Center for Individual Freedom v. Carmouche

United States Court of Appeals Fifth Circuit F I L E D In the May 11, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 04-30877 Consolidated with m 05-30212 _______________ CENTER FOR INDIVIDUAL FREEDOM, Plaintiff-Appellant, VERSUS PAUL J. CARMOUCHE; ROBERT ROLAND; JOHN W. GREENE; E.L. GUIDRY; R.L. HARGROVE, JR.; MICHAEL J. KANTROW; HENRY C. PERRETT, JR.; ASCENSION DELGADO SMITH; DOLORES SPIKES; EDWIN O. WARE; T.O. PERRY; JOSEPH MASELLI, Defendants-Appellees.

____________________________________ Appeals from the United States District Court for the Western District of Louisiana _____________________________________ Before DAVIS, SMITH, and DENNIS, Louisiana and various members of the Su- Circuit Judges. pervisory Committee for Campaign Finance of the Louisiana Board of Ethics under the Civil JERRY E. SMITH, Circuit Judge: Rights Act, 42 U.S.C. § 1983 , and the Declar- atory Judgment Act, 28 U.S.C. § 2201 . The The Center for Individual Freedom (the defendants (collectively, “the Board”) are re- “Center”) challenges, on First Amendment sponsible for implementing and enforcing the grounds, the dismissal of its complaint ques- CFDA. The Center asserts that certain pro- tioning the constitutionality of certain provi- visions of the CFDA violate the First Amend- sions of Louisiana’s Campaign Finance Dis- ment and are therefore invalid. The Center closure Act (“CFDA”). Reading the statute alleges that at the time it filed its complaint, narrowly to avoid constitutional problems, we “planning and development of the contem- affirm. plated ads [was] well-advanced.” Complaint ¶ 10.1 I. The Center is a nonpartisan, nonprofit The Center sought temporary, preliminary § 501(c)(4) corporation whose stated goal is and permanent injunctive relief from enforce- “to protect and defend individual freedoms and ment of the CFDA. After a hearing on the individual rights guaranteed by the U.S. Consti- motion for preliminary injunction, the district tution.” Complaint ¶ 3. To further this goal, court held that the Center has standing to in advance of the September 18, 2004, primary mount a facial attack but denied preliminary to fill a vacancy on the Louisiana Supreme injunctive relief on the ground that the Center Court, the Center desired “to speak to the has little likelihood of success on the merits [Louisiana] public . . . on matters of vital because the relevant provisions of the CFDA public interest, including . . . criminal law en- were equivalent to the provisions of the federal forcement and sentencing, legal reform, and campaign finance statute that had withstood judicial decision-making.” Complaint ¶ 10. First Amendment challenge in Buckley v. Valeo, 426 U.S. 1 (1976). To that end, the Center wanted to finance and run television and radio advertisements The Center then sought emergency injunc- that, while not advocating the election or de- tive relief from this court pending appeal. Af- feat of any candidate, would refer to the posi- ter we had denied that request, the parties tions of the candidates on issues of importance agreed that the district court could render a to the Center. Fearing, however, that its ad- final judgment on the merits of the complaint vertisements would be deemed as intended to on the basis of the record and the submissions influence an election and that it therefore made in conjunction with the preliminary in- would be forced to make certain disclosures junction motion. For the reasons articulated in under the CFDA, the Center opted to refrain from running any ads until the constitutionality 1 of the relevant provisions of the statute could Because the Center did not run the ads and make the choice between complying with the be determined. CFDA and waiting for the Act to be enforced against it, the Center is asserting a facial, rather On August 24, 2004, the Center sued the than as-applied, challenge to the constitutionality of District Attorney for the 1st Judicial District of the statute.

2 its ruling on the preliminary injunction motion, statute has been applied to him is generally the court dismissed the complaint. correct.3 Because, however, our task is to de- cide whether the Center has standing to launch II. a facial, rather than as-applied, challenge, that The Board argues that this case is nonjus- tautology is not helpful. ticiable because the Center lacks standing and because the completion of the relevant election The district court held that the Center has renders the complaint moot. We review all standing to challenge the constitutionality of questions of subject matter jurisdiction, in- the relevant provisions of the CFDA on their cluding the justiciability issues of standing, face. Both its conclusion and its reasoning are ripeness, and mootness, de novo.2 sound. It is true that facial challenges are generally disfavored because they “entail a de- A. parture from the norms of federal-court adju- To have standing, a plaintiff must demon- dication by calling for relaxation of familiar strate that he has been injured, that the defen- standing requirements to allow a determination dant caused the injury, and that the requested that the law would be unconstitutionally ap- relief will redress the injury. See Lujan v. De- plied to different parties and different circum- fenders of Wildlife, 504 U.S. 555, 560 (1992). stances from those at hand.” Sabri v. United The Board argues that the Center lacks stand- States, 541 U.S. 600, 609 (2004). The Sabri ing to contest the constitutionality of the Court acknowledged, however, that there are CFDA because the Board never took or concerns in the First Amendment context that threatened to take action against the Center are “weighty enough to overcome our under the statute. Pointing to the highly gen- well-founded reticence” regarding facial chal- eralized manner in which the complaint de- lenges. Id. at 610 . scribes the proposed ads, the Board asserts that the Center’s belief that it would be held to As the district court noted, “[t]he First the disclosure requirements of the CFDA is Amendment challenge has unique standing is- entirely subjective and insufficient to support sues because of the chilling effect, self-censor- standing. The Board contends that without ship, and in fact the very special nature of po- any enforcement action taken against it by the litical speech itself.” Trial Transcript at 84. Board, the Center cannot challenge the appli- This assessment is based largely on Dombrow- cation of the CFDA. ski v. Pfister, 380 U.S. 479, 486-87 (1965), in which the Court observed that In Adams v. Askew, 511 F.2d 700, 704 (5th Cir. 1975), we noted that “[the plaintiffs] . . . [a] criminal prosecution under a statute confuse an attack on the constitutionality of a regulating expression usually involves im- statute on its face with an attack on the statute ponderables and contingencies that them- as applied.” The contention that a party can- selves may inhibit the full exercise of First not challenge a statute as-applied unless the Amendment freedoms . . . . Because of the sensitive nature of constitutionally protect- 2 See Bissonnet Invs., LLC v. Quinlan, 320 3 F.3d 520, 522 (5th Cir. 2003); Sample v. Morri- Exceptions include circumstances where third- son, 406 F.3d 310, 312 (5th Cir. 2005). party standing is appropriate.

