FISHER, Circuit Judge:
This appeal concerns the constitutionality of four provisions of Hawaii's campaign finance laws under Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and related authority. A-1 A-Lectrician, Inc. (A-1), a for-profit corporation, appeals the district court's summary judgment in favor of members of Hawaii's Campaign Spending Commission ("the Commission"). Relying on Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990 (9th Cir.2010), we hold that the challenged laws satisfy the First and Fourteenth Amendments.
The plaintiffs are Jimmy Yamada, Russell Stewart and A-1. Before the 2010 general election, Yamada and Stewart each sought to contribute $2,500 to the Aloha Family Alliance-Political Action Committee (AFA-PAC), a registered "noncandidate committee" that makes independent campaign expenditures in Hawaii elections. They were forbidden from doing so, however, by Hawaii Revised Statute (HRS) § 11-358, which prohibits any person from "mak[ing] contributions to a noncandidate committee in an aggregate amount greater than $1,000 in an election."
Plaintiff A-1 is a Hawaii electrical-construction corporation that makes campaign contributions and engages in political speech. Yamada is its CEO. During the 2010 election, A-1 contributed over $50,000 to candidates, candidate committees and party committees. It also purchased three newspaper advertisements at a cost of $2,000 to $3,000 each. Under the heading "Freedom Under Siege," these advertisements
As a result of these expenditures and contributions, Hawaii law required A-1 to register as a "noncandidate committee" as defined by HRS § 11-302. Section 11-302 imposes reporting and disclosure requirements on any organization that has "the purpose of making or receiving contributions, making expenditures, or incurring financial obligations to influence [elections]" over $1,000 in the aggregate for an election cycle. Id.; see HRS § 11-321(g). A-1, which plans to run similar advertisements and to make similar contributions to candidates in the future, objects to both the disclaimer requirement and the non-candidate committee registration and reporting requirements.
If A-1 is relieved of the obligation of registering as a noncandidate committee, it could be subject to reporting requirements associated with "electioneering communications" because it seeks to publish newspaper advertisements that mention candidates by name shortly before an election. See HRS § 11-341. Every entity that makes a disbursement for an electioneering communication, such as A-1's newspaper advertisements, must report certain identifying information to the Commission within 24 hours of certain disclosure dates. See id. Under the regulations in effect when A-1 filed this action, if A-1 were to remain a noncandidate committee, however, it would not have to file an electioneering communications report or comply with the provisions of HRS § 11-341. See Haw. Admin. Rule (HAR) § 3-160-48.
Finally, A-1 is often a state government contractor, and when it has such contracts, Hawaii law prohibits it from making campaign contributions to candidates or candidate committees. See HRS § 11-355. A-1 challenges that prohibition as applied to its speech, although it declares it seeks to contribute only to lawmakers who neither award nor oversee its public contracts.
Shortly before the 2010 primary election, Yamada, Stewart and A-1 filed a nine-count complaint challenging the constitutionality of five provisions of Hawaii campaign finance law. Yamada and Stewart challenged the $1,000 limit on contributions to noncandidate committees, HRS § 11-358, and A-1 challenged four other provisions: (1) the requirement that it register as a noncandidate committee and the associated expenditure definition, HRS § 11-302; (2) if it does not have to register as a noncandidate committee, the requirement that it report identifying information when it makes an electioneering communication, HRS § 11-341; (3) the requirement that its advertisements include certain disclaimers, HRS § 11-391; and (4) the ban on contributions from government contractors to state legislative candidates, HRS § 11-355.
In October 2010, the district court preliminarily enjoined enforcement of the $1,000 contribution limit, HRS § 11-358, as applied to Yamada's and Stewart's proposed
On the parties' cross-motions for summary judgment, the district court permanently enjoined the $1,000 contribution limit, HRS § 11-358, as applied to Yamada's and Stewart's contributions to AFA-PAC and rejected each of A-1's constitutional challenges. See Yamada v. Weaver, 872 F.Supp.2d 1023, 1027-28, 1063 (D.Haw.2012) (Yamada III). A-1 appeals the denial of summary judgment on its claims. The defendants have not cross-appealed the court's invalidation of § 11-358.
Yamada and Stewart sought their attorney's fees under 42 U.S.C. § 1988 based on their successful constitutional challenge to the $1,000 contribution limit. The district court awarded them $60,152.65 in fees and $3,623.29 in costs. Yamada and Stewart appeal that award in several respects, including the district court's denial of the fees they incurred defending against the defendants' abandoned appeal of the preliminary injunction ruling.
We have jurisdiction under 28 U.S.C. § 1291 and review A-1's constitutional challenges de novo. See Human Life, 624 F.3d at 1000. A-1 raises three groups of issues on appeal: (1) whether the expenditure, noncandidate committee and advertisement definitions are unconstitutionally vague; (2) whether the noncandidate committee definition and advertising disclaimer and electioneering communications reporting requirements impose unconstitutional burdens on speech; and (3) whether the ban on contributions by government contractors is unconstitutional as applied to A-1's proposed contributions. Yamada and Stewart also appeal the partial denial of attorney's fees. We address these issues in turn.
We begin by addressing A-1's argument that § 11-302's definitions of "expenditure," "noncandidate committee" and "advertisement" are unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. A law is unconstitutionally vague when it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). This doctrine "addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way." FCC v. Fox Television Stations, Inc., ___ U.S. ___, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012). Where, as here, First Amendment freedoms are involved, "rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech." Id. Even for regulations of expressive activity, however, "perfect clarity and precise guidance" are not required, Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), because "we can never expect mathematical certainty from our language," Human Life, 624 F.3d at 1019 (quoting Grayned v. City of Rockford, 408 U.S. 104,
In evaluating A-1's challenges, we must consider "any limiting construction that a state court or enforcement agency has proffered." Ward, 491 U.S. at 796, 109 S.Ct. 2746 (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)) (internal quotation marks omitted). We may impose a limiting construction on a statute, however, "only if it is `readily susceptible' to such a construction." Reno v. ACLU, 521 U.S. 844, 884, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)). We will not "insert missing terms into the statute or adopt an interpretation precluded by the plain language of the ordinance." Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir.1998).
