Delaware Youth in Government 2016 APPELLATE COMPETITION MATERIALS

APPELLATE RULES AND PROCEDURESJudicial Competition Overview 2What is Appellate and How Does it Work? 3

Team Composition 3

Appellate Competition Rules 4

Oral Arguments 5Format of the Competition 6

The Competition 6Justices 8

APPELLATE COURT CASE DOCUMENTSStatement of Facts/Legal Questions 9Delaware Elections Disclosure Act 11

1st Amendment Text 12United States District Court of Delaware Opinion 13Appellant/Petitioner Brief: State of Delaware 23Appellee/Respondent Brief: Delaware Strong Families 34

Citizens United v Federal Election Commission 48McConnell v Federal Election Commission 51Buckley v Valeo 56Footnotes from Briefs/Opinions 65

Additional DocumentsJudicial Analysis Worksheet 69Judicial Vocabulary 70

Suggested Preparation Schedule 72

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Delaware Youth in Government Judicial CompetitionWelcome to the appeals competition for the YMCA of Delaware Youth in Government program. Even if you have previously participated in an Appeals competition for Delaware Youth in Government, please review these instructions carefully as some information may be different.

You are responsible for all the information in these Rules and Instructions. These instructions also provide a brief overview of the nature of appeals, forming an appeals team, and provide tips and tools for preparing for the competition.

Appeals attorneys at DEYIG will serve as BOTH attorney AND justice for the case provided. During each round of the competition, you will rotate into a courtroom where you could be making your oral argument, then into a courtroom where you will join other students on the bench as justices.

You will work in teams of 2-3 people. Each member of your team will perform each role (appellee, appellant and justice); although you will have some flexibility as to how you will divide responsibilities. For instance, teams of three may elect to have two members of the team argue one side of the case, and a different two members argue the other side of the case. Teams will prepare both sides of the case to argue. Teams must also be prepared to hear the case as a justice and be ready to engage in questioning of the attorneys during oral arguments.

The Supreme Court generally considers legal issues only, not factual issues. The facts of a case are decided at the trial level, either by a judge or a jury. If there is an appeal from a trial court’s decision, the appellate courts defer to the facts as found by the trial court judge or jury and consider only whether the law was properly applied to those facts. In this case, the relevant facts were decided by the trial judge.

While you may not argue that the trial judge was wrong about the facts, you may argue that the facts as found by the trial judge do not support the trial judge’s legal conclusion or the legal conclusion of the appellate court. If there are facts in the record that you believe are important but were not mentioned in the lower court’s opinion, you are free to argue that those facts support your position. You may not, however, base your argument on facts that do not appear in these materials.

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What is Appellate and How Does it Work?I. The appellate competition involves the presentation of a case to an appellate court. The

appellate competition differs greatly from the trial of the case with which the general public is more familiar. This section will familiarize you with the basic appeals process.

II. What is an appeal?The appeal process is an integral part of our legal system. Following a trial, the losing party can challenge the result in a higher court. This is done by presenting specific challenges to the rulings of the trial court (example: the exclusion of evidence) or to the manner in which the lower court interpreted the law in reaching their result (ex: did the trial court follow the law). These challenges are supported by precedent, decisions of other courts in similar cases.

III. In the federal system, a case usually will go from the Federal District Court to a Circuit Court of Appeals and then to the United States Supreme Court.

IV. In an appeal, parties are initially required to file “briefs” setting forth their arguments and authorities. After the briefs are filed, the parties then present “oral arguments” to the appellate court detailing the reasons why their respective clients should prevail. The justices of the appellate court may interrupt the attorneys at any point (after the 2 minute grace period) and ask questions about their arguments.

V. After the oral arguments, the appellate court will issue its decision, usually accompanied by a written opinion setting forth its analysis on the issues. If a particular justice disagrees with the holding of the Court, he or she may file a “dissenting” opinion. (Does not occur at YIG)

VI. For the purposes of the DE YIG Judicial Competition participants will file briefs and compete through Oral arguments.

VII. The decision of the appellate court is then written in the form of an opinion that is sent to the attorneys and is sometimes published for use as precedent in later cases.

Team CompositionI. For the DEYIG Judicial Competition, an appellate team will consist of (2) to (3)

members. II. Only two members will argue the case in any given round. Two attorneys per team

must argue in each round, with each attorney speaking for at least five minutes. Each attorney may speak only once during each round. For instance, if Attorney One speaks for the first five minutes of the round and then sits down to allow Attorney Two to speak, Attorney Two must complete the round

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III. A middle school delegate will serve as the courtroom bailiff. a. The bailiff will hold up signs after the first 2 mins, and when 5 mins, 1 min and 30

seconds remain.IV. Each side will be given 20 minutes to present their argument.

a. Each team will submit to the bailiff or Chief Justice how the team will split their time. A suggested time split is on the following page.

V. Each side (Petitioner and Respondent) has two student attorneys, and the attorneys may divide this time between themselves however they see fit.

VI. Additionally, the Petitioner has the right to reserve up to 5 minutes for rebuttal, which is deducted from their 20 minutes total. It is the Petitioner’s duty to announce this before the oral argument begins.

VII. The Bailiff will have time cards to signal the attorneys how much time is left for their argument. The Bailiff will signal when time is up. It is up to the discretion of the presiding justice to allow an attorney to finish their thought or sentence if time elapses.

Appellate Competition RulesI. For the purposes of this year’s competition, the arguments are being presented to

the United States Court of Appeals for the 3rd Circuit . A competition schedule will be released no later than 1 week prior to the Judicial Competition. The Petitioner team presents its arguments first, and is then followed by Respondent’s arguments. The Petitioner will then have the opportunity to provide a brief rebuttal.

II. Each team has a total of twenty minutes to present their argument. This time can be divided in any manner chosen by the team, except that (1) each attorney of the team must present at least 5 minutes of the argument, and (2) except for rebuttal, each attorney may go to the podium only one time; in other words, one attorney of a team cannot give 2 minutes of the argument, sit down and let his or her partner speak for 5 minutes, and then return to the podium to conclude the argument [excluding rebuttal]. A suggested time division of the arguments is as follows:

i. Petitioner Attorney #1 - 9 min; Petitioner Attorney #2 – 8 minii. Respondent Attorney #1 – 10 min; Respondent Attorney #2– 10 miniii. Petitioner Rebuttal – 3 minutes

III. During the course of the oral arguments, the justices may interrupt and ask questions about the argument. Attorneys should answer the justice’s questions, and then return to the argument. Justices may not ask questions during the first minute of any attorney’s argument. Justices also may not ask questions during the last minute of an attorney’s argument. This allows an attorney to clearly state the purpose of their argument before being interrupted.

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IV. Attorneys cannot communicate with their partners while presenting their oral arguments. Once an attorney goes to the podium, he/she must remain there until the conclusion of the argument. Attorneys may take notes, cases or a summary to the podium.

V. Attorneys should not point or look at opponents during oral argument. Oral arguments must be directed at the Court. Attorneys should refrain from making any personal remarks about or attacks upon opposing counsel.

VI. When a justice begins asking a question, attorneys should stop speaking immediately. (It is considered disrespectful for the attorney to attempt to talk over the justice.) EXPECT TO BE INTERRUPTED BY THE JUSTICES QUESTIONS.

VII. If an attorney runs out of time while arguing, he/she should stop immediately, and request permission from the Court to conclude the sentence. If the Court grants permission to conclude, the attorney must promptly conclude.

Oral ArgumentsI. Oral Arguments consist of attorneys making arguments of their position in the case

to the appellate court. During oral arguments, the attorneys will be interrupted and asked questions by the appellate justices. These questions will help the appellate justices make a decision of how to rule in the case. The attorneys structure their oral arguments using only the legal precedents to support their case. In some cases, both sides of a case may cite the same case to support their opposing arguments. Most cases include a dissent, or include legal theory that could be used to support two different arguments if a skilled appeals attorney is able to argue why the case at hand is different from the one decided in a previous case.

II. Your score during the oral arguments will be used to determine our showcase round participants. Sample scoring sheets are available in the delegate manual. Please review these scoring sheets to determine the various categories on which you will be scored.

III. Oral arguments, however, should consist of the following key items:

a. Introduction( “Thank You Chief Justice and may it please the Court”)

b. State who you are and what you’re going to be talking about. (My name is ____________and I with my co-council ________________ represent the (Petitioner or Respondent)).

c. Basis of the case

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Use this time to give an outline of what your argument will be. Try to make it as clear as possible to the justices what issues you will be addressing.

d. What your side believes and why they are rightBegin going into detail about why your side is correct. Use case law and be ready to answer the justice’s questions.

e. ConclusionHave something prepared to say when your time is almost up. Make sure to tell the court what you want them to do. (Because of __________ we believe this court should rule _____________)

IV. Focus on case precedent. Justices are going to base their decision on the legal precedents above all else!

V. Expect the bulk of the oral argument to be devoted to Justices questions . Use your 2 minutes of un-interrupted time wisely.

PLEASE TAKE THE TIME TO VISIT WWW.YOUTUBE.COM/DELAWAREYIG to view many videos that display an oral argument. The arguments in the video are

from the preparation for the National Judicial Conference. Also at WWW.YIGDE.ORG under “Helpful Resources” are some additional videos to

help you prepare.

Format of the CompetitionI. Attorneys enter the courtroom and set up at the counsel tables. There will be

someone at the bench keeping time. Each attorney will need to give the timekeeper and scorekeeper the following information.

a. Their nameb. Whether they are Petitioner or Respondentc. Which speaker they will be (Petitioner #1 or #2 or Respondent #1 or #2)d. How much time they will need for their presentation

II. Bailiff will announce the entry of the justices. The timekeeper may also be the Bailiff. The Bailiff will say: “All persons having business before the Honorable, the United States Supreme Court, are admonished to draw near and give their attention, for the Court is now sitting."

III. The Justices will come in and sit down and the Bailiff will state: “Please be seated.IV. The first case on the calendar, that of _______________.V. The Chief Justice will ask: “Is the Petitioner ready”

VI. The Petitioners will stand. One team member (typically the first to speak) looks directly at the Chief Justice and answers: “Petitioner is ready, your honor.” (Petitioners then sit down)

VII. The Chief Justice will ask: "Is the Respondent ready"VIII. The Respondents will stand. One team member looks directly at the Chief Justice

and answers: "Respondent is ready, Your Honor." (Respondents then sit down).IX. The Chief Justice will instruct the Petitioners that they may proceed

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X. The Petitioner first speaker will approach the podium and begin. As soon as the Petitioner #1 finishes, Petitioner #2 will approach and begin their argument

XI. Once both Petitioners have made their argument, the first Respondent will approach the podium and begin. As soon as the Respondent #1 finishes, Respondent #2 will approach and begin their argument.

XII. Once both Respondents complete their argument, the Petitioner (one speaker only) will approach the podium and make their rebuttal.

XIII. Upon the completion of the Petitioners rebuttal (the respondent does not get a rebuttal) the Chief Justice will announce that the justices will retire and make their decision.

XIV. As the justices rise to leave, the Bailiff will ask everyone in the courtroom to please rise. Once the justices leave, everyone can sit down.

XV. The evaluators may give a critique of their performance. Up to 15 minutes is allotted for critiques and comments.

The CompetitionI. The number of competition rounds each team gets will depend on the number of

teams in the competition, but time permitting, every team will have the opportunity to present their Petitioner argument once and their Respondent argument once, along serving as a Justice for one round.

II. Violations of any of the rules may result in point deductions. This deduction is at the discretion of the individual evaluator. Egregious violations may be brought to the attention of State Director prior to the beginning of the showcase round. Conference staff has the ultimate authority to deduct points and/or disqualify teams.

III. During oral arguments, attorneys and Justices will be scored by evaluators who are law students, paralegals, or professionals in the field of law.

IV. Oral argument presentations and conduct as a Justice will be scored, and those scores will be used to determine who moves on to the Showcase Round of the Competition.

V. Evaluators score individual and team performances. Each evaluator fills out an individual ballot, and evaluators should not consult with one another during this process. Justices should not instruct evaluators on scoring decisions.

VI. The criteria for scoring is provided with this packet as “Attorney Scoring Sheet” and “Student Justice Evaluation” and each evaluator will receive instructions on these criteria prior to each round.

VII. NO COMPLETED BALLOTS ARE TO BE VIEWED BY ANY TEAM MEMBER OR ANY OTHER PERSON DURING THE COMPETITION, in compliance with the educational goals of the Delaware Youth in Government Program. These are to be returned to the tournament staff after the round has been concluded. Score and comment sheets for a team will be copied and distributed to that team’s coach after the competition is completed.

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VIII. Conference staff will check evaluator ballots for complete scoring and for improper scores. Whenever possible, evaluators will be asked to make any necessary corrections. When an evaluator cannot be located, or other circumstances prevent timely consultation with the evaluator concerning the ballot, conference staff will correct improper entries before the ballot is totaled, or take other appropriate action.

IX. Evaluator’s ballots are used to determine which individual students will advance to the final rounds of the competition. The average score for each student is used to determine the attorneys and justices that will advance to the final round.

X. Student justices in each round will determine which side (plaintiff or respondent) won the appeal by working in teams of justices during the competition and issuing an opinion at the conclusion of the competition.

XI. In the event of a tie the number of appeal wins based on individual scores will be used to break the tie.

XII. In order to meet the educational and youth development goals of this competition, scores/rankings are not the only factor taken into account in making team pairings throughout the event. Additional factors include, but are not limited to:

a. Limiting the number of times teams from the same delegation face one another.

b. Limiting the number of times teams are matched with the same opponent.c. Ensuring teams have opportunities to present both the plaintiff and

petitioner

JusticesI. When you are serving as a justice, you will sit with 4-6 other student justices.

There will also be an Associate Justice or the Chief Justice who will manage the courtroom.

II. Youth justices are expected to be knowledgeable of the case, including the facts, the issues, and the relevant case law. The justices are also expected to be fair and impartial to the parties, and fulfill their duties as a justice in a dignified, professional manner.

III. Questions to the attorneys are appropriate and expected for seeking clarification of oral arguments. While it is improper for the justices to harass or be disrespectful to the attorneys, a certain amount of back and forth question and answering that may occasionally be adversarial is normal. While the justices are permitted and encouraged to interrupt the attorney’s presentation to ask a question, common courtesy and decency mandates that questions be asked in a respectful, dignified manner.

IV. The justices are expected and required to be fair and impartial.8

V. While they may personally believe that one side’s position has more merit, it is improper to make statements that give the appearance that a justice is clearly supportive of one side over the other.

VI. It is within the Chief Justice or Associate Justice’s sole discretion to provide an attorney an extra 30- 60 seconds to complete a thought or to answer a question from the bench if they run out of time

VII. Justices will be scored according to the rubric, which is included in this packet.

Statement of the Facts

This case requires us to decide whether the Delaware Elections Disclosure Act (the “Act”) is constitutional as applied to a 2014 Voter Guide (“Voter Guide”) that Appellee Delaware Strong Families (“DSF”) intended to produce and distribute. DSF’s Complaint seeks a declaratory judgment that the Act’s disclosure provisions are unconstitutional and a preliminary injunction preventing enforcement of the Act. The United States District Court for the District of Delaware (“District Court”) granted the preliminary injunction declaring that the Act’s disclosure requirements are unconstitutional. The State of Delaware has filed for appeal and we have accepted this case.

BACKGROUND

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On October 23, 2013, DSF filed a Complaint alleging both facial and as-applied challenges to the Act. DSF planned to distribute the 2014 Voter Guide over the internet within sixty days of Delaware’s general election and planned to spend more than $500 on its creation and distribution. 3

The State of Delaware (“State”) filed an answer and issued various discovery requests. DSF moved for a protective order and preliminary injunction. The District Court denied DSF’s motion for a protective order and instructed the parties to submit briefs addressing whether the Act is constitutional. J.A. 5–6. On March 31, 2014, Judge Robinson issued an opinion granting a preliminary injunction against Appellants and, on April 8, 2014, entered an order granting DSF’s motion for a preliminary injunction. Id. at 4. This appeal followed.

In 2012, DSF disseminated its 2012 Voter Guide without having to disclose its donors. However, enactment of the Act on January 1, 2013, changed the relevant disclosure requirements. The Act requires “[a]ny person . . . who makes an expenditure for any third-party advertisement that causes the aggregate amount of expenditures for third-party advertisements made by such person to exceed $500 during an election period [to] file a third-party advertisement report with the Commissioner.” 15 Del. C. § 8031(a).

The Act defines a “third-party advertisement” in part as “an electioneering communication.” Id. § 8002(27). An electioneering communication is:

a communication by any individual or other person (other than a candidate committee or a political party) that: 1. Refers to a clearly identified candidate; and 2. Is publicly distributed within

30 days before a primary election . . . or 60 days before a general election to an audience that includes members of the electorate for the office sought by such candidate.

Id. § 8002(10)(a). The “third-party advertisement report” must include “[t]he full name and mailing address of each person who has made contributions to [DSF] during the election period in an aggregate amount or value in excess of $100.” Id. § 8031(a)(3). Disclosure is not limited to individuals who earmarked their donations to fund an electioneering communication.

The proposed 2014 Voter Guide is not part of the record. However, in its Complaint DSF alleges that “[i]n 2014, DSF plans to produce and disseminate voter guides in a manner substantively similar to the process used in 2012.” J.A. 45. The 2012 Voter Guide lists a series of statements concerning, inter alia, “[a] Single Payer Healthcare System”; adding gender identity to the protected classes in Delaware law; “[s]trengthening and maintaining marriage as the union of one man and one woman”; and “[p]rohibit[ing] coverage for abortion in the state insurance exchanges mandated by the new federal health care law.” J.A. 61–64. It also lists all Delaware federal and state candidates and their respective stances in support of or opposition to each statement. The answers were provided by the candidates themselves or, if no response was submitted, were gleaned from the candidates’ “voting records, public statements, and/or campaign literature.” J.A. 61. In its Brief, DSF states that: “In 2014, DSF will . . . distribute this same voter guide, updated to apply to the upcoming election.” Appellee Br. at 15

LEGAL QUESTIONS10

1. Do campaign finance disclosure laws violate the First Amendment by placing unconstitutional burdens on groups publishing voter guides?

2. Does Delaware Election Disclosure Act meet the appropriate level of legal scrutiny? (Exacting Scrutiny)

Teams representing the Appellant/Petitioner(State of Delaware) will advocate that campaign finance disclosure acts do not violate the First Amendment and that the Delaware Election Disclosure Act satisfies the appropriate levels of legal scrutiny leading to the District Court's opinion being reversed.

Teams representing the Appellee/Respondent(Delaware Strong Families) will advocate campaign finance disclosure acts violate the First Amendment and that the Delaware Election Disclosure Act does not meet the appropriate levels of legal scrutiny leading to the District Court's opinion being affirmed.

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THE FULL TEXT OF HOUSE BILL. 300

CAN BE FOUND AT http://

legis.delaware.gov/lis/lis146.nsf/vwLegislation/

HB+300

SYNOPSIS

The Delaware Elections Disclosure Act would reform and modernize Delaware’s election disclosure laws, and would accomplish several things. First, it would close a major loophole under existing law by requiring persons, other than political candidates and parties, who engage in “electioneering communications” before an election to file a report disclosing (among other things) the sources of funding for such ads. Under current law, persons who buy campaign ads that are not coordinated with any candidate (known as “independent expenditures”) must file disclosure reports, but only if the ads expressly advocate for the election or defeat of a clearly identified candidate. Persons who buy ads that do not use “magic words” such as “vote for Smith” or similar terms are not required to file reports under existing law. As a result, persons who advocate indirectly for a candidate (for example, “Call Candidate X and tell him he’s wrong on education”) are not required to file reports. This bill would close that loophole by requiring reports for electioneering communications – i.e., third party advertisements that refer to a clearly identified candidate and are publicly distributed within 30 days before a primary or special election, or 60 days before a general election. This requirement will provide crucial information to voters in the days before an election and “help citizens make informed choices in the political marketplace.” Citizens United v. FEC, 130 S.Ct. 876 (2010).

Second, this Act would require all third-party advertisements having a fair market value of $500 or more to include the following statement: “Learn more about [name of person] at [Commissioner of Elections’ web address].” By informing voters that they can review the campaign finance reports filed by the person who placed the ad, this requirement will help reduce the risk or appearance of undue influence and promote compliance with existing campaign finance laws.

Third, this Act would require any third party that spends $500 or more on advertisements during an election period to file a report with the Elections Commissioner within 24 hours of such expenditure. (If the expenditure occurs more than 30 days before a primary or 60 days before a general election, the report must be filed within 48 hours.) Under existing law, independent expenditure reports must be filed within 24 hours if the expenditure occurs within 20 days of an election. Otherwise, independent expenditures are disclosed only in 30-day and 8-day reports. This revised reporting procedure will ensure more timely dissemination of critical information to voters before an election.

Finally, this Act would enhance disclosure requirements by requiring entities that contribute more than $1,200 to political action committees or political parties during an election cycle to disclose the name and address of a “responsible party” – that is, someone who shares or exercises direction or control over the entity’s activities. In addition, this bill would enhance and clarify the disclosure requirements for the filing of Statements of Organization by political committees.

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1St Amendment TEXTCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

SummaryThe First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments. The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. The right to free speech includes other mediums of expression that communicate a message.  The level of protection speech receives also depends on the forum in which it takes place. The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First, Fifth, and Fourteenth Amendments. This implicit right is limited to the right to associate for First Amendment purposes. It does not include a right of social association. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual's current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with first amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.

https://www.law.cornell.edu/wex/first_amendment

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

DELAWARE STRONG FAMILIES v ATTORNEY GENERAL OF THE STATE OF DELAWARE

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Delaware Strong Families ("DSF") has filed a verified complaint seeking a judgment to prevent enforcement of certain provisions of the Delaware Election Disclosures Act ("the Act"), 15 Del. C.§ 8001, et seq., which became law on January 1,2013. Prior to its enactment, Delaware's election laws did not regulate nonprofit corporations like DSF. In 2012, DSF distributed a voter guide over the Internet within 60 days of Delaware's general election. DSF plans to engage in similar activity before the 2014 general election, and expects to incur costs over $500 in doing so. Under the Act, DSF's activities, including the publication of its voter guide, will be within the regulatory purview of the State Commissioner of Elections ("the Commissioner") and the Attorney General of the State of Delaware, defendants at bar.

More specifically, § 8031 (a) of the Act requires that "[a]ny person ... who makes an expenditure for any third-party advertisement that causes the aggregate amount of expenditures for third-party advertisements made by such person to exceed $500 during an election period shall file a third-party advertisement report with the Commissioner." 15 Del. C. § 8031 (a). The report includes, inter alia, the names and addresses of each person who has made contributions to the "person" in excess of $100 during the election period. "Person" includes "any individual, corporation, company, incorporated or unincorporated association, general or limited partnership, society, joint stock company, and any other organization or institution of any nature." 15 Del. C. § 8002(17). "Third-party advertisement" means "an independent expenditure or an electioneering communication." 15 Del. C. § 8002(27). "Electioneering communication" means "a communication by any individual or other person (other than a candidate committee or a political party) that: (1) Refers to a clearly identified candidate; and (2) Is publicly distributed within 30 days before a primary election or special election, or 60 days before a general election to an audience that includes members of the electorate for the office sought by such candidate." 15 Del. C. § 8002(1 O)a.

According to the legislative history of the Act, its focus was on "clos[ing] loopholes about the transparency of third-party ads" by "better regulat[ing] electioneering communications by third-parties," particularly as to "how the third party receives funding and where that money goes." (D.I. 30, ex. 1, Del. House Admin. Comm. Minutes, House Bill No. 300 (May 2, 2012)) Also apparent from the legislative history is a concern about the power vested in the Commissioner "to make an exemption without any stipulations or guidelines as to how [she] can make exemptions. As a result, the state is delegating broad authority to a single person, and this could result in potential long-term problems." (/d.) In this regard, 15 Del. C. § 8041 (1 )c gives the Commissioner the power to "adopt[ ] any amendments or modifications to the statements required under§ 8021 of this title, or exemptions from the requirements thereunder." 15 Del. C. § 8041 (1 )c.