3 ed expression, we have not required that all that meaning is an expression of preference of of those subject to overbroad regulations one candidate over another candidate, then the risk prosecution to test their rights . . . . underlying contributions and expenditures We have fashioned this exception to the should be reported as otherwise required by usual rules governing standing because of applicable provisions of the CFDA.”4 In ad- the danger of tolerating, in the area of First dition, in a recent opinion imposing a $20,000 Amendment freedoms, the existence of a fine on the Republican State Leadership Com- penal statute of sweeping and improper ap- mittee, the Board held that the CFDA is appli- plication . . . . By permitting determination cable where “any viewer of the advertisement of the invalidity of these statutes without would understand, even without explicit regard to the permissibility of some regula- word[s] of express advocacy, that when taken tion on the facts of particular cases, we as a whole and in its factual context, the un- have, in effect, avoided making vindication mistakable intent of the advertisement was to of freedom of expression await the out- oppose or otherwise influence [a particular come of protracted litigation. candidate’s] election.”5

The Court echoed this conclusion in Virginia Given the Board’s interpretation of the v. Am. Booksellers Ass'n, 484 U.S. 383 , 392 CFDA, if the Center pointed out the positions (1988), when it stated that “the alleged danger of candidates on issues of importance to it, it of [the challenged statute] is, in large measure, would run a nonspeculative risk that the Board one of self-censorship; a harm that can be re- would construe its ads as an “expression of alized even without an actual prosecution.” preference of one candidate over another can- didate” and therefore would prosecute a wilful Controlling precedent thus establishes that failure to make the required disclosures. On a chilling of speech because of the mere exis- that basis, the Center’s self-censorship consti- tence of an allegedly vague or overbroad stat- tutes sufficient injury to confer standing to ute can be sufficient injury to support standing. challenge the constitutionality of the CFDA on The Center states that it “is not willing to its face. expose itself and its staff to civil and criminal penalties and its contributors to disclosure,” The causation and redressability prongs of and thus it “has been forced to refrain from the standing inquiry are easily satisfied here. speaking . . . .” Complaint ¶ 15. To satisfy Potential enforcement of the statute caused the standing requirements, however, this type of Center’s self-censorship, and the injury could self-censorship must arise from a fear of prose- be redressed by enjoining enforcement of the cution that is not “imaginary or wholly spec- CFDA. The Center therefore has standing to ulative.” Babbitt v. United Farm Workers mount its facial challenge. Nat’l Union, 442 U.S. 289, 302 (1979).

The Center “intend[ed] to refer to the posi- tion of specific candidates on issues of impor- 4 tance to it.” Complaint ¶ 13. In a 1999 advis- La. Bd. of Ethics, Campaign Finance Advi- ory letter, the Board stated that “[i]f the mes- sory Op. No. 1999-580 (Sept. 17, 1999). sage is unmistakable, unambiguous, and sug- 5 La. Bd. of Ethics, Campaign Finance Ruling gestive of only one plausible meaning, and if No. 2003-746 (Jan. 13, 2005) (emphasis added).

4 B. Comm’n, 565 F.2d 295 , 297 n.3 (5th Cir. The Board contends that the Center’s claim 1977), that “[s]uits challenging the validity of is moot because the election that gave rise to state election laws are classic examples of cas- the complaint has already occurred. Mootness es in which the issues are ‘capable of repeti- is “the doctrine of standing in a time frame. tion, yet evading review.’” The case before us The requisite personal interest that must exist therefore satisfies the first prong of that excep- at the commencement of litigation (standing) tion. must continue throughout its existence (moot- ness).” United States Parole Comm’n v. Ger- With regard to the second prong of the aghty, 445 U.S. 388, 397 (1980). Generally, “capable of repetition, yet evading review” any set of circumstances that eliminates actual inquiry, the Center has stated that it “has spok- controversy after the commencement of a law- en out on public issues in Louisiana in the past suit renders that action moot. and plans to do so in the future.” Complaint ¶ 3(b). Thus, the Center may again feel the There are, however, exceptions to the oper- need to censor itself to avoid possible applica- ation of the mootness doctrine. For purposes tion of the CFDA. The Board does not dis- of this case, the relevant exception is “the class pute the Center’s assertion regarding its past of controversies capable of repetition, yet and likely future activity in Louisiana, and evading review.” First Nat’l Bank v. Bellotti, there is no reason to doubt that claim.

