication of strict scrutiny by reference to someundefined set of “full-fledged political committee bur-dens.” On the other, NOM disclaims any challenge to

Additionally, the application of a disclosure require-30

ment may be held to violate the First Amendment wherethe challengers can show “‘a reasonable probability that thecompelled disclosure [of personal information] will subjectthem to threats, harassment, or reprisals from eitherGovernment officials or private parties.’” Reed, 130 S. Ct. at2820 (alteration in original) (quoting Buckley, 424 U.S. at74). NOM has not attempted to make such a showing herewith respect to the disclosures required by Maine law.

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the disclosure requirements attendant to PAC statusunder Maine law—i.e., the actual burdens of registra-tion and reporting imposed by the state’s PAC provi-sions—but purports to challenge only the “PAC defini-tion, through which Maine unconstitutionally imposesfull-fledged political committee burdens.” NOM’s pointappears to be that “by giving government the power tolicense speech” by defining an entity as a PAC, what-ever obligations are imposed on PACs “in effect areprior restraints.”

NOM’s attempt to ascribe a free-standing signifi-cance to the PAC label is unpersuasive. It is not thedesignation as a PAC but rather the obligations thatattend PAC designation that matter for purposes ofFirst Amendment review. Those obligations—as wellas the basic definition of a “PAC”—vary across thejurisdictions that regulate PACs. Maine’s requirementsare substantially different from those at issue in thecases NOM cites in support of its contention that PACstatus is inherently burdensome. For example, in Citi-zens United, where, as NOM points out, the SupremeCourt characterized federal-law PACs as “expensive toadminister and subject to extensive regulations,” 13031

S. Ct. at 897, the Court was considering a regime thatrequired corporations to set up a separate legal entityand create a segregated fund prior to engaging in anydirect political speech. In addition, these federal-law

Partly for this reason, the Court refused to consider31

the option of financing speech through a PAC to be a factormitigating the corporate and union independent expendi-ture ban’s burden on speech. See Citizens United, 130 S. Ct.at 897 (“Section 441b is a ban on corporate speech notwith-standing the fact that a PAC created by a corporation canstill speak.”).

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PACs were subject to numerous obligations andrestrictions, among them a prohibition on an organiza-tion soliciting contributions for its segregated fundfrom anyone except its “members,” which excluded“those persons who have merely contributed to orindicated support for the organization in the past.”Mass. Citizens for Life, 479 U.S. at 253–54 (citing 2U.S.C. § 441b(b)(4)(A), (C)). In contrast, Maine’s non-major-purpose PAC provision does not conditionpolitical speech on the creation of a separate organiza-tion or fund, establishes no funding or independentexpenditure restrictions, and imposes three simple32

obligations on an entity qualifying as a PAC: filing ofa registration form disclosing basic information, quar-terly reporting of election-related contributions andexpenditures, and simple recordkeeping.

Because Maine’s PAC laws do not prohibit, limit,or impose any onerous burdens on speech, but merelyrequire the maintenance and disclosure of certainfinancial information, we reject NOM’s argument thatstrict scrutiny should apply. Accordingly, we revieweach of the laws at issue under the “exacting scrutiny”standard applicable to disclosure requirements.

C. Application of Exacting Scrutiny to Maine’sLaws

As we have stated, we will consider a law constitu-tional under exacting scrutiny standards where thereis a “substantial relation” between the law and a “‘suf-ficiently *57 important’ governmental interest.” Citi-

The only restriction on a PAC’s expenditures is for32

direct contributions to candidates; PACs are subject to thesame per-candidate contribution limits as any other entityor individual.

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zens United, 130 S. Ct. at 914 (quoting Buckley, 424U.S. at 64, 66). In Buckley, the Court recognized thegoal of “provid[ing] the electorate with information asto where political campaign money comes from andhow it is spent” to be such a “sufficiently important”governmental interest capable of supporting a disclo-sure law. 424 U.S. at 66 (internal quotation marksomitted). The Court’s more recent decisions have con-tinued to recognize the importance of this informa-tional interest. See, e.g., Citizens United, 130 S. Ct. at914-15; McConnell, 540 U.S. at 196.

Buckley tied the government’s interest in the dis-semination of information to the functioning of theelectoral process, noting that “[i]n a republic where thepeople are sovereign, the ability of the citizenry tomake informed choices among candidates for office isessential.” 424 U.S. at 14–15. The Court observed thatdisclosure has several benefits in this regard:

It allows voters to place each candidate in thepolitical spectrum more precisely than is oftenpossible solely on the basis of party labels andcampaign speeches. The sources of a candi-date’s financial support also alert the voter tothe interests to which a candidate is most like-ly to be responsive and thus facilitate predic-tions of future performance in office.

Id. at 67.

However, the informational interest is not limitedto informing the choice between candidates for politicaloffice. As Citizens United recognized, there is an equal-ly compelling interest in identifying the speakers be-hind politically oriented messages. In an age character-ized by the rapid multiplication of media outlets andthe rise of internet reporting, the “marketplace of

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ideas” has become flooded with a profusion of informa-tion and political messages. Citizens rely ever more ona message’s source as a proxy for reliability and abarometer of political spin. Disclosing the identity andconstituency of a speaker engaged in political speechthus “enables the electorate to make informed deci-sions and give proper weight to different speakers andmessages.” Citizens United, 130 S. Ct. at 916; see also33

Cal. Pro–Life Council, Inc. v. Getman, 328 F.3d 1088,1105 (9th Cir.2003) (recognizing that, in the “caco-phony of political communications through which . . .voters must pick out meaningful and accurate mes-sages[,] . . . being able to evaluate who is doing thetalking is of great importance”). Additionally, in thecase of corporate or organizational speakers, disclosureallows shareholders and members to “hold [them] ac-countable for their positions.” Citizens United, 130 S.Ct. at 916. In short, “[t]he First Amendment protectspolitical speech; and disclosure permits citizens andshareholders to react to [that] speech . . . in a properway.” Id.

In line with these precedents, defendants offerMaine’s interest in disseminating information aboutpolitical funding to the electorate in support of thelaws challenged here. As the district court found, *5834

As the Court observed in First National Bank v.33

Bellotti, 435 U.S. 765 (1978), “the people in our democracyare entrusted with the responsibility for judging andevaluating the relative merits of conflicting arguments.They may consider, in making their judgment, the sourceand credibility of the advocate.” Id. at 791–92 (footnoteomitted).

Defendants also cite an interest in “gathering data34

necessary to enforce substantive election law restrictions.”

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the interest is plainly a motivating factor behindMaine’s laws, and “Maine, through its Commissionwebsite and otherwise, makes [the financial disclosure]information easily available to the public.” Nat’l Org.for Marriage, 723 F. Supp. 2d at 263. We thus proceedunder the exacting scrutiny framework to examinewhether there is a “substantial relation” betweenMaine’s informational interest and each of the laws atissue.

1. Non–Major–Purpose PAC Provisions

As we have described, Maine considers an entity tobe a non-major-purpose PAC when it receives contribu-tions or makes expenditures of more than $5,000annually “for the purpose of promoting, defeating orinfluencing in any way” a candidate’s election. Me.Rev. Stat. tit. 21-A, § 1052(5)(A)(5). Upon crossing thatthreshold, the newly-deemed non-major-purpose PACmust register with the Commission, maintain recordsof certain expenditures as well as donor contributionsaggregating more than $50, and file reports both on aquarterly basis and shortly before and after eachelection. Id. §§ 1053, 1057, 1059-60. The reportingrequirements are well tailored to Maine’s informa-tional interest, requiring disclosure only of the candi-dates or campaigns the non-major-purpose PACsupports or opposes, its expenditures made to supportor oppose the same, and identifying information forany contributors who have given more than $50 to the

Though we note that Buckley recognized a similar interestin “gathering the data necessary to detect violations of[FECA’s] contribution limitations,” 424 U.S. at 68, we findthe informational interest sufficient to support Maine’slaws and thus do not reach this second class of interests.

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PAC to support or oppose a candidate or campaign. Id.§ 1060.

NOM does not challenge the substantive obliga-tions attendant to non-major-purpose PAC status, norcontest that the registration, recordkeeping, and re-porting requirements bear a substantial relation toMaine’s informational interest. Instead, NOM contendsthat Maine’s definition of a non-major-purpose PAC,standing alone, is unconstitutionally overbroad. In re-jecting NOM’s argument for strict scrutiny, we havealready addressed the claim that PAC status is some-how inherently burdensome apart from the specific re-quirements it entails. However, there is a second as-pect to NOM’s argument. NOM contends that SupremeCourt precedent sharply limits regulation of PACs tothose that are under the control of a candidate or haveas their “major purpose” the election of a candidate. Byits very definition, Maine’s non-major-purpose PACprovision covers entities that fall outside of thatallegedly limited zone of permissible regulation, andthus, NOM contends, the provision is fatally overbroad.We disagree.

