KAREN L. STROMBOM, United States Magistrate Judge.
This matter comes before the Court on plaintiffs' motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56. The parties have consented to have this matter heard by the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Rule MJR 13. After having reviewed plaintiffs' motion for summary judgment, defendants' response to that motion, plaintiffs' reply thereto and the remaining record — including the parties' supplemental briefing regarding standing — the Court finds that plaintiffs' motion for summary judgment should be denied, and that summary judgment should be granted in favor of defendants.
Plaintiffs' have brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging RCW 42.17.200 (the section of Washington's
Initiative 276 was "overwhelmingly approved" by Washington voters in 1972, receiving 72% of the vote. ECF # 22, Exhibit 1, The History and Intent of Initiative 276, David Cuillier, David Dean and Dr. Susan Dente Ross (issued May 4, 2004, and updated August 24, 2004), pp. 1, 4. The Initiative also gathered "a far greater number of signatures than it needed to be placed on the ballot." ECF # 25-2, Exhibit 1, Declaration of Jolene Unsold, p. 4. It "required disclosure of campaign contributions and expenditures, lobbying expenditures, and the personal affairs of various officials." ECF # 25-2, Exhibit 1, p. 2; see also ECF # 22, Exhibit 1, p. 1. Initiative 276 led to what eventually became RCW Chapter 42.17, Washington's campaign finance, lobbying and public disclosure laws. See ECF # 22, Exhibit 1, p. 1. It also created the PDC to enforce those laws. ECF # 25-2, Exhibit 1, p. 2; Voters Education Committee v. Washington State Public Disclosure Commission, 161 Wn.2d 470, 479, 166 P.3d 1174 (2007).
"[T]he genesis of Initiative 276 occurred not just because of concerns about disclosure of money raised and spent on candidate campaigns and public records disclosure, but also a strong interest by the public in the disclosure of money raised and spent on legislative lobbying and ballot measure campaigns to enact legislation." ECF # 25-2, Exhibit 1, p. 3. "The overall thrust" of Initiative 276 "was the people's right to know, and to enable citizens to `follow the money' in all sorts of campaigns" in Washington. Id. The paragraph that began the statement for Initiative 276 read as follows:
ECF # 22, Exhibit 1, p. 2.
The official declaration of policy contained in RCW Chapter 42.17 expressly states in relevant part as well that it is "the public policy of the State of Washington" that "lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided," and that "the public's right to know of ... lobbying ... far outweighs any right that that these matters remain secret and private." RCW 42.17.010(1), (10). The declaration of policy goes on to state again in relevant part that:
RCW 42.17.010. However, "[i]n promoting such complete disclosure," the declaration of policy further provides that RCW Chapter 42.17:
Id.
Specifically with respect to "grass roots lobbying," RCW 42.17.200 provides in relevant part that:
RCW 42.17.200(1). The term "legislation" is defined to mean:
RCW 42.17.020(30). In regard to registration and reporting requirements, RCW 42.17.200(2) provides in relevant part:
Other reporting requirements apply as well:
RCW 42.17.200. On the other hand, certain persons are made exempt from the registration and reporting requirements of RCW 42.17.200. These persons include — with certain exceptions not relevant here — the following:
RCW 42.17.160.
RCW Chapter 42.17 also contains penalties for failure to comply with the requisite registration and reporting requirements. For example, RCW 42.17.390 provides in relevant part that:
The PDC itself may issue an order requiring any person who violates RCW Chapter 42.17 "to cease and desist from the activity that constitutes [the] violation and in addition, or alternatively, may impose one or more of the remedies provided in RCW 42.17.390(2) through (5)." RCW 42.17.395(4). On the other hand, "[n]o individual penalty assessed by the [PDC] may exceed" $1,700, and "in any case where multiple violations are involved in a single complaint ..., the maximum aggregate penalty may not exceed" $4,200. Id.
Washington's Attorney General and other state "prosecuting authorities" also "may bring civil actions in the name of the state for any appropriate civil remedy, including but not limited to the special remedies provided in RCW 42.17.390." RCW 42.17.400(1). Under certain circumstances, a citizen of Washington may bring a private cause of action for failure to
RCW 42.17.400(5).
As noted above, the PDC "was created through the passage of Initiative 276 in 1972," which was made "effective in 1973" and "codified in RCW Chapter 42.17," and which "the PDC implements and enforces." ECF # 25, ¶ 5. According to Doug Ellis, the PDC's current Interim Executive Director, "[p]roviding information to the public is a core mission of the PDC," as "it enables the public to `follow the money' with respect to campaigns and lobbying." Id. at ¶ 10. "All reports filed with the PDC disclosing campaign, lobbying and other activities ... are public records," and "[t]he PDC makes this information available to the public for inspection and copying." Id. at ¶¶ at 10-11; see also RCW 42.17.440 (providing that all statements and reports filed under RCW Chapter 42.17 are to be treated as public records, and are to be made available for public inspection and copying). In addition, in regard to such public access:
ECF # 25 at ¶¶ at 11-12. Indeed, making such information available to the public electronically was mandated by the Washington State Legislature itself:
With further respect to public access, "information in lobbying reports filed with the PDC is available to the public" in the following ways:
ECF # 25, ¶ 21. In addition, the filer of a report who contacts the PDC, can receive both "formal and informal assistance" provided either "by PDC staff[, including via telephone and e-mail,] or, depending upon the question, by" the PDC itself. Id. at ¶ 24. Training provided by the PDC "is also available." Id. If "PDC staff are unable to answer a question or the answer is not readily available on the [PDC's] website, and the person inquiring seeks direction from the [PDC]," that person also may submit "an informal advisory opinion request, a formal declaratory order request..., a formal request for guidance through issuance of an interpretive statement..., or a formal rulemaking petition." Id. at ¶ 25; see also RCW 34.05.230(1), 34.05.240, 34.05.330; WAC 390-12-250, 390-12-255. The PDC by statute also may "respond on a case-by-case basis to `modification requests'" seeking "a modification or suspension of the reporting requirements." Ellis Declaration, ¶ 26; see also RCW 42.17.370(10).
To register and report as a grassroots lobbying campaign sponsor, a two-page form (the "L6 form"), which is available on
Id. at ¶ 40. The L6 form also "provides instructions on who should file, the filing deadline, where to file (including [the] PDC address), and the PDC's telephone numbers[,] including [its] toll-free number." Id. at ¶ 41. Further, "guidance and instructions on how to file ... the L6 form... is also available on [the PDC's] website," as is additional information concerning grass roots lobbying such as:
Id. at ¶ 48. Links to RCW Chapter 42.17 and WAC Title 390 — which contain the rules issued by the PDC — are provided on the PDC's website as well, as are "a database of enforcement cases involving various sections of RCW 42.17, ... a summary of the cases and outcomes" and since the year 2000, "a summary of cases involving alleged violations of RCW 42.17.200." Id. In addition, the PDC "issues declaratory orders upon request," copies of which "are available to the public and filers on the PDC's website," as are scanned copies of L6 forms that are filed with the PDC. Id. at ¶¶ 51, 55, 58.
Plaintiff Many Cultures, One Message ("MCOM") describes itself as "an unincorporated, nonprofit volunteer association based in Seattle." ECF # 1, Civil Rights Complaint, ¶ 10.