The court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331, as the action arises under the First and Fourteenth Amendments to the United States Constitution. Venue in this court is proper under 28 U.S.C. § 1391 (b )(1) and (b )(2).

II. STANDARD OF REVIEW

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In the Third Circuit, "[f]our factors determine whether a preliminary injunction is appropriate: (1) whether the movant has a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denying the injunction; (3) whether there will be greater harm to the nonmoving party if the injunction is granted; and (4) whether granting the injunction is in the public interest." B.H. v. Easton Area Sch. Dist., 725 F .3d 293, 302 (3d Cir. 2013) (internal citation and quotation marks omitted); see also N.J. Retail Merchs. Ass'n. v. Sidamon Eristoff, 669 F.3d 374, 385- 386 (3d Cir. 2012); Hes v. de Jongh, 638 F.3d 169, 172 (3d Cir. 2011 ). A preliminary injunction is "an extraordinary remedy," which "should be granted only in limited circumstances." Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d 2004) (citation omitted).

Ill. DISCUSSION

A. Analytical Framework

The regulation of campaign finances has a long history. The dispute at issue, therefore, cannot be adequately addressed without an understanding of the analytical framework established by Supreme Court precedent on campaign finance regulation.

1. Buckley v. Valeo ("Buckley")

The court starts its review of such with the decision in Buckley v. Valeo, 424 U.S. 1 (1976), where the United States Supreme Court addressed various challenges to the Federal Election Campaign Act of 1971 ("FECA"), as amended in 1974. Appellants in Buckley did not challenge the disclosure requirements of FECA, 2 U.S.C. §§ 431, et seq., asperse unconstitutional; they instead argued that several provisions were over- broad as applied to contributions: (a) to minor parties and independent candidates; and (b) by individuals or groups other than a political committee or candidate. Of import to the disclosure requirements at bar, the Court explored the general principles related to the challenged reporting and disclosure requirements, to wit: The Court has "repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment." /d. at 64. The Court has

long ... recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a "relevant correlation" or "substantial relation" between the governmental interest and the information required to be disclosed.

/d. (citations omitted). The Court reiterated the fact that

[t]he right to join together "for the advancement of beliefs and ideas" ... is diluted if it does not include the right to pool money through contributions, for funds are often essential if "advocacy" is to be truly or optimally "effective." Moreover, the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for "[f]inancial transactions can reveal much about a person's activities, associations, and beliefs." /d. at 65-66 (citations omitted).

In addressing the other side of the scale, the Court identified the governmental interests sought to be vindicated by the disclosure requirements: (1) providing the electorate with information '"as to where political campaign money comes from and how it is spent by the candidate' in order to aid the voters in evaluating those who seek federal office;" (2) "deter[ring] actual corruption and avoid[ing] the appearance of corruption by exposing large contributions and expenditures to the light of publicity;" and (3) serving as "an essential means of gathering the data necessary to detect violations of the contribution limitations" described elsewhere in the statute. /d. at 66-68. The Court went on to

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conclude that disclosure requirements, "as a general matter, directly serve substantial governmental interests" and appear, "in most applications," "to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist." /d. at 68.

With respect to FECA's reporting and disclosure requirements as applied to minor parties and independents, the Court concluded that, absent evidence of a "reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties," id. at 74, "the substantial public interest in disclosure identified by the legislative history of [FECA] outweighs the harm generally alleged." /d. at 72.

In considering the disclosure provision applicable to individual contributions, 2 attacked by appellants as "a direct intrusion on privacy of belief," the Court noted that it "must apply the same strict standard of scrutiny, for the right of associational privacy ... derives from the right of the organization's members to advocate their personal points of view in the most effective way." /d. at 75 (citations omitted). According to the Court, § 434(e) was part of Congress' effort to achieve "total disclosure" by reaching "every kind of political activity" in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible ....

In its efforts to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties and fear of incurring these sanctions may deter those who seek to exercise protected First Amendment rights. /d. at 76-77.

More specifically,§ 434(e) applied to "[e]very person ... who makes contributions or expenditures." "Contributions" and "expenditures" were defined under FECA "in terms of the use of money or other valuable assets 'for the purpose of . .. influencing' the nomination or election of candidates for federal office. It [was) the ambiguity of this phrase that pose[ d) constitutional problems" for the Court. /d. at 77

With the constitutional requirement of definiteness at stake in the context of First Amendment rights, the Court recognized that, "to avoid the shoals of vagueness," it had the obligation to construe the statute with a heightened degree of specificity. /d. at 77- 78 ("Where First Amendment rights are involved, an even 'greater degree of specificity ‘is required."). Harking back to Congress' intent to ferret out and prevent election related corruption, the Court explained that, when the maker of a contribution or of an expenditure is not a political committee or a candidate presumably focused on the nomination or election of a candidate for political office, "the relation of the information sought to the purposes of [FECA] may be too remote. To insure that the reach of§ 434(e) is not impermissibly broad, we construe 'expenditure' for purposes of that section ... to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate." /d. at 79-80. The Court concluded that"§ 434(e), as construed, bears a sufficient relationship to a substantial governmental interest. As narrowed,§ 434(e) .. . does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result." /d. at 80 (emphasis added).

2. McConnell v. FEC ("McConne/1'1The Supreme Court in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), addressed the Bipartisan

Campaign Reform Act of 2002 ("BCRA"), which amended FECA and other portions of the United States Code. "In enacting BCRA, Congress sought to address three important developments in the years since th[e] Court's landmark decision in Bucke/y v. Valeo . .. : the increased importance of 'soft money' [and] the proliferation of 'issue ads,' [as detailed in] findings of a Senate investigation into campaign practices related to the 1996 federal elections." /d. at 93.

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With regard to the first development, prior to BCRA, FECA's disclosure requirements and source and amount limitations extended only to so-called "hard-money" contributions made for the purpose of influencing an election for federal office. Political parties and candidates were able to circumvent FECA's limitations by contributing "soft money" - money as yet unregulated under FECA - to be used for activities intended to influence state or local elections; for mixed-purpose activities such as get-out-the-vote (GOTV) drives and generic party advertising; and for legislative advocacy advertisements, even if they mentioned a federal candidate's name, so long as the ads did not expressly advocate the candidate's election or defeat. With regard to the second development, parties and candidates circumvented FECA by using "issue ads" that were specifically intended to affect election results, but did not contain "magic words," such as "Vote Against Jane Doe," which would have subjected the ads to FECA's restrictions. id. at 93-94.

The relevant analysis to the issues at bar includes the Court's review of BCRA § 201's definition of "electioneering communications," a new term coined to replace the narrowing construction of FECA's disclosure provisions adopted by this Court in Buckley. As discussed further below, that construction limited the coverage of FECA's disclosure requirement to communications expressly advocating the election or defeat of particular candidates. By contrast, the term "electioneering communication" is not so limited, but is defined to encompass any "broadcast, cable, or satellite communication" that

"(I) refers to a clearly identified candidate for Federal office;

(II) is made within-

(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or

(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the

candidate; and

(Ill) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate." /d. at 189-190.

Consistent with the above definition, BCRA provided "significant disclosure requirements for persons who fund electioneering communications." /d. at 190. "The major premise of plaintiffs' challenge to BCRA's use of the term 'electioneering communication' [was] that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech." /d. The Court disagreed, clarifying that Buckley's "express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command."3 /d. at 191-192. Nor was the Court persuaded, "independent of [its] precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy." /d. at 193. "Having rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy," the Court examined the use of the term "electioneering communication" in the challenged disclosure provisions. The Court concluded that the important state interests that prompted the Buckley Court to uphold FECA's disclosure requirements - providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions- apply in full to BCRA. Accordingly, Buckley amply supports application of FECA § 304's disclosure requirements[4 ] to the entire range of "electioneering communications." /d. at 196.

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While acknowledging, as it did in Buckley, "that compelled disclosures may impose an unconstitutional burden on the freedom to associate in support of a particular cause," id. at 198, nevertheless, the Court recalled that an as-applied challenge could be mounted based on "evidence that any party had been exposed to economic reprisals or physical threats as a result of the compelled disclosures." /d.

The Court then turned its attention to BCRA § 203's prohibition of corporate and labor disbursements for electioneering communications. "Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law." /d. at 203. Section 203 of BCRA extended this rule to all "electioneering communications," as defined in BCRA §201 (f)(3)(A). In response to plaintiffs' argument that "the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications," id. at 206, the Court explained that[t]his argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters' decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief pre-election time spans but had no electioneering purpose is a matter of dispute . . . .

Nevertheless, the vast majority of ads clearly had such a purpose. . . . Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those timeframes by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund. id. The Court thus upheld the constitutionality of the challenged amendments.

3. FEC v. Wisconsin Right to Life, Inc. (" WRTL")

The Supreme Court, in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), had the opportunity to address BCRA § 203 again, this time in the context of an as-applied challenge to its constitutionality. Appellee Wisconsin Right to Life, Inc. ("WRTL") was a nonprofit, nonstock, ideological advocacy corporation recognized by the Internal Revenue Service as tax exempt under§ 501 (c)(4) of the Internal Revenue Code. WRTL planned on running certain ads financed with funds from its general treasury, which ads would be illegal "electioneering communications" under BCRA § 203. WRTL filed suit against the Federal Election Commission ("FEC"), seeking declaratory and injunctive relief, alleging that BCRA's prohibition on the use of corporate treasury funds for "electioneering communications" as defined in BCRA was unconstitutional as applied to its ads. 5 The Court set the stage for its analysis by reminding the readers that,

[p]rior to BCRA, corporations were free under federal law to use independent expenditures to engage in political speech so long as that speech did not expressly advocate the election or defeat of a clearly identified federal candidate. . . . BCRA significantly cut back on corporations' ability to engage in political speech. BCRA § 203, at issue in these cases, makes it a crime for any labor union or incorporated entity - whether the United Steelworkers, the American Civil Liberties Union, or General Motors - to use its general treasury funds to pay for any "electioneering communication."

Id. at 457. In establishing the proper burden of proof, the Court recognized that,

[b]ecause BCRA § 203 burdens political speech, it is subject to strict scrutiny . . . . Under strict scrutiny, the Government must prove that applying BCRA to WRTL's ads furthers a compelling interest and is narrowly tailored to achieve that interest. . . . This Court has already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent. . . . So to the extent the ads in these cases fit this description, the FEC's burden is

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not onerous; all it need do is point to McConnell and explain why it applies here. If, on the other hand, WRTL's ads are not express advocacy or its equivalent, the Government's task is more formidable. It must then demonstrate that banning such ads during the blackout periods is narrowly tailored to serve a compelling interest./d. at 465 (emphasis in original).

During the course of its analysis, the Court "decline[ d) to adopt a test for as applied challenges turning on the speaker's intent to affect an election," as "opening the door to a trial on every ad within the terms of § 203, on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue." /d. at 467-468. The Court instead embraced an objective standard: "[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." /d. at 469-470. "[C]ontextual factors 6 ... should seldom play a significant role in the inquiry." id. at 473-474.

The Court ultimately held that, "[b]ecause WRTL's ads may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate, ... they are not the functional equivalent of express advocacy, and therefore fall outside the scope of McConnelfs holding." /d. at 476. Significantly, the Court declared that it had "never recognized a compelling interest in regulating ads, like WRTL's, that are neither express advocacy nor its functional equivalent." /d. In the concluding passage of its opinion, the Court observed:

Yet, as is often the case in this Court's First Amendment opinions, we have gotten this far in the analysis without quoting the Amendment itself: "Congress shall make no law ... abridging the freedom of speech." The Framers' actual words put these cases in proper perspective. Our jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but when it comes to drawing difficult lines in the area of pure political speech- between what is protected and what the Government may ban - it is worth recalling the language we are applying. McConnell held that express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. We have no occasion to revisit that determination today. But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban- the issue we do have to decide- we give the benefit of the doubt to speech, not censorship. The First Amendment's command that "Congress shall make no law ... abridging the freedom of speech" demands at least that. Id. at 481-482 (emphasis in original).

4. Citizens United v. FEC ("Citizens United'')

The last of the significant First Amendment cases is the Supreme Court's decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (201 0), another as-applied challenge to FECA, 2 U.S.C. § 441b, as amended by BC A § 203. In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereafter "Hillary") critical of then-Senator Hillary Clinton, a candidate for her party's Presidential nomination. Concerned about possible civil and criminal penalties for violating § 441 b, it sought declaratory and injunctive relief, arguing that ( 1) § 441 b was unconstitutional as applied to Hillary, and (2) BCRA's disclaimer, disclosure, and reporting requirements, BCRA §§ 201 and 311, were unconstitutional as applied to Hillary and the television ads Citizens United produced to announce the availability of Hillary on cable television through video-on-demand. Applying an objective test to determine whether Hillary was the functional equivalent of express advocacy, the Court found that there was "no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton. Under the standard stated in McConnell and further elaborated in WRTL, the film qualifies as the functional equivalent of express advocacy." /d. at 326.

The Court then proceeded to "exercise ... its judicial responsibility" to consider the facial validity of§ 441 b, explaining that "[a]ny other course of decision would prolong the substantial, nationwide chilling effect caused by § 441

19

b's prohibitions on corporate expenditures." /d. at 333. The Court once again traced the history of campaign finance regulation, and characterized the dilemma at hand in terms of "confront[ing] ... conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker's corporate identityrJ and a post-Austin line that permits them." /d. at 348. The Court reconfirmed that "[p]olitical speech is 'indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual."' /d. at 349. The Court rejected the reasoning of Austin, finding it "irrelevant for purposes of the First Amendment that corporate funds may 'have little or no correlation to the public's support for the corporation's political ideas,' ... [because a]ll speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas." /d. at 351 (quoting Austin, 494 U.S. at 660). The Court then overruled Austin, based on the "principle established in Buckley . .. that the Government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations." Id. at 365.

The Court next addressed Citizens United's challenge to BCRA's disclaimer and disclosure provisions as applied to Hillary and the advertisements for the movie. The Court acknowledged that "[d]isclaimer and disclosure requirements may burden the ability to speak, but they 'impose no ceiling on campaign-related activities,' Buckley, 424 U.S. at 64 ... and 'do not prevent anyone from speaking,' McConnell, [540 U.S.] at 201 .... " Citizens United, 558 U.S. at 366. Under the "exacting scrutiny" standard that requires a "substantial interest" between the disclosure requirement and a "sufficiently important" governmental interest, the Court found the statute valid as applied to the ads for the movie and to the movie itself. In so concluding, the Court reiterated the governmental interests identified in Buckley, 424 U.S. at 66, and rejected the argument that "the disclosure requirements in § 201 must be confined to speech that is the functional equivalent of express advocacy." Citizens United, 558 U.S. at 368.

The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech. . . . In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures .... In McConnell, three Justices who would have found § 441 b to be unconstitutional nonetheless voted to uphold BCRA's disclosure and disclaimer requirements .... And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself .... For these reasons, we reject Citizens United's contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.

Id. at 369. Finally, because Citizens United offered no evidence that its members may face threats, harassment, or reprisals if their names were disclosed, the Court found no showing that BCRA's disclaimer and disclosure requirements to the movie and adscould impose a chill on speech or expression. The Court found no constitutional impediment to the application of such requirements to the movie and ads at issue. /d. at 370-371.

B. Circuit Court Precedent

When asked about cases most analogous to the facts at bar, the parties (notsurprisingly) identified different cases. For its part, DSF identified Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975),8 and the discussion therein related to now repealed FECA § 437a, which provided that:

Any person (other than an individual) who expends any funds or commits any act directed to the public for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public any

material referring to a candidate (by name, description, or other reference) advocating the election or defeat of such candidate, setting forth the candidate's position on any public issue, his voting record, or other official acts ... , or

20

otherwise designed to influence individuals to cast their votes for or such person were a political committee. The reports filed by such person shall set forth the source of the funds used in carrying out any activity described in the preceding sentence in the same detail as if the funds were contributions within the meaning of section 431 (3) of this title, and payments of such funds in the same detail as if they were expenditures within the meaning of section 431 (f) of this title.

Id. at 869-870 (citing 2 U.S.C. § 437a (repealed by Pub. L. 94-283, § 105, 90 Stat. 475 (May 11, 1976))). The D.C. Circuit observed at the outset of its analysis that "the activity summoning the report is calculated to exert an influence upon an election. But section 437a is susceptible to a reading necessitating reporting by groups whose only connection with the elective process arises from completely nonpartisan public discussion of issues of public importance," including such groups as plaintiffs.9 /d. at 870. In distinguishing between the disclosure requirements of§ 437a and the central disclosures requirements of FECA pertaining to "political committees" and to "contributions" and "expenditures," the court grounded its decision to uphold the latter requirements on its recognition that the government has demonstrated a substantial and legitimate interest in protecting the integrity of its elections, an interest closely connected to and plainly advanced by those provisions.

Section 437a, however, seeks to impose the same demands where the nexus may be far more tenuous. As we have said, it may undertake to compel disclosure by groups that do no more than discuss issues of public interest on a wholly nonpartisan basis. To be sure, any discussion of important public questions can possibly exert some influence on the outcome of an election . . . But unlike contributions and expenditures made solely with a view to influencing the nomination or election of a candidate, see 2 U.S.C. §§ 431(e), 431(f), issue discussions unwedded to the cause of a particular candidate hardly threaten the purity of elections. Moreover, and very importantly, such discussions are vital and indispensable to a free society and an informed electorate. Thus the interest of a group engaging in nonpartisan discussion ascends to a high plane, while the governmental interest in disclosure correspondingly diminishes.

Id. at 872-873. Despite an unmistakable congressional intention to apply the statute broadly, 10 the court concluded that "the crucial terms 'purpose of influencing the outcome of an election' and 'design[ ] to influence' voting at an election stand without any readily available narrowing interpretation" and, thus, were unconstitutionally vague and over-broad. /d. at 877-878. This holding was not appealed and, therefore, not subject to the Supreme Court review in Buckley, 424 U.S. at 11 n.7.

Defendants, for their part, direct the court's attention to Center for Individual Freedom, Inc. v. Tennant ("CFIP'), 706 F.3d 270 (4th Cir. 2013), where the Fourth Circuit reviewed West Virginia's campaign finance laws. 11 Defendants find most relevant to the dispute at bar the challenge in CFIF to West Virginia's definition of "electioneering communication" found in W.Va. Code§ 3-8-1a(12)(A), to wit, any paid communication made by broadcast, cable or satellite signal, or published in any newspaper, magazine or other periodical that:

(i) Refers to a clearly identified candidate ... ;(ii) Is publicly disseminated within:(I) Thirty days before a primary election ... ; or(II) Sixty days before a general ... election ... ; and(iii) Is targeted to the relevant electorate ... .

W.Va. Code§ 3-8-1a(12)(A). In CFIF, plaintiff challenged the definition's inclusion of materials "published in any newspaper, magazine or other periodical." 706 F.3d at 281- 282. In this context, and applying "exacting scrutiny" for its evaluation of the campaign finance disclosure provisions, the Fourth Circuit found that West Virginia could rely on its interest of "providing the electorate with election-related information." /d. at 283. The Fourth Circuit concluded,

21

however, that West Virginia had "failed to demonstrate a substantial relation between its interest in informing the electorate and its decision to include periodicals - but not other non-broadcast materials - in its 'electioneering communication' definition." /d. More specifically, the Court found that, "[a]lthough the affidavits that West Virginia submitted sufficiently support its decision to regulate periodicals and other non-broadcast media, they do not justify the legislature's decision to regulate periodicals to the exclusion of other non-broadcast media, such as direct mailings." /d. at 285. "[E]rr[ing] on the side of protecting political speech rather than suppressing it," id., the Fourth Circuit determined that "limiting the campaign finance regime's applicability to only broadcast media causes it to burden fewer election-related communications." /d.

C. Likelihood of Success on the Merits

Starting where defendants left off, as far as the court can discern, there is no case that purports to address disclosure requirements with the breadth attributed to the Act. 12 As noted by DSF, many of the cases identified by defendants relate to statutes that only regulate express advocacy or its functional equivalent (not the mere mention of a candidate), 13 while other cases (including CFIF) involve statutes that have exemptions from the reporting requirements, such as those exempting§ 501 (c)(3) activity from disclosure 14 or those exempting such publications as voter guides. 15 Consequently, when the Fourth Circuit in CFIF upholds the constitutionality of West Virginia's substantive disclosure requirement, W.Va. Code§ 3-8-2b(b)(5), which mandates the disclosure of certain contributors "whose contributions were used to pay for electioneering communications," one cannot ignore the context of the decision, where the West Virginia legislature, by its exemptions to the definition of "electioneering communication"16 and its preamble to the regulations, 17 made clear that its intended focus was on express advocacy. Indeed, where a legislature (Congress) clearly intended otherwise, i.e., to embrace virtually all political communications and communicators, the D.C. Circuit rejected the resulting statutory language as being over-broad. See Buckley v. Va/eo, 519 F.2d at 877-78 and 877 n.140.

The question remains how to apply the guidance of Citizens United to the Act which, by its language, is broad enough in scope to capture neutral communications similar to those exempted by West Virginia's legislature and deemed over-broad by the court in Buckley v. Valeo, 519 F.2d at 877. The court notes at this juncture that the Supreme Court's relatively terse discussion about disclosure in Citizens United is based in large measure on citations to its precedential opinions in Buckley and McConnell, neither of which were as-applied challenges and neither of which addressed a statutory regime as broadly constructed (and apparently construed) as the one at bar. As noted above, the disclosure requirements under examination in Buckley were those directed to contributions made by individuals, as well as contributions to minor parties and independent candidates. The Court had no problem finding that the governmental interests in disclosure were substantially related to its interests in election transparency when reviewing the application of the disclosure requirements to contributions to minor parties and independent candidates, obviously participants in the political process.

The Court had more difficulty applying such requirements to individual contributors and, in that context, found "the relation of the information sought to the purposes of the Act ... too remote." Buckley, 424 U.S. at 79-80. To insure that the reach of 434(e) was not impermissibly broad, the Court construed "expenditure" for purposes of that section "to reach only funds used for communications that expressly advocate[d] the election or defeat of a clearly identified candidate." /d. at 80. The Court in McConnell, while rejecting the notion that "Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy," McConnell, 540 U.S. at 190, nevertheless rooted its decision to uphold the disclosure requirements to "evidence in the record that independent groups were running election-related advertisements 'while hiding behind dubious and misleading names."' Citizens United, 558 U.S. at 367 (emphasis added) (citing to McConnell, 540 U.S. at 197).

22

Although the First Amendment does not "erect[ ] a rigid barrier between express advocacy and so-called issue advocacy," the Supreme Court continues to demand, under an "exacting scrutiny standard," that the government's interest in obtaining information about a communicator must be substantially related to a sufficiently important governmental interest, e.g., election transparency. It would appear as though other legislative efforts have translated this guidance into exempting from disclosure requirements those communicators generally considered to be non-political (e.g.,§ 501(c)(3) groups) and/or those communications generally considered to be nonpolitical (e.g., voter guides), the reasoning being that the less a communicator or communication advocates an election result, the less interest the government should have in disclosure when weighed against the important First Amendment rights at stake.