435 U.S. 765, 774 (1978). Outside the class action context, the “capable of repetition, yet Moreover, despite the Supreme Court’s re- evading review” exception can be invoked if minder that there must be a “reasonable ex- two elements are met: “(1) [T]he challenged pectation that the same complaining party action was in its duration too short to be fully would be subject to the same action again,” litigated prior to its cessation or expiration, Weinstein, 423 U.S. at 149, the Court does and (2) there was a reasonable expectation that not always focus on whether a particular the same complaining party would be sub- plaintiff is likely to incur the same injury. For jected to the same action again.” Weinstein v. example, in Storer, 415 U.S. at 737 n.8, the Bradford, 423 U.S. 147, 149 (1975). Court stated that “[t]he 1972 election is long over, and no effective relief can be provided to Controversy surrounding election laws, in- the candidates or voters, but this case is not cluding campaign finance regulations, is one of moot, since the issues properly presented, and the paradigmatic circumstances in which the their effects on independent candidacies, will Supreme Court has found that full litigation persist as the California statutes are applied in can never be completed before the precise future elections.” controversy (a particular election) has run its course.6 Echoing Supreme Court precedent, Similarly, in Dunn v. Blumstein, 405 U.S. this court stated in Morial v. Judiciary 330, 333 n.2 (1972), the Court held that the exception to the mootness doctrine applied de- spite the fact that the plaintiff would no longer 6 be subject to the challenged statute, because See Moore v. Ogilvie, 394 U.S. 814 , 816 “[a]lthough [plaintiff] now can vote, the prob- (1969); Storer v. Brown, 415 U.S. 724 , 737 n.8 (1974); First Nat’l Bank, 435 U.S. at 774 ; Nor- lem to voters posed by the Tennessee resi- man v. Reed, 502 U.S. 279, 288 (1992). dence requirements is ‘capable of repetition, 5 yet evading review.’” Thus, even if it were tion . . . as reports required of political doubtful that the Center would again attempt committees,” which includes “the full name to engage in election-related speech in Louisi- and address of each person who has made one ana, precedent suggests that this case is not or more contributions to and which have been moot, because other individuals certainly will received and accepted by the [individual or be affected by the continuing existence of the group] during the reporting period.” LA. REV. CFDA. STAT. § 18:1491.7(B)(4)(a).