MCOM is "dedicated to preserving the diverse and vibrant neighborhoods of Southeast Seattle." Id. at ¶ 10. More specifically, it was "formed to resist efforts by the City of Seattle to use Washington's Community Renewal Law (CRL) ... to declare portions of Southeast Seattle a `Community Renewal Area,'" which "would have given the City [of Seattle] the power to take, via eminent domain, private homes and businesses in the area to transfer to private entities." Id. at ¶ 29. MCOM "successfully mobilized public opposition to [the City of Seattle's CRL efforts] and the City halted its efforts in 2007." Id. at ¶ 30. Those efforts included distributing fliers, organizing community meetings, contacting "City agencies," and "otherwise informing citizens about how to oppose use of the CRL in Southeast Seattle." Id. at ¶ 31. Since "these efforts were directed largely at City officials regarding a City proposal," though, MCOM "was not required to register under" RCW 42.17.200. Id. at ¶ 32.
MCOM also states in relevant part as follows in regard to its prior efforts/activities:
Id. at ¶¶ 33-38. With respect to future activities, MCOM goes on to state in relevant part:
Id. at ¶¶ 40-43, 45.
Plaintiff Red State Politics, d/b/a "Conservative Enthusiasts" ("CE") describes itself as a "501(c)(3) nonprofit corporation" and/or "volunteer organization" registered "under the Internal Revenue Code," and is based in Seattle. Id. at ¶¶ 11, 55. It is "run by unpaid volunteers," has "no employees" and is "dedicated to educating the public about the benefits of lower taxes, less regulation, and smaller government." Id. In terms of past activities, CE states it "has advanced its political goals by (1) speaking with elected officials; (2) establishing a public website; and (3) hosting monthly meetings and speakers about public policy issues." Id. at ¶ 58. CE further states it "has not spent $500 in the aggregate in any one month or $1,000 in the aggregate in any three months on presenting a program addressed to the public, a substantial portion of which was intended, designed, or calculated primarily to influence legislation, as those terms are defined in" RCW 42.17.020. Id. at ¶ 56.
CE states it "anticipates ... that in future sessions of the [Washington State] legislature, legislators will seek to raise taxes, increase regulation, and grow the size of the State government," and "wants to take an active role in opposing these efforts, including urging its supporters to contact state officials about these issues." Id. at ¶¶ 56-57. Specifically with respect to future activities:
Id. at ¶¶ 59-61. Similar to MCOM:
Id. at ¶¶ 62-63.
Sometime between April and August 2009, "an Institute for Justice[
For its part, MCOM was not aware of Washington's laws governing grassroots lobbying until informed thereof by the IJ. See ECF # 24, Exhibit 11, Declaration of Patricia Murakami at 14, 21.
See ECF # 25, ¶¶ 24-26, 35, 49-50, 69. Nor had MCOM or CE prior to the filing of their petition for a declaratory order, discussed in greater detail below, "contacted PDC staff indicating any confusion or uncertainty" on their part regarding their filing under Washington's laws governing grassroots lobbying. Id. at ¶ 68.
On December 3, 2009, plaintiffs filed a petition for a declaratory order with the PDC. See ECF # 1, ¶ 75; ECF # 25-3, Exhibit 21. While plaintiffs were given a "draft" of the petition to see "perhaps ahead of time," and although it was prepared for them and filed on their behalf, the idea for pursuing that course of action "more or less" came on the legal advice IJ provided. ECF # 22, Exhibit 6 at 58-59; see also ECF # 22, Exhibit 11 at 26. Indeed, the first contact the PDC had with plaintiffs was through the filing of the petition by IJ legal counsel, not plaintiffs themselves. See ECF # 25, ¶ 71; see also ECF # 28, Declaration of Lori Anderson, ¶ 10, ECF # 29, Declaration of Tony Perkins, ¶ 7. The petition states in relevant part:
ECF # 25-3, Exhibit 21, pp. 1-3. The petition was signed by IJ legal counsel. See id. at p. 3.
Subsequent to the filing of the petition, the PDC continued to communicate with IJ legal counsel regarding the petition process, not plaintiffs. See ECF # 25, ¶ 80; ECF # 25-3, Exhibit 22. The petition was scheduled to be considered at the next PDC meeting on January 28, 2010. See ECF # 25, ¶ 80. Prior to that meeting, plaintiffs were sent "a series of questions about their organizational makeup and activities," to which they "provided timely responses." ECF # 1, ¶ 77. Although IJ legal counsel addressed the PDC at that meeting, no representative from MCOM or CE appears to have attended the meeting, nor did any representative therefrom address the PDC or provide any testimony concerning the petition. ECF # 25, ¶¶ 86, 94.
Following this meeting, a declaratory order was drafted by the PDC and sent to IJ legal counsel for comment. Id. at ¶ 89. That draft declaratory order was scheduled for review at the PDC's February 26, 2010 meeting. See id. A copy of the order and the agenda for the February 26, 2010 meeting was posted on the PDC's website. See id. In the order, the PDC "unanimously agreed that based upon the facts presented" in IJ legal counsel's written materials and by IJ legal counsel at the January 28, 2010 meeting, and presented in the PDC staff's written materials and by the PDC staff at that meeting, none of the exceptions contained in RCW 42.17.160 applied "to exempt [MCOM and CE] from registering and reporting under RCW 42.17.200." ECF # 25-3, Exhibit 24, p. 1. IJ legal counsel "submitted written comments on the draft declaratory order to the [PDC] in a letter dated February 25, 2010," asking that the PDC amend the order "to fully apply the exemptions listed in RCW 42.17.160." ECF # 25, ¶ 89. On February 26, 2010, though, the PDC "determined that it would enter [its final] declaratory order [concerning the petition] as drafted." See ECF # 1, ¶ 81; ECF # 25, ¶ 91.
On April 15, 2010, plaintiffs filed their civil rights complaint with this Court. See ECF # 1, # 1-2, # 1-3. As was the case with the proceedings before the PDC, IJ legal counsel continues to represent plaintiffs in this matter. On April 6, 2011, plaintiffs filed their motion for summary judgment. See ECF # 22. On May 9, 2011, defendants filed their response to plaintiffs' motion (see ECF # 24), and on May 13, 2011, plaintiffs' filed their reply thereto (see ECF # 32). On May 24, 2011, the Court directed the parties to file additional briefing regarding the issue of plaintiffs' standing in this case. See ECF # 33. The parties have filed their briefing in response thereto (see ECF # 35-# 38, # 40), and thus plaintiffs' motion is now ripe for review. Although plaintiffs have requested oral argument in this matter, the Court finds such argument to be unnecessary in order to effectively resolve the issues presented here.
Summary judgment shall be rendered if the pleadings, exhibits, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In deciding whether summary judgment should be granted, the Court "must view the evidence
If the nonmoving party does not so respond, summary judgment, if appropriate, shall be rendered against that party. See id. The moving party must demonstrate the absence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Mere disagreement or the bald assertion that a genuine issue of material fact exists does not preclude summary judgment. See California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). A "material" fact is one which is "relevant to an element of a claim or defense and whose existence might affect the outcome of the suit," and the materiality of which is "determined by the substantive law governing the claim." T.W. Electrical Serv., 809 F.2d at 630.