NOM extracts support for its argument from adictum in Buckley, albeit a dictum that has had somereach. In Buckley, the Court concluded that the defini-tion of expenditure used in connection with FECA’sdisclosure provision—and particularly the phrase “forthe purpose of influencing”—raised significant line-drawing problems because it had the “potential forencompassing both issue discussion and advocacy of apolitical result.” 424 U.S. at 79. In the course of its dis-cussion, the Court noted that FECA’s definition of “po-litical committees,” which, like the disclosure provis-ion, was defined in terms of contributions and expen-

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ditures, “could raise similar vagueness problems.” Id.The provision escaped these concerns, the Court ex-plained, because it could be construed more narrowly:

To fulfill the purposes of [FECA, political com-mittees] need only encompass organizations*59 that are under the control of a candidateor the major purpose of which is the nomi-nation or election of a candidate. Expendituresof candidates and of “political committees” soconstrued can be assumed to fall within thecore area sought to be addressed by Congress.They are, by definition, campaign related.

Id. Buckley’s narrow reading of FECA’s political com-mittee definition, though dictum, appears to have beenaccepted by later opinions. See McConnell, 540 U.S. at170 n.64; Mass. Citizens for Life, 479 U.S. at 252 n.6;cf. FEC v. Akins, 524 U.S. 11, 26-27 (1998) (notingdispute over extent of narrowing construction). NOMdraws from this the conclusion that the First Amend-ment permits an entity to be designated a “PAC” onlywhere it (1) “is under the control of a candidate” or (2)has as its major purpose “the nomination or election ofa candidate.”

We find no reason to believe that this so-called“major purpose” test, like the other narrowing con-structions adopted in Buckley, is anything more thanan artifact of the Court’s construction of a federal sta-tute. See McConnell, 540 U.S. at 191–92. The Courthas never applied a “major purpose” test to a state’sregulation of PACs, nor have we. And, as we have dis-cussed, the line-drawing concerns that led the Court toread FECA’s definition of “political committee” nar-rowly are not relevant to our First Amendment reviewof Maine’s statutes. Moreover, as the district court ap-

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tly observed, application of NOM’s “major-purpose” testwould “yield perverse results” here:

Under NOM’s interpretation, a small groupwith the major purpose of re-electing a Mainestate representative that spends $1,500 for adscould be required to register as a PAC. But amega-group that spends $1,500,000 to defeatthe same candidate would not have to registerbecause the defeat of that candidate could notbe considered the corporation’s major purpose.

Nat’l Org. for Marriage, 723 F. Supp. 2d at 264. We,like the district court, see no basis to conclude “that theFirst Amendment’s protections should apply so un-equally.” Id.

We therefore reject NOM’s argument that the non-major-purpose PAC definition is unconstitutionallyoverbroad. Because we find a substantial relation be-tween Maine’s disclosure-oriented regulation of non-major-purpose PACs and its interest in the dissemina-tion of information regarding the financing of politicalspeech, we conclude that the law does not, on its face,offend the First Amendment.

2. Independent Expenditure Provision

We similarly find that Maine’s independent expen-diture reporting provision poses no First Amendmentconcerns. The law primarily obligates anyone spendingmore than an aggregate of $100 for communicationsexpressly advocating the election or defeat of a candi-date to report the expenditure to the Commission. Me.Rev. Stat. tit. 21-A, § 1019-B(1)(A), (3). Reviewing aprior, substantially similar version of this provision inDaggett v. Commission on Governmental Ethics andElection Practices, 205 F.3d 445, 466 (1st Cir. 2000), weheld that “the modest amount of information requested

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is not unduly burdensome and ties directly and closelyto the relevant government interests.” We see no rea-son to depart from that conclusion here.

The independent expenditure law also presump-tively requires a report of any *60 expenditure over$100 for communications naming or depicting a clearlyidentified candidate within a set period prior to anyelection. Me. Rev. Stat. tit. 21-A, § 1019-B(1)(B), (3).Though we did not review this aspect of the law inDaggett, the Supreme Court upheld in Citizens Uniteda similar provision of federal election law that requireddisclosure in connection with expenditures for election-eering communications (communications made shortlybefore an election that refer to a clearly identified can-didate for federal office). 130 S. Ct. at 913-16. In so do-ing, the Court noted that “the public has an interest inknowing who is speaking about a candidate shortlybefore an election.” 130 S. Ct. at 915-16. The law hereis perhaps more tailored than that at issue in CitizensUnited, as it offers an opportunity to rebut thepresumption that a communication made shortlybefore an election and identifying a candidate had the“intent to influence the nomination, election or defeatof a candidate.” Me. Rev. Stat. tit. 21-A, § 1019-B(2).Regardless, the information that must be reported un-der this subsection is, as Daggett found, “modest,” 205F.3d at 466, and it bears a substantial relation to thepublic’s “interest in knowing who is speaking about acandidate shortly before an election.” Citizens United,130 S. Ct. at 915-16.

NOM argues that Maine lacks a “sufficiently im-portant” interest in the $100 threshold at which thereporting requirement adheres, and, alternatively, thatthe threshold lacks a “substantial relation” to a suffi-

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ciently important governmental interest. NOM’s argu-ment operates from a mistaken premise; we do not re-view reporting thresholds under the “exacting scruti-ny” framework. In Buckley, facing a similar challengeto a $10 threshold for a recordkeeping provision and a$100 reporting threshold, the Supreme Court notedthat the choice of where to set such monetary thresh-olds “is necessarily a judgmental decision, best left inthe context of this complex legislation to congressionaldiscretion.” 424 U.S. at 83. The Court concluded that,although there was no evidence in the record that Con-gress had “focused carefully on the appropriate level atwhich to require recording and disclosure,” and despitethe fact that the low thresholds might “discourage par-ticipation by some citizens in the political process,” itcould not say that “the limits designated are whollywithout rationality.” Id.; see also id. n.111 (“[W]hen itis seen that a line or point there must be, and thatthere is no mathematical or logical way of fixing it pre-cisely, the decision of the legislature must be acceptedunless we can say that it is very wide of any reasonablemark.” (quoting Louisville Gas & Electric Co. v. Cole-man, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting))).The Court thus upheld FECA’s recordkeeping and re-porting thresholds.

Following Buckley, we have granted “judicial defer-ence to plausible legislative judgments” as to the ap-propriate location of a reporting threshold, and haveupheld such legislative determinations unless they are“‘wholly without rationality.’” Vote Choice, Inc. v. Di-Stefano, 4 F.3d 26, 32–33 (1st Cir.1993) (quoting Buck-ley, 424 U.S. at 83). In Daggett, for example, we ap-plied these standards in rejecting a challenge to the$50 reporting threshold in the prior iteration ofMaine’s independent expenditure law. 205 F.3d at 466

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(“We remain unconvinced . . . that, if $100 was an ap-propriate threshold for requiring the reporting of inde-pendent expenditures in federal elections in Buckley,$50 is an illegitimate threshold for Maine elections.”).

Despite the fact that the threshold has beendoubled since Daggett, NOM argues that we shouldfind the line unconstitutional because it is not indexedto inflation. *61 In so arguing, it relies on an observa-tion in Randall v. Sorrell, 548 U.S. 230, 261 (2006),that “[a] failure to index limits means that limitswhich are already suspiciously low . . . will almostinevitably become too low over time.” The limits atissue in Sorrell, however, were substantive contribu-tion limits, the setting of which presents different con-siderations than the determination of the threshold fora reporting requirement, and which is subject to dif-35

ferent standards of review. Neither we nor the Su-preme Court has ever second-guessed a legislative deci-sion not to index a reporting requirement to inflation.Indeed, in Buckley, the Court acknowledged that Con-gress, in setting FECA’s $100 reporting threshold, ap-peared to have simply adopted the threshold used insimilar disclosure laws since 1910—i.e., over the courseof more than sixty years, without any adjustment forinflation. 424 U.S. at 83. We thus reject NOM’s argu-ment that the $100 threshold is unconstitutional simp-ly because it is static. Moreover, we cannot concludethat Maine’s choice of a $100 threshold, double the

For instance, we have held that the First Amendment35

would permit, in some cases, a first-dollar reportingrequirement, see Vote Choice, 4 F.3d at 33, whereas theFirst Amendment clearly sets a “lower bound” for contribu-tion limits. Sorrell, 548 U.S. at 248.

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amount we upheld just a decade ago in Daggett, iswholly without rationality.

3. Disclaimer and Attribution Provisions

Finally, we agree with the district court that“Citizens United has effectively disposed of any attackon Maine’s attribution and disclaimer requirements.”Nat’l Org. for Marriage, 723 F. Supp. 2d at 267. NOMargues that Maine’s “attribution and disclaimer re-quirements are so great that the government’s interestdoes not reflect the burden on speech,” as the requireddisclosures will “distract readers and listeners fromNOM’s message.” We disagree. The requirements areminimal, calling only for a statement of whether themessage was authorized by a candidate and disclosureof the name and address of the person who made orfinanced the communication. Me. Rev. Stat. tit. 21-A,§ 1014(1)-(2). These are precisely the requirements ap-proved in Citizens United, see 130 S. Ct. at 913-1436

(citing 2 U.S.C. § 441d), and they bear a close relationto Maine’s interest in dissemination of informationregarding the financing of political messages. Thedisclaimer and attribution requirements are, on theirface, unquestionably constitutional.37

In fact, the statute at issue in Citizens United was36

slightly more prescriptive, specifying that, for video mes-sages, “[t]he required statement must be made in a ‘clearlyspoken manner,’ and displayed on the screen in a ‘clearlyreadable manner’ for at least four seconds.” 130 S. Ct. at914 (quoting 2 U.S.C. § 441d(d)(2)).