III. If an individual or organization is required We review questions of law de novo. See to file a report and fails to do so, the CFDA Kona Tech. Corp. v. S. Pac. Transp. Co., 225 authorizes civil penalties. See id. § 18:1505.4. F.3d 595, 601 (5th Cir. 2000). Because a fa- If the failure to file is knowing, wilful, or cial challenge to the constitutionality of a stat- fraudulent, the person required to file (either ute presents a pure question of law, we employ as an individual or representative of an organi- that standard here as we examine the merits. zation) may be fined up to $500 dollars and sentenced to up to six months in prison. See In general, to mount a successful facial at- id. § 18:1505.6(A)(2). tack, “the challenger must establish that no set of circumstances exists under which the Act At the heart of the Center’s challenge is the would be valid.” United States v. Salerno, statutory definition of “expenditure.” Section 481 U.S. 739, 745 (1987). The requirement is 18:1483(9)(a) states that an expenditure is “a different in the First Amendment context, purchase, payment, advance, deposit, or gift, where we recognize the overbreadth doctrine. of money or anything of value made for the With regard to facial First Amendment chal- purpose of supporting, opposing, or otherwise lenges, the challenger need only show that a influencing the nomination or election of a per- statute or regulation “might operate unconsti- son to public office.” The Center contends tutionally under some conceivable set of cir- that this definition is vague and overbroad be- cumstances.” Id. cause it could be interpreted to reach both ex- press advocacy and issue advocacy. Because The provisions of the CFDA relevant to the disclosure requirements burden protected pol- Center’s claim are as follows: Louisiana Re- itical speech and subject those who do not vised Statute section 18:1501.1(A) states that comply to civil and criminal penalties, and be- cause the disclosure requirements are trig- [a]ny person, other than a candidate or a gered, inter alia, by “expenditures” in excess political committee, who makes any expen- of $500, the Center contends that the defini- diture or who accepts a contribution, other tion is vague and overbroad and therefore vio- than to or from a candidate or to or from a lates the First Amendment. political committee, shall file reports if ei- ther said expenditures or said contributions The Board counters that because the rele- exceed five hundred dollars in the aggre- vant provisions of the CFDA are equivalent to gate during the aggregating period defined the disclosure provisions in the Federal Elec- for committees. tion Campaign Act (“FECA”) that were up- held in Buckley, the CFDA provisions are not The reports must “contain the same informa- facially unconstitutional. We agree, but only 6 by imposing the same limiting construction on sufficiently important to outweigh the possi- the CFDA that the Court employed in Buckley. bility of infringement [of First Amendment rights], particularly when the free functioning A. of our national institutions is involved . . . . The challenged provisions are similar to The governmental interests sought to be vindi- what the Court confronted and upheld in cated by the disclosure requirements are of this Buckley. Section 434 (e) of FECA required magnitude.” Id. at 66. In reaching that con- that clusion, the Court focused on voters’ need for information about candidates and their sup- [e]very person (other than a political com- porters to evaluate the candidates and expose mittee or candidate) who makes contribu- corruption. Id. at 66-68. tions or expenditures, other than by contri- bution to a political committee or candi- Nevertheless, with regard to § 434(e), the date, in an aggregate amount in excess of Court stated that “the provision raises serious $100 within a calendar year . . . file with problems of vagueness, particularly treacher- the [Federal Election] Commission a state- ous where, as here, the violation of its terms ment containing the information required by carries criminal penalties and fear of incurring this section. these sanctions may deter those who seek to exercise protected First Amendment rights.” Buckley, 424 U.S. at 160. In relevant part, Id. at 76-77. The source of vagueness was FECA defined “expenditure” as “a purchase, the “for the purpose of influencing” language payment, distribution, loan, advance, deposit, within the definition of expenditure, which or gift of money or anything of value, made for gave the provision “potential for encompassing the purpose of influencing the nomination for both issue discussion and advocacy of a politi- election, or the election, of any person to cal result.” Id. at 76, 79. Due process “re- Federal office, or to the office of presidential quires that a criminal statute provide adequate and vice presidential election.” Id. at 147. notice to a person of ordinary intelligence that his contemplated conduct is illegal.” Id. at 77. The challengers in Buckley “attack[ed] Without knowing whether the reporting re- § 434(e) as a direct intrusion on privacy of be- quirements of § 434(e) were triggered by lief . . . and as imposing very real, practical political advocacy, issue discussion, or both, burdens . . . certain to deter individuals from an individual (or organization) wishing to making expenditures for their independent po- speak out could not know whether his contem- litical speech . . . .” Id. at 75. In discussing a plated conduct would subject him to criminal similar requirement within the FECA, the sanction if he did not disclose the information Court agreed that disclosure requirements “can required by FECA. seriously infringe on privacy of association and belief guaranteed by the First Amendment” In addition, the Court held that § 434(e) and that such requirements must therefore was rendered potentially overbroad by the fact “survive exacting scrutiny.” Id. at 64. that it could be interpreted to require disclo- sure when an independent individual or group The Court held, however, that in general, engages only in issue advocacy. The Court disclosure requirements survive exacting scru- reasoned that if § 434(e) did cover that situa- tiny because “there are governmental interests tion, the connection between the information 7 sought and the governmental interest in pro- cacy and issue advocacy. “Speakers,” the moting clean and well-informed elections “may Court stated, do not “possess an inviolable be too remote.” Id. at 80. First Amendment right to engage in the latter category of speech.” McConnell, 540 U.S. at Rather than striking § 434(e) down as un- 190. The Court further asserted that constitutional, however, the Court imposed a limiting construction on the statute, bringing it a plain reading of Buckley makes clear that within constitutional bounds by drawing a line the express advocacy limitation, in both the between express advocacyand issue advocacy. expenditure and the disclosure contexts, The Court stated that “we construe ‘expendi- was the product of statutory interpretation ture’ for purposes of [§ 434(e)] . . . to reach rather than a constitutional command. In only funds used for communications that narrowly reading the FECA provisions in expressly advocate the election or defeat of a Buckley to avoid problems of vagueness clearly identified candidate.” Id. Words of and overbreadth, we nowhere suggested express advocacy include terms “such as ‘vote that a statute that was neither vague nor for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ overbroad would be required to toe the ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ same express advocacy line. ‘reject.’” Id. at 44 n.52. These are the well- known “magic words.” Id. at 192.

Given that the CFDA links the disclosure The Board contends that McConnell elimi- requirements for expenditures made by inde- nates completely the express advocacy/issue pendent individuals and groups to the same advocacy delineation and in its place provides “for the purpose of influencing” language that a more holistic, “practical” approach to deter- the Court confronted and upheld in Buckley, mining whether expenditures have been made we can likewise construe the CFDA in a way for the purpose of influencing an election and that saves it from constitutional infirmity. On therefore, consistent with the First Amend- that basis, the Center fails in its facial challenge ment, can be subject to regulation. That read- to the constitutionality of the disclosure provi- ing of McConnell is incorrect. McConnell sions of the CFDA. states only that a campaign finance regulation can cover issue advocacy and nevertheless be B. constitutional so long as the regulation is The more difficult question, in light of Mc- “closelydrawn” to match a “sufficientlyimpor- Connell v. Fed. Election Comm’n, 540 U.S. tant” government interest, id. at 135, and is 93 (2003), is whether we must, in circum- not vague. The Court has not provided a stances such as this, continue to adhere to the broader approach to determining when expen- express advocacy/issue advocacy dichotomy ditures have been made for the purpose of in- that the Court set up in Buckley and that we fluencing an election. employed in Chamber of Commerce of the United States v. Moore, 288 F.3d 187 , 194-95 Instead, the Court has stated that legisla- (5th Cir. 2002). In McConnell the Court held tures may employ standards other than a that for purposes of regulating election-related bright-line distinction between express and is- speech, there is no constitutionally-mandated sue advocacy as long as they are precise in re- line that must be drawn between express advo- gard to the types of activities that will subject 8 an individual or group to regulation. With re- nition for what qualifies as such advocacy.7 As gard to the particular provision at issue in so limited, the challenged provisions of the McConnell, for example, the Court held that CFDA are facially constitutional. new FECA § 304(f)(3)’s definition of “elec- tioneering communication” “raises none of the The judgment of dismissal is AFFIRMED. vagueness concerns that drove our analysis in Buckley,” because the term 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. Thus, the consti- tutional objection that persuaded the Court in Buckley to limit FECA’s reach to express advocacy is simply inapposite here.