Mere "[d]isputes over irrelevant or unnecessary facts," therefore, "will not preclude a grant of summary judgment." Id. Rather, the nonmoving party "must produce at least some `significant probative evidence tending to support the complaint.'" Id. (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505); see also California Architectural Building Products, Inc., 818 F.2d at 1468 ("No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment."). In other words, the purpose of summary judgment "is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
The parties agree that there are no genuine issues of material fact in this case, and thus that entry of summary judgment is appropriate here. In addition, such judgment may be entered for the non-moving party "[e]ven when there has been no cross-motion for summary judgment," since "a district court may enter summary judgment sua sponte against a moving party," if the moving party "has had a `full and fair opportunity to ventilate the issues involved in the matter.'" Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir.2003) (quoting Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir.1982)). Because "[t]he salient issues" on which summary judgment is being granted for defendants were presented in plaintiffs' summary judgment motion, and because plaintiffs have had a full and fair opportunity to ventilate those issues, the Court does "not commit reversible error by acting sua sponte" for defendants absent a cross-motion for summary judgment. Id.; Commission on Independent Colleges and Universities v. New York Temporary State Commission on Regulation of Lobbying ("CICU"), 534 F.Supp. 489, 501 (N.D.N.Y.1982) (while defendants had not made cross motion for summary judgment, because there were no disputed facts and record was adequate regarding constitutional question presented, summary judgment could be granted for non-moving party).
Plaintiffs include with their motion for summary judgment the declaration and
Dr. Milyo based his conclusions in part on his review of the text of Chapter 42.17 and of the L6 form and instructions, as well as a number of "external sources," including United States Supreme Court case law and publications concerning such topics as public opinion, lobbying, collective action, campaign disclosure, and political speech and political participation in general. Id. at ¶¶ 26, 34-36, 38, 42-43, 48-58, 61-63, 66, 70, 72-73, Exhibit A, Expert Report of Dr. Jeffrey Milyo ("Milyo Report"), Exhibit C, Source List of Dr. Jeffrey Milyo. Dr. Milyo also based his opinions and report in part on "earlier research" he conducted, which consisted of "an experiment to evaluate the ability of ordinary citizens to comply with the campaign finance disclosure laws of different states," although it "did not examine" Washington's laws governing grassroots lobbying. Id. at ¶¶ 14, 73-86, Exhibit A, pp. 14-16.
In their response to plaintiffs' motion for summary judgment, defendants have moved to strike the evidence provided by Dr. Milyo, pursuant in part to Federal Rule of Evidence ("Fed.R.Evid.") 702 and the failure of that evidence to comply with the criteria for relevance or reliability set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See ECF # 24, p. 2, n. 1. Defendants also challenge the propriety of Dr. Mylo's declaration on the basis that it "is replete with legal conclusions, case law and legal arguments." Id. Defendants, furthermore, object to Exhibit 12 attached to plaintiffs' motion for summary judgment, asserting that because it is a law review article authored by an employee of IJ — specifically, the "director of strategic research" at IJ — it "does not qualify as evidence." Id.; see also ECF # 22, Exhibit 12, Mandatory Disclosure for Ballot-Initiative Campaigns, Dick M. Carpenter II, The Independent Review, v. 13, n. 4, p. 567 (Spring 2009).
Plaintiffs argue the Court should deny defendants' motion to strike, complaining that no analysis or explanation for their objection to the evidence from Dr. Milyo, or as to why it fails to comply with the criteria in Daubert, was provided. Plaintiffs argue that "[w]ithout more," they are not able to respond to defendants' motion, and that defendants' assertions "do not amount to a `Daubert' challenge for this Court's consideration." ECF # 32, p. 11 (citing Fed.R.Civ.P. 7(b)(1)). What plaintiffs fail to realize, however, is that "[i]t is the proponent of the expert" witness — not the objecting party — "who has the burden of proving admissibility" here, which "must be established by a preponderance of the evidence." Henricksen v. ConocoPhillips Co., 605 F.Supp.2d 1142, 1154 (E.D.Wash.2009) (quoting Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir.1996)) (emphasis added); see also Cooper v. Brown, 510 F.3d 870, 942
More specifically, and as discussed in greater detail below, "[t]he party presenting the expert must demonstrate that the expert's findings are based on sound principles and that they are capable of [some objective,] independent validation." Henricksen, 605 F.Supp.2d at 1154 (citing Daubert v. Merrell Dow Pharm., Inc. ("Daubert II"), 43 F.3d 1311, 1316 (9th Cir.1995)); see also Cooper, 510 F.3d at 942. The Court itself, furthermore, has an initial duty to ensure the requirements of Fed.R.Evid. 702 have been met, which are as follows:
Thus, far from being "disabled from screening" expert testimony or evidence under Fed.R.Evid. 702, the district court "must ensure that any and all [such] testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. 2786; see also Henricksen, 605 F.Supp.2d at 1153 ("Before a witness may come `before the [trier of fact] cloaked with the mantle of an expert[ ]' under [Fed.R.Evid.] 702, ... `care must be taken to assure that a proffered witness truly qualifies as an expert, and that such [witness's] testimony meets the requirements of [that] Rule[.]'") (quoting Jinro America Inc. v. Secure Investments, Inc., 266 F.3d 993, 1004 (9th Cir.2001)). "[A]s a threshold matter," therefore, the Court "must determine whether the proffered witness is `qualified as an expert by knowledge, skill, experience, training, or education[.]'" Id. (quoting Fed.R.Evid. 702).
In other words, the district court at the outset has a "gatekeeping role" to perform with respect to evidence submitted as expert testimony. Cabrera v. Cordis Corp., 134 F.3d 1418, 1420 (9th Cir. 1998) (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786 ("[T]he Rules of Evidence — especially Rule 702 — ... assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.")); see also Cooper, 510 F.3d at 942 ("The trial court acts as a `gatekeeper' to exclude expert testimony that does not meet the relevancy and reliability threshold requirements."); Elsayed Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1063 (9th Cir.2002); Smith & Nephew, Inc., 259 F.3d at 199 (trial judges act as gatekeepers under Fed.R.Evid. 702 to ensure any and all expert testimony not only is relevant, but reliable). Thus, "[a] trial judge, faced with a proffer of expert ... testimony, must conduct `a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'" Smith & Nephew, Inc., 259 F.3d at 199 (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786); see also United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir.2010) (district court correct to require showing of foundation for proffered expert testimony).
"[T]his basic gatekeeping obligation" of the district court, furthermore, applies not only to "scientific" testimony, but "to all expert testimony." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)
"The trial court's `special obligation' to determine the relevance and reliability of an expert's testimony ... is vital to ensure accurate and unbiased decision-making by the trier of fact." Elsayed Mukhtar, 299 F.3d at 1063 (citing and quoting Kumho Tire Co., 526 U.S. at 147, 152, 119 S.Ct. 1167 ("Daubert's gatekeeping requirement ... make[s] certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.")); see also Cooper, 510 F.3d at 943; Smith & Nephew, Inc., 259 F.3d at 200. As the Supreme Court stated in Daubert, this is because:
509 U.S. at 592, 113 S.Ct. 2786 (quoting Advisory Committee's Notes on Fed. R.Evid. 602, 28 U.S.C.App., p. 755 (citation omitted)).