NOM argues that, though Citizens United and other37

courts may have approved disclaimer and attributionlimitations in the precise circumstances before them, suchmeasures have never been approved per se. That may be so,but the mere fact that disclaimer and attribution require-

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IV. Due Process Vagueness Challenges

Having found that each of the challenged statutespass muster under the First Amendment, we turn nextto NOM’s contention that portions of the statutes areunconstitutionally vague.

*62 The vagueness doctrine, a derivative of dueprocess, protects against the ills of laws whose “prohi-bitions are not clearly defined.” Grayned v. City ofRockford, 408 U.S. 104, 108 (1972); see also Williams,553 U.S. at 304. In prohibiting overly vague laws, thedoctrine seeks to ensure that persons of ordinary intel-ligence have “fair warning” of what a law prohibits,prevent “arbitrary and discriminatory enforcement” oflaws by requiring that they “provide explicit standardsfor those who apply them,” and, in cases where the“statute ‘abut(s) upon sensitive areas of basic FirstAmendment freedoms,’” avoid chilling the exercise ofFirst Amendment rights. Grayned, 408 U.S. at 108-09(alteration in original) (quoting Baggett v. Bullitt, 377U.S. 360, 372 (1964)). In view of this last interest, theConstitution requires a “‘greater degree of specificity’”in cases involving First Amendment rights. Buckley,424 U.S. at 77 (quoting Smith v. Goguen, 415 U.S. 566,573 (1974)).

Even under the heightened standard for FirstAmendment cases, though, not all vagueness rises tothe level of constitutional concern. “Many statutes willhave some inherent vagueness, for ‘[i]n most Englishwords and phrases there lurk uncertainties.’” Rose v.Locke, 423 U.S. 48, 49-50 (1975) (per curiam) (quoting

ments have not been considered in the environment inwhich we review them now does not weaken our conclusionthat the requirements withstand exacting scrutiny.

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Robinson v. United States, 324 U.S. 282, 286 (1945));see also Ward v. Rock Against Racism, 491 U.S. 781,794 (1989) (“[P]erfect clarity and precise guidance havenever been required even of regulations that restrictexpressive activity.”). Moreover, “[t]he mere fact thata regulation requires interpretation does not make itvague.” Ridley v. Mass. Bay Transp. Auth., 390 F.3d65, 93 (1st Cir. 2004). We have thus said that “a stat-ute is unconstitutionally vague only if it ‘prohibits . . .an act in terms so uncertain that persons of averageintelligence would have no choice but to guess at itsmeaning and modes of application.’” United States v.Councilman, 418 F.3d 67, 84 (1st Cir. 2005) (en banc)(quoting United States v. Hussein, 351 F.3d 9, 14 (1stCir. 2003)).

With these standards in mind, we review NOM’svagueness challenges de novo. Hussein, 351 F.3d at 14.NOM poses challenges to three sets of terms, and vari-ations thereof: (1) “promoting,” “support,” and “opposi-tion”; (2) “influencing”; and (3) “initiation.” In addition,NOM claims that the definition of “expressly advocate”is unconstitutionally vague because it invites the useof context to determine the purpose of a communica-tion.

A. “Promoting,” “Support,” and “Opposition”

We begin with NOM’s vagueness challenge to vari-ations of the terms “promoting,” “support,” and “opposi-tion,” which appear in three separate provisions: the38

The term “promoting” also appears in the definition of38

a major-purpose PAC, Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(4), which we do not address here in light of our holdingthat NOM lacks standing to challenge the major-purposePAC provision.

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definition of a non-major-purpose PAC, the PAC39

statute’s definition of an “expenditure,” *63 and the40

independent expenditure provision. The district court41

held each of these terms to be sufficiently clear toevade due process concerns. We agree.

The Supreme Court rejected a vagueness challengeto substantially similar statutory language in Mc-Connell, 540 U.S. 93, overruled on other grounds byCitizens United, 130 S. Ct. 876. The language at issuewas a provision of federal election law defining “Fed-eral election activity” to include “a public communica-tion that refers to a clearly identified candidate forFederal office . . . and that promotes or supports acandidate for that office, or attacks or opposes a candi-date for that office (regardless of whether the commu-nication expressly advocates a vote for or against acandidate).” 2 U.S.C. § 431(20)(A)(iii). Applying dueprocess standards, the Court observed that “[t]hewords ‘promote,’ ‘oppose,’ ‘attack,’ and ‘support’ clearlyset forth the confines within which potential party

The statute defines a non-major-purpose PAC to mean39

an entity that crosses the requisite threshold of contribu-tions or expenditures “for the purpose of promoting, defeat-ing or influencing in any way” a candidate election. Me.Rev. Stat. tit. 21-A, § 1052(5)(A)(5) (emphasis added).

The statute defines “expenditure” to include giving40

something of value “for the initiation, support, or defeat” ofa campaign or initiative. Me. Rev. Stat. tit. 21-A, § 1052(4)(A)(1) (emphasis added).

The independent expenditure statute instructs that41

reports submitted pursuant to the provision “must statewhether the expenditure is in support of or in opposition tothe candidate.” Me. Rev. Stat. tit. 21-A, § 1019-B(3)(B) (em-phasis added).

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speakers must act in order to avoid triggering the pro-vision.” McConnell, 540 U.S. at 170 n.64. The Courtconcluded that “[t]hese words ‘provide explicit stan-dards for those who apply them’ and ‘give the person ofordinary intelligence a reasonable opportunity to knowwhat is prohibited,’” and thus held that the provisionwas not unconstitutionally vague. Id. (quoting Gray-ned, 408 U.S. at 108–09).

NOM acknowledges McConnell’s relevance, but ar-gues that the opinion’s holding is limited to the contextof the federal law at issue there, citing several authori-ties that purportedly held similar statutory languageto be “vague and overbroad vis-à-vis other speech orother speakers.” NOM’s argument is misguided. Theauthorities NOM cites—circuit court opinions and apartial concurrence to the Court’s 2007 decision inWisconsin Right to Life—address the conceptually dis-tinct question of whether terms such as “promote,” “op-pose,” “attack,” and “support” maintain an acceptablyclear distinction between express campaign advocacyand issue advocacy. See Wis. Right to Life, 551 U.S. at492-93 (Scalia, J., concurring); Ctr. for Individual Free-dom v. Carmouche, 449 F.3d 655, 662-66 (5th Cir.2006); N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705,712-13 (4th Cir. 1999). This is, as we have discussed,primarily an overbreadth issue, and we have alreadyrejected NOM’s arguments that the statutes here areunconstitutionally overbroad.

If, on the other hand, NOM offers these authoritiessolely for the purpose of countering McConnell’s vague-ness holding—which is the relevant point here—theyalso fall short of the mark. None of the cited cases is amajority Supreme Court opinion issued after McCon-nell, so McConnell remains the leading authority rele-

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vant to interpretation of the terms before us. Of course,the statutes here are distinct from the provision thatMcConnell construed, and thus the Court’s reading isnot dispositive. However, contrary to NOM’s assertion,the statutory context here is close enough to McConnellto make the Court’s conclusion that the terms are notvague particularly persuasive. In each of the provi-sions, the terms “promote”/”promoting,” *64 “support,”and “oppose”/”opposition” have an election-related ob-ject: “candidate” in the federal law, 2 U.S.C. § 431(20)(A)(iii), and “candidate,” “nomination or election of anycandidate” and “campaign, referendum or initiative” inthe Maine provisions, Me. Rev. Stat. tit. 21-A, §§ 1019-B(3)(B), 1052(4)(A)(1), (5)(A)(5). If anything, the termsof Maine’s statutes provide slightly more clarity: forexample, § 1052(5)(A)(5)’s reference to “promoting . . .the nomination or election of any candidate” is moreprecise than the federal law’s reference to “promot[ing]. . . a candidate,” 2 U.S.C. § 431(20)(A) (iii). We thusfind the use of “promoting,” “support,” and “opposition”in §§ 1019-B and 1052 clear enough to “give the personof ordinary intelligence a reasonable opportunity toknow what is prohibited.” Grayned, 408 U.S. at 108.

B. “Influencing”

The term “influencing” (appearing also as “influ-ence”) presents a closer question. The district court42

“Influencing” appears in a number of places through-42

out the statutes challenged by NOM. These include: thedefinition of a non-major-purpose PAC, Me. Rev. Stat. tit.21-A, § 1052(5) (A)(5) (defining non-major-purpose PAC tomean an entity that crosses the requisite threshold ofcontributions or expenditures “for the purpose of promoting,defeating or influencing in any way “ a candidate election(emphasis added)); the out-of-state PAC provision, id.