A-1's first vagueness challenge is to the expenditure and noncandidate committee definitions. Section 11-302 defines an "expenditure" to include:
HRS § 11-302 (emphasis added). It defines a "noncandidate committee" as:
Id. (emphasis added). Noncandidate committees are Hawaii's version of independent expenditure committees, similar to the Washington "political committee" definition we addressed in Human Life. See 624 F.3d at 997.
A-1 challenges these definitions under Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), which held that the terms "influencing" and "for the purpose of influencing" were unconstitutionally vague when used to delineate types of speech subject to regulation. Id. at 77-82, 96 S.Ct. 612. If both definitions are unconstitutionally vague, Hawaii cannot constitutionally impose non-candidate committee status and the accompanying registration and reporting burdens on A-1.
Like the district court, we assume without deciding that the term "influence" may be vague under some circumstances. "Conceivably falling within the meaning of `influence' are objectives as varied as advocacy for or against a candidate's election; championing an issue for inclusion in a candidate's platform; and encouraging all candidates to embrace public funding." Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 65 (1st Cir.2011). But the Commission has offered and the district court
A-1 argues that the proffered limiting construction does not render § 11-302 constitutional because (1) it is inconsistent with the plain language of the statute, thus barring us from adopting it, and (2) even if we could adopt it, the challenged definitions remain unconstitutionally vague. We find neither argument persuasive.
The Commission's proffered construction is not inconsistent with the plain language of the statute. We have previously noted that the term "influencing" is susceptible to a narrowing construction, see ACLU of Nev. v. Heller, 378 F.3d 979, 986 n. 5 (9th Cir.2004), and the Commission's interpretation of "influence" is consistent with Buckley, which construed the phrase "for the purpose of ... influencing" to mean "communications that expressly advocate the election or defeat of a clearly identified candidate," 424 U.S. at 79, 80, 96 S.Ct. 612 (footnote omitted). Given the substantial similarity between the statutory language in Buckley and the language at issue here, the Commission's gloss is entirely reasonable. Compare 2 U.S.C. § 431(f) (1971), with HRS § 11-302.
Moreover, the Commission reasonably construes the its functional equivalent. After Buckley, case law and Federal Election Commission regulations have broadened the concept of express advocacy to include its "functional equivalent," as defined in Wisconsin Right to Life, 551 U.S. at 469-70, 127 S.Ct. 2652. See 11 C.F.R. § 100.22; Real Truth About Abortion, Inc. v. Fed. Election Comm'n, 681 F.3d 544, 550-53 (4th Cir.2012) (discussing the evolution of the "functional equivalent of express advocacy" concept). Elsewhere, Hawaii's Commission has adopted a regulation defining express advocacy with reference to its functional equivalent, or as communications that are "susceptible to no other reasonable interpretation but as an exhortation to vote for or against a candidate." HAR § 3-160-6. The Commission's proposed construction is consistent with Buckley, subsequent Supreme Court decisions, federal regulations and other Commission regulations. The proposed construction, therefore, is neither unreasonable nor foreclosed by the plain language of the statute. See Wisconsin Right To Life, Inc. v. Barland, 751 F.3d 804, 832-34 (7th Cir.2014) (limiting "for the purpose of influencing the election or nomination for election of any individual to state or local office" to express advocacy and its functional equivalent); McKee, 649 F.3d at 66-67 (construing "influencing" and "influence" in Maine campaign finance statutes to include only communications that constitute express advocacy or its functional equivalent).
The legislative history of Hawaii's non-candidate committee and expenditure definitions
A-1 nonetheless contends we should not adopt the narrowing construction because it would not bind a state court and therefore provides insufficient protection for First Amendment values. We again disagree. By adopting a "`readily apparent' constitutional interpretation," we provide A-1 and other parties not before the court "sufficient protection from unconstitutional application of the statute, as it is quite likely nonparty prosecutors and state courts will apply the same interpretation." Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 932 (9th Cir.2004); see also Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1022 n. 15 (9th Cir.2013).
We hold that the Commission's proffered construction is neither unreasonable nor the product of "strained statutory construction." Wasden, 376 F.3d at 932. We therefore adopt it.
We also reject A-1's argument that § 11-302's definitions of "expenditure" and "noncandidate committee" are unconstitutionally vague even with this limiting construction in place. With the narrowing gloss, these definitions are sufficiently precise to provide "a person of ordinary intelligence fair notice of what is prohibited." Williams, 553 U.S. at 304, 128 S.Ct. 1830. Only expenditures for communications that expressly advocate for a candidate or are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" can trigger noncandidate committee registration, reporting and disclosure requirements under § 11-302. There is no dispute that "express advocacy" is not a vague term, and the controlling opinion in Wisconsin Right to Life held the "functional equivalent" or "appeal to vote" component of this test also meets the "imperative for clarity" that due process requires. 551 U.S. at 474 n. 7, 127 S.Ct. 2652. That close cases may arise in applying this test does not make it
A-1 resists this conclusion, advancing two arguments why the "appeal to vote" language is impermissibly vague. Neither is persuasive.