As indicated above, Fed.R.Evid. 702 embodies "the twin concerns of `reliability'... and `helpfulness.'" Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.2007) (citation omitted); see also Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1184 (9th Cir.2002) ("Whether testimony is helpful within the meaning of Rule 702 is in essence a relevance inquiry"); Elsayed Mukhtar, 299 F.3d at 1063 n. 7 ("Encompassed within the determination of whether expert testimony is relevant is whether it is helpful ... a `central concern' of Rule 701.") (citation omitted). Expert testimony that "does not relate to any issue in the case is not relevant, and ergo, non-helpful." Daubert, 509 U.S. at 591, 113 S.Ct. 2786; see also Stilwell, 482 F.3d at 1192 ("[R]eliable testimony must nevertheless be helpful."). To this end, the Court "must determine whether there is `a link between the expert's testimony and
More specifically in regard to relevance, expert testimony sought to be admitted "must logically advance a material aspect of the [proponent] party's case," and "must be `tied to the facts'" of that case. Cooper, 510 F.3d at 942 (citing Daubert II, 43 F.3d at 1315, and quoting Kumho Tire Co., 526 U.S. at 150, 119 S.Ct. 1167); see also Henricksen, 605 F.Supp.2d at 1154 ("The relevance prong under Daubert means that the evidence will assist the trier of fact to understand or determine a fact in issue."). As for reliability, "Rule 702 demands that expert testimony relate to scientific, technical or other specialized knowledge, which does not include unsubstantiated speculation and subjective beliefs." Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir.1997). This twin inquiry into relevance and reliability is succinctly described by the district court in Henricksen:
605 F.Supp.2d at 1153-54; see also Daubert, 509 U.S. at 590, 113 S.Ct. 2786 ("[T]he word `knowledge' connotes more than subjective belief or unsupported speculation. The term `applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.'") (quoting Webster's Third New International Dictionary 1252 (1986)); see also Redlighting, 624 F.3d at 1112 ("Because [social science expert] did not reasonably point to any evidence in the record or other factors or data reasonably relied on by experts in his field ... [he] could not provide any relevant testimony to assist the jury."); United States v. W.R. Grace, 504 F.3d 745, 761 (9th Cir.2007) (facts and data relied on by expert must be reasonably relied on by experts in particular field).
As noted by the Ninth Circuit, "[t]he Supreme Court in Daubert identified several factors that may bear on a judge's determination of the reliability of an expert's testimony." Smith & Nephew, Inc., 259 F.3d at 199. They include:
Id. (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786); see also Elsayed Mukhtar, 299 F.3d at 1064. These factors are "neither definitive, nor exhaustive," though, and "particular factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Smith & Nephew, Inc., 259 F.3d at 199-200. The Daubert inquiry, furthermore, is "a flexible one," with "[i]ts overarching subject" being the "validity" and, accordingly, the "evidentiary relevance and reliability — of the principles that underlie a proposed submission." Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. The Court's "focus" thus "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786.
Such focus entails an "assessment of whether the reasoning or methodology underlying" the expert witness testimony is "valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592, 113 S.Ct. 2786. In addition to the four factors identified by the Supreme Court in Daubert, another "very significant" factor to be considered is whether the proffered expert witness developed his or her opinion "expressly for the purpose of testifying." Cabrera, 134 F.3d at 1422 (citation omitted). As the Ninth Circuit has described it:
Daubert II, 43 F.3d at 1317 (internal footnote and citation omitted).
In regard to the opinions provided by Dr. Milyo in his declaration and report, the Court finds they do not meet the relevancy and reliability requirements mandated by Fed.R.Evid. 702 and the Supreme Court in Daubert. First, Dr. Milyo himself admits that none of the empirical research he conducted prior to this litigation involved Washington's laws governing grassroots lobbying or RCW Chapter 42.17 in general. See ECF # 22, Milyo Declaration, ¶¶ 14, 74, and Milyo Report, p. 14. Indeed, grassroots lobbying and the impact of public disclosure thereon — even in a general sense — was not a subject of Dr. Milyo's research, but rather that subject was the ability of citizen groups to comply with state disclosure forms from other states concerning the ability to engage in ballot measure campaigns. See id.; ECF # 27-2, Deposition of Jeffrey Milyo ("Milyo Deposition"), pp. 168-69. Dr. Milyo asserts his earlier research is relevant, because the states in which he conducted his research, as in Washington, require registration, contribution itemization and reporting of expenditures. See ECF # 22, Milyo Declaration, ¶¶ 14, 74, and Milyo Report, p. 14.
The mere fact that other states require registration, itemization and expenditure reporting as well, however, hardly constitutes the type of link to the particular facts of this case required by Daubert. Indeed, Dr. Milyo utterly fails to show that the laws in the other states he researched are the same as the disclosure laws at issue here, let alone that they have been implemented and enforced in the same way as RCW Chapter 42.17 is by the PDC.
Reliability is lacking here as well. First, it is not at all clear that Dr. Milyo's research has been subject to "peer review" as that term is generally understood, but rather it seems not to have undergone that type of academic scrutiny.
Accordingly, it appears not only was Dr. Milyo paid for preparing a non-peer reviewed report for the purpose of aiding this litigation — as well as for the earlier research he conducted underlying that report — but he was involved in preparing, again for payment, similar research of an apparent "strategic" nature issued contemporaneously with the filing of this lawsuit,
Dr. Milyo admits, though, that "grass roots issue advocacy" is a term he himself came up with, and that he has not seen that term used by anyone else. See ECF # 27-2, Milyo Deposition, pp. 143-45. In addition, there is some indication in the record that in supporting the opinions contained in his declaration and report, Dr. Milyo may have relied as much on what he terms "common sense," the "general sense" of a term used or the "logical implication" of regulation of grassroots lobbying by the state, as he may have on scholarly or academic research conducted in a manner generally accepted in his field. See id. at p. 155, 164-65, 178, 187. Dr. Milyo makes other assertions in his report as well, which appear not to be supported either by his own or such other research. See id. at pp. 176-78.
Admission of Dr. Milyo's declaration and report is inappropriate for another important reason. While "expert testimony that is `otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact,'" that witness may not provide an opinion as to a "legal conclusion, i.e., an opinion on an ultimate issue of law." Mukhtar, 299 F.3d at 1065, n. 10 (quoting Fed.R.Evid. 702) (emphasis in original); see also McHugh v. United Serv. Auto. Ass'n, 164 F.3d 451, 454 (9th Cir.1999); United States v. Duncan, 42 F.3d 97, 101 (2nd Cir.1994) ("When an expert undertakes to tell the [trier of fact] what result to reach, this does not aid the [trier of fact] in making a decision, but rather attempts to substitute the expert's judgment for the [trier of fact's].") (emphasis in original). In other words, such legal conclusions are the province of the Court, not the expert witness.