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held “influencing” to be unconstitutionally vague andsevered it from the various statutes challenged here.On appeal, defendants urge that we find “influencing”sufficiently clear to avoid due process concerns. NOM,in turn, contends that the district court erred in sever-ing “influencing,” suggesting that we should find thestatutes unconstitutional in their entirety. Because weagree with defendants that the use of “influencing” inthe statutes before us is, when given a properly limitedmeaning, not unconstitutionally vague, we need notreach the question of severance.

In arguing that “influencing” is unconstitutionallyvague, NOM relies on the Supreme Court’s construc-

§ 1053-B (providing that an out-of-state PAC need notregister if, among other things, it “has not raised andaccepted any contributions during the calendar year toinfluence an election or campaign in [Maine]” (emphasisadded)); the attribution and disclaimer provision, id.§ 1014(2-A) (clarifying that disclaimer and attributionrequirements do not apply to communications made shortlybefore an election that name or depict a candidate “if thecommunication was not made for the purpose of influencingthe candidate’s . . . election” (emphasis added)); the inde-pendent expenditure provision, id. § 1019-B(2) (providingthat a person presumed to have made an independentexpenditure may rebut the presumption by filing a state-ment that “the cost was not incurred with the intent toinfluence the nomination, election or defeat of a candidate”(emphasis added)); and the definitions of “expenditure”used in connection with the attribution and disclaimer,independent expenditure, and PAC provisions, id.§§ 1012(3) (defining “expenditure” to include giving some-thing of value “for the purpose of influencing the nomina-tion or election of any person to political office” (emphasisadded)), 1052(4)(A)(1) (same).

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tion of similar language in Buckley v. Valeo. Therelevant portion of Buckley concerned a disclosurerequirement applicable to anyone “‘who makes contri-butions or expenditures’ aggregating over $100 in acalendar year.” Buckley, 424 U.S. at 74-75 (quoting 2U.S.C. § 434(e)). The statute defined “expenditures” toinclude “the use of money or other valuable assets ‘forthe purpose of . . . influencing’ the nomination or elec-tion of candidates for federal office.” Id. at 77 (quoting2 U.S.C. § 431(f)). The Court noted that the “ambi-guity” of the phrase “for the purpose of influencing”“poses constitutional problems” and “raises seriousproblems of vagueness,” id. at 76–77, in that it had the“potential for encompassing *65 both issue discussionand advocacy of a political result,” id. at 79. This was,of course, the same concern the Court raised withrespect to the phrase “relative to a candidate” inFECA’s independent expenditures cap, and the Courtreached an identical solution. The Court skirted itsconstitutional concerns by imposing a limiting con-struction on the definition of expenditure “to reach onlyfunds used for communications that expressly advocatethe election or defeat of a clearly identified candidate.”Id. at 80 (footnote omitted).

NOM’s argument that Buckley dictates a finding ofvagueness here is flawed on several counts. First, asmore recent Supreme Court precedents have madeclear, Buckley’s narrowing interpretation of the phrase“for the purpose of influencing” “was the product ofstatutory interpretation rather than a constitutionalcommand.” McConnell, 540 U.S. at 192. The Courtnever squarely held in Buckley that the term “influenc-ing” was unconstitutionally vague under due processstandards, and the constitutional concern that prompt-

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ed the Court to narrow the term—the fear that thestatute might be read to reach issue discussion—is, aswe have said, not a relevant one for review of disclo-sure laws. Second, even if Buckley were to have found“influencing” unconstitutionally vague in FECA, itwould not be dispositive of the question here. Termsclaimed to be vague must be interpreted in light oftheir precise statutory context, see URI Student Senatev. Town of Narragansett, 631 F.3d 1, 14 (1st Cir.2011);Welch v. United States, 750 F.2d 1101, 1112 (1stCir.1985), and thus a phrase deemed problematic infederal election statutes might not run afoul of vague-ness standards in Maine’s statutes.

Nonetheless, Buckley’s concerns aside, the term“influencing” does present some vagueness problems.The other candidate-related terms employed by thestatutes here—such as “promoting,” “opposition,” “de-feat,” and “support,” Me. Rev. Stat. tit. 21-A, §§ 1019-B(3)(B), 1052(4)(A)(1), (5)(A)(5)—are more plainlyresult-oriented, focusing on advocacy for or against aparticular candidacy. Influence, on the other hand, cov-ers a wider range of objectives. Conceivably fallingwithin the meaning of “influence” are objectives as var-ied as advocacy for or against a candidate’s election;championing an issue for inclusion in a candidate’splatform; and encouraging all candidates to embracepublic funding. Without more context, we believe theintended meaning of “influence” to be uncertainenough that a person of average intelligence would beforced to “‘guess at its meaning and modes of applica-tion.’” Councilman, 418 F.3d at 84 (quoting Hussein,351 F.3d at 14).

Arguing that the statutes’ use of “influencing” isadequately clear, defendants point us to the interpre-

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tive canon of noscitur a sociis, which provides that anambiguous statutory term may be “given more precisecontent by the neighboring words with which it isassociated.” Williams, 553 U.S. at 294. For example, inthe non-major-purpose PAC definition, defendantssuggest that “influencing” should be given a meaningsimilar to or consistent with “promoting” and “de-feating.” See Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5)(“for the purpose of promoting, defeating or influencingin any way”). This argument fails for two reasons.

First, “influencing” appears on its own in some ofthe statutes before us, thus defeating the noscitur asociis exercise for those provisions. See, e.g., id. § 1014(2-A) (“The disclosure is not required if the communica-tion was not made for the purpose *66 of influencingthe candidate’s nomination for election or election.”).Second, in those statutes where “influencing” is pairedwith other terms, we find more persuasive the counter-vailing interpretive canon counseling that a statuteshould “‘be so construed that, if it can be prevented, noclause, sentence, or word shall be superfluous, void, orinsignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174(2001)). Our interpretation is guided by the fact that,even where it appears with other terms, “influencing”appears to have been intentionally set apart. Forexample, the relevant language of § 1052(5)(A)(5) reads“for the purpose of promoting, defeating or influencingin any way;” the addition of “in any way” logically gives“influencing” a broader sweep than the foregoingterms. The differentiation is even more apparent in thePAC statute’s definition of expenditure, where theterm “influencing” appears in a different clause and isgiven a different (though related) object from the otherterms. See Me. Rev. Stat. tit. 21-A, § 1052(4)(A)(1) (de-

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fining expenditure to cover the transfer of anything ofvalue “for the purpose of influencing the nomination orelection of any person to political office; or for theinitiation, support or defeat of a campaign, referendumor initiative.”). The natural inference from this separa-tion is that the drafters intended “influencing” to carrya different meaning from the words with which itappears.

Despite their continued insistence that the use of“influencing” in the statutes here is not vague, defen-dants recognize that we, like the district court, mightfind “influencing” insufficiently clear on its face to sat-isfy due process standards. Therefore, as a fallback po-sition, defendants offer a narrowing construction thathas been adopted by the Commission with respect to aseparate statute regulating ballot question committees.In written guidance, the Commission has clarified thatit interprets the phrase “for the purpose of initiating,promoting, defeating or influencing in any way a cam-paign,” Me. Rev. Stat. tit. 21-A, § 1056-B, in the con-text of ballot-question campaigns, to “include commu-nications and activities which expressly advocate for oragainst a ballot question or which clearly identify aballot question by apparent and unambiguous refer-ence and are susceptible of no reasonable interpreta-tion other than to promote or oppose the ballot ques-tion,” Me. Comm’n on Governmental Ethics & Elec-tions Practices, Guidance on Reporting as a BallotQuestion Committee, available at http://www.maine.gov/ethics/bqcs/guidance.htm (last visited July 25,2011). This narrowing construction was not offered tothe district court. However, there is no barrier to our43

The Maine Attorney General had offered in prior liti-43

gation before the district court a narrowing construction

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considering it here—and, indeed, we are required to doso. See Hoffman Estates, 455 U.S. at 494 n.5 (“In eval-uating a facial challenge to a state law, a federal courtmust . . . consider any limiting construction that astate court or enforcement agency has proffered.”).

As narrowed, the terms “influencing” and “influ-ence,” as used in the statutes at issue here, would in-clude only “communications and activities that ex-pressly advocate for or against [a candidate] or that*67 clearly identify a candidate by apparent and un-ambiguous reference and are susceptible of no reason-able interpretation other than to promote or oppose thecandidate.” This narrowed formulation is considerablymore precise than the original, and succeeds both in“provid[ing] explicit standards for those who apply” theprovisions at issue here and in ensuring that personsof average intelligence will have reasonable notice ofthe provisions’ coverage. Grayned, 408 U.S. at 108. Wethus conclude that the provisions’ use of the terms “in-fluencing” and “influence,” so limited, is not so vagueas to offend due process.