Id. at 194.

McConnell does not obviate the applicabil- 7 ity of Buckley’s line-drawing exercise where, We are aware of the McConnell Court’s as- as in this case, we are confronted with a vague sertions, 540 U.S. at 193-94, that “the presence or statute. See Anderson v. Spear, 356 F.3d 651 , absence of magic words cannot meaningfully dis- 664-65 (6th Cir. 2004). The flaw in the CFDA tinguish electioneering speech from a true issue is that it might be read to cover issue advo- ad,” that “Buckley’s magic-words requirement is functionally meaningless,” and that “Buckley’s ex- cacy. Following McConnell, that uncertainty press advocacy line . . . has not aided the legislative presents a problem not because regulating effort to combat real or apparent corruption.” such communications is per se unconstitu- Those statements, however, were made in the con- tional, but because it renders the scope of the text of the Court’s determination that a distinction statute uncertain. between express advocacy and issue advocacy is not constitutionally mandated. The Court said To cure that vagueness, and receiving no nothing about the continuing relevance of the magic instruction from McConnell to do otherwise, words requirement as a tool of statutory construc- we apply Buckley’s limiting principle to the tion where a court is dealing with a vague cam- CFDA and conclude that the statute reaches paign finance regulation. only communications that expressly advocate the election or defeat of a clearly identified In light of that silence, we must assume that candidate. In limiting the scope of the CFDA Buckley remains good law in such circumstances. If the State of Louisiana agrees with the Court that to express advocacy, we adopt Buckley’s defi- the magic words requirement is “functionally meaningless,” then pursuant to McConnell it is free to amend the CFDA in the same way that Con- gress altered the FECA.

9 DENNIS, Circuit Judge, dissenting:

Because the majority opinion (1) construes key provisions of the

Louisiana Campaign Finance Disclosure Act, La. R.S. 18:1501.1(A)

and 18:1483(9)(a), without first certifying the res nova state law

questions implicated to the state’s highest court as urged by the

Supreme Court, (2) disregards the Supreme Court’s clear holdings in

McConnell v. Federal Election Commission, 540 U.S. 93 (2003) that

(i) the First Amendment permits a campaign disclosure law to

require the names and addresses of persons who fund a television or

radio broadcast that clearly identifies a candidate within 30 days

of a primary and is targeted to the relevant electorate, and (ii)

when a federal court imposes a narrowing statutory construction, it

must never formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied, and (3)

saddles the State of Louisiana with a marginalized and ineffective

campaign financial disclosure law that is incongruous with the

intent of the Louisiana Legislature and the requirements of the

First Amendment, I respectfully dissent.

BACKGROUND The Center for Individual Freedom (the “Center”), a Virginia non-

profit corporation, brought this action under the Civil Rights Act, 42 U.S.C. § 1983 , and the Declaratory Judgment Act, 28 U.S.C. §

2201 , in the federal district court against the individual members

of the Louisiana Board of Ethics to have the Louisiana Campaign

Finance Disclosure Act (the “CFDA”) either declared unconstitu- 10 tional on its face or to have the CFDA’s disclosure and record-

keeping provisions narrowly construed, just as the Supreme Court in

Buckley v. Valeo, 424 U.S. 1 (1976), limited the disclosure

provision of the Federal Election Campaign Act (“FECA”), to apply

only to persons making expenditures for communications that

expressly advocate the election or defeat of a clearly identified

candidate, i.e., to communications containing express words of

advocacy of election or defeat (“magic words”), such as “vote for,”

“elect,” “support,” “cast your ballot for,” “Smith for Congress,”

“vote against,” “defeat,” “reject.” Id. at 44, n.52 .

The Center alleges that it desired to finance radio and televi-

sion broadcasts on “judicial decision-making” issues, inter alia,

during the last three weeks of a campaign for the September 18,

2004 primary election of an Associate Justice of the Louisiana

Supreme Court targeted to the relevant multi-parish district

electorate. The Center contends that it was prepared to run

television and radio ads referring to the two candidates as

illustrating positions for and against its own viewpoint without

expressly advocating the election or defeat of either; that it

ultimately chose not to do so because it feared that its funding of

the broadcasts easily could have been interpreted as expenditures

for the purpose of supporting, opposing, or influencing the

election of a person to public office, for which the CFDA would

have required the Center to disclose and report the names and 11 addresses of its contributors funding the broadcasts; and that the

CFDA is unconstitutionally vague and overbroad because it does not

clearly guarantee such persons the right to anonymously fund such

broadcasts in the most effective way, viz., by advocating their

issue positions while referring to candidates illustrating

agreement or opposition to those positions in communications

targeted to the relevant electorate during the last few weeks of a

primary election campaign.