As the Ninth Circuit has noted:
United States v. Scholl, 166 F.3d 964, 973 (9th Cir.1999), as amended (citations omitted); see also Aguilar v. International Longshoremen's Union, 966 F.2d 443, 447 (9th Cir.1992) (matters of law are for court's determination, not that of expert witness); Marx & Co. v. Diners' Club, Inc., 550 F.2d 505, 509-10 (2nd cir.1977) (expert testimony consisting of legal conclusions is inadmissible); Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir.1995) (because Fed.R.Evid. 702 permits expert testimony if it will assist trier of fact, and because district court is qualified to assess likely responses of jury to evidence and understand legal analysis required in that case, there was no abuse of discretion in district court concluding juror psychology expert would not be helpful). Here, by concluding Washington's laws governing grassroots lobbying are vague and overbroad, and thereby chill protected First Amendment speech, Dr. Milyo's declaration and report impermissibly offers legal conclusions that more appropriately come within the province of this Court. See Milyo Declaration, ¶¶ 52, 91-92, Exhibit A. Thus, for all of the above reasons, the Court finds that Dr. Milyo's declaration and report should be excluded
As for the article attached to plaintiffs' summary judgment motion as Exhibit 12, titled Mandatory Disclosure for Ballot-Initiative Campaigns, this too the Court finds should be excluded from consideration. Defendants argue this article should be excluded on the basis that it is not evidence. The Court agrees. See Black's Law Dictionary (9th ed. 2009) (defining evidence as being "[s]omething ... that tends to prove or disprove the existence of an alleged fact."). Certainly, the article is not relevant evidence, as it does not "make the existence of any fact that is of consequence to the determination of th[is] action more probable or less probable than it would be without the evidence," particularly since it does not concern the subject of this lawsuit, namely Washington's laws governing grassroots lobbying. Fed.R.Evid. 401; see also Fed.R.Evid. 402 ("Evidence which is not relevant is not admissible.").
"[T]he Constitution mandates that prior to [the Court's] exercise of jurisdiction there exist a constitutional `case or controversy,' that the issues presented [to the Court] are `definite and concrete, not hypothetical or abstract.'" Human Life, 624 F.3d at 1000 (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc) (quoting Ry. Mail Ass'n v. Corsi, 326 U.S. 88,93, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945))); see also Arizona Right to Life Political Action Committee v. Bayless ("ARLPAC"), 320 F.3d 1002, 1006 (9th Cir.2003) ("Under Article III [of the United States Constitution], a federal court only has jurisdiction to hear claims that present an actual `case or controversy.'") (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). As such, "before reaching the merits of plaintiffs' constitutional claims," the Court "must determine whether [those claims are] justiciable." Human Life, 624 F.3d at 1000; see also American Civil Liberties Union of Nevada v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006) (although neither party raised justiciability issue of standing, court had "an `independent obligation' to consider [it] sua sponte.") (citations omitted).
While standing is determined by the facts in existence at the time the complaint is filed, "Article III's `case-or-controversy requirement subsists through all stages of federal judicial proceedings,'" and therefore "`[i]t is not enough that a dispute was very much alive when suit was filed.'" Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 461, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)); Lomax, 471 F.3d at 1015. Thus, at the outset, plaintiffs "must establish standing to sue" to satisfy the case or controversy requirement. Human
"To meet this requirement," though, "[a]bstract injury is not enough." 4805 Convoy, Inc., 183 F.3d at 1111. Instead, plaintiffs must show they have sustained or they are "immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical." Id. at 1111-1112; see also ARLPAC, 320 F.3d at 1006 (there must be "a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement") (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Further, in the "context of injunctive and declaratory relief," plaintiffs must show they have suffered or are threatened with "a `concrete and particularized' legal harm, ... coupled with `a sufficient likelihood that [they] will again be wronged in a similar way.'" Canatella v. State of California, 304 F.3d 843, 852 (9th Cir.2002) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).
On the other hand, "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief." ARLPAC, 320 F.3d at 1006 (quoting Reg'l Rail Reorg. Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)). Instead:
Id. (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir.2000) (quoting Babbitt, 442 U.S. at 298, 99 S.Ct. 2301)); see also Canatella, 304 F.3d at 852. But because the Court's role is not to "issue advisory opinions" or to "declare rights in hypothetical cases," the case or controversy requirement also necessitates that constitutional claims "be ripe for review." Human Life, 624 F.3d at 1000 (quoting Thomas, 220 F.3d at 1138).
Additionally, in general plaintiffs "must assert [their] own legal rights and interests, and cannot rest [their] claim[s] to relief on the legal rights or interests of third parties." 4805 Convoy, Inc., 183 F.3d at 1112 (quoting Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984)); see also Joseph H. Munson Co., 467 U.S. at 955, 104 S.Ct. 2839 (requirement that only one's own legal rights and interests may be asserted described as "prudential considerations that limit the challenges courts are willing to hear," which are "[i]n addition to the limitations on standing imposed by Article III's case-or-controversy requirement"). Accordingly, "the federal courts have supplemented this requirement of `constitutional standing' [under Article III], with the doctrine of `prudential standing,' which requires [courts] to ask whether [plaintiffs'] claim is sufficiently individualized to ensure effective judicial review." Get Outdoors II, LLC v. City of San Diego, California ("Get Outdoors II"), 506 F.3d 886, 891 (9th Cir. 2007) ("We employ the prudential standing doctrine to avoid usurping the legislature's role as policymaking body in our separation of powers [framework].").
Further, in addition to demonstrating "an injury-in-fact," the "irreducible constitutional minimum of standing" requires plaintiffs to establish both "causation" and "a likelihood that the injury will be redressed by a decision in" their favor. Get Outdoors II, 506 F.3d at 891 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); CPLC-I, 328 F.3d at 1093 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130); see also Canatella, 304 F.3d at 852 (plaintiff generally demonstrates standing by showing injury in fact traceable to challenged action and redressable by favorable decision).
Lastly, Article III's case or controversy requirement also may implicate the mootness doctrine. "Whereas standing is evaluated by the facts that existed when the complaint was filed, `[m]ootness inquiries ... require courts to look to changing circumstances that arise after the complaint is filed.'" Lomax, 471 F.3d at 1016 (citations omitted); see also City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (if "live" controversy no longer exists, claim is moot). Thus, "[t]he question of mootness focuses upon whether [the Court] can still grant relief between the parties." Lomax, 471 F.3d at 1016-17 (quoting Dream Palace v. County of Maricopa, 384 F.3d 990, 999-1000 (9th Cir. 2004)). There is a recognized exception to the mootness doctrine, though, where a claim has been found to be "capable of repetition, yet evading review." Id. at 1017 (quoting First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)). This exception "applies when (1) the challenged action is too short in duration to allow full litigation before it ceases, and (2) there is a reasonable expectation that the plaintiffs will again be subject to the same action." Id. (citing Bellotti, 435 U.S. at 774, 98 S.Ct. 1407); see also Wisconsin Right to Life, Inc., 551 U.S. at 462, 127 S.Ct. 2652.