The Act has no such exemptions, apparently leaving to the Commissioner (and the less transparent administrative regulation process) any efforts to perhaps more narrowly tailor the Act's disclosure requirements to communicators/communications more likely to raise concerns about partisan politics. In this regard, the court notes that the focus of the Act was actually on communications that are the functional equivalent of advocacy, e.g., on "sham issue ads,"18 voter guides, 19 and even advertisements that encourage recipients to contact officeholders and candidates, all described in the record in terms of advocacy, i.e., as efforts intended "to affect voters' choices at the ballot box." (D.I. 30, ex. 4 at 4)

The court recognizes that it is never an easy task for the legislature to draw lines when it comes to restricting constitutional rights. A fully informed electorate is a worthy goal recognized by the Supreme Court. 20 Nevertheless, as presented, the Act is so broadly worded as to include within the scope of its disclosure requirements virtually every communication made during the critical time period, no matter how indirect and unrelated it is to the electoral process. 21 On the record presented, this would include DSF's proposed voter guide (as a presumably neutral communication) published by DSF (a presumably neutral communicator by reason of its 501 (c)(3) status). The court concludes that the relation between the personal information collected22 to the primary purpose of the Act23 is too tenuous to pass constitutional muster.24 Therefore, DSF is likely to prevail on the merits of its claim that the Act, as applied, is unconstitutional.

D. Balance of Harms

In the Third Circuit, "[i]t is well established that 'the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."' Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Having found that DSF has demonstrated a likelihood of success on the merits of their First Amendment claim, and concluding that defendants' interest in public disclosure cannot withstand the public's interest in protecting their privacy of association and belief guaranteed by the First Amendment, the court concludes that the balance of harms weighs in favor of DSF.

IV. CONCLUSION

For the reasons states, DSF's motion for a preliminary injunction (0.1. 22) is granted. The court recognizes, however, that the factual underpinnings for its decision have not been specifically challenged or vetted through discovery. Therefore, no order

23

APPELLANT/PETITIONER BRIEF

STATE OF DELAWARE

ARGUMENT

To obtain a preliminary injunction, a plaintiff must, “by a clear showing, carr[y] the burden of persuasion” on each of four factors. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). These are “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Minard Run Oil Co. v. United States Forest Serv., 670 F.3d 236, 249-250 (3d Cir. 2011) (internal quotation marks omitted). DSF established none of these factors, and accordingly was not entitled the “extraordinary remedy” of a preliminary injunction. Winter v. NRDC, 555 U.S. 7, 24 (2008).

I. STANDARD OF REVIEW

This Court “review[s] an order granting a preliminary injunction for abuse of discretion, the factual findings for clear error, and the determinations of questions of law de novo.” Bennington Foods LLC v. St. Croix Renaissance, Grp., LLP, 528 F.3d 176, 178 (3d Cir. 2008). The Court “exercise[s] plenary review over [a] district court’s determination as to the constitutionality of [a] challenged statute.” Government of Virgin Islands v. Steven, 134 F.3d 526, 527 (3d Cir. 1998). -

II. THE DISTRICT COURT ERRED IN CONCLUDING THAT DSF ESTABLISHED A LIKELIHOOD OF SUCCESS ON THE MERITS

The district court’s analysis of the constitutionality of the Disclosure Act directly conflicts with the Supreme Court’s most recent decisions addressing contributor disclosure laws. In McConnell and Citizens United, the Court rejected First Amendment challenges to the federal disclosure law upon which Delaware’s Disclosure Act was closely modeled. The district court’s opinion cannot be squared with either the reasoning or the holdings of those decisions and should be reversed.

A. Disclosure Laws Applicable To Election-Related Communications Are Subject To A “Lower Level Of Scrutiny”

For purposes of constitutional analysis, the Supreme Court has divided campaign-finance requirements applicable to election-related communications into two categories: direct restrictions on expenditures and laws requiring disclosure. Under the Court’s precedent, disclosure laws are constitutionally preferred to expenditure limits because they are “a less restrictive alternative to more comprehensive regulations of speech,” like expenditure limits, and directly serve First Amendment values. Citizens United, 558 U.S. at 369. Disclosure requirements “‘impose no ceiling on campaign-related activities,’ and ‘do not prevent anyone from speaking.’” Citizens United, 558 U.S. at 366 (citations omitted); Mariani v. United States, 212 F.3d 761, 775 (3d Cir. 2000) (disclosure requirements “impose ‘only a marginal restriction upon the contributor’s ability to engage in free communication.’”). Instead, they provide the public with more information, which voters can use to “make informed choices in the political marketplace.” McConnell, 540 U.S. at 197. In short, disclosure requirements are “a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our … election system to public view.” Buckley, 424 U.S. at 82.

24

Because disclosure laws, unlike restrictions on speech, further First Amendment values, they are subject to a more lenient constitutional standard. Limits on expenditures are “‘subject to strict scrutiny,’ which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’” Citizens United, 558 U.S. at 340 (2010). Disclosure laws, by contrast, are subject to a less demanding standard known as “exacting scrutiny.” Id. at 366-367. That standard demands neither a “compelling” governmental interest nor “narrow tailoring.” Instead, disclosure laws are constitutional so long as there is a “‘relevant correlation’ or ‘substantial relation’” between the requirement and a “sufficiently important” government interest. Buckley, 424 U.S. at 64, 66 (footnote omitted); Citizens United, 558 U.S. - 29 - at 366-367; Doe v. Reed, 561 U.S. 186, 196 (2010).8 As the Supreme Court has explained, and other Courts of Appeals have recognized, this is a distinctly “lower level of scrutiny” than is applicable to restrictions on political expenditures. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011); Worley v. Cruz-Bustillo, 717 F.3d 1238, 1242 (11th Cir. 2013).

B. Disclosure Of Those Who Fund Election-Related Speech Satisfies Exacting Scrutiny

The Supreme Court has repeatedly concluded that laws requiring disclosure of those who produce or fund election-related communications satisfy exacting scrutiny. The Court has held several “important state interests” sufficient to support disclosure laws: “providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions.” McConnell, 540 U.S. at 196; see also Buckley, 424 U.S. at 66-68.9 All three of these interests - 30 - support the Disclosure Act,10 but the first—the public’s informational interest—is “alone … sufficient to justify” a disclosure law. Citizens United, 558 U.S. at 369; see also, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1459 (2014) (disclosure requirements “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending”) (quoting Citizens United, 558 U.S. at 367); Center for Individual Freedom v. Madigan, 697 F.3d 464, 477-478 (7th Cir. 2012) (same); Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 990, 1017 (9th Cir. 2010) (same).

The Supreme Court has also held that disclosure of those who fund election related speech directly serves this informational interest. Knowing the identity of a speaker is critical because “a speaker’s credibility often depends crucially on who he is.” Majors v. Abell, 361 F.3d 349, 352 (7th Cir. 2004); see also National Org. for Marriage v. McKee, 649 F.3d 34, 57 (1st Cir. 2011) (“NOM”) (“Citizens rely ever more on a message’s source as a proxy for reliability and a barometer of political spin.”). But election-related speech is often made through organizations that “conceal the true identity of the source” of their funding. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 298 (1981); see also Madigan, 697 F.3d at 481 (“[O]nly disclosure of the sources of [such organizations’] funding may enable the electorate to ascertain the identities of the real speakers.”). Disclosure laws ensure that voters are “‘fully informed’ about the person or group who is speaking” and “able to evaluate the arguments to which they are being subjected.” Citizens United, 558 U.S. at 368; see also NOM, 649 F.3d at 40 (“[P]romot[ing] the dissemination of information about those who deliver and finance political speech … encourag[es] efficient operation of the marketplace of ideas”); Madigan, 697 F.3d at 498 (disclosure “advance[s] the democratic virtues in informed and transparent public discourse without impairing other First Amendment values”). Laws like the Disclosure Act improve the democratic process by “help[ing] citizens make informed choices in the political marketplace.” Citizens United, 558 U.S. at 367 (quoting McConnell, 540 U.S. at 197 (internal quotation marks omitted)).

C. The Disclosure Act Is Constitutional

Relying on this reasoning, the Supreme Court held in McConnell and Citizens United that BCRA’s disclosure requirements were substantially related to the public’s interest “in knowing who is speaking about a candidate shortly

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before an election,” Citizens United, 558 U.S. at 369, and thus were constitutional. Those precedents require the same conclusion with respect to the Disclosure Act, which was modeled after BCRA.

Like the Disclosure Act, BCRA requires any organization that spends more than a threshold amount on “electioneering communications” to disclose the names - 32 - and addresses of contributors who gave more than a certain amount. 2 U.S.C. § 434(f)(1), (2); 15 Del. C. §§ 8031(a), 8002(27). Like the Disclosure Act, BCRA defines “electioneering communication” to include all communications by specified media that refer to a clearly identified candidate for office and are made within 60 days of a general election or 30 days of a primary. 2 U.S.C. § 434(f)(3)(A)(i); 15 Del. C. § 8002(10)(a). And, like the Disclosure Act, BCRA is tailored in various ways to ensure that it reaches no more broadly than necessary to achieve its purpose. E.g., 15 Del. C. § 8002(10)(b) (excluding membership communications, news articles or editorials, and communications promoting candidate forums); id. § 8002(10)(a) (excluding communications that are not proximate to an election); id. § 8002(25) (excluding signs smaller than 3 square feet); 2 U.S.C. § 434(f)(3)(A)(i), (B).

The Supreme Court upheld these provisions of BCRA against facial challenge in McConnell and against as-applied challenge in Citizens United. 11 The reasoning of McConnell and Citizens United accordingly apply in full to the Disclosure Act. The Act serves the same informational interest as BCRA: “providing voters with relevant information about where political campaign money comes from and how it is spent, so that voters can make informed choices in elections.” H.B. 300, Preamble. As eight Justices held in Citizens United, that informational interest is “alone … sufficient to justify” campaign-finance disclosure laws such as the Disclosure Act. 558 U.S. at 369. The Disclosure Act serves that interest in the same manner as BCRA. The Act informs the public by requiring those “attempting to influence … elections to ‘disclose their identity and efforts in a manner that allows voters to evaluate and measure the statements made by and interests of those third parties[.]’” Cf. McConnell, 540 U.S. at 198 (“BCRA’s disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections.” (quoting McConnell, 251 F. Supp. 2d at 237)).

Because the informational interest and the relationship between disclosure and that interest are so well-established, the State’s burden to provide additional evidence on these points is light. See Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 391 (2000) (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.”); National Ass’n of Mfrs. v. - 34 - Taylor, 582 F.3d 1, 15 (D.C. Cir. 2009) (Garland, J.); Canyon Ferry Rd. Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021, 1032 (9th Cir. 2009).12

In any event, uncontroverted evidence in the record supports the Delaware General Assembly’s determination that the Disclosure Act would help Delaware voters “make informed choices in elections.” H.B. 300, Preamble. The General Assembly heard how the prior law’s failure to require disclosure for election related communications that avoid express advocacy led to a barrage of such communications by groups that did not disclose their donors. See supra pp. 12- 14.13 The General Assembly concluded that contributor disclosure was needed for such communications so that voters could give them proper weight. As former Delaware Republican State Senator Liane Sorenson explained in a declaration below, “communications that mention candidates during the run-up to an election affect voting behavior,” and “if voters know who is funding political advertisements, that information affects their evaluation of the message.” JA121- 122, ¶¶14, 18.14 The Disclosure Act’s provisions are therefore directly related to the public’s interest in knowing who is funding election-related communications.

D. The Disclosure Act Is Constitutional As Applied To DSF’s Proposed “General Election Values Voter Guide”

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1. The proposed communications at issue here lie at the heart of the public’s interest in disclosure

Communications such as DSF’s General Election Values Voter Guide lie at the core of the “governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Citizens United, 558 U.S. at 367 (alteration in original). It is hard to see what could be more directly “election-related” than a “Voter Guide”—the point of which, by definition, is to guide citizens in casting their votes. See JA123, ¶31 (“Voter guides are typically intended to influence voter behavior, and they, in fact, generally do so. Otherwise, organizations would not go to the expense of producing them.”). DSF’s General Election Values Voter Guide displays this clearly. “The stakes couldn’t be higher this election,” it asserts. “Our hope is that on [Election Day], this Voter Guide will help you choose candidates who best represent your values.” JA61; see also JA123-124, ¶33-38 (“Many voter guides portray candidates’ positions in a positive or negative light depending on whether a candidate agrees with the organization’s views. Moreover, as the term “voter guide” conveys, they all provide information to inform the decisions that voters make when they cast their ballots.”). “The public has the same interest in knowing who is funding voter guides” as it does other communications, because “[d]isclosure enables voters to evaluate a voter guide’s portrayal of a candidate’s positions in light of the reputations and motives of those funding the guide,” JA123-124 ¶¶32-34.

By contrast, the advertisements in Citizens United promoted a “commercial transaction,” and the “issue ads” in WRTL urged listeners to call their U.S. Senators about a policy issue. Yet the Court held that disclosure laws could apply to both. See Citizens United, 558 U.S. at 368-369. This case lies at the core of the important governmental interests underlying disclosure laws. The public’s “interest in knowing who is speaking about a candidate shortly before an election,” id., is at its strongest when the “election-related” speech at issue is intended to inspire not a commercial transaction or phone call, but a vote.

2. DSF has not shown a reasonable probability of threats, harassment, or reprisals against its members

The Supreme Court has acknowledged “that public disclosure of contributions” may “deter some individuals who otherwise might contribute,” - 37 - Buckley, 424 U.S. at 68, but it has found that burden insufficient to justify invalidating a disclosure law, id. at 68-74; see also Family PAC v. McKenna, 685 F.3d 800, 806-807 (9th Cir. 2012); Madigan, 697 F.3d at 482. Indeed, courts have sustained disclosure requirements despite claims that plaintiffs will refrain altogether from speech if required to disclose their contributors:

We … take the [plaintiff] at its word that its donors are so adamant about remaining anonymous that subjecting it to the Illinois reporting requirements will deter it from engaging in its preferred form of public advocacy. That is regrettable, but it is the [plaintiff’s] and its donors’ choice to make. … While there is also a respected tradition of anonymity in the advocacy of political causes in this country, that tradition does not mean voters must remain in the dark about who is speaking about a candidate shortly before an election. Madigan, 697 F.3d at 498- 499 (internal quotation marks and citations omitted).

Instead, the Supreme Court has required plaintiffs claiming that disclosure will deter their speech to clear a much more demanding bar. The only circumstance in which the Supreme Court has found alleged “chilling” effects to outweigh the public interest in election-related disclosure is when the plaintiff can demonstrate, in an as-applied challenge, that there is “a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.” Citizens United, 558 U.S. at 370; see also Doe, 130 S. Ct. at 2821; Buckley, 424 U.S. at 74. Here, DSF expressly disclaimed that argument. See Pl.’s Responses and Objections to Defs.’ Discovery Requests (D. Ct. Dkt. No. 21-1) at 4.

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E.The District Court’s “Neutrality” Test Is Contrary To Supreme Court Precedent and Unworkable

As discussed above, the Supreme Court in McConnell and Citizens United upheld against both facial and as-applied constitutional challenges the very federal disclosure law upon which Delaware’s Disclosure Act was modeled. Those decisions control this case. The district court, however, declined to follow either precedent. Instead, the district court announced a requirement never before seen in the Federal Reporter or U.S. Reports: a constitutional exemption from disclosure for “presumably neutral” communications by “presumably neutral” groups. That vague standard directly conflicts with McConnell and Citizens United and would inject uncertainty into an area where the Supreme Court has demanded clear rules.

1. McConnell and Citizens United establish the constitutionality of disclosure requirements for the “entire range of electioneering communications”

The Supreme Court has recognized only one constitutionally mandated exemption from contributor disclosure requirements like those at issue here: disclosure is not required when there is “a reasonable probability that a group’s members would face threats, harassment, or reprisals if their names were disclosed.” Citizens United, 558 U.S. at 370; see also Doe, 561 U.S. at 200; Buckley, 424 U.S. at 74. The district court invented another: Disclosure requirements may not apply to “communicators” (such as 501(c)(3) groups) and “communications” (such as voter guides) that are “generally considered to be non- 39 - political” or “presumably neutral.” JA30-32. The court cited not one precedent for the proposition that such a “presumptive neutrality” exemption is constitutionally required. See id.

That lack of authority is unsurprising. The Supreme Court has already considered and rejected distinctions like the one drawn by the district court. In McConnell, the plaintiffs argued that Buckley confined the application of disclosure requirements to communications that constitute express advocacy. Br. for Appellants McConnell et al. 40-45, McConnell, 540 U.S. 93 (No. 02-1674). BCRA’s disclosure provisions were unconstitutional, the plaintiffs argued, because they extended beyond express advocacy to communications that merely “‘refer[]’” to a candidate. Id. at 44. The Court rejected that argument, holding that disclosure was constitutional for “the entire range of ‘electioneering communications.’” McConnell, 540 U.S. at 196.

In so holding, the Court “rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy.” McConnell, 540 U.S. at 194. Buckley’s “express advocacy limitation,” the Court explained, “was the product of statutory interpretation rather than a constitutional command.” Id. at 191-192; see also Citizens United, 558 U.S. at 369; WRTL, 551 U.S. at 474 n.7 (opinion of Roberts, C.J.); McConnell, 540 U.S. at - 40 - 190 (“the express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law”).

The plaintiffs in Citizens United sought to revive a similar distinction, this time relying on WRTL. As discussed above, WRTL limited the federal-law ban on independent expenditures using corporate general treasury funds to “express advocacy or its functional equivalent”—that is, messages that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” 551 U.S. at 469-470. In Citizens United, however, eight Justices rejected an attempt to extend WRTL’s “express advocacy” limitation to disclosure laws covering the same corporate expenditures. 558 U.S. at 368-369 (“Citizens United seeks to import a similar distinction into BCRA’s disclosure requirements. We reject this contention.”). The Court explained that disclosure laws can constitutionally reach a much broader range of communications than the expenditure limits at issue in WRTL because they are “a less restrictive alternative to more comprehensive regulations of speech.” Id. at 369.15

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Citizens United’s unsuccessful as-applied challenge relied on much the same reasoning as the district court offered below. Some of the communications at issue were advertisements for a documentary about then-presidential candidate Hillary Clinton. Citizens United claimed that the public’s “informational interest is inapplicable to Citizens United’s advertisements because they do not expressly or impliedly advocate a candidate’s election or defeat.” Br. for Appellant 51, Citizens United, 558 U.S. 310 (No. 08–205). Instead, the ads were intended simply to “promote a documentary movie … encouraging viewers to see [it] in the theater, purchase it on DVD, or download it through Video On Demand.” Id. at 15. For example, one of the ads—a mere ten seconds long—stated only that “[i]f you thought you knew everything about Hillary Clinton … wait ’til you see the movie,” followed by a link to the movie’s website. Id. at 8 n.1. Citizens United contended that, because the ads “only attempt to persuade viewers to see the film,” disclosure would not “help viewers make informed choices in the political marketplace.” Citizens United, 558 U.S. at 369.

The Supreme Court squarely rejected this attempt to narrow the public’s informational interest. The Court held that “[e]ven if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election.” Citizens United, 558 U.S. at 369.16

It is therefore settled law that disclosure can constitutionally reach beyond express advocacy or its functional equivalent. Citizens United, 558 U.S. at 369. Indeed, since Citizens United, every court of appeals to have considered the issue has rejected attempts to create a constitutional distinction between “issue discussion” and “express advocacy.”17 The public’s interest in knowing who is behind election-related speech is not limited to candidate-endorsed messages, attack ads, or some similar subset of election-related communications. To the contrary, this informational interest extends, and disclosure laws may therefore apply, to the “the entire range of ‘electioneering communications,’” McConnell, 540 U.S. at 194, including those that “merely mention a federal candidate,” Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 551-552 (4th Cir. 2012); see also McConnell, 540 U.S. at 194-196.

2. The Constitution does not require an exception for 501(c)(3) groups

The district court’s attempt to carve out an exemption for “presumably neutral” communicators likewise finds no support in precedent or constitutional principle. Whether or not a 501(c)(3) exemption would be permissible, 18 there is no basis in precedent for concluding that one is constitutionally required. In McConnell, the Supreme Court upheld BCRA’s disclosure provisions against a facial challenge even though that statute contains no exemption for 501(c)(3) groups. 540 U.S. at 194-196. After McConnell, when the Federal Election Commission tried to exempt 501(c)(3) groups by regulation, a federal district court invalidated the exemption. Shays v. FEC, 337 F. Supp. 2d 28, 125-128 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005). Although BCRA authorized the FEC to exempt communications from the definition of “electioneering communication,” it prohibited the FEC from exempting communications that “‘promote[],’” “‘support[],’” “‘attack[], or oppose[] a candidate,’” “‘regardless of whether the communication’” contains express advocacy. Id. at 125. The court found the FEC’s 501(c)(3) exemption arbitrary and capricious because “the [FEC] did not fully address whether the tax code … preclude[s] Section 501(c)(3) organizations from making” communications BCRA “requires be regulated.” Id. at 128.19 No court has imposed such an exemption as a matter of constitutional law.

3. The district court’s neutrality standard is impermissibly vague and unworkable

The district court’s “neutrality” standard itself suffers from a grave constitutional flaw. It would require state officials (and ultimately a reviewing judge) to probe the “neutrality” of both the speaker and its proposed communication. That is precisely the kind of vague, open-ended inquiry that the Supreme Court has rejected in the campaign-finance realm. See, e.g., Buckley, 424 U.S. at 79 (finding phrase “‘for the purpose of … influencing’ an election or nomination” to raise constitutional vagueness concerns). Buckley noted that a constitutional standard that requires an inquiry into distinctions like those between “discussion, laudation, general advocacy, and solicitation” would leave

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the speaker “wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.” Id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)). In WRTL, the Chief Justice similarly “decline[d] to adopt a test for as-applied challenges turning on the speaker’s intent to affect an election” or “the actual effect speech will have on an election or on a particular segment of the target audience.” 551 U.S. at 469 (controlling opinion of Roberts, C.J.). Vague tests produce inconsistent results, encourage litigation, and “typically lead to a burdensome, expert-driven inquiry,” which “may or may not accurately predict electoral effects.” Id. at 468-469.

The Disclosure Act’s definition of “electioneering communication,” by contrast, relies on concrete and objective criteria. The message must (1) be distributed by certain specified media (2) within a certain time period, (3) “[r]efer[] to a clearly identified candidate” for office, and (4) be publicly distributed to members of the electorate for that office. 15 Del. C. § 8002(10)(a). As the Supreme Court explained in describing the similar features of BCRA, “[t]hese components are both easily understood and objectively determinable.” McConnell, 540 U.S. at 194 (citing 2 U.S.C. § 434(f)).

Tellingly, even DSF, which prevailed under the “neutrality” standard announced in the district court’s March 31 opinion, rejected it in a subsequent status conference with the Judge. See JA205-206 (“This idea that we have to have some sort of neutral communication before the First Amendment attaches I think is very wrong. I don’t think the word ‘neutral’ is really what’s driving the Supreme Court’s concerns in this area.”); see also JA207 (district court stating “I understand - 46 - that plaintiff’s counsel doesn’t think neutrality is really what we’re supposed to be looking at[.]”). Instead, DSF claimed, “[t]he distinction in the case law is between advocating for candidates and advocating for issues.” JA205.

That distinction does exist “in the case law,” but only in the case law addressing limits on expenditures. See WRTL, 551 U.S. at 469-470. As noted above, the Supreme Court has repeatedly rejected that distinction in the disclosure context. See Citizens United, 558 U.S. at 369 (“[W]e reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.”); McConnell, 540 U.S. at 194 (rejecting “the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy”). Decisions of other courts of appeals confirm this reading: “Citizens United made clear that the wooden distinction between express advocacy and issue discussion does not apply in the disclosure context.” Madigan, 697 F.3d at 484. After Citizens United, “the position that disclosure requirements cannot constitutionally reach issue advocacy is unsupportable.” Human Life, 624 F.3d at 1016.20

4. The district court’s bases for dismissing Citizens United were erroneous

McConnell and Citizens United could not be clearer: Contributor disclosure laws like Delaware’s pass constitutional muster. Yet the District Court struggled 20 See also supra pp. 39-42. - 47 - with the “question … how to apply the guidance of Citizens United to the Act,” ultimately deciding to create a “neutrality” exemption out of whole cloth. JA29. The district court offered four perplexing bases for discounting Citizens United: “The court notes at this juncture that the Supreme Court’s [i] relatively terse discussion about disclosure in Citizens United [ii] is based in large measure on citations to its precedential opinions in Buckley and McConnell, [iii] neither of which were as-applied challenges and [iv] neither of which addressed a statutory regime as broadly constructed (and apparently construed) as the one at bar.” JA29. The first three observations are irrelevant; the last is simply incorrect.