The majority grants the Center’s request to graft Buckley’s

limiting magic words construction on to the CFDA. The majority’s

reasoning is that: (1) the CFDA is vague because it requires

disclosure when persons make expenditures for the purpose of

influencing the election of a person to public office similar to

the FECA provision that the Supreme Court found vague and in need

of the limiting construction imposed in Buckley; (2) the Supreme

Court in McConnell held that the Bipartisan Campaign Reform Act of

2002 (the “BCRA”)’s definition of “electioneering communication” as

a disclosure trigger was not vague because it consisted of easily

understood and objectively determinable components, viz., expendi-

ture funding of (i) a broadcast (ii) clearly identifying a

candidate (iii) aired within a specific time period (iv) and

targeted to the relevant electorate; (3) therefore, McConnell has

no application whatsoever, express or implicit, to a case involving

a vague statute like the CFDA; (4) “To cure [the CFDA’s] vagueness, 12 and receiving no instruction from McConnell to do otherwise, we

apply Buckley’s limiting principle to the CFDA[.]”

DISCUSSION 1. Certification The meaning of the disclosure provision of the CFDA is res nova;

it has never been authoritatively interpreted by the Louisiana

Supreme Court. Although federal courts generally have a duty to

adjudicate federal questions properly before them, the Supreme

Court has long recognized that concerns for comity and federalism

may require federal courts to either abstain from deciding federal

constitutional issues that are entwined with the interpretation of

state law or certify the questions of state law to the state’s

highest court for an authoritative interpretation of them before

reaching the merits of the cases. In Railroad Comm’n v. Pullman

Co., 312 U.S. 496, 501 (1941), the Court held that where uncertain

questions of state law must be resolved before a federal constitu-

tional question can be decided, federal courts should abstain until

a state court has addressed the state questions. See also Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 236-237 (1984). This

doctrine of abstention acknowledges that federal courts should

avoid the unnecessary resolution of federal constitutional issues

and that state courts provide the authoritative adjudication of

questions of state law.

Attention to the policies underlying abstention makes clear that in 13 the circumstances of these cases, a federal court should await a

definitive construction by a state court rather than precipitously

indulging in a facial challenge to the constitutional validity of

a state statute. The First Amendment overbreadth doctrine allows

a challenge to the validity of a statute on its face only if the

law is substantially overbroad. City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 799-801 (1984); New York v.

Ferber, 458 U.S. 747, 769-773 (1982). Thus, analysis of the

constitutional claims advanced by the Center necessarily requires

construction of the CFDA to assess its scope. Id. at 769, n. 24 ;

Broadrick v. Oklahoma, 413 U.S. 601, 613, 618, n. 16 (1973). (“[A]

federal court must determine what a state statute means before it

can judge its facial constitutionality”; application of the

overbreadth doctrine is “strong medicine” and is “employed by the

Court sparingly”). Where provisions of a state statute have never

been construed or applied by the state’s highest court, it seems

rather obvious that interpretation of those statutory provisions by

that court could substantially alter the resolution of any claim

that the statute is facially invalid under the Federal Constitu-

tion. See Harmon v. Forssenius, 380 U.S. 528, 535

(1965)(explaining that abstention may be necessary where the

statute at issue is “subject to an interpretation which will render

unnecessary or substantially modify” this Court’s decision once the

state court has been allowed to construe the statute).

14 The United States Supreme Court has encouraged the use of state

certification procedures as an alternative to “the more cumbersome

and...problematic abstention doctrine.” See Virginia v. American

Booksellers Ass’n, 484 U.S. 383, 397 (1988). The purpose of

certification is to obtain the benefit of an authoritative

construction from the state's highest court before proceeding to

the merits of the dispute. The state court's interest in accepting

a certified question for review is particularly strong when it has

not yet had the opportunity to interpret the pertinent statutory

language. Id. at 397 . Through certification of novel or unsettled

questions of state law for authoritative answers by a State's

highest court, a federal court may save “time, energy, and

resources and help[] build a cooperative judicial federalism.”

Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974); see also

Bellotti v. Baird, 428 U.S. 132, 148 (1976) (to warrant district

court certification, “[i]t is sufficient that the statute is

susceptible of...an interpretation [that] would avoid or substan-

tially modify the federal constitutional challenge to the stat-

ute”). Taking advantage of certification made available by a State

may “greatly simplif[y]” an ultimate adjudication in federal court.

See Bellotti, 428 U.S. at 151 .

“Speculation by a federal court about the meaning of a state

statute in the absence of prior state court adjudication is

particularly gratuitous when...the state courts stand willing to 15 address questions of state law on certification from a federal

court.” Id. (quoting Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 510 (1985)(O'CONNOR, J., concurring)); see Arizonans for

Official English v. Arizona, 520 U.S. 43, 79 (1997)(“Warnings

against premature adjudication of constitutional questions bear

heightened attention when a federal court is asked to invalidate a

State's law, for the federal tribunal risks friction-generating

error when it endeavors to construe a novel state Act not yet

reviewed by the State's highest court.”)(citing Rescue Army v.