C. “Initiation”

Among the statutes at issue in this appeal, theterm “initiation” appears only in the PAC statute’s de-

limiting the term “influencing” to express advocacy. SeeVolle v. Webster, 69 F. Supp. 2d 171, 175 (D. Me. 1999). Inlight of the fact that Supreme Court precedent subsequentto that litigation “made clear that the state may regulatespeech other than express advocacy,” the Attorney Generalbelieved that the narrowing construction was “no longer re-quired” and therefore did not offer it in the proceedingsbelow.

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finition of “expenditure.” NOM offers no support for44

its argument that “initiation” is vague, contending onlythat “initiation” “fare[s] no better” than the otherterms challenged on vagueness grounds. We find “initi-ation” to be adequately clear. The context—defining“expenditure” to include giving something of value “forthe initiation . . . of a campaign”—makes plain that“initiation” is being used as the noun form of the verb“initiate,” the primary definition of which is “to begin,set going, or originate.” The Random House Dictionaryof the English Language 982 (2d ed. unabr. 1987). Usedin this way, the language is unequivocal, and easilywould put an individual of average aptitude on noticethat the act of incurring an expense for the purpose ofbeginning an electoral campaign will constitute an“expenditure” within the meaning of § 1052(4)(A)(1).See Grayned, 408 U.S. at 108. NOM’s argument that“initiation” is unconstitutionally vague thus fails.

D. Use of Context in Definition of “ExpresslyAdvocate”

NOM’s final vagueness argument is somewhatdistinct from the preceding ones. While NOM’s claimfocuses on the phrase “expressly advocate” in the inde-pendent expenditure statute, NOM does not contend45

The statute defines “expenditure” to include the trans-44

fer of something of value “for the initiation, support or de-feat of a campaign, referendum or initiative.” Me. Rev. Stat.tit. 21-A, § 1052(4)(A)(1) (emphasis added). NOM also chal-lenges the use of “initiating” in the definition of a ma-jor-purpose PAC, but we have held that it lacks standing topursue that claim.

The statute defines an “independent expenditure” to45

be one “that expressly advocates the election or defeat of aclearly identified candidate.” Me. Rev. Stat. tit. 21-A,

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that the phrase itself is unconstitutionally vague. In-stead, NOM argues that Maine’s definition of “express-ly advocate,” set forth in regulations promulgated bythe Commission, renders the term vague because it in-vites reliance on a communication’s context and em-ploys a purportedly unconstitutional “appeal-to-vote”formulation for determining what qualifies as expressadvocacy. Specifically, the regulations provide that acommunication will be considered to “expressly advo-cate” when it employs phrases that “in context canhave no other reasonable meaning than to urge theelection or defeat of one or more clearly identified can-didate(s), such as posters, bumper stickers, advertise-ments, etc. which say ‘Pick Berry,’ ‘Harris in 2000,’‘Murphy/Stevens’ or ‘Canavan!’” 94-270-001 Me. CodeR. *68 § 10(2)(B). As we explain, NOM’s arguments46

§ 1019-B(1)(A). Though the attribution and disclaimerprovisions also use the phrase “expressly advocating,” seeid. § 1014(1), the regulations challenged here relate solelyto the definition of an “independent expenditure.”

The full text of the definition is as follows:46

“Expressly advocate” means any communicationthat uses phrases such as “vote for the Governor,”“reelect your Representative,” “support the Demo-cratic nominee,” “cast your ballot for the Republicanchallenger for Senate District 1,” “Jones for House ofRepresentatives,” “Jean Smith in 2002,” “vote Pro-Life” or “vote Pro-Choice” accompanied by a listingof clearly identified candidates described as Pro-Lifeor Pro-Choice, “vote against Old Woody,” “defeat”accompanied by a picture of one or more candi-date(s), “reject the incumbent,” or communicationsof campaign slogan(s) or individual word(s), which incontext can have no other reasonable meaning than

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read far too much into a limited line of Supreme Courtprecedents, and provide no basis for concluding thatMaine’s regulations are unconstitutionally vague.

NOM’s arguments have their roots in the recenttrio of Supreme Court cases addressing the constitu-tionality of the federal prohibition of independent ex-penditures by corporations and unions for “electioneer-ing” communications—those made shortly before a pri-mary or general election that clearly identify a candi-date for federal office. The trio began with McConnell,in which the Court upheld the electioneering provisionagainst a facial overbreadth challenge. In so doing, theCourt found unavailing the contention that the provi-sion would regulate a substantial amount of issue ad-vocacy, noting that the argument “fail[ed] to the extentthat the issue ads broadcast during the [relevantperiod] are the functional equivalent of express advo-cacy. “McConnell, 540 U.S. at 206.

This conditional assertion was put to the test sev-eral years later in Wisconsin Right to Life, when theCourt, entertaining an as-applied challenge to the elec-tioneering provision, considered whether several speci-fic advertisements qualified as the “functional equiva-lent of express advocacy.” The Court concluded they didnot, and accordingly held the provision unconstitu-tional in its application. Along the way, the principalopinion made two points relevant to NOM’s argumentshere. First, it suggested that an advertisement would

to urge the election or defeat of one or more clearlyidentified candidate(s), such as posters, bumperstickers, advertisements, etc. which say “PickBerry,” “Harris in 2000,” “Murphy/Stevens” or“Canavan!”

94-270-001 Me. Code R. § 10(2)(B).

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qualify as the “functional equivalent of express advo-cacy,” and thereby could be regulated without trigger-ing overbreadth concerns, only when it “is susceptibleof no reasonable interpretation other than as an appealto vote for or against a specific candidate.” Wis. Right47

to Life, 551 U.S. at 469-70. NOM refers to this formula-tion as the “appeal-to-vote test.” Second, the Court cri-ticized efforts to use the advertisements’ context todetermine whether they qualified as the “‘functionalequivalent’ of express advocacy,” noting that “contex-tual factors of the sort invoked [there] should seldomplay a significant role in the inquiry.” Id. at 473–74.

Most recently, the Court concluded in CitizensUnited that Congress could not limit the campaign-related speech of corporations and unions and thusheld the electioneering provision unconstitutional,overturning McConnell. Citizens United provides thelaunching point for NOM’s first argument that Maine’sdefinition of “expressly advocate” is vague. NOM con-tends *69 that Citizens United eliminated “the appeal-to-vote test as a constitutional limit on governmentpower,” and reads into this an implicit holding that thetest was unconstitutionally vague.

NOM’s reading finds no support in the text ofCitizens United, though we agree with NOM that, instriking down the federal electioneering expenditurestatute, Citizens United eliminated the context inwhich the appeal-to-vote test has had any signifi-

En route to this test, the principal opinion rejected47

proposed intent- and effect-based standards, i.e. frame-works that would have required inquiry into the intent ofthe speaker to affect an election or an examination of theactual effect the speech would have on an election or on itstarget audience. Wis. Right to Life, 551 U.S. at 467-69.

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cance. It is a large and unsubstantiated jump, how-48

ever, to read Citizens United as casting doubt on theconstitutionality of any statute or regulation using lan-guage similar to the appeal-to-vote test to define thescope of its coverage. The basis for Citizens United’sholding on the constitutionality of the electioneeringexpenditure statute had nothing to do with the appeal-to-vote test or the divide between express and issueadvocacy. Instead, the decision turned on a reconsider-ation of prior case law holding that a corporation’spolitical speech may be subjected to greater regulationthan an individual’s. See Citizens United, 130 S. Ct. at886. The opinion offered no view on the clarity of theappeal-to-vote test. In fact, the Court itself relied onthe appeal-to-vote test in disposing of a threshold argu-ment that the appeal should be resolved on narrower,as-applied grounds. See id. at 889–90 (applying appeal-to-vote test in determining that advertisements atissue were the functional equivalent of express advo-cacy).

We find similarly misguided NOM’s argument thatthe definition of “expressly advocate” is vague due to

We do not agree, however, with NOM’s characteriza-48

tion of the appeal-to-vote test, or any of the other testsproposed by the Court for distinguishing between expressand issue advocacy, as a “constitutional limit on govern-ment power.” Citizens United made clear that at least someforms of regulation may reach issue advocacy, see 130 S. Ct.at 915, and there are substantial questions as to whetherthe line between issue advocacy and express advocacy isconstitutionally rooted, see McConnell, 540 U.S. at 193(noting doubts that “the First Amendment erects a rigidbarrier between express advocacy and so-called issueadvocacy”).

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the regulation’s reference to consideration of an adver-tisement’s words “in context.” NOM misinterprets Wis-consin Right to Life in suggesting that the principalopinion barred all consideration of context to deter-mine whether an advertisement was the functionalequivalent of express advocacy. To the contrary, theopinion explicitly acknowledges that “[c]ourts need notignore basic background information that may be nec-essary to put an ad in context.” Wis. Right to Life, 551U.S. at 474. It is apparent from the examples provid-49

ed by the regulation here—“‘Pick Berry,’ ‘Harris in2000,’ ‘Murphy/Stevens’ or ‘Canavan!’”—that “knowingthat Berry is a candidate to be picked on the ballot,that 2000 is an election where Harris should win, etc.,”Nat’l Org. for Marriage, 723 F. Supp. 2d at 266, is pre-cisely the sort of basic background information thatmay be consulted in the express advocacy determina-tion.