First, A-1 contends the test is unconstitutionally vague because Hawaii's law applies to a broader range of communications than the provision upheld in Wisconsin Right to Life. Wisconsin Right to Life sustained the functional equivalent test against a vagueness challenge to the federal definition of electioneering communications, which covers only broadcast communications, see 551 U.S. at 474 n. 7, 127 S.Ct. 2652; 2 U.S.C. § 434(f)(3) (2000 ed., Supp. IV), whereas Hawaii's noncandidate committee and expenditure definitions extend to speech in printed form, see HRS § 11-302. The statute at issue in Wisconsin Right to Life also regulated only communications run shortly before an election, whereas Hawaii's statute applies to communications without strict temporal limitations. But these differences are immaterial. Regardless of when a communication is aired or printed and whether it appears in print or in a broadcast medium, the purveyor of the advertisement has fair notice that the regulations reach only those ads that clearly advocate for an identified candidate. Like the Fourth Circuit, we hold that the functional equivalent language is not unconstitutionally vague merely because it applies more broadly than the federal provision upheld in Wisconsin Right to Life. See Ctr. for Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 280-81 (4th Cir.2013).
Second, the validity of the functional equivalent test has not been undermined by Citizens United, which struck down the federal electioneering communication definition, see 2 U.S.C. § 434(f)(3), for which the test was first developed. As the First Circuit explained in rejecting an identical argument:
McKee, 649 F.3d at 69 (citations omitted); see also Nat'l Org. for Marriage v. Roberts, 753 F.Supp.2d 1217, 1220 (N.D.Fla. 2010), aff'd, 477 Fed.Appx. 584, 585 (11th Cir.2012) (per curiam). We also have relied on the appeal to vote test, albeit in dicta, since Citizens United. See Human Life, 624 F.3d at 1015. We could not have done so if the test was unconstitutionally vague.
Accordingly, we sustain Hawaii's non-candidate committee and expenditure definitions from A-1's vagueness challenges. The term "influence" is readily and reasonably interpreted to encompass only "communications or activities that constitute
A-1 argues that § 11-302's advertising definition is unconstitutionally vague because it uses the terms "advocates," "supports" and "opposition." This provision spells out when an advertisement must include a disclaimer as to whether the ad was disseminated with or without the approval of a candidate. See HRS § 11-391. In relevant part, Hawaii law defines an "advertisement" as:
HRS § 11-302 (emphasis added).
Applying a narrowing construction to this definition, as before, the district court limited the reach of "advocates or supports the nomination, opposition, or election of the candidate" to express advocacy or its functional equivalent. See Yamada III, 872 F.Supp.2d at 1054. With this limiting construction, the district court concluded that Hawaii's definition of an advertisement was not unconstitutionally vague. A-1 contends that the district court impermissibly adopted a limiting construction for the same reasons it argues a limiting construction was inappropriate for the noncandidate committee and expenditure definitions. It further argues that with or without the limiting construction, the challenged definition is unconstitutionally vague under Buckley and McConnell v. Federal Election Commission, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled on other grounds by Citizens United, 558 U.S. at 365-66, 130 S.Ct. 876. The Commission responds that the definition is not vague even without a limiting construction.
We agree with the Commission that Hawaii's advertising definition is sufficiently precise without a limiting construction and therefore decline to adopt one. The words "advocates or supports" and "opposition" as used here are substantially similar to the words "promote," "oppose," "attack" and "support" that survived a vagueness challenge in McConnell. There, the Court considered a statute defining "Federal election activity" as "a public communication that refers to a clearly identified candidate for Federal office... and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate)." 2 U.S.C. § 431(20)(A)(iii). The Court noted that "[t]he words `promote,' `oppose,' `attack,' and `support' clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision." McConnell, 540 U.S. at 170 n. 64, 124 S.Ct. 619. Because "[t]hese words `provide explicit standards for those who apply them' and `give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,'" the Court held that the provision was not unconstitutionally vague. Id. (quoting Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294).
Decisions in other circuits also support that conclusion. In McKee, the First Circuit turned away a vagueness challenge to a Maine law using the terms "promoting," "support" and "opposition" in several campaign finance provisions. The terms were not impermissibly vague because they were tied to an "election-related object"— either "candidate," "nomination or election of any candidate" or "campaign." McKee, 649 F.3d at 64. Maine's expenditure statute, for example, "instructs that reports submitted pursuant to the provision `must state whether the expenditure is in support of or in opposition to the candidate.'" Id. at 63 n. 41 (quoting Me.Rev.Stat. tit. 21-A, § 1019-B(3)(B)). The Second, Fourth and Seventh Circuits have reached similar conclusions. See Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 128-30 (2d Cir.2014) (holding that "promotes," "supports," "attacks" and "opposes" were not vague with reference to a "clearly identified candidate"); Tennant, 706 F.3d at 286-87 (holding that "promoting or opposing" was not vague); Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 485-87, 495 (7th Cir.2012) (holding that "promote" and "oppose" were not vague).
As in McKee, Hawaii's statutes are tied to an election-related object—the terms "advocates," "supports" and "opposition" refer only to "the nomination ... or election of the candidate." HRS § 11-302. So too does the federal law upheld in McConnell, which used the words "promote," "oppose," "attack" and "support" only in relation to a "clearly identified candidate for Federal office." 2 U.S.C. § 431(20)(A)(iii). Although the terms "advocate," "support" and "opposition" may not, in isolation, offer sufficient clarity as to what advertisements must include a disclaimer, their proximity to "nomination" or "election of the candidate" make clear the sort of campaign-related advertising for which a disclaimer must be included. Read as a whole and in context, the advertisement definition is sufficiently clear to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited." Grayned, 408 U.S. at 108, 92 S.Ct. 2294.