First, whether or not Part IV of Citizens United is accurately described as “relatively terse”—it contains more than 1,600 words and occupies six pages in the U.S. Reports, 558 U.S. at 366-371—its length has no bearing on its precedential force. That Part describes the Court’s reasons for upholding BCRA’s disclosure requirements against Citizens United’s as-applied challenge and commanded the votes of eight Justices, as other courts of appeals have

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recognized. See, e.g., Free Speech v. FEC, 720 F.3d 788, 795 (10th Cir. 2013) (D.C. Circuit); NOM, 649 F.3d at 54-55 (First Circuit); Real Truth, 681 F.3d at 551-552 (Fourth Circuit); Madigan, 697 F.3d at 484 (Seventh Circuit); Human Life, 624 F.3d at 1016 (Ninth Circuit).

Second, that Citizens United’s reasoning was “based in large measure on citations to its precedential opinions in” other cases does not detract from the precedential force of Citizens United’s holding. The precedential effect of a Supreme Court holding does not depend on the nature of the decisions cited in the opinion.21 To the extent the district court’s pointed reference to the Supreme Court’s “precedential opinions in Buckley and McConnell,” id. (emphasis added), suggests that it viewed Part IV of Citizens United as non-precedential, that was plain error. Part IV was necessary to the judgment in Citizens United and is therefore a binding holding of the Court.22

Third, the District Court apparently thought it pertinent that neither Buckley nor McConnell was an as-applied challenge. JA29. It is unclear why that would be relevant; their holdings are nonetheless binding in later cases involving as applied challenges, as the Supreme Court’s reliance upon them in Citizens United, a decision addressing as-applied challenges, illustrates. See also, e.g., WRTL, 551 U.S. at 456-457. In any event, Citizens United itself was an as-applied challenge.

Fourth, contrary to the district court’s assertion, both McConnell and Citizens United did address “a statutory regime as broadly constructed,” JA29, as the Disclosure Act—namely BCRA, on which the Disclosure Act was modeled. It is not a coincidence that the Disclosure Act and BCRA use the same substantive criteria. The Delaware General Assembly was aware that Citizens United and McConnell had upheld BCRA’s disclosure provisions, see JA72-74, 116, 117-119 & nn.17, 21, and it heeded that guidance by enacting provisions very similar to the BCRA provisions at issue in those cases, see supra Part I.C.1.

The Disclosure Act provisions challenged here differ from BCRA in minor ways—for example, in their precise dollar thresholds, covered media, and definition of the relevant electorate. These reflect the Delaware General Assembly’s efforts to tailor the Act to the realities of state and local elections in a small state. See JA134-135, 137 ¶¶14-20, 35-37; JA125 ¶¶39-47; JA116 n.10 (testimony comparing thresholds to those of other similar states). None of these minor differences figured in the district court’s analysis. JA27-32.

Thus, the district court’s objections to the scope of the Disclosure Act would apply equally to BCRA. BCRA does not exempt “those communicators” or “communications” “generally considered to be non-political.” JA30. Rather, - 50 - BCRA covers any communication that “refers to a clearly identified candidate for federal office” and is broadcast within 60 days of a general election or 30 days of a primary, 2 U.S.C. § 434(f)(3)(A)—the same criteria used in the Disclosure Act, see 15 Del C. § 8002(10)(a) (“electioneering communication” “refers to a clearly identified candidate” and is publicly distributed within the same 60- and 30-day windows). Nor is BCRA confined to advertisements run by groups “‘hiding behind dubious and misleading names.’” JA30. Under the district court’s reasoning, then, these characteristics would make BCRA unconstitutional. That conclusion cannot be squared with Supreme Court precedent: Citizens United rejected by an 8-1 vote the claim that these criteria were too broadly drawn. 558 U.S. at 368-369.

5. The district court erroneously relied on a 40-year-old court of appeals decision

The district court also discounted Citizens United and McConnell based on a perceived conflict with Buckley v. Valeo—not the Supreme Court’s opinion in that case, but rather an unappealed portion of the D.C. Circuit’s 1975 opinion. See JA28-29 (citing Buckley v. Valeo, 519 F.2d 821 (1975)); see Buckley, 424 U.S. at 10 n.7. In the relevant portion of that opinion, the court of appeals, which upheld most of FECA’s disclosure provisions, invalidated one section

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as “unconstitutionally vague.” Buckley, 519 F.2d at 832. That provision, § 308, required an organization to “file reports … as if [it] were a political committee” upon the occurrence of any of the following circumstances: - 51 –

[The requirement] is activated—without any “expend[ing] [of] any funds” whatever—(1) by “any act directed to the public for the purpose of influencing the outcome of an election”; or (2) by “any material” “publishe[d] or broadcast[] to the public” which “refer[s] to a candidate (by name, description, or other reference)” and which (a) “advocate[es] the election or defeat of such candidate,” or (b) “set(s) forth the candidate’s position on any public issue, his voting record, or other official acts (in the case of a candidate who holds or has held Federal office),” or (c) is “otherwise designed to influence individuals to cast their votes for or against such candidate or to withhold their votes from such candidate.” Id. at 870 (all but first alteration in original).

This expansive requirement differs from the challenged provisions of the Disclosure Act in fundamental ways.

First, § 308 suffered from the same sort of unclear drafting that Supreme Court’s Buckley opinion identified. Section 308 applied to “any act directed to the public for the purpose of influencing the outcome of an election,” id. at 869, using language almost identical to the “for the purpose of … influencing” formulation the Supreme Court later found to raise constitutional vagueness concerns. Buckley, 424 U.S. at 79, 80. The court of appeals understandably found that this “purpose” clause lacked the “precision essential to constitutionality.” Buckley, 519 F.2d at 877-878. By contrast, the Supreme Court has described the definition of “electioneering communication” in BCRA, on which the Disclosure Act was modeled, as “both easily understood and objectively determinable.” McConnell, 540 U.S. at 194 (citing 2 U.S.C. § 434(f)).

Second, § 308 was not limited to expenditures proximate to an election. The Supreme Court’s later holding that the public has an interest “in knowing who is speaking about a candidate shortly before an election” therefore would not have applied to § 308. Citizens United, 558 U.S. at 369. By contrast, the Disclosure Act (like BCRA, which Supreme Court upheld) is limited to communications made within 30 days of a primary or 60 days of a general election.

Third, § 308 required a group that engaged in covered activity to “file reports with the [Federal Election] Commission as if such person were a political committee.” Buckley, 519 F.2d at 870 (quoting 88 Stat. 1279) (emphasis added). Then, as today, political-committee status meant ongoing quarterly reporting, regardless of whether the organization engaged in any election-related activity, as well as an array of additional, detailed requirements. See, e.g., 88 Stat. 1276; 2 U.S.C. § 434(a)-(b) (quarterly and other ongoing reports, including reporting of cash on hand and debts); id. § 432(h) (governing use of bank accounts); id. § 433 (statements of organization and termination requirements). Under the Disclosure Act, by contrast, electioneering communications do not transform an organization into a “[p]olitical committee.”23 Nor are the Disclosure Act’s requirements comparable to those imposed upon political committees under Delaware law. The Disclosure Act requires a covered group to file a report only when it expends a certain amount on covered communications. See 15 Del. C. § 8031(a). Political committees, by contrast, are subject to an array of additional obligations: They (a) must file ongoing reports as long as they are in existence, without regard to whether they engage in election-related activity, 15 Del. C. § 8030(a); (b) must report a host of detailed information that need not be disclosed by groups only making electioneering communications;24 (c) cannot receive contributions of over $50 in cash, id. § 8012(a); (d) can make expenditures only for certain enumerated purposes, id. § 8020; and (e) can be dissolved only in accordance with statutory requirements, id. § 8022.25

The challenged Disclosure Act provisions bear little resemblance to FECA § 308, a vaguely drafted, far-more-burdensome provision invalidated by the D.C. Circuit in 1975. Forced to choose between Citizens United, a recent Supreme Court decision upholding a similar federal law, and Buckley, a forty-year-old, out- of-circuit court of appeals decision invalidating a dissimilar law, the district court chose incorrectly.

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F. The District Court Erred by Finding a Likelihood of Success Based on “Presumed” Facts

The district court asserted that the constitutionality of disclosure turns on the “neutrality” of the communicator and the communication. See JA30-32. But the court did not actually find that DSF and its proposed voter guide were neutral, or even that DSF was likely to prevail on those questions. Instead, the district court stated merely that the voter guide was a “presumably neutral” communication and that DSF was a “presumably neutral” communicator, while conceding that those “factual underpinnings for its decision ha[d] not been specifically challenged or vetted through discovery.” JA31-32. Appellants promptly sought, but were denied, discovery to test the truth of these “presumed” facts.26

Even if its unprecedented “neutrality” rule were correct, the district court erred in granting a preliminary injunction based on presumed facts. “As a prerequisite to the issuance of an interlocutory injunction, the moving party must show a clear right to relief.” Charles Simkin & Sons, Inc. v. Massiah, 289 F.2d 26, 29 (3d Cir. 1961) (emphasis added). Here, Defendants disputed the purported neutrality of both DSF and its voter guide, see Transcript of Oral Arg. (D. Ct. Dkt. No. 42) at 64 ll.14-18; JA201-202, 209-211, facts that were dispositive to the decision. The district court failed to resolve the factual issues that it identified as the premise of its newly announced rule.

Moreover, even if these “presumed” facts could be construed as factual findings, the district court erred in discerning “neutrality” based on intuition, not evidence. As this Court has explained, “[t]he law does not take judicial notice of matters of ‘common sense,’ and common sense is no substitute for evidence. A preliminary injunction may not be based on facts not presented at a hearing, or not presented through affidavits, deposition testimony, or other documents, about the particular situations of the moving parties.” Adams v. Freedom Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000). The district court cited no record evidence to bolster its impression that the Voter Guide was neutral. In fact, the record contained evidence tending to show that the Guide was not neutral. A declaration submitted by the former Minority Leader of the Delaware Senate, Senator Liane Sorenson, pointed out several features of DSF’s Voter Guide that could be perceived as - 56 - taking sides. See JA124, ¶¶35-37.27 See also supra pp. 18-19. On this record, the granting of a preliminary injunction was an abuse of discretion.

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT DSF HAD ESTABLISHED THE REQUIRED NON-MERITS FACTORS

The district court addressed the remaining non-merits factors in all of two sentences. See JA32. Its cursory analysis contained several independent grounds for reversal.

A. DSF Did Not Establish A Likelihood of Irreparable Injury

In the First Amendment context, as elsewhere, a movant must satisfy “the traditional prerequisites for injunctive relief,” including irreparable injury. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). The district court offered one sentence of analysis on the irreparable-injury prong, JA32, “[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction.” 11A Wright et al., Federal Practice & Procedure § 2948.1 (3d ed. 2013). Its opinion quoted this Court’s decision in Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989), for the “well established” proposition “that ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Id. at 72 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see JA32.

The district court did not quote Hohe’s further clarification that the mere “assertion of First Amendment rights does not automatically require a finding of irreparable injury. … Rather the plaintiffs must show ‘a chilling effect on free expression.’” Hohe, 868 F.2d at 72-73 (quoting Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (emphasis added) (citation omitted)). This is not a case where denying a preliminary injunction would require DSF to run the risk of criminal

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prosecution in order to speak. Cf. Dombrowski, 380 U.S. at 486-487. The requisite “chilling effect,” therefore, does not necessarily follow from application of the law during the litigation. As the Supreme Court has repeatedly explained, disclosure requirements, unlike expenditure limits, “do not prevent anyone from speaking.” Citizens United, 558 U.S. at 366; McConnell, 540 U.S. at 201 (same).

DSF made no attempt to explain to the district court why it could not speak while complying with the Act during this litigation. DSF offered only the unexplained claim that it will be that it would be “forced into self-silence” if the Act were not enjoined. Pl.’s Br. in Support of Mot. for Prelim. Injunction (D. Ct. Dkt. No. 28) at 16. DSF did not explain why that “self-silence” would be “forced,” rather than the product of its own choice. “Not surprisingly, a party may not satisfy the irreparable harm requirement if the harm complained of is self- 58 - inflicted.” Wright et al., Federal Practice & Procedure § 2948.1. That principle makes sense: If a threat to “self-silence” sufficed, every First Amendment plaintiff could obtain a preliminary injunction without making a concrete showing of likely irreparable injury. That contravenes this Court’s statement that a First Amendment plaintiff must establish “the traditional prerequisites for injunctive relief.” Anderson, 125 F.3d at 164.

DSF offered no evidence that it would be harmed in any way by donor disclosure, and objected “to the relevance of” Appellants’ discovery requests seeking such evidence.28 The Disclosure Act imposes modest filing and recordkeeping obligations, but those incidental burdens do not suffice: “[I]t is the direct penalization, as opposed to incidental inhibition, of First Amendment rights which constitutes irreparable injury.” Hohe, 868 F.2d at 73 (emphasis added) (internal quotation marks and brackets omitted). Nothing in the record tended to show that DSF could not engage in its desired speech while complying with the Act.

B. DSF Did Not Establish The Balance-Of-Harms Or Public-Interest Factors

The last two factors of the preliminary-injunction standard call for a court to verify “that granting preliminary relief will not result in even greater harm to the nonmoving party” and “that the public interest favors such relief.” Minard Run Oil Co., 670 F.3d at 249-250. These two factors “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). T

he district court, in its one-sentence of analysis on this prong, found that “defendants’ interest in public disclosure [could not] withstand the public’s interest in protecting their privacy of association and belief.” JA32 (emphasis added). That misstates the applicable legal standard. Because the defendants are public officers sued in their official capacities, “defendants’ interest in public disclosure” is “the public’s interest.” See Nken, 556 U.S. at 435. It is the public’s interest in the enforcement of state law that must be weighed against DSF’s private interest in avoiding the required disclosures. This misstatement of law was plain error.

The district court also misperceived the concrete interests at stake. The preliminary injunction threatens to create uncertainty about the scope and enforceability of the Disclosure Act and deprive the public of the information the Act provides—information the Supreme Court has found “enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Citizens United, 558 U.S. at 371. On the other side of the ledger is only DSF’s conclusory threat to “self-silence”; DSF has not provided evidence of any concrete harm that would actually result if it complied with the law while publishing its General Election Voter Guide.

CONCLUSION

The district court’s order should be reversed.

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APPELLE/RESPONDENT BRIEF

DELAWARE STRONG FAMILIES

ARGUMENT

I. Standard of Review

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Def. Council, 555 U.S. 7, 20 (2008) (citations omitted). The Third Circuit “review[s] an order granting a preliminary injunction for abuse of discretion, the factual finding for clear error, and the determinations of questions of law de novo.” Bennington Foods LLC v. St. Croix Renaissance Group, LLP, 528 F.3d 176, 178 (3d Cir. 2008). This Court “review[s] a district court’s rulings regarding the scope and conduct of discovery for abuse of discretion.” Mirarachi v. Seneca Specialty Ins. Co., No. 13-2347, 2014 U.S. App. LEXIS 8016 at 5 (3d Cir. Apr. 29, 2014) (citing Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1310 (3d Cir. 1995)).

II. The district court correctly found that DSF has established a likelihood of success on the merits.

A. Because compelled disclosure infringes upon the freedom of association, disclosure laws are subject to exacting scrutiny.

The Supreme Court has long held that “‘[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association….” NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958). It is equally true that “[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association…” Id. at 462.

When government power is used to compel an organization to reveal its financial supporters, it is not an incidental violation of these freedoms. Rather, as seventy years of jurisprudence teaches, compelled disclosure imposes “a significant encroachment upon personal liberty.” Bates v. City of Little Rock, 361 U.S. 516, 524 (1960) (collecting cases); Buckley, 424 U.S. at 66 (“compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights”). There is a “vital relationship between freedom to associate and privacy in one’s associations.” NAACP, 357 U.S. at 462.

To protect against unconstitutional infringement of associational freedom, the Supreme Court has required that government efforts to compel disclosure survive exacting scrutiny. Under exacting scrutiny, it is not enough that the government make a “mere showing of some legitimate governmental interest.” Buckley, 424 U.S. at 64. When “‘protected rights of political association’” are involved, a state’s disclosure laws may only “‘be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.’” McCutcheon, 134 S. Ct. at 1444 (quoting Buckley, 424 U.S. at 25) (additional citations omitted). The State asserts that exacting scrutiny is “a more lenient constitutional standard.” App. Br. at 28. But exacting scrutiny is “not a loose form of judicial review,” but rather a “rigorous standard” which disclosure laws may not easily survive.

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Wisc. Right to Life v. Barland, 2014 U.S. App. LEXIS 9015 at 101 (citing McCutcheon, 134 S. Ct. at 1456-57); see also Buckley, 424 U.S. at 29.

i. The Supreme Court has required governments to demonstrate that their disclosure statutes are closely drawn to a sufficiently important interest.

In the 1950s and 1960s, the Supreme Court heard a series of donor disclosure cases when various states sought the membership lists of the NAACP and its chapter organizations. The Court repeatedly found that the First Amendment prevented the states from obtaining this information. These cases laid the foundation for the modern understanding of exacting scrutiny and the constitutional mandate that governments closely tailor disclosure statutes to a properly pled government interest.

Freedom of association must be protected “not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference” such as disclosure requirements (and attendant sanctions for failure to disclose). Bates, 361 U.S. at 523. Accordingly, the civil rights era Court prohibited states from obtaining personal data on donors where those governments failed to “demonstrate the compelling and subordinating governmental interest essential to support direct inquiry” into those records. Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 557 (1963); see also Bates, 361 U.S. at 525 (finding “no relevant correlation between” the government interest asserted “and the compulsory disclosure and publication of the membership lists”).

ii. In the seminal Buckley v. Valeo case, the Supreme Court applied exacting scrutiny to protect organizations engaged in issue speech from burdensome disclosure.

Buckley v. Valeo is the starting point for all campaign finance jurisprudence in the modern era. JA 11 (“The court starts its review of [campaign finance precedent]…with the decision in Buckley”); McCutcheon, 134 S. Ct. at 1444 (applying Buckley to challenge to aggregate contribution limits). In Buckley, the Court examined the interplay between government efforts to compel disclosure of campaign contributor data and the First Amendment’s robust protections of speech and association. Buckley concerned provisions of the Federal Election Campaign Act (“FECA”) which required “political committees” to disclose contributor data to the federal government for publication—but a “political committee” was defined merely as an association making contributions or expenditures above a threshold amount. 9 Id. at 79.

The Buckley Court began its disclosure analysis by noting that “[s]ince NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny.” Id. at 64 (emphasis supplied), JA 12 (citing same). Buckley “insist[ed] that there be a relevant correlation or substantial relation between the governmental interest and the information to be disclosed.” Id. 26 Under exacting scrutiny, the Court determined that the definition of “political committee” was vague because it “could be interpreted to reach groups engaged purely in issue discussion.” Id. at 79. Accordingly, in order to make a “proper fit” between the statute as written and the governmental interests FECA implicated, the Court promulgated the so-called “major purpose” test. Id. The “major purpose” test is straightforward: the government may compel contributor information from “organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.” Id. In this context, as the district court correctly noted, such an organization’s expenditures “are, by definition, campaign related.” Id., see also JA

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14-15 (quoting Buckley, 424 U.S. at 79-80) (“‘This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate’”).

In the context of an organization without “the major purpose” of supporting or opposing a candidate, which is the case here, the Buckley Court deemed disclosure constitutionally appropriate only:

(1) when [organizations] make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when [organizations] make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate. Buckley, 424 U.S. at 80.

The Court narrowly defined the term “expressly advocate” to encompass only “express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [and] ‘reject.’” Id., n. 108, incorporating by reference id. at 44, n. 52. The Court declared that these instances have a “substantial connection with the governmental interests” in disclosure. Id. at 81.

iii. McConnell v. FEC did not diminish the First Amendment’s robust protection of genuine issue speech.

In 2002, Congress passed BCRA, the first major expansion of federal political speech regulation since the 1974 FECA amendments. Like FECA, BCRA immediately faced constitutional challenges. McConnell, 540 U.S. at 132 (noting eleven such challenges to BCRA’s enactment).

While BCRA provided for many regulatory changes, the “relevant analysis to the issues at bar includes the Court’s review of” BCRA’s definition of an “electioneering communication.” JA 16. The law defined such a communication as “any ‘broadcast, cable, or satellite communication’ that…‘refers to a clearly identified candidate for Federal office’” which is made within 60 days of a general election or 30 days of a primary election and “‘is targeted to the relevant electorate.’” McConnell, 540 U.S. at 189-190 (quoting 2 U.S.C. § 434(f)(3)(A)(i)); JA 16 (citing same). Under BCRA, “targeted to the relevant electorate” means that “the communication can be received by 50,000 or more persons” in the relevant jurisdiction. 2 U.S.C. § 434(f)(3)(C).

This new statutory creature was a response to the rise of “sham issue advocacy,” or “candidate advertisements masquerading as issue ads.” McConnell, 540 U.S. at 132 (quotations and citations omitted). Explicit in the McConnell opinion is a belief that “the vast majority of ads” which would be regulated as electioneering communications “clearly had” an “electioneering purpose.” Id. at 206. This is likely because, before the passage of BCRA, campaigns began running broadcast advertisements which, rather than “urg[ing] viewers to ‘vote against Jane Doe,’” simply “condemned Jane Doe’s record on a particular issue before exhorting viewers to ‘call Jane Doe and tell her what you think.’” Id. at 127. “Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.” Id. The Court, appropriately enough, referred to such ads as “so-called” or “sham issue advocacy,” as these “issue” ads’ true purpose was to advocate for the election of some candidates at the expense of others. Id. at 126, 132, 185.

This electioneering communication definition survived a facial challenge. Id. at 194; see also McConnell v. FEC, 251 F. Supp. 2d 176, 573 (D.D.C. 2003) (KollarKotelly, J.) aff’d in part, rev’d in part, 540 U.S. 93 (“the definition of electioneering communication [was]…narrowly tailored to only the communication media that was problematic”) (emphasis supplied). But McConnell did not provide a blank check to would-be regulators to force disclosure of all financial supporters of any issue communication—to do so would have been to overrule Buckley. Instead, the Court took

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care to make certain that genuine issue speakers could still raise as-applied challenges to BCRA’s electioneering communications regime. McConnell, 540 U.S. at 206, n. 88 (“We assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads”); id. at 207 (noting the “heavy burden” involved in bringing a successful facial challenge); see also JA 18 (discussing same).

iv. FEC v. Wisconsin Right to Life further protects genuine issue speakers discussing candidates shortly before an election.

Four years after McConnell, a nonprofit corporation, Wisconsin Right to Life (“WRTL”), challenged the presumption that ads aired shortly before an election are generally the functional equivalent of express advocacy. WRTL II, 551 U.S. at 458.10

WRTL successfully challenged BCRA’s ban on corporate-sponsored electioneering communications as applied to broadcast communications that were genuine issue speech, yet still mentioned a candidate for office. Id. at 482; JA 19. WRTL II authoritatively set out the difference between issue advocacy and “the functional equivalent” of express advocacy. Id. at 461. In so doing, the Court refused to “adopt a test…turning on the speaker’s intent to affect an election,” as “analyzing the question in terms ‘of intent and effect’…would afford ‘no security for free discussion.’” Id. at 467-68 (Roberts, C.J., controlling op.) (quoting Buckley, 424 U.S at 43); JA 20 (discussing same). Therefore, the Court concluded that the proper analysis must “objective[ly] focus[] on the substance of the communication.” Id. at 469 (citing Buckley, 424 U.S. at 43-44). To be the functional equivalent of express advocacy, a communication—within its four corners—must be “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id. at 470.

v. Applying exacting scrutiny, Citizens United upheld a limited disclosure provision as applied to a specific film and “pejorative” advertisements for that film.