In any event, we find the regulation’s definition of“expressly advocate,” as a whole, to be sufficiently clearto satisfy due *70 process. The definition offers abun-dant examples (fourteen in all) of the sorts of languagethat will constitute express advocacy, and, as we havenoted before, “[t]he existence of clear examples of con-duct covered by a law may . . . help to insulate the law

In Citizens United, the Court also relied on contextual49

factors in determining that the communication at issue—aninety-minute documentary about Hillary Clinton—consti-tuted the functional equivalent of express advocacy. See 130S. Ct. at 890 (“In light of historical footage, interviews withpersons critical of her, and voiceover narration, the filmwould be understood by most viewers as an extendedcriticism of Senator Clinton’s character and her fitness forthe office of the Presidency.”).

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against an accusation of vagueness.” URI StudentSenate, 631 F.3d at 14; see also Hotel & Motel Ass’n v.City of Oakland, 344 F.3d 959, 972–73 (9th Cir.2003)(finding ordinance provided sufficient notice where itlisted “no less than nineteen specific examples of thetypes of conduct to which th[e] provision applie[d]”).Moreover, the phrase set forth in the regulation—“canhave no other reasonable meaning than to urge theelection or defeat of one or more clearly identifiedcandidate(s)”—is certainly as clear, if not more so, aswords such as “support” and “promote” that the Su-preme Court has held non-vague. See McConnell, 540U.S. at 170 n.64; see also Wis. Right to Life, 551 U.S. at474 n.7 (explaining that the appeal-to-vote formulationmeets the “imperative for clarity” in regulation of poli-tical speech). We therefore reject NOM’s argumentsthat the regulation’s definition of the phrase “expresslyadvocate” is unconstitutionally vague.

V. Challenge to the District Court’sUnsealing Order

The remaining issue in this appeal is whether thedistrict court erred in ruling that the trial record mustbe unsealed. Reviewing the court’s unsealing orderunder a deferential standard, see Siedle v. PutnamInvs., Inc., 147 F.3d 7, 10 (1st Cir. 1998) (unsealing or-ders are reviewed “only for mistake of law or abuse ofdiscretion”), we find no abuse of discretion.

Decisions on the sealing of judicial documents re-quire a balancing of interests, although the scales tiltdecidedly toward transparency. The starting pointmust always be the common-law presumption in favorof public access to judicial records. See Nixon v. WarnerCommc’ns, Inc., 435 U.S. 589, 597 (1978); Siedle, 147F.3d at 9. As we have noted in prior cases, “[p]ublic ac-

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cess to judicial records and documents allows thecitizenry to ‘monitor the functioning of our courts,thereby insuring quality, honesty and respect for ourlegal system.’ “ FTC v. Standard Fin. Mgmt. Corp., 830F.2d 404, 410 (1st Cir. 1987) (quoting In re Cont’l Ill.Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984)). Thepresumption favoring public access, which extends toboth civil and criminal trials, is not inviolate, and mayon some occasions be overcome by competing interests.Siedle, 147 F.3d at 10; see also id. at 10–12 (findingabuse of discretion where unsealing order would makepublic information that was likely subject to theattorney-client privilege and a confidentiality agree-ment). That said, “the presumption is nonethelessstrong and sturdy,” and thus “ ‘[o]nly the most compel-ling reasons can justify non-disclosure of judicialrecords.’ “ Standard Fin. Mgmt. Corp., 830 F.2d at 410(alteration in original) (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)).

Portions of the trial record here were initially filedin sealed form, albeit by the parties’ stipulation ratherthan court order. Following trial, the district court50

*71 issued sua sponte an order to show cause why theentire record should not be filed in publicly accessibleform. NOM responded with a brief arguing, inter alia,

In the course of discovery, the parties entered into a50

confidentiality agreement, which was entered as a consentorder by the magistrate judge overseeing discovery matters.That consent order required, among other things, that anydocuments designated confidential that were filed with thecourt be submitted under seal. In subsequently stipulatingto a joint trial record, the parties included a number ofdocuments that had previously been filed under sealpursuant to the consent order.

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that disclosure of certain of its strategic documentsincluded in the record would severely burden NOM’sability to effectively engage in protected political acti-vities, and would invade the privacy of NOM’s third-party service providers and contractors identified inthe record and risk subjecting them to harassment.The district court found NOM’s arguments unavailingand ordered the record unsealed such that it would be“public in precisely the way that it would have beenhad live witnesses been called to testify.” Nat’l Org. forMarriage, 723 F. Supp. 2d at 249 n.4. We granted anemergency motion to stay the unsealing order duringthe pendency of this appeal.

On appeal, NOM fields two arguments for abuse ofdiscretion. It first argues that the district court erredin unsealing the documents without a “finding of truenecessity.” NOM’s argument flips the proper analysison its head. The presumption here favors openness,and a court need make no finding, let alone one of “truenecessity,” in order to make the proceedings and docu-ments in a civil trial public. Instead, it is the partyseeking to keep documents sealed who must make ashowing sufficient to overcome the presumption ofpublic access. See Standard Fin. Mgmt. Corp., 830 F.2dat 411. Second, NOM suggests that the district courterred in failing to consider a number of controllinglegal principles. On examination, the authorities itcites are, without exception, inapposite.51

For example, NOM cites cases involving the validity51

of a federal regulation that required release of materialscompiled by the FEC during investigations into allegedelection law violations, see Am. Fed’n of Labor & Cong. ofIndus. Orgs. v. FEC, 333 F.3d 168 (D.C. Cir. 2003), and aclaim of First Amendment privilege against the compelled

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On the record before us, we cannot conclude thatthe district court abused its discretion in ordering thetrial record unsealed. While NOM claims harm fromdisclosure of certain strategic documents, neitherbefore the district court nor in this appeal has NOMidentified any specific information that, if made public,would damage or chill its political advocacy efforts.Indeed, the documents it identifies as particularlysensitive, including a strategic planning document itterms its “playbook,” disclose primarily advocacy pri-orities and expenditures in past election cycles, and wesee little among them that could advantage NOM’sopponents going *72 forward. NOM’s claims that itscontractors and service-providers could be subject to

disclosure of internal documents pursuant to a court orderenforcing a discovery request, see Perry v. Schwarzenegger,591 F.3d 1147 (9th Cir. 2010). Those cases involved the pos-sible compelled disclosure of information to which there wasno presumptive right of public access; here, in contrast, thedocuments at issue were voluntarily included in the recordfiled with the district court, and thus subject to a presump-tion of public access.

NOM also contends that the two-step inquiry set forthin Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8(1986), must be applied to determine whether the docu-ments here are within the public’s presumptive right ofaccess. That inquiry relates to the categorical determinationof whether a particular type of proceeding or class of courtdocuments falls within the public’s right of access, see In reBos. Herald, Inc., 321 F.3d 174, 182–83 (1st Cir. 2003); itdoes not govern whether individual documents filed with acourt should be made public. NOM does not contest that theright of public access extends to the trial record in a civilmatter, Siedle, 147 F.3d at 10, and thus Press–Enterprise’stwo-step inquiry is inapplicable.

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harassment also lack support, resting upon allegationsof harassment against a vendor that performed workfor supporters of California’s Proposition 8. While“‘privacy rights of participants and third parties[ ] areamong those interests which, in appropriate cases, canlimit the presumptive right of access to judicial re-cords,’” Standard Fin. Mgmt. Corp., 830 F.2d at 411(internal quotation marks omitted) (quoting In reKnoxville News-Sentinel Co., 723 F.2d at 478), NOMfailed to make a compelling case that the specific ven-dors referenced in the documents here have any rea-sonable privacy concerns relating to the disclosure oftheir business relationship with NOM.

VI. Conclusion

For the reasons set forth above, we vacate the por-tion of the district court’s judgment finding the terms“influencing” and “influence” unconstitutionally vague,remand for entry of judgment in defendants’ favor infull on those claims, and affirm the judgment in allother respects. We also vacate our stay of the districtcourt’s unsealing order. Costs shall be awarded to theappellees.

So ordered.

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[Doc. 00116256168, filed 09/06/2011]

United States Court of AppealsFor the First Circuit

____________

No. 10-2000 & 10-2049

NATIONAL ORGANIZATION FOR MARRIAGEPlaintiff-Appellant/Cross -Appellee

AMERICAN PRINCIPLES IN ACTIONPlaintiff

v.