Finally, we reject A-1's argument that "advocates," a term that McConnell did not consider, makes Hawaii's advertising definition unconstitutionally vague. A-1 relies on Buckley, which considered a provision that prohibited any person or group from making "any expenditure ... relative to a clearly identified candidate during a calendar year which, when added to all other expenditures ... advocating the election or defeat of such candidate, exceeds $1,000." 424 U.S. at 42, 96 S.Ct. 612. Buckley held that this provision— which imposed a severe restriction on independent spending by all individuals and groups other than political parties and campaign organizations—was impermissibly vague because of its potential breadth, extending to the discussion of public issues untethered from particular candidates. See id. at 40, 42, 96 S.Ct. 612. The Court therefore construed the provision "to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Id. at 44, 96 S.Ct. 612.
A-1 brings First Amendment challenges to (1) the registration, reporting and disclosure requirements that Hawaii places on "noncandidate committees" and (2) the requirement that political advertisements include a disclaimer stating whether they are broadcast or published with the approval of a candidate. Because the challenged laws provide for the disclosure and reporting of political spending but do not limit or ban contributions or expenditures, we apply exacting scrutiny. See Family PAC v. McKenna, 685 F.3d 800, 805-06 (9th Cir.2011); Human Life, 624 F.3d at 1005. To survive this scrutiny, a law must bear a substantial relationship to a sufficiently important governmental interest. See Doe v. Reed, 561 U.S. 186, 196, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010); Human Life, 624 F.3d at 1008. Put differently, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Doe, 561 U.S. at 196, 130 S.Ct. 2811 (quoting Davis v. Fed. Election Comm'n, 554 U.S. 724, 744, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008)) (internal quotation marks omitted).
We first consider whether the noncandidate committee reporting and disclosure requirements satisfy exacting scrutiny as applied to A-1. Looking to the burden side of the balance, the district court found that the "registration and disclosure requirements that come with noncandidate committee status do not present an undue burden on A-1." Yamada III, 872 F.Supp.2d at 1052. We agree.
The noncandidate committee is Hawaii's method for monitoring and regulating independent political spending in state elections. In relevant part, a noncandidate committee is broadly defined as an organization "that has the purpose of making or receiving contributions, making expenditures, or incurring financial obligations to influence" Hawaii elections. HRS § 11-302.
Expenditures are further defined as payments or nonmonetary contributions made for the purpose of communications or activities that constitute express advocacy or its functional equivalent. See id.; HRS § 11-302.
Noncandidate committee status is triggered only when an organization receives contributions or makes or incurs qualifying expenditures totaling more than $1,000 during a two-year election cycle. See HRS § 11-321(g). Within 10 days of reaching this threshold, the organization must register as a noncandidate committee by filing an organizational report with the Commission. Id. In addition to registering, the organization must file an organizational report, designate officers, disclose its bank account information, and designate a treasurer responsible for recording contributions and expenditures and maintaining records for five years. See HRS §§ 11-321, 11-323, 11-324, 11-351(a). The committee's contributions must be segregated from its other funds. See HAR § 3-160-21(c).
Every committee must also comply with reporting requirements tied to election periods. These requirements include disclosing contributions made and received, expenditures by the committee and the assets on hand at the end of the reporting period. See HRS §§ 11-331 (filing of reports), 11-335 (noncandidate committee reports), 11-336 (timing of reports for non-candidate committees), 11-340 (penalties for failure to file a required report).
A-1's argument that these burdens are substantial is foreclosed by Human Life, which held that the burdens of compliance with Washington State's materially indistinguishable registration and reporting requirements were "modest" and "not unduly onerous." 624 F.3d at 1013-14. Indeed, the majority of circuits have concluded that such disclosure requirements are not unduly burdensome. See Sorrell, 758 F.3d at 137-38 (rejecting the argument that "registration, recordkeeping necessary for reporting, and reporting requirements" are onerous as a matter of law); Worley v. Fla. Sec'y of State, 717 F.3d 1238, 1250 (11th Cir.2013) (holding that Florida's analogous "PAC regulations do not generally impose an undue burden"); McKee, 649 F.3d at 56 (holding that Maine's analogous PAC regulations "do not prohibit, limit, or impose any onerous burdens on speech"); Family PAC, 685 F.3d at 808 n. 6 (noting the generally "modest" administrative burdens imposed
A-1 would distinguish Human Life's burden analysis on the ground that a non-candidate committee in Hawaii is subject to additional limits on the kinds of contributions it may receive. Specifically, A-1 points to Hawaii law limiting contributions to noncandidate committees (HRS § 11-358), and banning contributions from particular sources, including bans on contributions made in the name of another (HRS § 11-352), anonymous contributions (HRS § 11-353), or prohibitions on contributions from government contractors and foreign nationals (HRS §§ 11-355, 11-356). These differences do not distinguish Human Life. First, because A-1 is self-financed and does not receive contributions, any funding limits or bans have no bearing on our as-applied constitutional analysis. Second, none of these limits imposes a substantial burden. The Commission concedes that the only constitutionally suspect limit A-1 identifies—the $1,000 limit on contributions to noncandidate committees—is unconstitutional as applied to committees making only independent expenditures. The other limits apply to A-1 regardless of its status as a noncandidate committee. Thus, there are no material differences between the burdens of non-candidate committee status in Hawaii and political committee status in Washington.
A-1 has been complying with the non-candidate committee requirements for several years without difficulty. No separate organization need be created, as long as records are kept tracking financial activity by the noncandidate committee, see HAR § 3-160-21(c), and filing of the brief, required reports may be performed electronically at infrequent intervals, see HRS § 11-336. As the district court concluded, "[a]lthough the requirements might be inconvenient, the record does not indicate the burdens on A-1 are onerous as matters of fact or law." Yamada III, 872 F.Supp.2d at 1053.
