Filed: May 11, 2006
Latest Update: Feb. 21, 2020
Summary: 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. _ Appea
Summary: 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. _ Appeal..
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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