WALTER F. MCKEE, in his official capacity as mem-ber of the Commission on Governmental Ethics andElection Practices; ANDRE G. DUCHETTE, in hisofficial capacity as member of the Commission onGovernmental Ethics and Election Practices; MI-CHAEL P. FRIEDMAN, in his official capacity as

member of the Commission on Governmental Ethicsand Election Practices; FRANCIS C. MARSANO, inhis official capacity as member of the Commission on

Governmental Ethics and Election Practices; ED-WARD M. YOUNGBLOOD, in his official capacity asmember of the Commission on Governmental Ethicsand Election Practices; MARK LAWRENCE, in hisofficial capacity as District Attorney of the State ofMaine; STEPHANIE ANDERSON, in her official

capacity as District Attorney of the State of Maine;NORMAN CROTEAU, in his official capacity asDistrict Attorney of the State of Maine; EVERT

FOWLE, in his official capacity as District Attorneyof the State of Maine; R. CHRISTOPHER ALMY, inhis official capacity as District Attorney of the State

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of Maine; GEOFFREY RUSHLAU, in his officialcapacity as District Attorney of the State of Maine;MICHAEL E. POVICH, in his official capacity asDistrict Attorney of the State of Maine; NEAL T.

ADAMS, in his official capacity as District Attorneyof the State of Maine; JANET T. MILLS, in her offi-

cial capacity as Attorney General of the State ofMaine

Defendants-Appellees/Cross-Appellants-------------------------------------------------------------

MATTHEW DUNLAP, in his official capacity asSecretary of State of the State

of MaineDefendant

____________

BeforeLynch, Chief Judge

Torruella, Boudin, Lipez, Howard and ThompsonCircuit Judges.____________

ORDEREntered: September 6, 2011

The petition for rehearing having been denied bythe panel of judges who decided the case, and thepetition for rehearing en banc having been submittedto the active judges of this court and a majority of thejudges not having voted that the case be heard en banc,it is ordered that the petition for rehearing and thepetition for rehearing en banc be denied.

By the Court:/s/ Margaret Carter, Clerk.

[service list omitted]

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Constitutional Provisions

U.S. Const. amend. I

Congress shall make no law respecting an establish-ment of religion, or prohibiting the free exercisethereof; or abridging the freedom of speech, or of thepress; or the right of the people peaceably to assemble,and to petition the Government for a redress of griev-ances.

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United States,and subject to the jurisdiction thereof, are citizens ofthe United States and of the State wherein they reside.No State shall make or enforce any law which shallabridge the privileges or immunities of citizens of theUnited States; nor shall any State deprive any personof life, liberty, or property, without due process of law;nor deny to any person within its jurisdiction the equalprotection of the laws.

________________________

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Statutes1

Me. Rev. Stat. tit. 21-A

§§ 1012(3)(A),1014(1)-(2-A) &

1019-B(1)-(4)

SUBCHAPTER II

REPORTS ON CAMPAIGNS FOR OFFICE

* * *

21A § 1012. Definitions

As used in this subchapter,

* * *

3. Expenditure. The term “expenditure:”

A. Includes:

(1) A purchase, payment, distribution, loan,advance, deposit or gift of money or anythingof value made for the purpose of influencingthe nomination or election of any person topolitical office, except that a loan of money toa candidate by a financial institution in thisState made in accordance with applicablebanking laws and regulations and in theordinary course of business is not included;

(2) A contract, promise or agreement, ex-pressed or implied, whether or not legallyenforceable, to make any expenditure;

Statutes are provided as they were before the June 20,1

2011 amendments. Where relevant amendments were madein 2011, those are provided in footnote.

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(3) The transfer of funds by a candidate or apolitical committee to another candidate orpolitical committee; and

(4) A payment or promise of payment to aperson contracted with for the purpose ofsupporting or opposing any candidate, politi-cal committee, political action committee,political party, referendum or initiated peti-tion or circulating an initiated petition . . . .[2]

* * * [3]

21A § 1014. Publication or distribution of poli-tical statements

1. Authorized by candidate. Whenever a personmakes an expenditure to finance a communication ex-pressly advocating the election or defeat of a clearlyidentified candidate through broadcasting stations,newspapers, magazines, campaign signs or otheroutdoor advertising facilities, publicly accessible siteson the Internet, direct mails or other similar types ofgeneral public political advertising or through flyers,handbills, bumper stickers and other nonperiodicalpublications, the communication, if authorized by acandidate, a candidate’s authorized political committeeor their agents, must clearly and conspicuously statethat the communication has been so authorized andmust clearly state the name and address of the person

Effective June 20, 2011, Maine revised § 1012(3)(A)(4)2

to read as follows: “A payment or promise of payment to aperson contracted with for the purpose of influencing anycampaign as defined in section 1052, subsection 1.”

Effective June 20, 2011, Maine added the following3

definition: “4-A. Influence. ‘Influence’ means to promote,support, oppose or defeat.”

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who made or financed the expenditure for the commu-nication. The following forms of political communica-tion do not require the name and address of the personwho made or authorized the expenditure for thecommunication because the name or address would beso small as to be illegible or infeasible: ashtrays,badges and badge holders, balloons, campaign buttons,clothing, coasters, combs, emery boards, envelopes,erasers, glasses, key rings, letter openers, matchbooks,nail files, noisemakers, paper and plastic cups, pencils,pens, plastic tableware, 12-inch or shorter rulers,swizzle sticks, tickets to fund-raisers and similar itemsdetermined by the commission to be too small andunnecessary for the disclosures required by thissection. A communication financed by a candidate orthe candidate’s committee is not required to state theaddress of the candidate or committee that financedthe communication. A communication in the form of asign that clearly identifies the name of the candidateand is lettered or printed individually by hand is notrequired to include the name and address of the personwho made or financed the communication.[4]

2. Not authorized by candidate. If the commu-nication described in subsection 1 is not authorized bya candidate, a candidate’s authorized political commit-tee or their agents, the communication must clearlyand conspicuously state that the communication is notauthorized by any candidate and state the name andaddress of the person who made or financed the expen-diture for the communication. If the communication isin written form, the communication must contain atthe bottom of the communication in print that is no

This provision was amended effective June 20, 2011,4

but not in ways affecting this litigation.

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smaller in size than 10-point bold print, Times NewRoman font, the words “NOT PAID FOR OR AUTHO-RIZED BY ANY CANDIDATE.”

2-A. Other communications. Whenever a personmakes an expenditure to finance a communication thatnames or depicts a clearly identified candidate andthat is disseminated during the 21 days before aprimary election or 35 days before a general electionthrough the media described in subsection 1, thecommunication must state the name and address of theperson who made or financed the communication anda statement that the communication was or was notauthorized by the candidate. The disclosure is notrequired if the communication was not made for thepurpose of influencing the candidate’s nomination forelection or election.

* * *

21A §1019-B. Reports of independent expendi-tures

1. Independent expenditures; definition. Forthe purposes of this section, an “independent expendi-ture”:

A. Is any expenditure made by a person, partycommittee, political committee or political actioncommittee, other than by contribution to a candi-date or a candidate’s authorized political commit-tee, for any communication that expressly advo-cates the election or defeat of a clearly identifiedcandidate; and

B. Is presumed in races involving a candidate whois certified as a Maine Clean Election Act candi-date under section 1125, subsection 5 to be anyexpenditure made to design, produce or dissemi-

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nate a communication that names or depicts aclearly identified candidate and is disseminatedduring the 21 days, including election day, beforea primary election; the 35 days, including electionday, before a general election; or during a specialelection until and on election day.

2. Rebutting presumption. A person presumedunder this section to have made an independentexpenditure may rebut the presumption by filing asigned written statement with the commission within48 hours of making the expenditure stating that thecost was not incurred with the intent to influence thenomination, election or defeat of a candidate, sup-ported by any additional evidence the person choosesto submit. The commission may gather any additionalevidence it deems relevant and material and mustdetermine by a preponderance of the evidence whetherthe cost was incurred with intent to influence thenomination, election or defeat of a candidate.

3. Report required; content; rules. A person,party committee, political committee or political actioncommittee that makes independent expendituresaggregating in excess of $100 during any one candi-date’s election shall file a report with the commission.In the case of a municipal election in a town or citythat has chosen to be governed by this subchapter, acopy of the same information must be filed with themunicipal clerk.[5]

Effective August 1, 2011, Maine repealed § 1019-B(3)5

and moved a revised version of the section to new § 1019-B(4). The new section reads as follows:

A person, party committee, political committee orpolitical action committee that makes independentexpenditures aggregating in excess of $100 during

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A. A report required by this subsection must befiled with the commission according to a reportingschedule that the commission shall establish byrule that takes into consideration existing cam-paign finance reporting requirements and match-ing fund provisions under chapter 14. Rulesadopted pursuant to this paragraph are routinetechnical rules as defined in Title 5, chapter 375,subchapter 2-A.

B. A report required by this subsection mustcontain an itemized account of each expenditureaggregating in excess of $100 in any one candi-date’s election, the date and purpose of eachexpenditure and the name of each payee or credi-tor. The report must state whether the expenditureis in support of or in opposition to the candidateand must include, under penalty of perjury, asprovided in Title 17-A, section 451, a statementunder oath or affirmation whether the expenditureis made in cooperation, consultation or concertwith, or at the request or suggestion of, the candi-date or an authorized committee or agent of thecandidate.