Turning to the governmental interests side of the equation, there is no question that Hawaii's noncandidate committee requirements serve important government
Thus, Hawaii's noncandidate committee regulations serve all three interests that the Supreme Court has recognized as "important" in the context of reporting and disclosure requirements: "providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions." Canyon Ferry Rd. Baptist Church of E. Helena, Inc. v. Unsworth, 556 F.3d 1021, 1031 (9th Cir. 2009) (quoting McConnell, 540 U.S. at 196, 124 S.Ct. 619).
First, the reporting and disclosure obligations provide information to the electorate about who is speaking—information that "is vital to the efficient functioning of the marketplace of ideas, and thus to advancing the democratic objectives underlying the First Amendment." Human Life, 624 F.3d at 1005; see also McCutcheon v. Fed. Election Comm'n, ___ U.S. ___, 134 S.Ct. 1434, 1459-60, 188 L.Ed.2d 468 (2014); Citizens United, 558 U.S. at 368-69, 130 S.Ct. 876; Family PAC, 685 F.3d at 806, 808. "This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages," Citizens United, 558 U.S. at 371, 130 S.Ct. 876, making disclosure of this information a "sufficiently important, if not compelling, governmental interest," Human Life, 624 F.3d at 1005-06. Second, Hawaii's reporting and disclosure obligations "deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity." Buckley, 424 U.S. at 67, 96 S.Ct. 612; see also McCutcheon, 134 S.Ct. at 1459. Third, the registration, record keeping, reporting and disclosure requirements provide a means of detecting violations of valid contribution limitations, preventing circumvention of Hawaii's campaign spending limitations, including rules that bar contributions by foreign corporations or individuals, see HRS § 11-356, or that prohibit contributions from government contractors, see HRS § 11-355. See Buckley, 424 U.S. at 67-68, 96 S.Ct. 612; SpeechNow.org, 599 F.3d at 698 (holding that "requiring disclosure... deters and helps expose violations of other campaign finance restrictions"). Thus, Hawaii's noncandidate committee reporting and disclosure requirements indisputably serve important governmental interests.
A-1 nonetheless contends these reporting and disclosure requirements are not sufficiently tailored to survive exacting scrutiny because they apply to any organization that has "the purpose" of engaging
A-1's argument rests on Human Life, which considered the Washington disclosure regime whereby an organization qualifies as a political committee if its "primary or one of [its] primary purposes is to affect, directly or indirectly, governmental decision making by supporting or opposing candidates or ballot propositions." 624 F.3d at 1008 (internal quotation marks and citation omitted). First, Human Life rejected the argument that this definition was facially overbroad because "it covers groups with `a' primary purpose of political advocacy, instead of being limited to groups with `the' primary purpose of political advocacy." 624 F.3d at 1008-11 (emphasis added). It explained that Buckley and Federal Election Commission v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986), did not hold that an entity must have the sole, major purpose of political advocacy "to be deemed constitutionally a political committee." Human Life, 624 F.3d at 1009-10 (citing Buckley, 424 U.S. at 79, 96 S.Ct. 612). Next, Human Life held that Washington's political committee definition withstood exacting scrutiny because there was "a substantial relationship between Washington State's informational interest and its decision to impose disclosure requirements on organizations with a primary purpose of political advocacy." Id. at 1011. We reasoned that the definition:
Id. at 1011 (emphasis added).
A-1 correctly points out that the provision at issue in Human Life applied to organizations with a primary purpose of political advocacy, whereas Hawaii's law applies to an organization with "the purpose" of political advocacy. Human Life, however, did not "hold that the word `primary' or its equivalent [was] constitutionally necessary." Id. It held only that this limitation was "sufficient" for Washington's political committee definition to withstand First Amendment scrutiny. Id. Human Life is therefore not controlling, and, reaching an issue we did not address there, we conclude that Hawaii's noncandidate committee reporting and disclosure requirements are sufficiently tailored as applied to A-1 even without a "primary" modifier.
First, because Hawaii's definition extends only to organizations having "the purpose" of political advocacy, it avoids reaching organizations engaged in only incidental advocacy. Under the Commission's narrowing construction, noncandidate committee status applies to organizations that have the purpose of making or receiving contributions, or making expenditures, for express advocacy or its functional equivalent. Cf. Madigan, 697 F.3d at 488 (holding that Illinois' political committee definition's "limit of `on behalf of or in opposition to' confines the realm of regulated activity to expenditures and
Second, Hawaii's registration and reporting requirements are not triggered until an organization makes more than $1,000 in aggregate contributions and expenditures during a two-year election period. See HRS § 11-321(g); HAR § 3-160-21(a). This threshold also ensures that an organization must be more than incidentally engaged in political advocacy before it will be required to register and file reports as a noncandidate committee. Third, an organization that "raises or expends funds for the sole purpose of producing and disseminating informational or educational communications"—even if it also engages in limited political advocacy costing less than $1,000 in the aggregate—need not register as a noncandidate committee. See HRS §§ 11-302; 11-321(g). Fourth, if an organization registers as a noncandidate committee, but subsequently reduces its advocacy activity below the $1,000 threshold, it need only file a single report per election period or can terminate its registration. HRS § 11-339.
Given these limits and the extent of A-1's past and planned political advocacy, we have little trouble concluding that the regulations are constitutional as applied to A-1. A-1, which made more than $50,000 in contributions and spent more than $6,000 on political ads in 2010, clearly engages in more than incidental political advocacy. Although A-1 now pledges to limit its individual contributions to $250 and to contribute only to candidates, these proposed activities —combined with A-1's expenditures on its political ads—plainly exceed incidental activity. Hawaii thus has a strong interest in regulating A-1.