Eventually, in Citizens United, the Court struck down the ban on corporate and union independent expenditures. 558 U.S. at 372. In so doing, it upheld BCRA’s electioneering communication disclosure and disclaimer requirements. Id. The particular facts and analysis of that case, however, matter.

There, a nonprofit corporation produced a film called Hillary: The Movie (“Hillary”) and several advertisements to promote the film. Id. at 319-20. Key to the Court’s resolution of the case was whether Hillary and its supporting advertisements were express advocacy or its functional equivalent. Id. at 324-25. “Applying an objective test to determine whether Hillary was the functional equivalent of express advocacy, the Court found [applying WRTL II] that there was ‘no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton.’” 11 JA 22 (citing Citizens United, 558 U.S. at 326). Turning to the advertisements, it held that “[t]he ads fall within BCRA's definition of an ‘electioneering communication’” because “[t]hey referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy.” Id. at 368 (emphasis supplied).

One ad began with a “kind word about Hillary Clinton,” and after complimenting Mrs. Clinton’s fashion sense, announced that Hillary: The Movie was “a movie about everything else.” Citizens United v. FEC, 530 F. Supp. 2d 274, 276, n. 3 (D.D.C. 2008). Another ad claimed Senator Clinton was “the closest thing we have in America to [a] European socialist.” Id., n. 4. These “pejorative” advertisements were electioneering communications. Citizens United, 558 U.S. at 368.

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But Citizens United had virtually no discussion of BCRA’s disclosure provisions, except for a “relatively terse” section at the end of Justice Kennedy’s majority opinion. JA 29; See Citizens United, 558 U.S. at 368-71; Barland, 2014 U.S. App. LEXIS at 52 (observing that “this part of the [Citizens United] opinion is quite brief”).

As discussed supra, unlike the Act, BCRA is not a system of generalized donor disclosure. Rather, “any corporation spending more than $10,000 in a calendar year to produce or air electioneering communications must file a report with the FEC that includes—among other things—the names and addresses of anyone who contributed $1,000 or more in aggregate to the corporation for the purpose of furthering electioneering communications” made “since the first day of the preceding calendar year.” Citizens United, 530 F. Supp. 2d at 280 (emphasis supplied) (citations omitted); 11 C.F.R. § 104.20(c)(9).

Pursuant to NAACP and Buckley, the Court “subjected these [disclosure] requirements to exacting scrutiny, which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Citizens United, 558 U.S. at 366-367. “[W]ithout much comment,” the Court determined that “the informational interest justifie[d]” application of BCRA’s disclosure mandate to Hillary and its ads. Barland, 2014 U.S. App. LEXIS at 54; Citizens United at 368- 369, 370. While “the Court declined to apply the express-advocacy limitation to the federal disclosure…requirements for electioneering communications…[t]his was dicta. The Court had already concluded that Hillary and the ads promoting it were the equivalent of express advocacy.” Barland, 2014 U.S. App. LEXIS at 87 (citations omitted). Indeed,

[l]ifting the express-advocacy limitation more broadly would have been a major departure from Buckley and is not likely to have been left implicit. Citizens United approved event-driven disclosure for federal electioneering communications—large broadcast ad buys close to an election. In that specific and narrow context, the Court declined to enforce Buckley's express-advocacy limitation, but it went no further than that. Id. at 89.

While “we pay due homage to the Supreme Court’s well-considered dicta as pharoi [Roman lighthouses] that guide our rulings,” it is far from clear that this dictum is so well-considered.12 IFC Interconsult, AG v. Safeguard Int’l Partners, 438 F.3d 298, 311 (3d Cir. 2006); JA 29 (noting the “relative[] terse[ness]” of Citizens United’s disclosure discussion); see also McCutcheon, 134 S. Ct. at 1445 34 (declining to be bound by “one paragraph” in the Buckley Court’s “139-page opinion”).

In any event, even taking the Court’s dicta as law, the Act goes much farther than BCRA. As noted previously, BCRA’s sponsors marshaled a lengthy legislative record to demonstrate the harm posed by sham issue ads. The Act’s sponsors failed to do anything of the kind regarding nonpartisan voter guides, especially those distributed via the Internet or U.S. Postal Service, and especially when the guides include an appropriate disclaimer to inform readers of their authorship.

Moreover, the Act captures far more speech than BCRA—evidenced alone by the fact that, despite mentioning federal candidates, DSF’s voter guide could not be regulated as an electioneering communication under federal law. Finally, the Act requires DSF to turn over the names and addresses of contributors going back as far as four years—not the single calendar year BCRA contemplates. The chart below illustrates these differences.

BCRA The Act

Covered Media Limited to “broadcast, cable or satellite communication.” 2 U.S.C

Covers non-broadcast media such as signs, mail, and telephone calls. 15 Del. C. § 8002(10)(b)(1)(exempting

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434(f)(3)(A)(I) anything that is not “communications media,” which is defined as “television, radio, newspaper or other periodical, sign, Internet, mail or telephone” by 15 Del. C. § 8002(7)).

Targeting Limitation Only advertisements that “can be received by 50,000 or more persons” in the relevant jurisdiction. 2 U.S.C. § 434(f)(3)(C).

No such limitation. If the “audience…includes [any] members of the electorate for the office sought,” then it is a covered communication. 15 Del. C. § 8002(1)(a)(2).

BCRA The Act

Triggering Threshold $10,000 in the aggregate (over one year). 2 U.S.C. § 434(f)(1).

Only $500. 15 Del. C. § 8031(a).

Disclosure Period Preceding calendar year. 11 C.F.R. 104.20(c)(9).

Up to four years. 15 Del. C. §§ 8031(a)(3) (report disclosure per election period), 8002(11)(d) (defining election period for third party advertisements).

Donor Disclosure Threshold for Corporate Speakers

Names and addresses of contributors who give $1,000 or more, in the aggregate, where such contributions are “made for the purpose of furthering electioneering communications.” 2 U.S.C. §§ 434(f)(2)(E) and (F); 11 C.F.R. § 104.20(c)(9).

Names and addresses of all contributors to the organization giving, in aggregate, $100 during the relevant disclosure period. 15 Del. C. § 8031(a)(2).

Legislative Record Documented history of abuse via “sham issue ads;” legislative response tailored to address that abuse. See McConnell, 540 U.S at 126-29 (describing “sham issue ads” and avoidance of using express advocacy); id. at 130 (citing Senate reports detailing problem).

No record documenting intention to cover nonpartisan voter guides; some history of attempting to resolve “sham issue ads,” but no tailoring analysis for voter guides and other issue advocacy. No record analysis justifying regulation of Internet communications. See Delaware Elections Disclosure Act, 78 Del. Laws c. 400 Preamble (2012) (H.B. 300); App. Br. at 13 (citing same).

At most, Citizens United stands for the proposition that states may demand disclosure of the direct funders of communications that are not the functional equivalent of express advocacy. See 558 U.S. at 366-370. But it does not automatically follow that the State may then regulate all speech about candidates near election time merely by asserting some governmental interest, nor that it may demand all donors to an organization regardless of their connection to the communication in question. This would excise the word “exacting” from “exacting scrutiny.”

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vi. Exacting scrutiny requires the government to justify its regulation. A Plaintiff need not demonstrate threats, harassment or reprisal to avoid compulsory, generalized donor

disclosure as a condition of engaging in issue speech.

Under exacting scrutiny, the burden is on “the State [to] demonstrate[] a sufficiently important interest and employ[ment of a] means closely drawn to avoid unnecessary abridgement of associational freedoms.” McCutcheon, 134 S. Ct. at 1444 (citing Buckley, 424 U.S. at 25).

The Supreme Court has consistently denied government efforts to compel disclosure even when “state scrutiny,” as opposed to general publication, was at issue. NAACP, 357 U.S. at 466. This is contrary to the State’s suggestion that challengers of compelled disclosure laws must demonstrate “a reasonable probability” of “threats, harassment, or reprisals,” App. Br. at (internal citations omitted). Instead, the civil rights era Court also struck down untailored disclosure laws with no evidence that speakers would suffer threats, harassments, or reprisals if their information were publicized. See, e.g., Talley v. California, 362 U.S. 60, 69 (Clark, J., dissenting) (“[t]he record is barren of any claim, much less proof, that [Talley] will suffer any injury whatever…”) (citations and quotations omitted).

The district court noted that Buckley declined to exempt minor parties and independent PACs from disclosure unless those entities faced a “‘reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.’” JA 13 (quoting Buckley, 424 U.S. at 74). But Buckley did not require a showing of threats, harassments, or reprisals as a general matter. Rather, it merely provided that such evidence may be necessary to evade the disclosure laws as limited to parties or PACs—entities with a major purpose of express advocacy. See Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 101 (1982). This accorded with case law from the NAACP era. The Supreme Court has never made such a demonstration a precondition to successfully demonstrating the unconstitutionality of a disclosure law as applied to an issue speaker. Talley, 360 U.S. at 67.

vii. The district court’s reliance on the en banc D.C. Circuit opinion in Buckley v. Valeo was sound.

Forty years ago, the en banc D.C. Circuit rejected the federal government’s effort, in the name of campaign finance disclosure, “to embrace virtually all political communications and communicators” within its regulatory purview. JA 28. Yet, the State argues that the district court “erroneously relied on a 40-year-old court of appeals decision.” App. Br. at 50. Of course, there is no serious understanding of judicial review which vitiates reliance on an opinion merely because of its age. Nor is there any judicial canon which prevents a court from relying on out-of-circuit precedent when such precedent is directly on point.

Only one provision from the Buckley plaintiffs’ comprehensive challenge to FECA never made its way to the Supreme Court. This is because that provision was facially invalidated and “[n]o appeal [w]as…taken from that holding.” Buckley, 424 U.S. at 11 n. 7.

The offending provision was 2 U.S.C. § 437a, which provided that:

Any person (other than an individual) who expends any funds or commits any direct directed to the public for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public any material relating to a candidate (by name, description, or other reference), advocating the election or defeat of such candidate, setting forth the candidate’s position on any public issue, his voting record, or other official acts…or otherwise designed to

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influence individuals to cast their votes for or against such candidate or to withhold their votes from such candidate shall file reports with the [FEC] as if such person were a political committee.

Id. at 869-870 (citing 2 U.S.C. § 437a (repealed by Pub. L. 94-283, § 105 (May 11, 1976))

“Dissecting the statutory language,” it was clear that the law applied to “‘any material ‘published or broadcast[] to the public’” which named a candidate and discussed the candidate’s record or public positions. The D.C. Circuit case in question is Buckley v. Valeo, 519 F.2d 821, 870 (D.C. Cir. 1975) (en banc). In invalidating the law, the en banc Court observed with substantial understatement that such a regulatory scope “is potentially expansive.” Buckley, 519 F.2d at 870.

The en banc Court of Appeals noted that although the New York Civil Liberties Union was “forbidden by the constitution and policies of its parent body from endorsing or opposing any candidate for public office,” the “organization also publicizes…the civil liberties voting records, positions[,] and actions of elected public officials, some of whom are candidates for federal office.” 519 F.2d at 871. Under FECA, the New York Civil Liberties Union’s public discussions of civil 40 liberties would suddenly trigger disclosure requirements, illustrating the provision’s far-reaching effects. Judge Edward Tamm, writing separately, said he could “hardly imagine a more sweeping abridgement of [F]irst [A]mendment associational rights. Section 437a creates a situation whereby a group contributes to the political dialog in this country only at the severest cost to their associational liberties. I can conceive of no governmental interest that requires such sweeping disclosure...” Buckley, 519 F.2d at 914 (Tamm, J., concurring in part, dissenting in part).

Thus, FECA § 437a explicitly sought the same scope of government power that the State claims here: namely, the right to regulate any speech, no matter how incidental to advocacy, if it merely mentions where a candidate stands on “any public issue.” Id. at 869. Yet, the State contests the application of the 1975 Buckley decision to this case on three grounds. We will take each in turn.

First, the State objects that § 437a “suffered from the same sort of unclear drafting that [the] Supreme Court’s Buckley opinion identified,” specifically the statute’s provision capturing any communication “designed to influence the electorate.” App. Br. at 51. (citation and quotation marks omitted).

But, in Buckley, the en banc Court was concerned that § 437a—were it as “easily understood and objectively determinable” as the Delaware Act—would still cover all speech about candidates “by groups whose only connection with the elective process arises from completely nonpartisan public discussion of issues of 41 public importance.” App. Br. at 51 (citations and quotations omitted); Buckley, 519 F.2d at 870. It is true that the Court invalidated § 437a on vagueness grounds. But this vagueness was fatal precisely because it created the potential for a reading of the law whereby virtually any communication discussing a candidate’s record would be covered by FECA and subject to invasive reporting requirements. That Delaware has eliminated the vagueness by explicitly reaching such communications is no answer to the D.C. Circuit's reasoning.

Second, the State correctly observes that § 437a “was not limited to expenditures proximate to an election.” App. Br. at 52. Thus, the State maintains that the en banc Court’s decision has been vitiated by “[t]he Supreme Court’s later holding that the public has an interest ‘in knowing who is speaking about a candidate shortly before an election.’” App. Br. at 52 (quoting Citizens United, 558 U.S. at 369). But that public interest is necessarily limited to those communications which constitute advocacy for or against a candidate, as the film and ads in Citizens United were found to be. 558 U.S. at 325, 368. By contrast, the en banc Court noted that imposing disclosure requirements upon communicators for “tak[ing] public stands on public issues” was impermissible under the First Amendment because “the

42

nexus” between such speech and any cognizable governmental interest “may be far more tenuous.” Buckley, 519 F.2d at 872.

Regardless of the time period, “issue discussions unwedded to the cause of a particular candidate…are vital and indispensable to a free society and an informed electorate. Thus the interest of a group engaging in nonpartisan discussion ascends to a high plane, while the governmental interest in disclosure correspondingly diminishes.” Buckley, 519 F.2d at 872. In fact, the en banc Court anticipated that much speech covered by § 437a would, in fact, occur close in time to an election, given that “[p]ublic discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records[,] and other official conduct.” Id. at 875-876 (emphasis supplied).

Finally, the State suggests that the burden imposed upon organizations regulated under § 437a was much greater than under the Act. But this is hardly clear. First, although the plain language of § 437a required regulated entities to file reports with the FEC “as if such person were a political committee,” those reports simply had to “set forth the source of funds used in carrying out any” activity which discussed a candidate for office. § 437a (emphasis supplied) This language is easily consistent with a construction limiting disclosure to persons earmarking funds for such communications—a construction which would anticipate the Buckley Court’s decision to limit disclosure by non-major purpose entities to only those persons giving directly for a communication, and a distinction that still exists in federal law.13

In any event, the district court did not treat the D.C. Circuit’s Buckley opinion as controlling precedent that rigidly dictates the outcome of this case. Rather, given the State's failure to identify a single case upholding a statute as broad as the Act, and the similarity of the provisions considered, the district court looked to Buckley for guidance after the case identified by the State, Center for Individual Freedom v. Tennant, 706 F.3d 270 (4th Cir. 2013), turned out to be unhelpful. The decision below is the result not of unthinking reliance on authority but on the district court’s mandate to apply exacting scrutiny to the facts before it: a nonpartisan, no advocacy communication that would trigger generalized donor disclosure reaching back four years. Given the options, the district court correctly decided that Buckley better fit those facts.

B. Exacting scrutiny requires an appropriate fit between the government’s asserted interest and the disclosure demanded.

The Act creates a new form of regulated speech under Delaware law, the “electioneering communication.” 15 Del. C. § 8002(10). But despite borrowing a term of art from BCRA, Delaware’s electioneering communications regime is broader and more invasive than its federal counterpart.

With both the Act and BCRA, the relevant concern was “sham issue advocacy” which patently advocated for and against particular candidates without explicitly exhorting the listener (and, under federal law it is always a listener,) to vote in a particular way. The State argues that the “Act serves the same informational interest as BCRA: ‘providing voters with relevant information about where political campaign money comes from and how it is spent, so that voters can make informed choices in elections.’” App. Br. at 32-33 (quoting Act’s Preamble). But “governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of the ordinance.” Bates, 361 U.S. at 525.

In district court, the State appended a series of declarations and exhibits to their opposition brief on the preliminary injunction motion. This addendum purported to demonstrate the legislative record justifying Delaware’s expansive law. But the State’s examples of advertisements prompting the passage of the Act merely suggest that

43

Delaware was interested in regulating the same type of “sham” issue advocacy that confronted Congress in 2002. JA 139-151. The State’s examples are all “candidate advertisements masquerading as issue ads.” McConnell, 540 U.S. at 132 (quotation marks and citation omitted), App. Br. at 13 (“In 2010, for example, 45 mailings by groups that hid their sources of funding were used to attack various candidates for the state legislature for their positions on taxes.”) No member of the legislature stated a belief that the law ought to cover nonpartisan voter guides, and at least one member of the legislature has reported that he would not have voted for it if he believed that it would. Lynn R. Parks, Group Asks Court to Put Campaign Finance Law on Hold, SEAFORD MORNING STAR, Mar. 27-Apr. 2, 2014, at 2 (stating that state Sen. Robert Venables “said that if he had the vote to do over again, he would not support [the Act]… [DSF] should have the right to say how [candidates] have voted on issues”) (final brackets in original).

Indeed, most of the State’s examples simply demonstrate the State’s interest in placing disclaimers on electioneering communications—perhaps the best way for a voter to quickly “‘evaluate and measure the statements made by’” a third party. App. Br. at 15 (quoting H.B. 300, Preamble); JA 139-151 (providing copies of sham issue advocacy only signed “P.O. Box 1180”). But DSF does not challenge the State’s disclaimer laws. JA 41-59.

i. The State overstates its interest in DSF’s contributor information.

The State appears to believe that any speech that is “election-related” may serve as the trigger for public donor disclosure. See App. Br. at 3 (“the public’s interest in knowing who funds election-related communications turns… on whether the communication is election-related”). Given that Delaware’s legislative record evidences no discussion of issue speech like DSF’s voter guide, it may be forced to reply upon this expansive understanding of a governmental interest. But doing so has led the State to stretch the case law beyond what it can reasonably bear.

For example, at oral argument, counsel for the State embraced a remarkable reading of McConnell and Citizens United, asserting that nonpartisan voter guides are accorded less constitutional protection than broadcast political ads. Tr. of Oral Argument on Mot. for Prelim. Injunction at 52. The State reiterates that argument on appeal. App. Br. at 35 (“It is hard to see what could be more directly ‘electionrelated’ than a ‘Voter Guide’—the point of which, by definition, is to guide citizens in casting their votes”).

The State’s reliance on an interest in “election-related spending” comes solely from language in the Citizens United opinion which—explicitly applying Buckley— affirmed that “disclosure could be justified based on a governmental interest” in publicizing “the sources of election-related spending.” Citizens United, 558 U.S. at 369. This passage explicitly cites to page 66 of the Buckley opinion, which anchors the informational interest in the electorate’s need to know the identity of a candidate’s supporters. Buckley, 424 U.S. at 66-67. As Buckley14, Mass. Citizens for 47 Life. v. FEC15, and WRTL II16 make abundantly clear, the Court has consistently limited “election related” speech to express advocacy of the election or defeat of a candidate, or its functional equivalent. Buckley specifically rejected the notion that what the State here calls “election-related” speech must be disclosed. Rather, Buckley quite clearly limited disclosure to organizations with a primary purpose of electing candidates, and “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” 424 U.S. at 80. At most, McConnell expands this to include a defined category of speech— “electioneering communications”—that is much narrower than what the State here defines as “electioneering communications” or now terms “election-related” speech.17

Nor can the State find solace in Citizens United. By referencing “electionrelated speech” the Citizens United Court could only have been discussing the examples of such speech in front of it. That is, speech which favors—or opposes—a candidate, as Hillary: The Movie or its associated “pejorative” advertisements did. Citizens United, 558 U.S.

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at 325, 369; see also Barland, 2014 U.S. App. LEXIS at 49 (characterizing Citizens United as “holding that Hillary and the ads promoting it were the functional equivalent of express advocacy”).

Quite aside from the lack of clear legal provenance, the State’s protestations of an expanded informational interest simply collapse upon cursory review. For example, the State claims that “[t]he public’s interest in knowing who is behind election-related speech…extends, and disclosure laws may therefore apply, to the ‘entire range of ‘electioneering communications’, including those that ‘merely mention a federal candidate.’” App. Br. at 42 (quoting McConnell, 540 U.S. at 94 and Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 551-552 (4th Cir. 2012)). But that is sophistry. As used by the Supreme Court, the “entire range of electioneering communications” is quite obviously the entire range of “electioneering communications” as defined by BCRA. But BCRA and the Act are two very different statutes. Reliance upon BCRA merely because both Delaware and the United States regulate a class of speech called “electioneering communications” is akin to a captain of the United States Army seeking to take command of a U.S. Navy vessel on the grounds that both services recognize the rank of “captain.”

Stuck with a legislative record that makes no mention of communications remotely like DSF’s, the State has chosen to create a new rule of its own: the public 49 interest extends to any communication that mentions a candidate and has any connection to an election. App. Br. at 42 (“The public’s interest in knowing who is behind election-related speech is not limited to candidate-endorsed messages, attack ads, or some similar subset of election-related communications”). Under the State’s reading of the available precedent, if a civic group merely distributed sample ballots a week before an election, the State would immediately obtain access to four years of contributor data from that organization and be able to place it on the Internet. That is not the law.18

ii. The State has failed to tailor its demands to its interest.

DSF concedes, as it always has, that the informational interest, properly understood, is a sufficiently important governmental interest. Citizens United, 558 U.S. at 369; see also App. Br. at 33. “But by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily sacrificing speech for efficiency.” McCullen v. Coakley. No. 12-1168, 2014 U.S. LEXIS 4499 at 37 (U.S. June 26, 2014) (citations, quotations, and brackets omitted). The Act fails to demonstrate this tailoring requirement, 19 as it is not “closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley, 424 U.S. at 25. Issue speech, such as DSF’s voter guide, simply does not “lie[] at the heart of the public’s interest in knowing who funds election-related speech.” App. Br. at 24. If it were, then government power could be employed to reveal the financiers of virtually any non-partisan get-out-the-vote efforts that make even passing references to candidates. Compare DSF’s 2012 Voter Guide (“The stakes couldn’t be higher this election”) with P. Diddy Announces Campaign to Make Voting “Sexy,” MTV.COM (July 20, 2004), http://www.mtv.com/chooseorlose/voter101/news.jhtml ?id=1489561.

The State misses this point, and makes much of the Citizens United Court’s description of the ads for Hillary: The Movie as being for a “commercial transaction.” But this is no rationale supporting forced disclosure for political issue speakers. The State’s argument is simply backwards. See Eu v. San Francisco Democratic Central Comm., 489 U.S. 214, 223 (1989) (“the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office”) (citations and quotation marks omitted). It ought to be undisputed that, during the 2008 Democratic primaries, speech about how Hillary Clinton and Barack Obama voted on funding for the war in Iraq came with more constitutional protection than an appeal to buy a documentary DVD about Hillary Clinton or, for that matter, dishwasher detergent. United States v. Williams, 553 U.S. 285, 298 51 (2008) (describing the “First Amendment status of commercial speech” as “less privileged”); see also Cent. Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557, 562-563 (1980)

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(“[t]he Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression”).

Having failed to anticipate that some communications might both mention candidates and be genuine issue speech subject to full First Amendment protection, the State is left to argue that any speech that is “election-related” may serve as the trigger for public disclosure of an organization’s donors, and that this is sufficient tailoring. But that is overbroad. The relation between the information demanded “is too tenuous to pass constitutional muster.” JA 32.