C. A report required by this subsection must beon a form prescribed and prepared by the commis-sion. A person filing this report may use additionalpages if necessary, but the pages must be the samesize as the pages of the form.

* * *

any one candidate’s election shall file a report withthe commission. In the case of a municipal election,the report must be filed with the municipal clerk.

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Me. Rev. Stat. tit. 21-A

§§ 1051,1052(1), (4)-(5) &

1053-B (2011)

SUBCHAPTER IV

REPORTS BYPOLITICAL ACTION COMMITTEES

21A § 1051. Application

This subchapter applies to the activities of politicalaction committees organized in and outside this Statethat accept contributions, incur obligations or makeexpenditures for the election of state, county or munici-pal officers, or for the support or defeat of any cam-paign, as defined in this chapter.

21A § 1052. Definitions

As used in this subchapter, unless the contextotherwise indicates, the following terms have thefollowing meanings.

1. Campaign. “Campaign” means any course ofactivities for a specific purpose such as the initiation,promotion or defeat of a candidate or question, includ-ing [listed ballot-measure proceedings] . . . .[6]

Effective June 20, 2011, Maine amended § 1052(1) to6

read as follows:

1. Campaign. “Campaign” means any course ofactivities to influence the nomination or election ofa candidate or to initiate or influence any of thefollowing ballot measures . . . .

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* * * [7]

4. Expenditure. The term “expenditure:”

A. Includes:

(1) A purchase, payment, distribution, loan,advance, deposit or gift of money or anythingof value, made for the purpose of influencingthe nomination or election of any person topolitical office; or for the initiation, support ordefeat of a campaign, referendum or initiative,including the collection of signatures for adirect initiative, in this State;[8]

(2) A contract, promise or agreement, ex-pressed or implied, whether or not legallyenforceable, to make any expenditure for thepurposes set forth in this paragraph; and

(3) The transfer of funds by a political actioncommittee to another candidate or politicalcommittee; and

B. Does not include:

* * * [9]

Effective June 20, 1011, Maine amended the “contribu-7

tion” definition at § 1052(3) to conform with operationallanguage used in the “expenditure” definition at § 1052(4),see infra.

Effective June 20, 2011, Maine amended § 1052(4)(1)8

to read as follows:

A purchase, payment, distribution, loan, advance,deposit or gift of money or anything of value, madefor the purpose of initiating or influencing a cam-paign[.]

Effective June 20, 2011, Maine amended § 1052(4) to9

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5. Political action committee. The term “politicalaction committee:”

A. Includes:

(1) Any separate or segregated fund estab-lished by any corporation, membership organi-zation, cooperative or labor or other organiza-tion whose purpose is to influence the outcomeof an election, including a candidate election orballot question;[10]

(2) Deleted. . . .

(3) Deleted. . . .

(4) Any organization, including any corpora-tion or association, that has as its major pur-pose initiating, promoting, defeating or influ-encing a candidate election, campaign or ballotquestion and that receives contributions ormakes expenditures aggregating more than$1,500 in a calendar year for that purpose,including for the collection of signatures for a

add the following two definitions:

4-A. Influence. “Influence” means to promote,support, oppose or defeat.

4-B. Initiate. “Initiate” includes the collection ofsignatures and related activities to qualify a state orlocal initiative or referendum for the ballot.

Effective June 20, 2011, Maine amended § 1052(5)(A)10

(1) to read as follows:

Any separate or segregated fund established by anycorporation, membership organization, cooperativeor labor or other organization whose purpose is toinitiate or influence a campaign[.]

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direct initiative or referendum in this State;[11]

and

(5) Any organization that does not have as itsmajor purpose promoting, defeating or influ-encing candidate elections but that receivescontributions or makes expenditures aggregat-ing more than $5,000 in a calendar year for thepurpose of promoting, defeating or influencingthe nomination or election of any candidate topolitical office; and[12]

B. Does not include:

(1) A candidate or a candidate’s treasurerunder section 1013-A, subsection 1;

(2) A candidate’s authorized political commit-tee under section 1013-A, subsection 1, para-graph B;

Effective June 20, 2011, Maine amended § 1052(5)(A)11

(4) to read as follows:

Any organization, including any corporation orassociation, that has as its major purpose initiatingor influencing a campaign and that receives contri-butions or makes expenditures aggregating morethan $1,500 in a calendar year for that purpose[.]

Effective June 20, 2011, Maine amended § 1052(5)(A)12

(5) to read as follows:

Any organization that does not have as its majorpurpose influencing candidate elections but thatreceives contributions or makes expenditures aggre-gating more than $5,000 in a calendar year for thepurpose of influencing the nomination or election ofany candidate to political office[.]

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(3) A party committee under section 1013-A,subsection 3.[13]

* * *

21A § 1053-B. Out-of-state political action com-mittees

A political action committee organized outside ofthis State shall register and file reports with thecommission in accordance with sections 1053 and 1058.The committee is not required to register and filereports if the committee’s only financial activity withinthe State is to make contributions to candidates, partycommittees, political action committees or ballotquestion committees registered with the commission ora municipality and the committee has not raised andaccepted any contributions during the calendar year toinfluence an election or campaign in this State.[14]

Effective June 20, 2011, Maine amended § 1052(5)(B)13

by adding at the end the following:

; or (4) An organization whose only payments ofmoney in the prior 2 years for the purpose of influ-encing a campaign in this State are contributions tocandidates, party committees, political actioncommittees or ballot question committees registeredwith the commission or a municipality and that hasnot raised and accepted any contributions during thecalendar year for the purpose of influencing acampaign in this State.

Effective June 20, 2011, Maine amended § 1053-B to14

read as follows:

A political action committee organized outside ofthis State shall register and file reports with thecommission in accordance with sections 1053 and1058. The committee is not required to register and

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Regulations

94-270 Me. Code R. § 10 (2011)

SECTION 10. REPORTS OF INDEPENDENT EX-PENDITURES

1. General. Any person, party committee, politicalcommittee or political action committee thatmakes an independent expenditure aggregating inexcess of $100 per candidate in an election mustfile a report with the Commission according to thissection.

2. Definitions. For purposes of this section, thefollowing phrases are defined as follows:

A. “Clearly identified,” with respect to a candi-date, has the same meaning as in Title 21-A,chapter 13, subchapter II.

B. “Expressly advocate” means any communica-tion that

(1) uses phrases such as “vote for the Gover-nor,” “reelect your Representative,” “sup-port the Democratic nominee,” “cast yourballot for the Republican challenger forSenate District 1,” “Jones for House ofRepresentatives,” “Jean Smith in 2002,”

file reports if the committee’s only financial activitywithin the State is to make contributions to candi-dates, party committees, political action committeesor ballot question committees registered with thecommission or a municipality and the committee hasnot raised and accepted any contributions during thecalendar year to influence a campaign in this State.”

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“vote Pro-Life” or “vote Pro-Choice” accom-panied by a listing of clearly identifiedcandidates described as Pro-Life or Pro-Choice, “vote against Old Woody,” “defeat”accompanied by a picture of one or morecandidate(s), “reject the incumbent,” orcommunications of campaign slogan(s) orindividual word(s), which in context canhave no other reasonable meaning than tourge the election or defeat of one or moreclearly identified candidate(s), such asposters, bumper stickers, advertisements,etc. which say “Pick Berry,” “Harris in2000,” “Murphy/ Stevens” or “Canavan!”;or

(2) is susceptible of no reasonable interpreta-tion other than as an appeal to vote for oragainst a clearly identified candidate.

C. “Independent expenditure” has the samemeaning as in Title 21-A §1019-B. Any expen-diture made by any person in cooperation,consultation or concert with, or at the requestor suggestion of, a candidate, a candidate’spolitical committee or their agents is consid-ered to be a contribution to that candidate andis not an independent expenditure.

3. Reporting Schedules. Independent expendituresmust be reported to the Commission in accordancewith the following provisions:

A. Independent expenditures aggregating inexcess of $100 per candidate per election madeby any person, party committee, politicalcommittee or political action committee mustbe reported to the Commission in accordance

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with the following reporting schedule, unlessrequired to be reported according to the sched-ule in paragraph B.

(1) Quarterly Reports. Quarterly reportsmust be filed by 5:00 p.m. on:

(a) January 15th and be complete as ofDecember 31st;

(b) April 10th and be complete as ofMarch 31st;

(c) July 15th and be complete as of June30th; and

(d) October 5th and be complete as ofSeptember 30th.

(2) Pre-Election Report. A report must befiled by 5:00 p.m. on the 14th day beforethe election is held and be complete as ofthat day.

If the total of independent expenditures madeto support or oppose a candidate exceeds $100,each subsequent amount spent to support oroppose the candidate must be reported as anindependent expenditure according to theschedule in this paragraph or paragraph B.

B. Independent expenditures aggregating inexcess of $250 per candidate made during thesixty days before an election must be reportedwithin two calendar days of those expendi-tures.