Hawaii's choice of a $1,000 registration and reporting threshold is also a far cry from the zero dollar threshold invalidated in Canyon Ferry, 556 F.3d at 1033-34. See also Worley, 717 F.3d at 1251 (noting that "federal PAC requirements kick in
A-1's argument that regulations should reach only organizations with a primary purpose of political advocacy also ignores the "fundamental organizational reality that most organizations do not have just one major purpose." Human Life, 624 F.3d at 1011 (internal quotation marks and citation omitted). Large organizations that spend only one percent of their funds on political advocacy likely have many other, more important purposes—but this small percentage could amount to tens or hundreds of thousands of dollars in political activity, depending on the size of the organization. See id.; see also Madigan, 697 F.3d at 489-90; McKee, 649 F.3d at 59. The $1,000 threshold appropriately reaches these multipurpose organizations' participation in the political process.
A-1's political advocacy underscores this point. Although A-1's political spending may be limited in proportion to its overall activities, the strength of Hawaii's informational interest does not fluctuate based on the diversity of the speaker's activities. Hawaii has an interest in ensuring the public can follow the money in an election cycle, regardless of whether it comes from a single-issue, political advocacy organization or a for-profit corporation such as A-1. The Commission makes the reported information freely available in searchable databases on its website, which provides Hawaiians with a vital window into the flow of campaign dollars.
Furthermore, Hawaii's noncandidate committee definition, by extending beyond organizations making political advocacy a priority, avoids the circumvention of valid campaign finance laws and disclosure requirements. See Human Life, 624 F.3d at 1011-12. As the Seventh Circuit has explained:
Madigan, 697 F.3d at 489. Hawaii's definition addresses the "hard lesson of circumvention" in the campaign finance arena, by including within its reach any entity that has political advocacy as one of its goals. McConnell, 540 U.S. at 165, 124 S.Ct. 619. As the district court explained:
Yamada III, 872 F.Supp.2d at 1052 (citation omitted).
In sum, the noncandidate committee definition and accompanying reporting and disclosure requirements are substantially related to Hawaii's important interests in informing the electorate, preventing corruption or its appearance, and avoiding the circumvention of valid campaign finance laws. Because the burden of complying with this disclosure scheme is modest compared to the significance of the interests being served, we uphold Hawaii's noncandidate committee reporting and disclosure requirements as applied to A-1.
In doing so on an as-applied basis, we have no occasion to consider whether Hawaii law would withstand exacting scrutiny as applied to another business or nonprofit group that seeks to engage in less substantial political advocacy than A-1. We decline to "speculate about `hypothetical' or `imaginary' cases." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). Based on the record before us, we hold only that noncandidate committee status may be extended to organizations, such as A-1, even though their primary purpose is not political advocacy. The burdens attending such a status are modest and substantially related to important government interests.
A-1 contends that Hawaii's requirement that political advertising include a disclaimer as to the affiliation of the advertiser with a candidate or candidate committee cannot survive exacting scrutiny. "Advertisements" for purposes of Hawaii election
A-1 seeks to place advertisements that (1) mention a candidate by name; (2) run in close proximity to an election; and (3) include language stating that particular candidates "are representatives who do not listen to the people," "do not understand the importance of the values that made our nation great" or "do not show the aloha spirit." It argues the disclaimer requirement is unconstitutional because it regulates the content of speech itself and is therefore an even greater incursion on its First Amendment rights than reporting requirements. A-1 further contends a disclaimer can be mandated only for speech that is a federal electioneering communication, as defined by federal law, or that is express advocacy, not including its functional equivalent.
We agree with the district court that the disclaimer requirement survives exacting scrutiny as applied to A-1's newspaper advertisements. Like the noncandidate committee requirements, the disclaimer serves an important governmental interest by informing the public about who is speaking in favor or against a candidate before the election and imposes only a modest burden on First Amendment rights. A-1's arguments to the contrary are all but foreclosed by Citizens United, 558 U.S. at 366-69, 130 S.Ct. 876.
First, the disclaimer requirement imposes only a modest burden on A-1's First Amendment rights. Like disclosure requirements, "[d]isclaimer ... requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities and do not prevent anyone from speaking." Id. at 366, 130 S.Ct. 876 (citation and internal quotation marks omitted). Hawaii's disclaimer requirement is no more burdensome than the one for televised electioneering communications upheld in Citizens United. See id. at 366-69, 130 S.Ct. 876. That rule required a statement as to who was responsible for the content of the advertisement "be made in a `clearly spoken manner,' and displayed on the screen in a `clearly readable manner' for at least four seconds," along with a further statement that "the communication `is not authorized by any candidate or candidate's committee.'" Id. at 366, 130 S.Ct. 876 (quoting 2 U.S.C. § 441d(d)(2), (a)(3)). Similarly, all that is required here is a short statement stating that the advertisement is published, broadcast, televised, or circulated with or without the approval and authority of the candidate. See HRS § 11-391(a).
Second, requiring a disclaimer is closely related to Hawaii's important governmental
Accordingly, the disclaimer requirement does not violate the First Amendment as applied to A-1's political advertisements.