Municipal Court of City of Los Angeles, 331 U.S. 549, 573-574 ).

This is especially true in the context of a state campaign finance

disclosure law applicable to all state primary and general

elections, including those for the Legislature, the Governor, and

other Executive Branch officers, as well as the Supreme Court of

Louisiana and many other important offices. The State of Louisi-

ana, as well as all of the other United States, has a great

interest in promoting genuinely democratic elections to fill its

major public offices free from corruption and other undue influ-

ences. For these reasons, the Louisiana Supreme Court should have

been afforded an opportunity to construe the Louisiana Campaign

Finance Disclosure Act in the first instance.

2. Buckley Is Out; McConnell Is In: Requiring Disclosure Of Expenditures On Electioneering-Type Communications Is Permissible Unfortunately, the majority not only fails to certify the 16 question of the meaning of the state statute to the state supreme

court, it also proceeds through an incorrect interpretation of

federal law to superimpose an erroneous and overly intrusive

narrowing construction on the state law.

In Buckley, the Supreme Court concluded that the FECA’s disclo-

sure requirement, in its effort to be all-inclusive, raised serious

problems of vagueness because it applied to every person who made

a contribution or expenditure for the purpose of influencing the

nomination or election of a candidate for federal office. 424 U.S.

at 76-77 . Thus, the subjective intent of the contributor was the

primary controlling factor in triggering the disclosure require-

ment. Because almost any contribution funding a political

communication, even if made well prior to the election and without

mention of any candidate’s name, could be deemed to have been made

to influence an election, the potential reach of the FECA disclo-

sure provision was extremely broad. Thus, to insure that the reach

of the disclosure requirement was not impermissibly broad, the

Court construed “expenditure” to reach only funds used for

communications expressly advocating the election or defeat of a

clearly identified candidate. Id. at 44 . The Court suggested that

there existed “magic words” of express advocacy of election or

defeat of a candidate, which were necessary to make communications

subject to the disclosure requirement. Id. at 44, n. 52 .

In contrast, the Supreme Court in McConnell upheld without 17 limitation the clear and objective BCRA requirement of disclosure

of the names and addresses of persons funding an electronic media

broadcast made within a 30- or 60-day window prior to a primary or

general election, if it clearly identified a candidate and targeted

the relevant electorate. 540 U.S. at 105 (explaining that “issues

ads broadcast during the 30- and 60-day periods preceding federal

primary and general elections are the functional equivalent of

express advocacy” and “[t]he justifications for regulating express

advocacy apply equally to those ads if they have an electioneering

purpose, which the vast majority do”). In drafting the BCRA

provision, Congress relied on almost 30 years’ experience which

taught that the Buckley “magic words” limitation was functionally

meaningless: under Buckley political advertisers easily evaded

disclosure by simply eschewing use of the magic words; the outcomes

of elections were often influenced by enormous sums spent anony-

mously to fund TV and radio advertising in the final campaign

stages; on the other hand, electronic media advertising during such

periods that clearly identified a candidate and targeted the

relevant electorate rarely, if ever, was funded for any other

purpose than to influence elections. Id. at 189-94 .

Thus, the McConnell Court explained, the amount of pure issue

electronic media advocacy that might be chilled during a specified

campaign homestretch was negligible in comparison with the

beneficial effects of public disclosure of the identities of the 18 funders of such electronic electioneering communications. Id. at

196 (agreeing that “the important state interests” upheld through

disclosure requirements are “providing the electorate with

information, deterring actual corruption and avoiding any appear-

ance thereof, and gathering the data necessary to enforce more

substantive electioneering restrictions”). In fact, the McConnell

Court agreed with the lower court that “disclosure requirements are

constitutional because they do not prevent anyone from speaking.”

Id. at 201 (citation omitted). The Court flatly rejected the

plaintiffs’ argument that Buckley established that the First

Amendment absolutely guaranteed the right of persons to anonymously

engage in political speech for the purpose of issues advocacy under

any and all circumstances. Id. at 190-93 . The Court explained

that in Buckley it had merely adopted a narrowing construction of

the FECA to avoid a potential constitutional conflict; it did not

adopt the Buckley express advocacy limitation and magic words

implementation as a freestanding commandment of the First Amend-

ment. Id. Moreover, in doing so, the McConnell Court reaffirmed

that it had 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, id. at 192 (citing U.S. v.

Raines, 362 U.S. 17 , 21 (1960); and that the nature of judicial

review constrains a federal court to consider only the case that is

actually before it. Id. (citing James B. Beam Distilling Co. V.

19 Georgia, 501 U.S. 529, 547 (1991)(Blackmun, J., dissenting)).

For these reasons, the majority in the present case has clearly

misinterpreted the McConnell decision and has misapplied it in

engrafting Buckley’s limiting construction on to the Louisiana

Campaign Finance Disclosure Act. Assuming, without deciding, that

the majority has correctly guessed how the Supreme Court of

Louisiana would interpret the CFDA, and that the CFDA is unconsti-

tutionally vague as so construed, it clearly does not follow that

the majority has adopted a narrowing construction that is appropri-

ate in the light of the Supreme Court’s holdings and teachings in

McConnell. On the contrary, the majority’s limiting interpretation

of the CFDA would be acceptable only under the theory that the

Court in Buckley had constitutionalized the express advocacy

limitation and magic words prescription, a constitutional theory

that the Court expressly rejected in McConnell.