As for the first of the above two elements, "a challenged action evades review if it is `almost certain to run its course before [the Court] can give the case full consideration.'" Lomax, 471 F.3d at 1017 (quoting Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 19 F.3d 449, 454 (9th Cir. 1994)). "The second prong of the `capable of repetition' exception" requires that there be a "reasonable expectation" or "demonstrated probability" that "the same controversy will recur involving the same complaining party." Wisconsin Right to Life, Inc., 551 U.S. at 463, 127 S.Ct. 2652 (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) ("Our cases find the same controversy sufficiently likely to recur when a party has a reasonable expectation that it `will again be subjected to the alleged illegality,' ... or `will be subject to the threat of prosecution' under the challenged law.") (quoting Lyons, 461 U.S. at 109, 103 S.Ct. 1660 and Bellotti, 435 U.S. at 774-775, 98 S.Ct. 1407)); see also Lomax, 471 F.3d at 1018 (challenging party must show it is reasonable to expect action by challenged party "will once again give rise to the assertedly moot dispute") (citation omitted).
"[I]n recognition that that Amendment `needs breathing space,' the Supreme Court has relaxed the prudential requirement of standing in the First Amendment context." Canatella, 304 F.3d at 853 (quoting and citing Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), and Joseph H. Munson Co., 467 U.S. at 947-56, 104 S.Ct. 2839). Under the "overbreadth" doctrine, "an overly broad statute or regulation" may be challenged "by showing that it may inhibit the First Amendment rights of individuals who are not before the court." 4805 Convoy, Inc., 183 F.3d at 1112. This doctrine "is based on the observation that `the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court.'" Id. (quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)),
Canatella, 304 F.3d at 853. (quoting Broadrick, 413 U.S. at 612, 93 S.Ct. 2908).
The overbreadth doctrine thus "serves to overcome what would otherwise be a plaintiff's lack of standing." 4805 Convoy, Inc., 183 F.3d at 1112 (citation omitted). Nevertheless, in determining whether overbreadth standing exists, the issue of whether the plaintiff "satisfies the requirement of `injury-in-fact'" remains "the crucial issue." Id. (quoting Joseph H. Munson Co., 467 U.S. at 958, 104 S.Ct. 2839). As such, "to demonstrate standing for an overbreadth claim," a plaintiff must show "he [or she] and others in his [or her] position face a credible threat of discipline under the challenged statutes, and may consequently forego their expressive rights under the First Amendment." Canatella, 304 F.3d at 854 (since plaintiff alleged "concrete and particularized harms to his First Amendment rights," and had demonstrated "a sufficient likelihood that he and others may face similar harm in the future," this showing was deemed to be "enough to satisfy the prudential requirements of standing for a First Amendment overbreadth claim.") (emphasis added). As the Ninth Circuit has further explained:
4805 Convoy, Inc., 183 F.3d at 1112 (citation omitted); see also Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (plaintiff "must present more than allegations of a subjective chill," rather "[t]here must be a claim of specific present objective harm or a threat of specific future harm") (quoting Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)). Accordingly, the requirement remains that "[t]he potential plaintiff ... have `an actual and well-founded fear that the law will be enforced against [him or her].'" CPLC-I, 328 F.3d at 1095 (quoting American Booksellers Ass'n, Inc., 484 U.S. at 393, 108 S.Ct. 636); see also Get Outdoors II, 506 F.3d at 891 (plaintiff still required to show injury in fact when raising claim of overbreadth); ARLPAC, 320 F.3d at 1006.
"Without this bare minimum of standing, the overbreadth exception would nullify the notion of standing generally in First Amendment litigation." Get Outdoors II, 506 F.3d at 891; see also Doucette, 955 F.Supp. at 1199 (even plaintiff bringing facial challenge on First Amendment overbreadth grounds has standing only if he or she is able to establish some actual or threatened injury to himself or herself). As one district court has succinctly described what must be shown here:
Doucette, 955 F.Supp. at 1199-1200. However, where the plaintiff fails "to allege even a desire to engage in [protected] conduct or speech," that party "lacks standing even if he [or she] alleges that his [or her] speech has been chilled." Id. at 1200. Important to determining whether the requisite evidentiary showing has been made, therefore, will be the plaintiff's "history" with the challenged statute or body charged with enforcing it, as well as his or her "continuing activities." Canatella, 304 F.3d at 854 n. 14.
On the other hand, in terms of the type of injury needed to be shown, "the Supreme Court has endorsed what might be called a `hold your tongue and challenge now' approach rather than requiring litigants to speak first and take their chances with the consequences." ARLPAC, 320 F.3d at 1006 (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)). "[W]here a plaintiff has refrained from engaging in expressive activity for fear of prosecution under the challenged statute, such self-censorship is a `constitutionally sufficient injury' as long as it is based on `an actual and well-founded fear' that the challenged statute will be enforced." Human Life, 624 F.3d at 1001 (citations omitted); see also ARLPAC, 320 F.3d at 1006 ("[o]ne does not have to await consumption of threatened injury to obtain preventive relief") (quoting Reg'l Rail Reorg. Cases, 419 U.S. at 143, 95 S.Ct. 335). Still, "[t]he self-censorship door to standing does not open for every plaintiff," and, as noted above, a challenging party will not succeed merely by "nakedly asserting that his or her speech [has been] chilled." CPLC-I, 328 F.3d at 1095; see also Canatella, 304 F.3d at 854 n. 14 (challenged statute's mere existence is not enough to give rise to injury sufficient for standing purposes).
Plaintiffs argue they "unquestionably have standing to present their claims," because they have "muted their speech, modified the content of their messages, and altered their behavior all in an attempt to avoid triggering [Washington's] registration and disclosure requirements." ECF # 35, pp. 1-2. They argue "[a]bsent a decision by this Court striking down" those requirements, they "will continue to silence their speech, modify their intended communications, and alter their behavior." Id. Specifically, in an attempt to avoid "triggering" Washington's laws governing grassroots lobbying, plaintiffs assert:
Id. at pp. 3-4. Plaintiffs also assert that "[a] corporation that had pledged money in support of CE refused to donate after learning that its name, support of CE, and amount of donation might be disclosed to and made public by the PDC," and that but for Washington's laws governing grassroots lobbying:
Id. at p. 4. Plaintiffs further assert that it was reasonable for them to modify their activities and that they have a well-founded fear of being subject to enforcement action by the PDC, given that the PDC has made clear RCW Chapter 42.17 will be enforced if it or any other organization fails to comply with the requirements thereof. Id. at pp. 4-5.
The problem for plaintiffs, however, is that they have not presented sufficient objective evidence of the requisite specificity to establish standing in this case. As discussed above, the factors the Court must consider in determining whether the case and controversy requirement has been met include whether the challenging party has "articulated a `concrete plan' to violate the law in question," as well as "the history of past prosecution or enforcement under the challenged statute." CPLC-I, 328 F.3d at 1094. Even under the more relaxed standing requirements in the First Amendment context, "concrete and particularized harms" still must be alleged with the requisite specificity. Canatella, 304 F.3d at 853; see also Bigelow, 421 U.S. at 816-17, 95 S.Ct. 2222 (claim of specific present objective or future harm must be made); Doucette, 955 F.Supp. at 1199 (plaintiff "still `required to show that he is seriously interested in subjecting himself to ... the challenged measure'") (quoting NAACP, 743 F.2d at 1351) (emphasis added).