C. The district court did not enact a novel constitutional test; it simply required the State to tailor its statute.

After the district court determined that McConnell and Citizens United did not control the outcome of this case, it conducted a proper exacting scrutiny analysis and found the State’s tailoring deficient. JA 30 (noting that the Act’s language was comprehensive, “apparently leaving to the Commissioner (and the less transparent administrative regulation process) any efforts to perhaps more narrowly tailor the Act’s disclosure requirements to communicators/communications more likely to raise concerns about partisan politics”). The State has presented no case where any federal court found a comparable disclosure regime constitutional. Even after the supplemental briefing on the subject discussed supra, the district court determined that “there is no case that purports to address disclosure requirements with the breadth attributed to the Act. JA 27. “[M]any of the cases identified by” the State “relate to statutes that only regulate express advocacy or its functional equivalent (not the mere mention of a candidate), while other cases…involve statutes that have exemptions from the reporting requirements, such as those exempting § 501(c)(3) activity from disclosure or those exempting such publications as voter guides….one cannot ignore the context of the decision[s]”). JA 27-28.

Yet, the State believes that the court’s opinion creates a new constitutional test “never before seen in the Federal Reporter or U.S Reports”—a constitutional exemption from disclosure for “presumably neutral” communications by “presumably neutral” groups. App. Br. at 38. This argument is a red herring, and represents yet another attempt by the State to shift its burden to defend a constitutionally suspect law to a would-be speaker.20 The district court’s discussion 53 of presumed neutrality was not an articulation of a novel constitutional standard, but merely a reference to the Court’s ruling that “the Act is so broadly worded as to include within the scope of its disclosure requirements virtually every communication made during the critical time period, no matter how indirect and unrelated it is to the electoral process.” JA 31; see also id. at n. 21 (“The Act, however, is broad enough to cover the contributors to any charitable organization, e.g. those advocating such causes as a cure for cancer or support for wounded war veterans, if the organization publishes a communication within the critical time frame that so much as mentions, even in a non-political context, a public official who happens to be a candidate”).21

By noting that DSF and its communication were “presumed neutral,” the district court was merely discussing a familiar touchstone of campaign finance law: the need to protect genuine issue speech. McConnell, 540 U.S. at 206, n. 88 (holding that BCRA’s regime might not apply to genuine issue speakers). In other words, while the State may have an interest in some speech, it may not call all speech about candidates “electioneering communications” and then demand extensive disclosure) going back multiple years. Looking at the communication and the statute, the district court simply found that the law was, as applied to DSF, a poor fit under exacting scrutiny.

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Nor is the district court’s ruling unworkable. Genuine issue speech does not present metaphysical questions—as Chief Justice Roberts amply proved in his controlling opinion in WRTL II, 551 U.S. at 469-470 (discussing touchstones which would demonstrate if a broadcast communication is “genuine issue” speech in the context of federal electioneering communications).22 As discussed supra, the court afforded the State ample opportunity to test the presumption that DSF’s speech was genuine issue speech—but ultimately concluded that the statute’s over breadth would require overbroad discovery. WRTL II, 551 U.S. at 469 (challenges to campaign finance statutes “must entail minimal if any, discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation”) (emphasis supplied).

The district court’s decision that no record evidence beyond the guide itself was required to find that the voter guide was neutral—or, more precisely, was genuine issue speech—similarly comports with the Chief Justice’s dictate that courts ought to review communications purely on their face. WRTL II, 551 U.S. at 469-470. DSF’s communication speaks for itself, contrary to the State’s attempts to require the type of intents-and-effects analysis prohibited by the Supreme Court. Id.

The State also errs in presuming that the district court’s discussion of § 501(c)(3) requires a mandatory carve-out for such groups.23 App. Br. at 42-43. This is not the district court’s opinion, which was grounded in the fact that the Act simply covered speech, such as voter guides by § 501(c)(3) organizations, which BCRA and other challenged statutes did not. JA 30 (“It would appear as though other legislative efforts have translated this guidance into exempting from disclosure those communicators generally considered to be non-political (e.g. § 501(c)(3) groups) and/or those communications generally considered to be non-political (e.g. voter guides)”) (emphasis in original).24

In other words, and to summarize: no similar statute has been challenged, and consequently the State can point to no similar judicial ruling.

III. The district court correctly concluded that DSF established the non merits factors for an injunction to issue.

In determining that DSF had established the non-merits factors for a preliminary injunction to issue, the district court appropriately applied Third Circuit precedent.

A. DSF established a likelihood of irreparable First Amendment harm.

“It is well-established that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (citation and quotations omitted). Such “injunctive relief [i]s ‘clearly appropriate’ where First Amendment interests” are “either threatened or in fact being impaired at the time [injunctive] relief was sought.” Stilp v. Contino, 613 F.3d 405, 409 n.4 (3d Cir. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).

The State argues that First Amendment interests have neither been threatened nor impaired by the Act: “[t]his is not a case where denying a preliminary injunction would require DSF to run the risk of criminal prosecution in order to speak.” App. Br. at 57 . Yet, the Act would force DSF—or presumably one of its officers—to run the risk of criminal prosecution if DSF did not provide the State with four years’ worth of personal data on its donors as a condition of speaking. 15 57 Del. C. § 8043(c) (“‘[a]ny reporting party who…fails to file” a report “shall be guilty of a class A misdemeanor. For purposes of this subchapter, ‘reporting party’ means any candidate, treasurer or other person required to file reports under this chapter”) (emphasis supplied). Under Delaware law, the sentence for a class A misdemeanor “may include up to 1 year incarceration…and such fine up to $2,300, restitution or other conditions as the court deems appropriate.” 11 Del. C. § 4206(a).

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Thus, DSF must either comply with a law which constitutes a “significant encroachment[] on First Amendment rights” of its members, or force its officers to risk incarceration and a substantial monetary penalty. Buckley, 424 U.S. at 64; see also NAACP v. Button, 371 U.S. 415, 433 (1963) (“[t]he threat of sanctions may deter the[] exercise” of First Amendment freedoms “almost as potently as the actual application of sanctions.”) (citations omitted). That is why DSF cannot “speak while complying with the Act during this litigation.” App. Br. at 57.

Furthermore, as a recent Ninth Circuit case demonstrated, once a state government publicizes an organization’s donor information on the Internet, their privacy is irreversibly violated. ProtectMarriage.com – Yes on 8 v. Bowen, No. 11- 17884, 2014 U.S. App. LEXIS 9312 at 16-18 (9th Cir. October 11, 2013). If DSF complied with the statute, and later prevailed in seeking permanent relief, it could never undo the disclosure of its contributor data. See id. (finding that ProtectMarriage.com’s donor information had been so “vast[ly] disseminat[ed]” by 58 third parties that the court could “no longer provide Appellants with effective relief”).

B. DSF established that the public interest and the balance of the equities support the entry of an injunction.

“First Amendment rights are part of the heritage of all persons and groups in this country.” United States v. UAW-CIO, 352 U.S. 567, 597 (1957) (Black, J., dissenting). And “enforcement of an unconstitutional law vindicates no public interest.” K.A. v. Pocono Mt. Sch. Dist., 710 F.3d 99, 114 (3d Cir. 2013).Thus, the district court’s injunction, which protects DSF’s First Amendment freedoms, unquestionably furthers this interest.

Yet the State contends that because the Attorney General and the State Commissioner of Elections are “public officers sued in their official capacities, defendants’ interest in public disclosure,” and enforcement of the Act against DSF, is the public’s interest.” App. Br. at 59 (emphasis in original) (quotations and citations omitted). In the context of a motion for preliminary injunction, however, “the Government does not have an interest in the enforcement of an unconstitutional law” and “the public interest [i]s not served by the enforcement of an unconstitutional law.” ACLU v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003) (quotations and citations omitted); see also id. at 251, n. 11 (citing ACLU v. Reno, 217 F.3d 162, 180-81 (3d Cir. 2000) (observing same)).

The balance of harms also weighs in favor of upholding the issuance of the injunction. Even setting aside the grave First Amendment harms, “[o]ne of the goals of the preliminary injunction analysis is to maintain the status quo, defined as the last, peaceable, no contested status of the parties.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 729 (3d Cir. 2004) (quotation marks and citations omitted). Upholding the preliminary injunction permits DSF to engage in issue speech unquestionably unregulated by Delaware before January 1, 2013; indeed, speech that DSF freely engaged in the autumn of 2012. Reversal would entirely prevent DSF from being able to speak out in this way, at a minimum, for the rest of the year, and through the end of the election.

CONCLUSION

For the foregoing reasons, the district court’s entry of a preliminary injunction should be affirmed.

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SUPREME COURT OF THE UNITED STATESNo. 08–205

CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

[January 21, 2010]

SUMMARYCitizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president.In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Section 203 of the BCRA prevents corporations or labor unions from funding such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to such communication and a disclaimer when the communication is not authorized by the candidate it intends to support.Citizens United argued that: 1) Section 203 violates the First Amendment on its face and when applied to The Movie and its related advertisements, and that 2) Sections 201 and 203 are also unconstitutional as applied to the circumstances.The United States District Court denied the injunction. Section 203 on its face was not unconstitutional because the Supreme Court in McConnell v. FEC had already reached that determination. The District Court also held that The Movie was the functional equivalent of express advocacy, as it attempted to inform voters that Senator Clinton was unfit for office, and thus Section 203 was not unconstitutionally applied. Lastly, it held that Sections 201 and 203 were not unconstitutional as applied to the The Movie or its advertisements. The court reasoned that the McConnell decision recognized that disclosure of donors "might be unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause," but those circumstances did not exist in Citizen United's claim.

OPINION EXCERPTIV 49

A Citizens United next challenges BCRA’s disclaimer and disclosure provisions as applied to Hillary and the three

advertisements for the movie. Under BCRA §311, televised electioneering communications funded by anyone other than a candidate must include a disclaimer that “‘_______ is responsible for the content of this advertising.’” 2 U. S. C. §441d(d)(2). The required statement 51 Cite as: 558 U. S. ____ (2010) must be made in a “clearly spoken manner,” and displayed on the screen in a “clearly readable manner” for at least four seconds. Ibid. It must state that the communication “is not authorized by any candidate or candidate’s committee”; it must also display the name and address (or Web site address) of the person or group that funded the advertisement. §441d(a)(3). Under BCRA §201, any person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC. 2 U. S. C. §434(f)(1). That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors. §434(f)(2).

Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign related activities,” Buckley, 424 U. S., at 64, and “do not prevent anyone from speaking,” McConnell, supra, at 201 (internal quotation marks and brackets omitted). The Court has subjected these requirements to “exacting scrutiny,” which requires a “substantial relation” between the disclosure requirement and a “sufficiently important” governmental interest. Buckley, supra, at 64, 66 (internal quotation marks omitted); see McConnell, supra, at 231– 232.

In Buckley, the Court explained that disclosure could be justified based on a governmental interest in “provide[ing]the electorate with information” about the sources of election-related spending. 424 U. S., at 66. The McConnell Court applied this interest in rejecting facial challenges to BCRA §§201 and 311. 540 U. S., at 196. There was evidence in the record that independent groups were running election-related advertisements “‘while hiding behind dubious and misleading names.’” Id., at 197 (quoting McConnell I, 251 F. Supp. 2d, at 237). The Court therefore upheld BCRA §§201 and 311 on the ground that 52 they would help citizens “‘make informed choices in the political marketplace.’” 540 U. S., at 197 (quoting McConnell I, supra, at 237); see 540 U. S., at 231.

Although both provisions were facially upheld, the Court acknowledged that as-applied challenges would be available if a group could show a “‘reasonable probability’” that disclosure of its contributors’ names “‘will subject them to threats, harassment, or reprisals from either Government officials or private parties.’” Id., at 198 (quoting Buckley, supra, at 74).

For the reasons stated below, we find the statute valid as applied to the ads for the movie and to the movie itself.

BCitizens United sought to broadcast one 30-second and two 10-second ads to promote Hillary. Under FEC

regulations, a communication that “[p]roposes a commercial transaction” was not subject to 2 U. S. C. §441b’s restrictions on corporate or union funding of electioneering communications. 11 CFR §114.15(b)(3)(ii). The regulations, however, do not exempt those communications from the disclaimer and disclosure requirements in BCRA §§201and 311. See 72 Fed. Reg. 72901 (2007). Citizens United argues that the disclaimer requirements in §311 are unconstitutional as applied to its ads. It contends that the governmental interest in providing information to the electorate does not justify requiring disclaimers for any commercial advertisements, including the ones at issue here. We disagree. The ads fall within BCRA’s definition of an “electioneering communication”: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. See 530 F. Supp. 2d, at 276, nn. 2–4. The disclaimers required by §311 “provide[e] the electorate with information,” McConnell, supra, at 196, and “insure that the voters are fully informed” about the person or group Cite as: 558 U. S. ____ (2010) 53 who is speaking, Buckley, supra, at 76; see also Bellotti, 435 U. S., at 792, n. 32 (“Identification of the source of advertising may be required as a

50

means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected”). At the very least, the disclaimers avoid confusion by making clear that the ads are not funded by a candidate or political party.

Citizens United argues that §311 is under inclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising. It asserts that §311 decreases both the quantity and effectiveness of the group’s speech by forcing it to devote four seconds of each advertisement to the spoken disclaimer. We rejected these arguments in McConnell, supra, at 230–231. And we now adhere to that decision as it pertains to the disclosure provisions.

As a final point, Citizens United claims that, in any event, the disclosure requirements in §201 must be confined to speech that is the functional equivalent of express advocacy. The principal opinion in WRTL limited 2 U. S. C. §441b’s restrictions on independent expenditures to express advocacy and its functional equivalent. 551 U. S., at 469–476 (opinion of ROBERTS, C. J.). Citizens United seeks to import a similar distinction into BCRA’s disclosure requirements. We reject this contention.

The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech. See, e.g., MCFL, 479 U. S., at 262. In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures. 424 U. S., at 75– 76. In McConnell, three Justices who would have found §441b to be unconstitutional nonetheless voted to uphold BCRA’s disclosure and disclaimer requirements. 540 U. S., at 321 (opinion of KENNEDY, J., joined by Rehnquist, C. J., and SCALIA, J.). And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself. United States v. Harriss, 347 U. S. 612, 625 (1954) (Congress “has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose”). For these reasons, we reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.

Citizens United also disputes that an informational interest justifies the application of §201 to its ads, which only attempt to persuade viewers to see the film. Even if it disclosed the funding sources for the ads, Citizens United says, the information would not help viewers make informed choices in the political marketplace. This is similar to the argument rejected above with respect to disclaimers. Even if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election. Because the informational interest alone is sufficient to justify application of §201 to these ads, it is not necessary to consider the Government’s other asserted interests.

Last, Citizens United argues that disclosure requirements can chill donations to an organization by exposing donors to retaliation. Some amici point to recent events in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation. See Brief for Institute for Justice as Amicus Curiae 13–16; Brief for Alliance Defense Fund as Amicus Curiae 16–22. In McConnell, the Court recognized that §201 would be unconstitutional as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed. 540 U. S., at 198. The examples cited by amici are cause for concern. Citizens United, however, has offered no evidence that its members may face similar 55 Cite as: 558 U. S. ____ (2010) threats or reprisals. To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation.

Shareholder objections raised through the procedures of corporate democracy, see Bellotti, supra, at 794, and n. 34, can be more effective today because modern technology makes disclosures rapid and informative. A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today. It must be noted, furthermore, that many of Congress’ findings in passing BCRA were premised on a system without adequate disclosure. See McConnell, 540 U. S., at 128 (“[T]he public may not have been fully informed about the sponsorship of so-called issue ads”); id., at 196–197 (quoting McConnell I, 251 F. Supp. 2d, at 237).With the advent of

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the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “‘in the pocket’ of so-called moneyed interests.” 540 U. S., at 259 (opinion of SCALIA, J.); see MCFL, supra, at 261. The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

CFor the same reasons we uphold the application of BCRA §§201 and 311 to the ads, we affirm their

application to Hillary. We find no constitutional impediment to the application of BCRA’s disclaimer and disclosure requirements to a movie broadcast via video-on-demand. And there has been no showing that, as applied in this case, these requirements would impose a chill on speech or expression.

SUPREME COURT OF THE UNITED STATESNo. 02–1674

McConnell, APPELLANT v. FEDERAL ELECTION COMMISSION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

[December 10, 2003]

SUMMARYIn early 2002, a many years-long effort by Senators John McCain and Russell Feingold to reform the way that money is raised for--and spent during-- political campaigns culminated in the passage of the Bipartisan Campaign Finance Reform Act of 2002 (the so-called McCain-Feingold bill sometimes referred to as BRCA). Its key provisions were a) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or well-healed individuals) and on the solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures").

The campaign finance reform bill contained an unusual provision providing for an early federal trial and a direct appeal to the Supreme Court of the United States, by-passing the typical federal judicial process. In May a special three-judge panel struck down portions of the Campaign Finance Reform Act's ban on soft-money donations but upheld some of the Act's restrictions on the kind of advertising that parties can engage in. The ruling was stayed until the Supreme Court could hear and decide the resulting appeals.IV

Title II of BCRA, entitled "Noncandidate Campaign Expenditures," is divided into two subtitles: "Electioneering Communications" and "Independent and Coordinated Expenditures." We consider each challenged section of these subtitles in turn.

BCRA § 201's Definition of "Electioneering Communications"

The first section of Title II, § 201, comprehensively amends FECA § 304, which requires political committees to file detailed periodic financial reports with the FEC. The amendment coins a new term, "electioneering communications," to replace the narrowing construction of FECA's disclosure provisions adopted by this Court in Buckley. As discussed further below, that construction limited the coverage of FECA's disclosure requirement to communications expressly advocating the election or defeat of particular candidates. By contrast, the term "electioneering communication" is not so limited, but is defined to encompass any "broadcast, cable, or satellite communication" that

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(I) refers to a clearly identified candidate for Federal office; (II) is made within — (aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or (bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and (III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate. 2 U.S.C.A. § 434(f)(3)(A)(i) (Supp. 2003).73

New FECA § 304(f)(3)(C) further provides that a communication is "`targeted to the relevant electorate'" if it "can be received by 50,000 or more persons" in the district or State the candidate seeks to represent. 2 U.S.C.A. § 434(f)(3)(C).

In addition to setting forth this definition, BCRA's amendments to FECA § 304 specify significant disclosure requirements for persons who fund electioneering communications. BCRA's use of this new term is not, however, limited to the disclosure context: A later section of the Act (BCRA § 203, which amends FECA § 316(b)(2)) restricts corporations' and labor unions' funding of electioneering communications. Plaintiffs challenge the constitutionality of the new term as it applies in both the disclosure and the expenditure contexts.

The major premise of plaintiffs' challenge to BCRA's use of the term "electioneering communication" is that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot constitutionally require disclosure of, or regulate expenditures for, "electioneering communications" without making an exception for those "communications" that do not meet Buckley's definition of express advocacy.

That position misapprehends our prior decisions, for the express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law. In

Buckley we began by examining then-18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), which restricted expenditures "`relative to a clearly identified candidate,'" and we found that the phrase "`relative to'" was impermissibly vague. 424 U.S., at 40-42. We concluded that the vagueness deficiencies could "be avoided only by reading § 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate."74 Id., at 43. We provided examples of words of express advocacy, such as "`vote for,' `elect,' `support,' . . . `defeat,' [and] `reject,'" id., at 44, n. 52, and those examples eventually gave rise to what is now known as the "magic words" requirement.

We then considered FECA's disclosure provisions, including 2 U.S.C. § 431(f) (1970 ed., Supp. IV), which defined "`expenditur[e]'" to include the use of money or other assets "`for the purpose of . . . influencing'" a federal election. Buckley, 424 U.S., at 77. Finding that the "ambiguity of this phrase" posed "constitutional problems," ibid., we noted our "obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness," id., at 77-78 (citations omitted). "To insure that the reach" of the disclosure requirement was "not impermissibly broad, we construe[d] `expenditure' for purposes of that section in the same way we construed the terms of § 608(e)—to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id., at 80 (footnote omitted).

Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command.75 In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and over breadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. Nor did we suggest as much in MCFL, 479 U.S. 238 (1986), in which we addressed the scope of another FECA expenditure limitation and confirmed the understanding that Buckley's express advocacy category was a product of statutory construction.76

In short, the concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) (citing Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804)). We have long "`rigidly adhered'" to the tenet "`never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,'" United States v. Raines, 362 U.S. 17, 21 (1960) (citation omitted), for "[t]he nature of judicial review constrains us to consider the case that is actually before us," James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 547 (1991) (Blackmun, J., concurring). Consistent with that principle, our decisions in Buckley and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech.

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Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. See Buckley, supra, at 45. Indeed, the unmistakable lesson from the record in this litigation, as all three judges on the District Court agreed, is that Buckley's magic-words requirement is functionally meaningless. 251 F. Supp. 2d, at 303-304 (Henderson, J.); id., at 534 (Kollar-Kotelly, J.); id., at 875-879 (Leon, J.). Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted.77 And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.78 Buckley's express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system.

Finaly we observe that new FECA § 304(f)(3)'s definition of "electioneering communication" raises none of the vagueness concerns that drove our analysis in Buckley. The term "electioneering communication" applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, (3) aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners. These components are both easily understood and objectively determinable. See Grayned v. City of Rockford, 408 U.S. 104, 108-114 (1972). Thus, the constitutional objection that persuaded the Court in Buckley to limit FECA's reach to express advocacy is simply inapposite here.

BCRA § 201's Disclosure Requirements

Having rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy, we turn to plaintiffs' other concerns about the use of the term "electioneering communication" in amended FECA § 304's disclosure provisions. Under those provisions, whenever any person makes disbursements totaling more than $10,000 during any calendar year for the direct costs of producing and airing electioneering communications, he must file a statement with the FEC identifying the pertinent elections and all persons sharing the costs of the disbursements. 2 U.S.C.A. §§ 434(f)(2)(A), (B), and (D) (Supp. 2003). If the disbursements are made from a corporation's or labor union's segregated account,79 or by a single individual who has collected contributions from others, the statement must identify all persons who contributed $1,000 or more to the account or the individual during the calendar year. §§ 434(f)(2)(E), (F). The statement must be filed within 24 hours of each "disclosure date" — a term defined to include the first date and all subsequent dates on which a person's aggregate undisclosed expenses for electioneering communications exceed $10,000 for that calendar year. §§ 434(f)(1), (2), and (4). Another subsection further provides that the execution of a contract to make a disbursement is itself treated as a disbursement for purposes of FECA's disclosure requirements. § 434(f)(5).

In addition to the failed argument that BCRA's amendments to FECA § 304 improperly extend to both express and issue advocacy, plaintiffs challenge amended FECA § 304's disclosure requirements as unnecessarily (1) requiring disclosure of the names of persons who contributed $1,000 or more to the individual or group that paid for a communication, and (2) mandating disclosure of executory contracts for communications that have not yet aired. The District Court rejected the former submission but accepted the latter, finding invalid new FECA § 304(f)(5), which governs executory contracts. Relying on BCRA's severability provision,80 the court held that invalidation of the executory contracts subsection did not render the balance of BCRA's amendments to FECA § 304 unconstitutional. 251 F. Supp. 2d, at 242 (per curiam).

We agree with the District Court that the important state interests that prompted the Buckley Court to uphold FECA's disclosure requirements — providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions — apply in full to BCRA.81 Accordingly, Buckley amply supports application of FECA § 304's disclosure requirements to the entire range of "electioneering communications." As the authors of the District Court's per curiam opinion concluded after reviewing evidence concerning the use of purported "issue ads" to influence federal elections:

The factual record demonstrates that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements designed to influence federal elections, but permits them to do so while concealing their identities from the public. BCRA's disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections. Plaintiffs' disdain for BCRA's disclosure provisions is nothing short of surprising. Plaintiffs challenge BCRA's restrictions on electioneering communications on the premise that they should be permitted to spend corporate and labor union

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general treasury funds in the sixty days before the federal elections on broadcast advertisements, which refer to federal candidates, because speech needs to be `uninhibited, robust, and wide-open.' McConnell Br. at 44 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Curiously, Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: `The Coalition-Americans Working for Real Change' (funded by business organizations opposed to organized labor), `Citizens for Better Medicare' (funded by the pharmaceutical industry), `Republicans for Clean Air' (funded by brothers Charles and Sam Wyly). Findings ¶¶ 44, 51, 52. Given these tactics, Plaintiffs never satisfactorily answer the question of how `uninhibited, robust, and wide-open' speech can occur when organizations hide themselves from the scrutiny of the voting public. McConnell Br. at 44. Plaintiffs' argument for striking down BCRA's disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace. 251 F.Supp.2d, at 237.