A-1 acknowledges that, at the time it filed this action, it lacked standing to challenge the electioneering communications law if it must continue to register as a noncandidate committee. See Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir.2013) ("A plaintiff must demonstrate standing for each claim he or she seeks to press and for each form of relief sought.") (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)). A-1 argues, however, that it now has standing because Hawaii law was amended as of November 5, 2014, to require registered noncandidate committees to comply with electioneering communications reporting requirements. See 2013 Haw. Sess. L. Act 112. But, "[s]tanding is determined as of the commencement of litigation." Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir.2002); see also Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir. 2005) ("As with all questions of subject
A-1's final First Amendment challenge is to Hawaii's ban on contributions by government contractors. The challenged provision makes it
HRS § 11-355(a).
A-1 does not challenge the ban as applied to contributions it makes to lawmakers or legislative candidates who either decide whether it will receive a contract or oversee its performance of a contract. Instead, A-1 asserts it intends to make contributions only to lawmakers or candidates who will neither award nor oversee its contracts, and it argues the government contractor contribution ban is unconstitutional solely as applied to those intended contributions.
A-1 does not argue that Hawaii's government contractor contribution ban is unconstitutional as a general matter. The Second Circuit confronted a similar ban in Green Party of Connecticut v. Garfield, 616 F.3d 189 (2d Cir.2010). There, the court turned away a First Amendment challenge to Connecticut's ban on campaign contributions by state contractors, holding that it furthered a "`sufficiently important' government interest[]" by "combat[ing] both actual corruption and the appearance of corruption caused by contractor contributions." Id. at 200. The court further held that the ban was "closely drawn" because it targeted contributions by current and prospective state contractors —the contributions associated most strongly with actual and perceived corruption. See id. at 202. Recognizing a ban on contributions by government contractors, rather than a mere limit on the amount of those contributions, was "a drastic measure," the court held that the ban was closely drawn because it addressed a perception of corruption brought about by recent government-contractor-related corruption scandals in Connecticut. See id. at 193-94, 204-05. The ban "unequivocally addresses the perception of corruption" because, "[b]y totally shutting off the flow of money from contractors to state officials, it eliminates any notion that contractors can influence state officials by donating to their campaigns." Id. at 205; see also Ognibene v. Parkes, 671 F.3d 174, 185 (2d Cir.2011) ("When the appearance of corruption is particularly strong due to recent scandals ... a ban may be appropriate.").
The same reasoning applies here. Hawaii's government contractor contribution ban serves sufficiently important governmental interests by combating both actual and the appearance of quid pro quo corruption. Green Party, 616 F.3d at 200; see also McCutcheon, 134 S.Ct. at 1450 (reaffirming that a legislature may limit contributions to prevent actual quid pro quo corruption or its appearance); cf. Preston v. Leake, 660 F.3d 726, 736-37 (4th Cir.2011) (upholding a complete ban on contributions by lobbyists "as a prophylactic to prevent not only actual corruption but also the appearance of corruption in future state political campaigns"). It is
A-1's narrower argument that the contractor contribution ban is unconstitutional as applied to its contributions to lawmakers and candidates who neither award nor oversee its contracts is also without merit. Hawaii's interest in preventing actual or the appearance of quid pro quo corruption is no less potent as applied to A-1's proposed contributions because the Hawaii legislature as a whole considers all bills concerning procurement. Thus, although an individual legislator may not be closely involved in awarding or overseeing a particular contract, state money can be spent only with an appropriation by the entire legislature. See Haw. Const. art. VII, §§ 5, 9. Hawaii reasonably concluded that contributions to any legislator could give rise to the appearance of corruption.
In essence, A-1 contends that Hawaii's contractor ban should be tailored more narrowly, but narrower tailoring is not required here. There is no question the ban is closely drawn to the state's anticorruption interest as a general matter, and we decline to revisit the legislature's judgment not to craft a still narrower provision. Closely drawn scrutiny requires "a fit that is not necessarily perfect, but reasonable," and Hawaii's contractor contribution ban is a reasonable response to the strong appearance of corruption that existed at the time of the legislature's actions. McCutcheon, 134 S.Ct. at 1456 (quoting Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)) (internal quotation marks omitted). We need not "determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives" to uphold the contribution ban. Randall, 548 U.S. at 248, 126 S.Ct. 2479.
Even if narrower tailoring were required, A-1's proposal for a narrower ban is unworkable. A-1 does not explain how it would determine, before the election, which candidates would neither award nor oversee any of its contracts. The membership of the various legislative committees
Yamada III, 872 F.Supp.2d at 1061 n. 30 (citation omitted). Simply put, A-1 cannot predict with certainty which candidates will not become involved in the contract award or oversight process when it makes its contributions. Moreover, A-1's contributions to candidates who do not become directly involved in contract award and oversight could still create the appearance of "the financial quid pro quo: dollars for political favors." Citizens United, 558 U.S. at 359, 130 S.Ct. 876 (quoting Fed. Election Comm'n v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985)) (internal quotation marks omitted).
For these reasons, we hold that Hawaii's government contractor contribution ban survives closely drawn scrutiny even as applied to A-1's proposed contributions to candidates who neither decide whether A-1 receives contracts nor oversee A-1's contracts.
Finally, we consider the district court's fee award to Yamada and Stewart (the plaintiffs) for their successful constitutional challenge to the $1,000 limit on contributions to noncandidate committees, HRS § 11-358. Under 42 U.S.C. § 1988(b), the district court had discretion to award "the prevailing party ... a reasonable attorney's fee." We review the award for an abuse of discretion, but any element of legal analysis that figures into the district court's decision is reviewed de novo. See Watson v. Cnty. of Riverside, 300 F.3d 1092, 1095 (9th Cir.2002). The plaintiffs' primary contention, with which we agree, is that the district court erred by refusing to award the fees they incurred in successfully defending against the defendants' interlocutory appeal. We address the plaintiffs' other contentions in a concurrently filed memorandum disposition.