Neither MCOM nor CE, however, have shown through their "history" either with RCW Chapter 42.17 or the PDC itself — such as, for example, being subject to enforcement action or prosecution by the PDC under those statutes — through their "continuing activities" or through the articulation of any "concrete plan" to actually violate RCW Chapter 42.17, the type of actual or threatened injury the case and controversy requirement demands. Also as noted above, RCW 42.17.200 is concerned solely with grassroots lobbying aimed at affecting state legislation. But neither MCOM nor CE has provided any evidence they have engaged in any actual past activity, are engaging in any current activity or have an articulated, concrete
For example, MCOM has focused on resisting eminent domain efforts at the local level. See ECF # 1, ¶¶ 10, 29, 31. Indeed, MCOM itself admits that in the past it has not been required to register and report under RCW 42.17.200, because of its focus on efforts made by the City of Seattle. See id. at ¶ 32. Further, while plaintiffs point to proposed state legislation introduced in the years 2006 through 2009, regarding eminent domain, CRL and TOD as being areas of concern for MCOM, they have not alleged or pointed to any evidence that MCOM actually was engaged in affecting such legislation during this period. See Id. at ¶¶ 33-36. Plaintiffs also claim MCOM "anticipated the need" for and "intended to mobilize grassroots activism" in regard to similar proposed legislation in 2010 — which failed to be enacted, but apparently not because of any efforts on MCOM's part — but once more cannot point to any evidence of actual mobilization activities on their part. See id. at ¶¶ 37-38.
CE's past and present activities have been and are even less specifically oriented toward affecting past, current or proposed state legislation than those of MCOM. Thus, for example, CE claims it is "dedicated to educating the public about the benefits of lower taxes, less regulation, and smaller government," and in the past has spoken with elected officials, established a public website and hosted monthly meetings and speakers about "public policy issues." Id. at ¶¶ 11, 58. No showing has been made, however, as to the extent, if any, such activities have been or are directed toward state — as opposed to federal or local levels of government — the latter two of which clearly are not governed by RCW 42.17.200. In addition, CE admits it has never met that statute's monetary thresholds triggering coverage thereunder. See id. at ¶ 56.
MCOM's anticipated future activities are similarly devoid of the necessary specificity to reasonably qualify as an articulated, concrete plan to violate RCW 42.17.200. See id. at ¶¶ 40-45. In particular, while MCOM states it anticipates future legislation to be introduced concerning eminent domain, CRL and TOD — and thus "would like to create fliers, organize and hold public meetings, send email blasts, organize trips to [the Washington State capital], speak to the press, and explicitly urge the public to contact their legislators to support" reform in those areas — again they have not identified any particular legislative proposal they are targeting, any actual efforts they have undertaken so far to do so (even ones that may fly under the radar of RCW 42.17.200) or any "concrete" plan in that regard, other than the mere fact that they "would like" to do so. ECF # 35, p. 8. Similarly deficient claims of future desired activities are made by CE concerning anticipated "legislation seeking to raise taxes, grow the size of state government, and increase regulatory burdens."
Plaintiffs claim that in early 2011, Washington State's Office of the Attorney General requested the help of MCOM representatives in mobilizing "community support for legislation reforming" the state's eminent domain laws. ECF # 35-2, ¶ 9. But none of the documentary evidence
Citing American Civil Liberties Union of Nevada v. Heller, 378 F.3d 979 (9th Cir.2004), plaintiffs argue the level of specificity this Court finds they must show to establish standing is simply not required. Plaintiffs' reliance on Heller, though, is misplaced. Specifically, the Ninth Circuit found the plaintiff in that case had standing to bring its First Amendment overbreadth claim, as the plaintiff's complaint alleged the challenged statute had "already prohibited and continue[d] to restrict" its protected speech, and provided "examples of such restrictions." Id. at 983-84 (noting further plaintiff's complaint identified specific proposed legislation it intended to engage in, and produced evidence that one of its members had been "prosecuted for violations" of statute in question). As discussed above, plaintiffs have made no such showing in this case.
Plaintiffs have not presented the Court with any other Ninth Circuit — or Supreme Court — case holding that it is sufficient to merely allege a general desire or plan to engage in activities that are likely to implicate the challenged statute, without any history of having previously done so, evidence of actually currently doing so or an articulated, concrete plan to do so in the future. Rather, Ninth Circuit case law — including Heller — appears to require the opposite showing. For example, the plaintiff in Human Life "[o]ver the years ... ha[d] expended considerable time and resources opposing efforts to legalize physician-assisted suicide" — which was the subject of the specific ballot initiative it sought to oppose — and had undertaken "plans to solicit funds for and launch a public education campaign" consisting of "three proposed public communications," including distribution of a "solicitation letter" already drafted, targeting of individual voters by telephone using planned scripts (again already written), and the broadcasting of "four proposed scripts for thirty-second
In Lomax, standing was found to exist where the plaintiffs, in anticipating the upcoming election, had "circulated a petition to place [an initiative] on the ballot," which they submitted to the state's Secretary of State for determination as to whether that initiative qualified to be placed on that ballot (which it did not, because it was found to have failed to comply with a state rule on acquiring signatures). 471 F.3d at 1012. While the election had passed by the time the case came before the Ninth Circuit for consideration, plaintiff's claim challenging that rule was determined to fall within the capable of repetition, yet evading review exception to the mootness doctrine, as it was reasonable to expect the plaintiff would again be subject to the above state rule. See id. at 1013. Once more, the demonstrated history of violating the particular state law at issue shown in Lomax has not been established by plaintiffs' in this case.
As in Human Life, the plaintiff in CPLC-I — which "frequently" took "a position" on state propositions relating to abortion and assisted suicide — was found to have standing to challenge the state's campaign disclosure laws. 328 F.3d at 1091-95. "Among its many activities," it was noted that the plaintiff published "voter guides" that reported "the positions of some federal and most statewide candidates on abortion-related topics," and urged "readers to vote for or against certain ballot initiatives that concern[ed] abortions or related subjects." Id. at 1092. The plaintiff also "introduced evidence ... that it planned to spend more than" the threshold spending amount in regard to a state initiative on the ballot during the 2000 general election, which would trigger the state reporting and disclosure requirements. Id. at 1092-93.
In ARLPAC, the plaintiff to further its stated mission of educating the public in regard to issues such as abortion and euthanasia — "often [made] independent expenditures to express its support for or opposition to [political] candidates." 320 F.3d at 1005. While plaintiff had wanted to "disseminate advertising without providing twenty-four hour notice to candidates" as required by the state statute it was challenging, it "provided the [required] notice and delayed its speech both before the September 2000 primary election and subsequent elections." Id. at 1006. Thus, the Ninth Circuit found the plaintiff faced "actual harm" here, although it did not actually violate the statute and had never been subject to penalties for doing so. Id.