The District Court was also correct that Buckley forecloses a facial attack on the new provision in § 304 that requires disclosure of the names of persons contributing $1,000 or more to segregated funds or individuals that spend more than $10,000 in a calendar year on electioneering communications. Like our earlier decision in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958),82 Buckley recognized that compelled disclosures may impose an unconstitutional burden on the freedom to associate in support of a particular cause. Nevertheless, Buckley rejected the contention that FECA's disclosure requirements could not constitutionally be applied to minor parties and independent candidates because the Government's interest in obtaining information from such parties was minimal and the danger of infringing their rights substantial. In Buckley, unlike NAACP, we found no evidence that any party had been exposed to economic reprisals or physical threats as a result of the compelled disclosures. 424 U.S., at 69-70. We acknowledged that such a case might arise in the future, however, and addressed the standard of proof that would then apply:

We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties. Id., at 74.

A few years later we used that standard to resolve a minor party's challenge to the constitutionality of the State of Ohio's disclosure requirements. We held that the First Amendment prohibits States from compelling disclosures that would subject identified persons to "threats, harassment, and reprisals," and that the District Court's findings had established a "reasonable probability" of such a result.83 Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982).

In this litigation the District Court applied Buckley's evidentiary standard and found — consistent with our conclusion in Buckley, and in contrast to that in Brown — that the evidence did not establish the requisite "reasonable probability" of harm to any plaintiff group or its members. The District Court noted that some parties had expressed such concerns, but it found a "lack of specific evidence about the basis for these concerns." 251 F.Supp.2d, at 247 (per curiam). We agree, but we note that, like our refusal to recognize a blanket exception for minor parties in Buckley, our rejection of plaintiffs' facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that requirement.

We also are unpersuaded by plaintiffs' challenge to new FECA § 304(f)(5), which requires disclosure of executory contracts for electioneering communications:

Contracts to disburse For purposes of this subsection, a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement. 2 U.S.C.A. § 434(f)(5) (Supp. 2003).

In our view, this provision serves an important purpose the District Court did not advance. BCRA's amendments to FECA § 304 mandate disclosure only if and when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Plaintiffs do not take issue with the use of a dollar amount, rather than the number or dates of the ads, to identify the time when a person paying for electioneering communications must make disclosures to the FEC. Nor do they question the need to make the contents of parties' disclosure statements available to curious voters in advance of elections. Given the relatively short timeframes in which electioneering

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communications are made, the interest in assuring that disclosures are made promptly and in time to provide relevant information to voters is unquestionably significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole if advertisers were not required to disclose executory contracts. In the absence of that requirement, political supporters could avoid preelection disclosures concerning ads slated to run during the final week of a campaign simply by making a preelection down-payment of less than $10,000, with the balance payable after the election. Indeed, if the advertiser waited to pay that balance until the next calendar year then, as long as the balance did not itself exceed $10,000, the advertiser might avoid the disclosure requirements completely.

The record contains little evidence identifying any harm that might flow from the enforcement of § 304(f)(5)'s "advance" disclosure requirement. The District Court speculated that disclosing information about contracts "that have not been performed, and may never be performed, may lead to confusion and an unclear record upon which the public will evaluate the forces operating in the political marketplace." 251 F. Supp. 2d, at 241 (per curiam). Without evidence relating to the frequency of nonperformance of executed contracts, such speculation cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. It is no doubt true that § 304(f)(5) will sometimes require the filing of disclosure statements in advance of the actual broadcast of an advertisement.84 But the same would be true in the absence of an advance disclosure requirement, if a television station insisted on advance payment for all of the ads covered by a contract. Thus, the possibility that amended § 304 may sometimes require disclosures prior to the airing of an ad is as much a function of the use of disbursements (rather than the date of an ad) to trigger the disclosure requirement as it is a function of § 304(f)(5)'s treatment of executory contracts.

As the District Court observed, amended FECA § 304's disclosure requirements are constitutional because they "`d[o] not prevent anyone from speaking.'" Ibid. (quoting Brief for FEC in Opposition in No. 02-582 et al. (DC), p. 112). Moreover, the required disclosures "`would not have to reveal the specific content of the advertisements, yet they would perform an important function in informing the public about various candidates' supporters before election day.'" 251 F. Supp. 2d, at 241 (quoting Brief for FEC in Opposition, supra, at 112) (emphasis in original). Accordingly, we affirm the judgment of the District Court insofar as it upheld the disclosure requirements in amended FECA § 304 and rejected the facial attack on the provisions relating to donors of $1,000 or more, and reverse that judgment insofar as it invalidated FECA § 304(f)(5).

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SUPREME COURT OF THE UNITED STATESNo. 75–436

BUCKLEY, APPELLANT v. VALEO, APPELLEE ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

[January 30, 1976]

SUMMARY

The appellants had sought a blanket exemption from the public disclosure provisions for all minor parties, claiming that contributors to minor parties, unlike contributors to the Republican and Democratic Parties, were more vulnerable to threats, harassment and reprisal as a result of the public disclosure of their names. The appellants claimed the provisions constituted a violation of their rights to free association under the First Amendment and to equal protection under the Fifth Amendment. Recognizing that "compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment," the Court nevertheless ruled that the Act's reporting and disclosure provisions were justified by governmental interest in (1) helping voters to evaluate candidates by informing them about the sources and uses of campaign funds, (2) deterring corruption and the appearance of it by making public the names of major contributors, and (3) providing information necessary to detect violations of the law.

The Court acknowledged the potential disadvantage for minor parties that could result from the public disclosure provisions of the law, but it noted that none of the minor parties that were appellants in this suit had demonstrated that their contributors had been injured by the disclosure provisions. Therefore, the Court ruled a blanket exemption unnecessary. The Court left open the possibility, however, that minor and new parties might successfully claim an exemption from FECA disclosure requirements by showing proof of injury.

OPINION EXCERPT II. REPORTING AND DISCLOSURE REQUIREMENTS

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Unlike the limitations on contributions and expenditures imposed by 18 U.S.C. § 608 (1970 ed., Supp. IV), the disclosure requirements of the Act, 2 U.S.C. § 431 et seq. (1970 ed., Supp. IV), [n68] are not challenged by appellants as per se unconstitutional restrictions on the exercise of First Amendment freedoms of speech and association. [n69] Indeed, appellants argue that "narrowly drawn disclosure requirements are the proper solution to virtually all of the evils Congress sought to remedy." Brief for Appellants 171. The particular requirements embodied in the Act are attacked as overbroad -- both in their application to minor party and independent candidates and in their extension to contributions as small as $11 or $101. Appellants also challenge the provision for disclosure by those who make independent contributions and expenditures, § 434(e). The Court of Appeals found no constitutional infirmities in the provisions challenged here. [n70] We affirm the determination on over breadth and hold that § 434(e), if narrowly construed, also is within constitutional bounds.

The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions impose reporting obligations on "political committees" and candidates. "Political committee" is defined in § 431(d) as a group of persons that receives "contributions" or makes "expenditures" of over $1,000 in a calendar year. "Contributions" and "expenditures" are defined in lengthy parallel provisions similar to those in Title 18, discussed above. [72] Both definitions focus on the use of money or other objects of value "for the purpose of . . . influencing" the nomination or election of any person to federal office. §§ 431(e)(1), (f)(1)

Each political committee is required to register with the Commission, § 433, and to keep detailed records of both contributions and expenditures, §§ 432(c), (d). These records must include the name and address of everyone making a contribution in excess of $10, along with the date and amount of the contribution. If a person's contributions aggregate more than $100, his occupation and principal place of business are also to be included. § 432(c)(2). These files are subject to periodic audits and field investigations by the Commission. § 438(a)(8).

Each committee and each candidate also is required to file quarterly reports. § 434(a). The reports are to contain detailed financial information, including the full name, mailing address, occupation, and principal place of business of each person who has contributed over $100 in a calendar year, as well as the amount and date of the contributions. § 434(b). They are to be made available by the Commission "for public inspection and copying." § 438(a)(4). Every candidate for federal office is required to designate a "principal campaign committee," which is to receive reports of contributions and expenditures made on the candidate's behalf from other political committees and to compile and file these reports, together with its own statements, with the Commission. § 432(f).

Every individual or group, other than a political committee or candidate, who makes "contributions" or "expenditures" of over $100 in a calendar year "other than by contribution to a political committee or candidate" is required to file a statement with the Commission. § 434(e). Any violation of these recordkeeping and reporting provisions is punishable by a fine of not more than $1,000 or a prison term of not more than a year, or both. § 441(a).

A. General Principles

Unlike the over-all limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. E.g., Gibson v. Florida Legislative Comm., 372 U.S. 539 (1963); NAACP v. Button, 371 U.S. 415 (1963); Shelton v. Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357 U.S. 449 (1958).

We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since

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NAACP v. Alabama, we have required that the subordinating interests of the State must survive exacting scrutiny. [n73] We also have insisted that there be a "relevant correlation" [n74] or "substantial relation" [n75] between the governmental interest and the information required to be disclosed. See Pollard v. Roberts, 283 F.Supp. 248, 257 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14 (1968) (per curiam). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises not through direct government action, but indirectly, as an unintended but inevitable result of the government's conduct in requiring disclosure. NAACP v. Alabama, supra at 461. Cf. Kusper v. Pontikes, 414 U.S. at 57-58.

Appellees argue that the disclosure requirements of the Act differ significantly from those at issue in NAACP v. Alabama and its progeny, because the Act only requires disclosure of the names of contributors, and does not compel political organizations to submit the names of their members. [n76]

As we have seen, group association is protected because it enhances "[e]ffective advocacy." NAACP v. Alabama, supra at 460. The right to Join together "for the advancement of beliefs and ideas," ibid., is diluted if it does not include the right to pool money through contributions, for funds are often essential if "advocacy" is to be truly or optimally "effective." Moreover, the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for "[f]inancial transactions can reveal much about a person's activities, associations, and beliefs." California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79 (1974) (POWELL, J., concurring). Our past decisions have not drawn fine lines between contributors and members, but have treated them interchangeably. In Bates, for example, we applied the principles of NAACP v. Alabama and reversed convictions for failure to comply with a city ordinance that required the disclosure of "dues, assessments, and contributions paid, by whom and when paid." 361 U.S. at 518. See also United States v. Rumely, 34 U.S. 41 (1953) (setting aside a contempt conviction of an organization official who refused to disclose names of those who made bulk purchases of books sold by the organization).

The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the "free functioning of our national institutions" is involved. Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97 (1961).

The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. They fall into three categories. First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" [n77] in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive, and thus facilitate predictions of future performance in office.

Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. [n78] This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. [n79] And, as we recognized in Burroughs v. United States, 290 U.S. at 548, Congress could reasonably conclude that full disclosure during an election campaign tends "to prevent the corrupt use of money to affect elections." In enacting these requirements, it may have been mindful of Mr. Justice Brandeis' advice:

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. [n80]

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Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above.

The disclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufficient to justify the requirements, we must look to the extent of the burden that they place on individual rights.

It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree with appellants' concession [n81] that disclosure requirements -- certainly in most applications -- appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist. [n82] Appellants argue, however, that the balance tips against disclosure when it is required of contributors to certain parties and candidates. We turn now to this contention.

B. Application to Minor Parties and Independents

Appellants contend that the Act's requirements are overbroad insofar as they apply to contributions to minor parties and independent candidates because the governmental interest in this information is minimal, and the danger of significant infringement on First Amendment rights is greatly increased.

1. Requisite Factual Showing

In NAACP v. Alabama, the organization had made an uncontroverted showing that, on past occasions, revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility, 357 U.S. at 462, and the State was unable to show that the disclosure it sought had a "substantial bearing" on the issues it sought to clarify, id. at 464. Under those circumstances, the Court held that "whatever interest the State may have in [disclosure] has not been shown to be sufficient to overcome petitioner's constitutional objections." Id. at 465.

The Court of Appeals rejected appellants' suggestion that this case fits into the NAACP v. Alabama mold. It concluded that substantial governmental interests in "informing the electorate and preventing the corruption of the political process" were furthered by requiring disclosure of minor parties and independent candidates, 171 U.S.App.D.C. at 218, 519 F.2d at 867, and therefore found no tenable rationale for assuming that the public interest in minority party disclosure of contributions above a reasonable cutoff point is uniformly outweighed by potential contributors' associational rights, id. at 219, 519 F.2d at 868. The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama. No record of harassment on a similar scale was found in this case. [n83] We agree with the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative.

It is true that the governmental interest in disclosure is diminished when the contribution in question is made to a minor party with little chance of winning an election. As minor parties usually represent definite and publicized viewpoints, there may be less need to inform the voters of the interests that specific candidates represent. Major parties encompass candidates of greater diversity. In many situations, the label "Republican" or "Democrat" tells a voter little. The candidate who bears it may be supported by funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the party's ideological position.

The Government's interest in deterring the "buying" of elections and the undue influence of large contributors on officeholders also may be reduced where contributions to a minor party or an independent candidate are

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concerned, for it is less likely that the candidate will be victorious. But a minor party sometimes can play a significant role in an election. Even when a minor party candidate has little or no chance of winning, he may be encouraged by major party interests in order to divert votes from other major party contenders. [n84]

We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base, and thus are more vulnerable to fall-offs in contributions. In some instances, fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within [n85] and without [n86] the political arena.

There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious, and the state interest furthered by disclosure so insubstantial, that the Act's requirements cannot be constitutionally applied. [n87] But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama. Instead, appellants primarily rely on "the clearly articulated fears of individuals, well experienced in the political process." Brief for Appellants 173. At best they offer the testimony of several minor party officials that one or two persons refused to make contributions because of the possibility of disclosure. [n88] On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged.

2. Blanket Exemption

Appellants agree that "the record here does not reflect the kind of focused and insistent harassment of contributors and members that existed in the NAACP cases." Ibid. They argue, however, that a blanket exemption for minor parties is necessary lest irreparable injury be done before the required evidence can be gathered.

Those parties that would be sufficiently "minor" to be exempted from the requirements of § 434 could be defined, appellants suggest, along the lines used for public financing purposes, see Part III-A, infra, as those who received less than 25% of the vote in past elections. Appellants do not argue that this line is constitutionally required. They suggest as an alternative defining "minor parties" as those that do not qualify for automatic ballot access under state law. Presumably, other criteria, such as current political strength (measured by polls or petition), age, or degree of organization, could also be used. [n89]

The difficulty with these suggestions is that they reflect only a party's past or present political strength, and that is only one of the factors that must be considered. Some of the criteria are not precisely indicative of even that factor. Age, [n90] or past political success, for instance, may typically be associated with parties that have a high probability of success. But not all long-established parties are winners -- some are consistent losers -- and a new party may garner a great deal of support if it can associate itself with an issue that has captured the public's imagination. None of the criteria suggested is precisely related to the other critical factor that must be considered, the possibility that disclosure will impinge upon protected associational activity.

An opinion dissenting in part from the Court of Appeals' decision concedes that no one line is "constitutionally required." [n91] It argues, however, that a flat exemption for minor parties must be carved out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given any real protection. An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the "evils" of "chill and harassment . . . are largely incapable of formal proof." [n92] This dissent expressed its concern that a minor party, particularly a new party, may never be able to prove a substantial threat of harassment, however real that threat may be, because it would be required to come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear. A strict requirement that chill and harassment be

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directly attributable to the specific disclosure from which the exemption is sought would make the task even more difficult.

We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.

Where it exists, the type of chill and harassment identified in NAACP v. Alabama can be shown. We cannot assume that courts will be insensitive to similar showings when made in future cases. We therefore conclude that a blanket exemption is not required.

C. Section 434(e)

Section 434(e) requires "[e]very person (other than a political committee or candidate) who makes contributions or expenditures" aggregating over $100 in a calendar year "other than by contribution to a political committee or candidate" to file a statement with the Commission. [n93] Unlike the other disclosure provisions, this section does not seek the contribution list of any association. Instead, it requires direct disclosure of what an individual or group contributes or spends.

In considering this provision, we must apply the same strict standard of scrutiny, for the right of associational privacy developed in NAACP v. Alabama derives from the rights of the organization's members to advocate their personal points of view in the most effective way. 357 U.S. at 458, 460. See also NAACP v. Button, 371 U.S. at 429, 431; Sweezy v. New Hampshire, 354 U.S. at 250.

Appellants attack § 434(e) as a direct intrusion on privacy of belief, in violation of Talley v. California, 362 U.S. 60 (1960), and as imposing "very real, practical burdens . . . certain to deter individuals from making expenditures for their independent political speech" analogous to those held to be impermissible in Thomas v. Collins, 323 U.S. 516 (1945).

1. The Role of § 434(e)

The Court of Appeals upheld § 434(e) as necessary to enforce the independent expenditure ceiling imposed by 18 U.S.C. § 608 (e)(1) (1970 ed., Supp. IV). It

If . . . Congress has both the authority and a compelling interest to regulate independent expenditures under section 608(e), surely it can require that there be disclosure to prevent misuse of the spending channel.

171 U.S.App.D.C. at 220 519 F.2d at 869. We have found that § 608(e)(1) unconstitutionally in fringes upon First Amendment rights. [n94] If the sole function of § 434(e) were to aid in the enforcement of that provision, it would no longer serve any governmental purpose.

But the two provisions are not so intimately tied. The legislative history on the function of § 434(e) is bare, but it was clearly intended to stand independently of § 608(e)(1). It was enacted with the general disclosure provisions in 1971 as part of the original Act, [n95] while § 608(e)(1) was part of the 1974 amendments. [n96] Like the other disclosure provisions, § 434(e) could play a role in the enforcement of the expanded contribution and expenditure limitations included in the 1974 amendments, but it also has independent functions. Section 434(e) is part of Congress' effort to achieve "total disclosure" by reaching "every kind of political activity" [n97] in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to

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corruption and undue influence possible. The provision is responsive to the legitimate fear that efforts would be made, as they had been in the past, [n98] to avoid the disclosure requirements by routing financial support of candidates through avenues not explicitly covered by the general provisions of the Act.

2. Vagueness Problems

In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties [n99] and fear of incurring these sanctions may deter those who seek to exercise protected First Amendment rights.

Section 434(e) applies to "[e]very person. . . who makes contributions or expenditures." "Contributions" and "expenditures" are defined in parallel provisions in terms of the use of money or other valuable assets "for the purpose of . . . influencing" the nomination or election of candidates for federal office. [n100] It is the ambiguity of this phrase that poses constitutional problems.

Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617 (1954). See also Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Where First Amendment rights are involved, an even "greater degree of specificity" is required. Smith v. Goguen, 415 U.S. at 573. See Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); Kunz v. New York, 340 U.S. 290 (1951).

There is no legislative history to guide us in determining the scope of the critical phrase "for the purpose of . . . influencing." It appears to have been adopted without comment from earlier disclosure Acts. [n101] Congress "has voiced its wishes in [most] muted strains," leaving us to draw upon "those common sense assumptions that must be made in determining direction without a compass." Rosado v. Wyman, 397 U.S. 397, 412 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness. United States v. Harriss, supra at 618; United States v. Rumely, 345 U.S. at 45.

In enacting the legislation under review, Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process. [n102] Our task is to construe "for the purpose of . . . influencing," incorporated in § 434(e) through the definitions of "contributions" and "expenditures," in a manner that precisely furthers this goal.

In Part I, we discussed what constituted a "contribution" for purposes of the contribution limitations set forth in 18 U.S.C. § 608 (b) (1970 ed., Supp. IV). [n103] We construed that term to include not only contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes, but also all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. The definition of "contribution" in § 431(e), for disclosure purposes, parallels the definition in Title 18 almost word for word, and we construe the former provision as we have the latter. So defined, "contributions" have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign.

When we attempt to define "expenditure" in a similarly narrow way, we encounter line-drawing problems of the sort we faced in 18 U.S.C. § 608 (e)(1) (1970 ed., Supp. IV). Although the phrase, "for the purpose of . . . influencing" an election or nomination, differs from the language used in § 608(e)(1), it shares the same potential for encompassing both issue discussion and advocacy of a political result. [n104] The general requirement that "political committees" and candidates disclose their expenditures could raise similar vagueness problems, for "political committee" is defined only in terms of amount of annual "contributions" and "expenditures," [n105] and could be interpreted to reach groups engaged purely in issue discussion. The

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lower courts have construed the words "political committee" more narrowly. [n106] To fulfill the purposes of the Act, they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees," so construed, can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign-related.

But when the maker of the expenditure is not within these categories -- when it is an individual other than a candidate or a group other than a "political committee" [n107] -- the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach of § 434(e) is not impermissibly broad, we construe "expenditure" for purposes of that section in the same way we construed the terms of § 608(e) -- to reach only funds used for communications that expressly advocate [n108] the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.

In summary, § 434(e), as construed, imposes independent reporting requirements on individuals and groups that are not candidates or political committees only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate.

Unlike 18 U.S.C. § 608 (e)(1) (1970 ed., Supp. IV), § 434(e), as construed, bears a sufficient relationship to a substantial governmental interest. As narrowed, § 434(e), like § 608(e)(1), does not reach all partisan discussion, for it only requires disclosure of those expenditures that expressly advocate a particular election result. This might have been fatal if the only purpose of § 434(e) were to stem corruption or its appearance by closing a loophole in the general disclosure requirements. But the disclosure provisions, including § 434(e), serve another, informational interest, and, even as construed, § 434(e) increases the fund of information concerning those who support the candidates. It goes beyond the general disclosure requirements to shed the light of publicity on spending that is unambiguously campaign-related, but would not otherwise be reported because it takes the form of independent expenditures or of contributions to an individual or group not itself required to report the names of its contributors. By the same token, it is not fatal that § 434(e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies.

Section 434(e), as we have construed it, does not contain the infirmities of the provisions before the Court in Talley v. California, 362 U.S. 60 (1960), and Thomas v. Collins, 323 U.S. 516 (1945). The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was "in no manner so limited." 362 U.S. at 64. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by § 434(e) is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view. [n109]

D. Thresholds

Appellants' third contention, based on alleged overbreadth, is that the monetary thresholds in the recordkeeping and reporting provisions lack a substantial nexus with the claimed governmental interests, for

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the amounts involved are too low even to attract the attention of the candidate, much less have a corrupting influence.

The provisions contain two thresholds. Records are to be kept by political committees of the names and addresses of those who make contributions in excess of $10, § 432(c)(2), and these records are subject to Commission audit, § 438(a)(8). If a person's contributions to a committee or candidate aggregate more than $100, his name and address, as well as his occupation and principal place of business, are to be included in reports filed by committees and candidates with the Commission, § 434(b)(2), and made available for public inspection, § 438(a)(4).

The Court of Appeals rejected appellants' contention that these thresholds are unconstitutional. It found the challenge on First Amendment grounds to the $10 threshold to be premature, for it could "discern no basis in the statute for authorizing disclosure outside the Commission . . . ; and hence no substantial ‘inhibitory effect' operating upon" appellants. 171 U.S.App.D.C. at 216, 519 F.2d at 865. The $100 threshold was found to be within the "reasonable latitude" given the legislature "as to where to draw the line." Ibid. We agree.