In October 2010, the district court granted a preliminary injunction in favor of the plaintiffs on their claim that HRS § 11-358, limiting to $1,000 contributions to noncandidate committees, violates the First Amendment. The defendants then filed an interlocutory appeal. After the parties finished briefing in this court, however, the defendants dismissed the appeal, presumably in light of an intervening decision upholding a preliminary injunction of a similar contribution limit. See Thalheimer, 645 F.3d at 1117-21. In subsequent district court proceedings, the defendants offered to stipulate to a permanent injunction against § 11-358. The parties, however, were unable to reach agreement on the form of an injunction, and on the parties' subsequent cross-motions for summary judgment, the district court permanently enjoined § 11-358 as applied to the plaintiffs' proposed contributions.
Based on their successful constitutional challenge to § 11-358, Yamada and Stewart sought attorney's fees and costs, including those fees incurred in defending against
The plaintiffs contend, and we agree, that the district court's analysis was flawed for two reasons. First, contrary to the district court's analysis, Yamada and Stewart were not yet prevailing parties when the defendants dismissed their interlocutory appeal and could not have requested fees at that time. A court may award attorney's fees under § 1988 only to a "prevailing party," and a plaintiff prevails for purposes of § 1988 only "when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir.2013) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)) (internal quotation marks omitted). This requires an "enduring" change in the parties' relationship, Sole v. Wyner, 551 U.S. 74, 86, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007), that has "`judicial imprimatur' ... such as a judgment on the merits or a court-ordered consent decree," Watson, 300 F.3d at 1096 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)).
The district court concluded that the plaintiffs were prevailing parties under Watson, but Watson is distinguishable. As explained in Higher Taste, Watson stands for the proposition that, "when a plaintiff wins a preliminary injunction and the case is rendered moot before final judgment, either by the passage of time or other circumstances beyond the parties' control, the plaintiff is a prevailing party eligible for a fee award." Higher Taste, 717 F.3d at 717 (emphasis added). Here, the plaintiffs' challenge to HRS § 11-358 was not "rendered moot" until the district court entered final judgment against the Commission on that claim. A plaintiff does not become a prevailing party until it obtains relief that is "no longer subject to being `reversed, dissolved, or otherwise undone by the final decision in the same case.'" Id. (quoting Sole, 551 U.S. at 83, 127 S.Ct. 2188). Here, that occurred when the district court entered a final judgment on the plaintiffs' § 11-358 claim, not when the Commission abandoned its appeal of the adverse preliminary injunction ruling.
We disagree. Because the preliminary injunction order could be negated by a final decision on the merits, it was an interlocutory order that did not confer prevailing party status on the plaintiffs when the defendants dismissed their appeal.
Furthermore, because the plaintiffs were not yet prevailing parties when the defendants dismissed the interlocutory appeal, the district court erred by relying on Cummings II to deny them attorney's fees for the appeal. Cummings II was the second appeal before this court in a case proceeding under § 1983. The district court granted summary judgment to the plaintiffs in the underlying case, and the defendant appealed that final order. In Cummings v. Connell, 316 F.3d 886, 898-99 (9th Cir.2003) (Cummings I), we upheld the grant of summary judgment as to the defendant's liability, thus preserving the plaintiffs' status as prevailing parties on the merits, but remanded for reconsideration of damages. On remand, the district court awarded an additional $30,000 in attorney's fees the plaintiffs had incurred defending against the defendant's prior appeal in Cummings I. Cummings II, 402 F.3d at 942, 947. The parties cross-appealed again. We held that the fees related to the first appeal were improperly awarded "because plaintiffs failed to file their request with the court of appeals as required by Ninth Circuit Rule 39-1.6." Id. at 947. In short,
Id. at 947-48.
Cummings II, however, did not consider a situation in which a party prevails on interlocutory review and only subsequently becomes entitled to attorney's fees under a fee-shifting statute such as § 1988. When a plaintiff is not entitled to attorney's fees after an interlocutory appeal, as was the case here, it cannot immediately request attorney's fees from this court. Should the plaintiff subsequently become a prevailing party, however, it should presumptively be eligible for attorney's fees incurred during the first appeal, because that appeal likely contributed to the success of the underlying litigation. See Crumpacker v. Kansas, Dep't of Human Res., 474 F.3d 747, 756 (10th Cir.2007) (Title VII) (holding that "parties who prevail on interlocutory review in this court, and who subsequently become prevailing parties ... are implicitly entitled to reasonable attorneys' fees related to the interlocutory appeal"); cf. Cabrales v. Cnty. of L.A., 935 F.2d 1050, 1053 (9th Cir.1991) (holding that "a plaintiff who is unsuccessful at a stage of litigation that was a necessary step to her ultimate victory is entitled to attorney's fees even for the unsuccessful stage").
Here, because Yamada and Stewart prevailed in an interlocutory appeal, and subsequently became prevailing parties after the district court entered judgment in their favor, the district court erred by failing to consider whether to award them reasonable appellate attorney's fees. We hold that Yamada and Stewart are entitled to attorney's fees arising from the prior appeal. The matter is referred to the Ninth Circuit Appellate Commissioner to determine the amount of fees to be awarded.
We affirm the judgment of the district court on the merits of A-1's constitutional claims. We vacate the district court's fee award to Yamada and Stewart in part and refer the matter to the Ninth Circuit Appellate Commissioner for a determination of the proper fee award arising out of the interlocutory appeal. Each party shall bear its own costs on appeal.
This amended version of Ninth Circuit Rule 39-1.6 omits the "shall be filed with the Clerk" language of the prior version, but as the district court correctly concluded, the amendment did not alter the substance of the rule.