Instead, the Supreme Court’s decision in McConnell clearly

indicates that the State of Louisiana may constitutionally require

the Center to comply with the disclosure requirements of the CFDA

under a construction that is no broader than is required by the

precise facts to which it is to be applied in the present case. In

this case, the Center asserts that it desired only to engage in

issue advocacy, and that the TV and radio advertising it proposed

to broadcast during the three weeks prior to the September 18, 2004

Louisiana Supreme Court Associate Justice election, would not have 20 been funded or broadcast for the purpose of influencing the

election. But the Center admitted that its broadcasts would clearly

identify one or more candidates and be targeted to the relevant

electorate. Consequently, the broadcasts that the Center desired

to fund fall squarely within a category of speech closely analogous

to the definition of “electioneering communication” in respect to

which the Supreme Court held that Congress may under the First

Amendment require disclosure, viz. (1) a broadcast (2) clearly

identifying a candidate (3) aired within a specific time prior to

election, and (4) targeted to the relevant electorate. McConnell, 540 U.S. at 194 .

3. The Majority Opinion Formulates A Constitutional Rule Broader Than The Facts Of This Case In order to reduce the scope of the CFDA to a constitutional

scale it is only necessary to construe it so as to limit its

disclosure requirement to the names and addresses of those who fund

electronic media broadcasts, clearly identifying a candidate, aired

within three weeks prior to a primary election, and targeted to the

relevant electorate. The majority opinion, however, in disregard

of McConnell, grafts the Buckley express advocacy/magic words

limitation on to the CFDA, tacitly formulating and applying a much

broader rule that nullifies the CFDA’s disclosure requirement in

respect to all political speech except for that containing the

Buckley magic words of express candidate advocacy. Thus, the

majority opinion violates the tenet of the Supreme Court, as 21 reaffirmed in McConnell, against the formulation of a constitu-

tional rule broader than the precise facts of the case to which it

applies.1 Consequently, the majority is simply mistaken in assuming that the McConnell Court’s holdings

have no effect upon “the continuing relevance of the magic words requirement as a tool of statutory

construction where a court is dealing with a vague campaign finance regulation.” The majority’s

assumption rests precariously on a false syllogism, viz., McConnell dealt with an unambiguous

statute; the present case deals with an ambiguous statute (according to the majority’s necessarily non-

authoritative state law interpretation); therefore, nothing McConnell says bears upon our narrowing

construction of a state statute. Only a moment’s reflection is needed to see the fallacy of this

sophism. The Supreme Court has developed First Amendment principles that it has applied to

determine whether any particular statute is constitutionally ambiguous and in need of a narrowing

construction. Therefore, the Court’s teachings on the First Amendment in such cases are generally

authoritative and binding upon the inferior federal courts regardless of the court’s conclusion as to

whether the statute in the particular case before it is found to be ambiguous and in need of a

narrowing construction. Thus, the majority cannot legitimately disregard the teachings of the

McConnell Court as irrelevant “assertions,” as it seeks to do, simply because the Court determined

that the statute in that case was not ambiguous and the majority has decided the case before us is

ambiguous.

1 Although the majority does not disclose the constitutional rule supporting its narrowing construction of the CFDA, the majority must have tacitly formulated such a rule. For without a constitutional rule as a basis this court has no authority to narrowly construe state statutes.

22 Therefore, the majority erred in concluding that it must “continue to adhere to the express

advocacy/issue advocacy dichotomy that the Court set up in Buckley and that we employed in

Chamber of Commerce of the United States v. Moore, 288 F.3d 187, 194-95 (5th Cir. 2002).”

Further, as Justice Thomas aptly recognized, the McConnell Court, “by concluding that the ‘express

advocacy’ limitation derived by Buckley is not a constitutionally mandated line, has, in one blow,

overturned every Court of Appeals that has addressed this question” including, inter alia, Chamber

of Commerce of the United States v. Moore, supra., on which the majority erroneously relies. 540

U.S. at 278, n.11 (Thomas, J., dissenting)

CONCLUSION For these reasons, I respectfully dissent. The majority erred in refusing to certify the res nova

state law questions implicated in the interpretation of the CFDA to the Louisiana Supreme Court.

The majority further erred in disregarding the holdings and teachings of McConnell which require,

at the most, limiting the CFDA’s disclosure requirement to a category of political speech analogous

to that defined as “electioneering communication” by Congress in the BCRA that the McConnell

Court upheld. Finally, the majority erred needlessly and most harmfully in grafting on to the CFDA

the Buckley magic words of express candidate advocacy, thereby nullifying the CFDA’s disclosure

requirement except in those rare instances in which political speakers fail to eschew the magic words.

Ultimately, I believe that this case would be more properly decided by the Louisiana Supreme Court.

For these reasons, I respectfully dissent from the majority’s decision.

23