The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910. [n110] But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality. [n111]

We are mindful that disclosure serves informational functions, as well as the prevention of corruption and the enforcement of the contribution limitations. Congress is not required to set a threshold that is tailored only to the latter goals. In addition, the enforcement goal can never be well served if the threshold is so high that disclosure becomes equivalent to admitting violation of the contribution limitations.

The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do not reach the question whether information concerning gifts of this size can be made available to the public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Assn. v. Shultz, 416 U.S. at 56-57. [n112]

In summary, we find no constitutional infirmities in the recordkeeping, reporting, and disclosure provisions of the Act. [n113]

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Footnotes from Briefs/Opinions

Memorandum Opinion Footnotes(PG 11 – 20)

1 Attached to the complaint (D.I. 1) as exhibit A.

2 Section 434(e) required "[e]very person (other than a political committee or candidate) who makes contributions or expenditures" aggregating over $100 in a calendar year, "other than by contribution to a political committee or candidate," to file a statement with the Commission requiring direct disclosure of what such individual or group contributes or spends. See Buckley, 424 U.S. at 74-75.

3 ln this regard, the Court observed that the definition of "electioneering communication" "raise[d] none of the vagueness concerns that drove [its] analysis in Buckley. The term 'electioneering communication' applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, (3) aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners." McConnell., 540 U.S. at 194.

4 BCRA § 201 amended the disclosure requirements to FECA § 304, providing that "[e]very person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year shall ... file with the [Federal Election] Commission a statement" containing certain required information. BRCA, Pub. L. No. 107-155, § 201 (codified as amended at 2 U.S.C. § 434 (f)(1 )).

5 The ads, entitled "Wedding," "Waiting," and "Loan," were all similar in substance and format, and similarly suggested to viewers that they contact identified politicians "and tell them to oppose the filibuster." WRTL, 551 U.S. at 458-459.

6 For instance, that WRTL participates in express advocacy in other aspects of its work. /d. at 472-474.

7 In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Supreme Court held that political speech may be banned based on the speaker's corporate identity, having found "a compelling governmental interest in preventing 'the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."' Citizens United, 558 U.S. at 348 (citing Austin, 494 U.S. at 660).

9 Human Events, Inc., "the publisher of a weekly newspaper devoted primarily to events of political importance and interest," and the New York Civil Liberties Union, an organization that "engage[s] publicly in nonpartisan activities which 'frequently and necessarily refer to, praise, criticize, set forth, describe or rate the conduct or actions of clearly identified public officials who may also happen to be candidates for federal office."' 590 F.2d at 870-71. With respect to the latter, it sufficiently demonstrated a "'threat of specific future harm,' ... ([to wit] disclosure would cause loss of contributions from those who currently insist that their gifts remain confidential)." Buckley v. Valeo, 519F.2dat871 n.130.

10According to the legislative history included in the court's opinion, the provision was intended "to apply indiscriminately," "bring[ing] under the disclosure provisions many groups, including liberal, labor, environmental, business and conservative organizations." /d. at 877 & n.140 (citing 120 Gong. Rec. H10333 (daily ed. Oct. 10, 1974) (statement of Rep. Frenzel)).

12 The Delaware Election Disclosures Act, 15 Del. C. § 8001, et seq., as defined in part I, introduction.

13(See D.l. 32 at 7 n.8)

14(See D.l. 43 at 7 n.9)

15(See D.l. 32 at 7 n.10) Because the characterization of DSF's proposed "voter guide" has not been the subject of this motion practice, the court will assume for purposes of its analysis that it would pass muster as a nonpartisan voter guide.

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16 Including, e.g., "[a] communication, such as voter's guide, which refers to all of the candidates for one or more offices, which contains no appearance of endorsement for or opposition to the nomination or election of any candidate and which is intended as nonpartisan public education focused on issues and voting history." W.Va. Code§ 3-8-1 a( 12)(B)(viii).

17 See W.Va. Code§ 3-8-1 (a)(6): "Disclosure by persons and entities that make expenditures for communications that expressly advocate the election or defeat of clearly identified candidates, or perform its functional equivalent, is a reasonable and minimally restrictive method of furthering First Amendment values by public exposure of the state election system."

18 Described as "campaign advertisements that target candidates right before an election, but escape disclosure by avoiding the 'magic words' of express advocacy like 'vote for' or 'vote against' that have traditionally triggered disclosure requirements." (D. I. 30, ex. 2 at 2)

19 "Voter guides are typically intended to influence voter behavior," despite "lacking words of express advocacy." (/d., ex. 3 at 4-5)

20 The court notes the difference between educating - providing information to the public - and "influencing" - affecting the conduct, thought or character of the public. As reflected in the legislative history, the Act was intended to control the latter form of communication, not the former.

21 Anyone who contributes to such civic organizations as the League of Women Voters, the American Civil Liberties Union of Delaware, or Common Cause might well expect to have their names and addresses listed as a matter of public record, because such organizations tend to discuss the actions of clearly identified public officials. The Act, however, is broad enough to cover the contributors to any charitable organization, e.g., those advocating such causes as a cure for cancer or support for wounded war veterans, if the organization publishes a communication within the critical time frame that so much as mentions, even in a non-political context, a public official who happens to be a candidate.

22 Like the metadata collected by the National Security Administration.

23 Regulating anonymous political advocacy.

24 And, indeed, those who want to circumvent the intent of the Act will simply contribute anonymously. It will likely be the First Amendment rights of non-political contributors that will end up being violated by the intrusive collection of personal information - the full name and mailing address of each person who has made contributions in excess of $100 during the election period- information that is unrelated to the regulation of abusive political activity.

APPELLANT BRIEF FOOTNOTES (PG 21-31)8 “Every one of [the] Circuits [t]o have considered the question” has “applied exacting scrutiny to disclosure schemes.” Worley, 717 F.3d at 1242 (collecting decisions from First, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits); see also Doe, 561 U.S. at 196 (describing “series of precedents” applying “exacting scrutiny” to “First Amendment challenges to disclosure requirements”).

9 “Important” is an understatement: As this Court explained in Mariani, the Supreme Court accepted each of these interests as “compelling” in Buckley. 212 F.3d at 775. These interests a fortiori satisfy the less-demanding “sufficiently important” threshold applicable here.

10 See H.B. 300, Preamble (relying on all three interests); see also JA123, ¶¶26-27.

11 Citizens United overruled the portions of McConnell addressing BCRA’s ban on corporate independent expenditures, but expressly “adhere[d] to [McConnell] as it pertains to … disclosure.” Citizens United, 558 U.S. at 365-366, 368.

12 The D.C. Circuit recognized in a case involving another disclosure statute that extended beyond express advocacy communications—to cover lobbying communications—that the “justification for” the statute was not one “susceptible to empirical evidence,” but rather “a claim that good government requires greater transparency.” Taylor, 582 F.3d at 15-16. “That is a value judgment based on the common sense of the people’s representatives, and repeatedly endorsed by the Supreme Court as sufficient

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to justify disclosure statutes.” Id. (citing United States v. Harriss, 347 U.S. 612, 625 (1954), Buckley, and McConnell). In such cases, even a legislature’s “‘unprovable assumptions’” may be “‘sufficient to support the constitutionality of state and federal laws.’” Id. at 16.

13 See also JA135-136, ¶¶21-28. The volume of election-related communications by outside groups in Delaware is substantial: Veteran Delaware political advisor Erik Raser-Schramm explained in a declaration below that in “a typical legislative race” in Delaware, “outside issue advertising can double the number of direct mail pieces … influencing voters.” JA135, ¶22.

14 Raser-Schramm’s declaration explained how a group that did not disclose its donors funded ads supporting a candidate’s data center project, but without using express advocacy. Only after the candidate won—by 115 votes—did the public learn that the group was “funded by interests that would benefit economically from” the project. JA137-138, ¶¶39-45.

15 In rejecting the argument that disclosure must be confined to express advocacy, the Court pointed to its longstanding approval of disclosure in the different, though related, context of lobbying disclosure laws because lobbying too involves speech other than express advocacy. Citizens United, 558 U.S. at 369 (recognizing that the “Court has upheld registration and disclosure requirements on lobbyists” (citing Harriss, 347 U.S. at 625)).

16 In this case, the public’s informational interest is much stronger. DSF’s General Election Values Voter Guide has the self-proclaimed goal of influencing Delaware citizens not in choosing a film, but in casting a vote. The Supreme Court’s holding validating BCRA’s disclosure requirement as applied to Citizen United’s ads therefore applies a fortiori to DSF’s Values Voter Guide.

17 See, e.g., NOM, 649 F.3d at 54-55 (“the distinction between issue discussion and express advocacy has no place in First Amendment review” of “disclosureoriented laws”); Madigan, 697 F.3d at 484 (“Citizens United made clear that the wooden distinction between express advocacy and issue discussion does not apply in the disclosure context.”); Human Life, 624 F.3d at 1016 (“[T]he position that disclosure requirements cannot constitutionally reach issue advocacy is unsupportable.”); Free Speech v. FEC, 720 F.3d 788, 795 (10th Cir. 2013); Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 551-552 (4th Cir. 2012).

18 Cf. Center for Individual Freedom v. Tennant, 706 F.3d 270, 289 (4th Cir. 2013) (holding 501(c)(3) exemption unconstitutional). 19 Contrary to the district court’s assumption, 501(c)(3) organizations can and do engage in election-related speech. For example, DSF relied below on an IRS ruling that 501(c)(3) organizations can distribute voter guides under certain circumstances. Pl.’s Br. in Support of Mot. for Prelim. Injunction (D. Ct. Dkt. No. 28) at 17 (citing Rev. Rul. 78-248). As discussed above, the point of voter guides is to influence voters’ choices. They therefore lie at the core of the public’s interest in disclosure of election-related speech. See supra pp. 35-36. The same IRS ruling also recognizes that 501(c)(3) organizations may not distribute voter guides if they “evidence[] a bias or preference with respect to the views of any candidate or group of candidates.’” Rev. Rul. 78-248, at *1. A voter guide is not “non-partisan” if “[s]ome questions evidence a bias on certain issues.” Id. at *2. A voter guide also is not “non-partisan” if “it focuses only on ‘issues of importance to the organization’ and is ‘widely distributed’ among the electorate.” Id. That is true even if the guide is “factual in nature” and “contains no express statements in support of or in opposition to any candidate.” Id. Despite relying on DSF’s 501(c)(3) status to justify its ruling, the district court made no findings on whether DSF actually complied with these requirements.

21 Indeed, Chief Justice Marshall’s opinion for the Court in Marbury v. Madison cites one precedent —a 1762 decision from England. See 5 U.S. (1 Cranch) 137, 168 (1803) (citing King v. Ba[r]ker, 3 Burrows 1266).

22 The Seventh Circuit’s contrary suggestion in its recent Barland decision is similarly inaccurate. See Wisconsin Right to Life, Inc. v. Barland, Nos. 12-2915, 12-3046, 12-3158, 2014 WL 1929619, at *18 (7th Cir. May 14, 2014). The portion of the Citizens United opinion the Barland court cites discusses Citizen United’s movie, not the advertisements for the movie. See id. (citing Citizens United, 558 U.S. at 324-325). The Court determined that the movie was the functional equivalent of express advocacy, but it made no similar finding with respect to the advertisements for the movie. Citizens United, 558 U.S. at 324-325. That is because both Citizens United and the government agreed that the advertisements were not the functional equivalent of express advocacy. See Br. for Appellant at 51, Citizens United, 558 U.S. 310 (No. 08-205) (public’s “informational interest is inapplicable to Citizens United’s advertisements because they do not expressly or impliedly advocate a candidate’s election or defeat”); Br. for Appellee 36 (“the advertisements are not the functional equivalent of express advocacy”).

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23 See 15 Del. C. § 8002(19) (“‘Political committee’” includes “[a]ny organization … which accepts contributions from or makes expenditures to any candidate, candidate committee or political party in an aggregate amount in excess of $500 during an election period, not including independent expenditures.”).

24 That information includes the committee’s “cash and other intangible and tangible assets on hand”; “[t]he amount of,” and detailed information about, “each debt in excess of $50”; and “any transfer of funds” to or from other political committees. Id. § 8030(d).

25 A number of courts have contrasted the requirements of PAC status with those of “one-time, event-driven disclosure rule[s].” Barland, 2014 WL 1929619, at *30, 37; Iowa Right To Life Comm., Inc. v. Tooker, 717 F.3d 576, 597 (8th Cir. 2013). The Disclosure Act clearly falls in the latter group.

26 The district court initially delayed issuing an order giving effect to its March 31 opinion in order to consider whether to permit discovery on these “factual underpinnings.” See JA32-33. Appellants requested, but were denied, such discovery. See JA200-202, 237. DSF also refused to respond to prior discovery requests that likely would have brought to light evidence relevant to neutrality. See Joint Status Report (D. Ct. Dkt. No. 37) at 2-3.

27 These included “(i) the selection and phrasing of the issues or questions,”– for example, “Strengthening and maintaining marriage as the union of one man and one woman, and not redefining or adding to man/woman marriage” – “(ii) the document’s self-description as a ‘Values Voter Guide,’ [and] (iii) its statement near the top of the first page that ‘The stakes couldn’t be higher this election. Our hope is that on November 6th, this Voter Guide will help you choose candidates who represent your values.’” JA124, ¶37.

28 See Pl.’s Responses and Objections to Defs.’ Discovery Requests (D. Ct. Dkt. No. 21-1) at 3-4.

APPELLEE BRIEF FOOTNOTES (PG 32-45)

9 That threshold was $1000 when Buckley was heard in 1975, 424 U.S. at 62, or over $4400 today after adjustment for inflation—a figure nearly nine times that set by Delaware.

10 Wisc. Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTL I”), turned on whether McConnell foreclosed as-applied challenges to BCRA’s corporate electioneering communication ban. A unanimous Court determined that it had not. Id. at 411-12.

11 Hillary was expressly held to be express advocacy. But there is some dispute as to whether the ads for Hillary were found to be express advocacy or its functional equivalent. The Seventh Circuit believes they were. See Wisc. Right to Life v. Barland, 2014 U.S. App. LEXIS at 49 (“[t]he Court began by holding that Hillary and the ads promoting it were the functional equivalent of express advocacy under Wisconsin Right to Life II and thus fell within BCRA's ban on corporate electioneering communications.” (citing Citizens United at 324-25)). The State argues that this is not so, as both parties agreed the ads were not express advocacy. App. Br. at 48. Of course, Citizens United also did not believe Hillary to be express advocacy, so the State is likely reading far too much into its briefing. All this does little to undermine the main point in Barland, which is that the Supreme Court does not seem to have given the question much thought. In any event, the ads promoting Hillary were mere commercial speech, which is not entitled to the same level of First Amendment protection as political issue speech.

12 Indeed, the disclosure regime was only briefly raised at oral argument, when Chief Justice Roberts pushed back against the FEC’s contention that disclosure only applied to organizations which could demonstrate they were victims of reprisals. Tr. of Or. Argument at 50-52, Citizens United v. FEC, No. 08-205 (March 24, 2009).

13 Furthermore, DSF has always maintained that the Act did impose the functional equivalent political committee status against organizations which merely mention a candidate. JA 48-49, ¶ 49 (comparing electioneering communication disclosure under the Act to Delaware’s PAC requirements). This remains its position.

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14 424 U.S. at 80 (“To insure that the reach of § 434(e) is not impermissibly broad, we construe ‘expenditure’ for purposes of that section in the same way we construed the terms of § 608(e)—to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.”)

15 478 U.S. 238, 249 (1986) (Brennan, J., plurality op.) (“Buckley adopted the ‘express advocacy’ requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons.”)

16 551 U.S. 469-470. (“a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”)

17 As the district court noted, under the State’s theory of the case, “[i]t will likely be the First Amendment rights of non-political contributors that will end up being violated by the intrusive collection of personal information…information that is unrelated to the regulation of abusive political activity.” JA 32, n. 24.

18 “[T]he less a communicator or communication advocates an election result, the less interest the government should have in disclosure when weighed against the important First Amendment rights at stake.” JA 30.

19 For instance, the State makes no attempt to justify demanding the names and addresses of all donors giving a total over $100 over an “election period” of up to four years.

20 The State makes much of the district court relying upon "presumed" facts. App. Br. at 54. The State goes on to lament that it “promptly sought, but [was] denied, discovery to test the truth of these ‘presumed’ facts.” Id. But this initial ‘presumption’ was merely an invitation for the State to articulate a theory that did not depend upon the subjective views of speakers, and to request appropriate discovery premised on such a theory. The State was given two opportunities to do so, in separate telephonic hearings, but instead continued to insist upon a theory of neutrality premised upon invasive and irrelevant discovery. JA 197, JA 235. Having realized that the State's litigation position was—like its statute—overbroad, the district court denied these discovery requests. JA 237. At that point, the “presumption” in its memorandum opinion was extinguished in favor of a finding that DSF's Guide is, indeed, ‘neutral’—that is, issue speech.

21 See also JA 122 (Sen. Sorenson asserting that the Act is permissible because any “[r]efer[ence] to a candidate by name ties the advertisement to the upcoming election and creates a positive or negative association in voters’ minds.”

22 Indeed, the WRTL II decision did manage to devise a test for genuine issue speech, 551 U.S. at 469-470, and the FEC has managed to implement it. See 72 Fed. Reg. 72899 (Dec. 26, 2007) (FEC final rule on electioneering communications, applying the WRTL II decision).

23 The State correctly notes that § 501(c)(3) organizations may legally involve themselves in “election-related speech.” App. Br. at 42, n. 19. As discussed supra, “election-related speech” is not “electoral advocacy speech.”

24 A number of states have passed properly tailored electioneering communication laws. Some states do exempt § 501(c)(3) groups from electioneering communication laws, see, e.g. 10 ILL. COMP. STAT. 5/9-1:14(b)(4), some regimes only obtain information on the direct funders of an electioneering communications, see 11 C.F.R. § 104.20(c)(9), and some exempt voter guides entirely, see W. VA. CODE § 3-8-1a(12)(B)(viii). These are simply some acceptable methods of tailoring the State’s interest in disclosure of funding for candidate advocacy while protecting genuine issue speech.

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Judicial VocabularyAppellant/Petitioner - a person who applies to a higher court for a reversal of the decision of a lower court.

Appellate court - courts that have the authority to hear appeals and review cases from lower courts

Appellee/Respondent - the person who won the lower court’s decision in a case appealed to a higher court.

(BCRA) Bipartisan Campaign Reform Act - enacted March 27, 2002, H.R. 2356) is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were Senators Russ Feingold (D-WI) and John McCain (R-AZ). The law became effective on 6 November 2002, and the new legal limits became effective on January 1, 2003.

As noted in McConnell v. Federal Election Commission, a United States Supreme Court ruling on the BCRA, the Act was designed to address two issues:

The increased role of soft money in campaign financing, by prohibiting national political party committees from raising or spending any funds not subject to federal limits, even for state and local races or issue discussion;The proliferation of issue advocacy ads, by defining as "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by a corporation (including non-profit issue organizations such as Right to Life or the Environmental Defense Fund) or paid for by an unincorporated entity using any corporate or union general treasury funds. The decision in Citizens United v. Federal Election Commission overturns this provision, but not the ban on foreign corporations or foreign nationals in decisions regarding political spending.

Chief Justice - the presiding judge in a supreme court

Concurring Opinion - an additional written court opinion in which a judge or judges agree(s) with the decision reached by the Court, but for reasons other than those stated in the majority opinion.

Dissenting Opinion - In a trial or appeal, the written opinion of the minority of judges who disagree with the decision of the majority.

Electioneering communication - a communication by any individual or other person (other than a candidate committee or a political party) that: (1) Refers to a clearly identified candidate; and (2) Is publicly distributed within 30 days before a primary election or special election, or 60 days before a general election to an audience that includes members of the electorate for the office sought by such candidate.

Exacting Scrutiny - Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.

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FECA(Federal Election Campaign Act) - Enacted February 7, 1972, 2 U.S.C. § 431 et seq.) is a United States federal law designed to increase disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions. The amendment also created the Federal Election Commission (FEC).It was amended again in 1976, in response to the provisions ruled unconstitutional by Buckley v. Valeo and again in 1979 to allow parties to spend unlimited amounts of hard money on activities like increasing voter turnout and registration. In 1979, the Commission ruled that political parties could spend unregulated or "soft" money for non-federal administrative and party building activities. Later, this money was used for candidate-related issue ads, which led to a substantial increase in soft money contributions and expenditures in elections. This in turn created political pressures leading to passage of the Bipartisan Campaign Reform Act ("BCRA"), banning soft money expenditure by parties. Some of the legal limits on giving of "hard money" were also changed by BCRA.FECA also requires campaigns and political committees to report the names, addresses, and occupations of donors of $200 or more.The FECA contains an express preemption clause. The FECA expressly preempts state and federal law with respect to federal elections.Majority Opinion – explanation of the reasoning behind the majority decision of a supreme court. The Majority Opinion is often cited as precedent in arguments and decisions during other court cases.

Preliminary Injunction - A temporary injunction that may be granted before or during trial, with the goal of preserving the status quo before final judgment.

To get a preliminary injunction, a party must show that they will suffer irreparable harm unless the injunction is issued. Preliminary injunctions may only be issued after a hearing. When determining whether to grant preliminary injunctions, judges consider the extent of the irreparable harm, each party's likelihood of prevailing at trial, and any other public or private interests implicated by the injunction. Parties may appeal judge's decisions on whether to award a preliminary injunction. See interlocutory appeal.

Petition for Certiorari - a formal application by a party to have a lower-court decision reviewed by the U.S. Supreme Court, which has discretion to approve or deny any such application.

Precedent - An earlier event or action regarded as an example or guide to be considered in subsequent similar circumstances

Protective Order - A court order, direction, decree, or command to protect a person from further harassment, Service of Process, or discovery. A protective order can limit the time and place where a deposition can be taken, restrict the inspection of documents in the possession of a party, or regulate or modify the enforcement of a judgment.

Stare Decisis - a legal principle by which judges are obliged to respect the precedents established by prior decisions

Exacting Scrutiny - Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational

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basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.

Suggested Judicial Preparation Schedule

Week of Jan 10th

Review Appellate Rules and Procedures

Review Reading U.S Supreme Court Opinions

Review Active Reading Tips, P. 51 of Manual

Read Judicial Vocabulary

Week of Jan 17th

Read Statement of the Facts Read Delaware Elections Disclosure

Act Read 1st Amendment Text

Week of Jan 24th

Read & Complete Judicial Analysis worksheet for United States District Court of Delaware Opinion

Week of Jan 31st

Read & Complete Judicial Analysis Worksheet for Appellant/Petitioner Brief for the State of Delaware.

Week of Feb 7th

Read & Complete Judicial Analysis Worksheet for Appellee/Respondent Brief for Delaware Strong Families

Week of Feb 14th

Develop First Draft of Briefs using your Judicial Analysis Worksheet from the Briefs, Opinions & Dissents

Submit your first draft of your briefs to delawareyig@gmail.com

Week of Feb 21st

Read & Complete Judicial Analysis Worksheet for Citizens United v Federal Election Commission

Read & Complete Judicial Analysis Worksheet for McConnell v Federal Election Commission

Week of Feb 28th

Read & Complete Judicial Analysis Worksheet for Buckley v Valeo

Prepare questions to ask attorneys at Training & Elections Conference

Week of March 6th

Work on Appellee and Appellant Briefs Review Assigned Judicial Review Case

as identified at Training and Elections Conference (look for info on www.yigde.org)

Week of March 13th

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Finalize Appellee and Appellant Briefs and submit to Delawareyig@gmail.com

Begin to prepare Oral Arguments.

Week of March 20th

Attorneys perform a shortened oral argument for the group and parents.

If you only have a few delegates, have them explain that facts and questions of the case to the attendees.

Week of March 27th

Practice Oral Arguments Contact your Judicial Review partner Prepare questions to ask when acting

as a Justice

Week of April 3rd

Review Judicial Competition Schedule Read opponents briefs (on website

www.yigde.org) Practice Oral Argument

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