In Porter, one of the plaintiffs "in anticipation of the November 2000 national presidential election," created a website that offered "general information about the electoral college, election predictions, and voting," and it provided "a forum to allow individuals around the country to contact one another and discuss their political beliefs and strategies for the upcoming election." 319 F.3d at 487. The plaintiff soon learned, though, that California's Secretary of State had sent the founders of another similar website a cease and desist letter, threatening them with criminal prosecution "for allegedly brokering the exchange of votes" in violation of state law. Id. at 487-88. Although he himself had not received such a letter, because the plaintiff was "deeply afraid" of being similarly prosecuted, he suspended the operation
Finally, in Canatella, while not involving a campaign or lobbying disclosure challenge, as noted above, the Ninth Circuit expressly noted that it was the plaintiff's "history" of disciplinary proceedings before the California State Bar and "his continuing activities as a zealous advocate," as well as the nature of his challenge to the Bar's statutes and rules of professional conduct, that led it "to conclude the requirements of standing" had been met. 304 F.3d at 854 n. 14. All of the cases just discussed thus make clear that at least some objective showing of having engaged in, of presently engaging in or of an articulated, concrete plan to engage in the type of activity that is the object of the challenged statute is required to establish standing, even under the more relaxed standards for First Amendment claims. As explained above, such a showing is simply absent in this case. Having so determined, the Court nevertheless shall go on to address in the alternative plaintiffs' constitutional claims on their merits.
Plaintiffs allege the registration and reporting requirements contained in RCW 42.17.200 burden their free speech, in that they are "expensive, complex, and time-consuming" and as such, "interfere with, and chill [their] ability to ... engage in [anonymous] political speech." ECF # 1, ¶ 82. Plaintiffs further allege those requirements violate their First Amendment "to associate with, and have individuals contribute to, their causes," as well as the right of association of "any potential donors or volunteers who wish to support" those causes. Id. at ¶¶ 84, 86. In addition, plaintiffs claim the "dissemination of the information contained in [the reports they are required to file with the PDC], create the reasonable probability that [their] respective members will face threats, harassment, or reprisals if their names, addresses, and occupations were disclosed." Id. at ¶ 85. Plaintiffs also claim the efforts they have made or anticipate having to make to avoid the registration and reporting requirements contained in RCW 42.17.200 such as limiting their expenditures and changing their communications content-interfere with their right to exercise their "unfettered ability to craft their message." Id. at ¶ 87; ECF # 35, pp. 2-4.
Plaintiffs, furthermore, allege the exemption of "media entities" and public officials in RCW 42.17.160 from the registration and reporting requirements contained in RCW 42.17.200, "discriminates against those citizens who do not fall into those categories and deprives" plaintiffs and others "of the equal protection of the laws."
Plaintiffs assert "[t]his lack of clarity also leaves [them] and others at risk of arbitrary and ad hoc enforcement of" the above laws. Id. at ¶ 91. Specifically, plaintiffs claim the manuals the PDC publishes to give citizens guidance in complying with Washington's lobbying registration and reporting requirements are lengthy, and fail to provide definitive answers, thereby requiring further consultation of the applicable state laws and rules themselves (which plaintiffs also claim are overly lengthy) See ECF # 22, p. 6. Plaintiffs assert they have struggled with the complexity of RCW Chapter 42.17, and have "serious concerns" regarding their ability to comply with RCW 42.17.200, the biggest of which concerns how "small community groups" such as themselves should "keep track of and report amounts spent in connection with their varied activities." Id. at pp. 7-8. Lastly, plaintiffs allege they "face a credible threat of prosecution" if, as they intend, they make expenditures in excess of the amounts set forth in RCW 42.17.200, and they do not register with the PDC. Id. at ¶ 92.
There are two types of constitutional challenges a party may make regarding a contested statute, and which plaintiffs, as noted above, have presented in this case. First, a statute may be challenged "as applied." 4805 Convoy, Inc., 183 F.3d at 1111 n. 3. "This type of challenge contends that the law is unconstitutional as applied to the plaintiff's particular expressive activity, even though the law may be capable of valid application to others." Id. "[A] successful `as-applied' challenge," therefore, "does not invalidate the law itself, but only the particular application of that law." Id. "As-applied" challenges are the norm due to the "general rule" that an individual "who has engaged in activity that is not constitutionally protected cannot complain that the statute is unconstitutional as applied to others." Doucette, 955 F.Supp. at 1199 n. 1 (citing United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)).
By contrast, a "facial" challenge to the constitutionality of a statute "does not depend upon whether [the challenging party's] own activity is shown to be constitutionally privileged." Bigelow, 421 U.S. at 815, 95 S.Ct. 2222. Such a challenge thus does not require the party "making the attack" to demonstrate that the statute is unconstitutional as applied to him or her. Id. at 815-16, 95 S.Ct. 2222; see also Doucette, 955 F.Supp. at 1199 n. 1. However, "a plaintiff whose conduct is protected may also bring a facial challenge to a statute that he [or she] contends is unconstitutional,... by arguing that the statute could never be applied in a valid manner and would chill the speech of others." 4805 Convoy, Inc., 183 F.3d at 1112 n. 4 (emphasis in original). As noted above, "a `facial' challenge is generally rejected for prudential reasons," although the "`ordinary reluctance to entertain [one] is somewhat diminished in the First Amendment context' because of the `concern that those who desire to engage in legally protected expression may refrain from doing so rather than risk prosecution or undertake to have the law declared ... invalid.'" Doucette, 955 F.Supp. at 1199 n. 1 (quoting Roulette v. City of Seattle, 78 F.3d 1425, 1427 (9th Cir.1996)).
"A facial challenge to a [statute] is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which [it] would be valid," i.e., "that the law is unconstitutional in all of its applications." Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (facial challenge must fail where statute has "plainly legitimate sweep.") (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)); United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (fact that statute "might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since [the Supreme Court has] not recognized an `overbreadth' doctrine outside the limited context of the First Amendment."). This is "a high burden of proof" for a plaintiff to meet. S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 467 (9th Cir.2001). As the Supreme Court has further explained:
Washington State Grange, 552 U.S. at 449-51, 128 S.Ct. 1184; see also United States v. Harriss, 347 U.S. 612, 625, 74 S.Ct. 808, 98 L.Ed. 989 (1954) (rejecting facial challenge because challenging parties' predictions of unconstitutionality had amounted to "[h]ypothetical borderline situations," finding "too remote" possibility others will engage in self-censorship); Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457, 460 (11th Cir.1996). "It is with these principles in view that" the Court must consider the facial challenges presented by plaintiffs. Washington State Grange, 552 U.S. at 451, 128 S.Ct. 1184. But as explained in greater detail below, plaintiffs have failed to demonstrate that Washington's laws governing grassroots lobbying, including RCW 42.17.200 and RCW 42.17.160, are unconstitutional, either as applied to them or on their face.
As indicated above, plaintiffs claim RCW 42.17.200 and the PDC's regulations on their face and as applied to them prohibit — or at least chill and/or severely burden — their ability and that of others to engage in political speech, both anonymous and otherwise, and to associate. See ECF # 1, ¶¶ 99-100, 102, 108, 110. Plaintiffs claim RCW 42.17.200 and the PDC's regulations "create the reasonable probability that [their] respective members, supporters and contributors, and their potential members, supporters and contributors, will face threats, harassment, or reprisals if their names, addresses, and occupations were disclosed." Id. at 101. In addition, plaintiffs allege RCW 42.17.200 and the PDC's regulations impose "onerous, expensive, time-consuming, and complex" requirements that are "in excess relative to" and are "not supported" by a "compelling, important, substantial or even legitimate state interest," and that are "not sufficiently tailored to support any such interest." Id. at ¶¶ 103, 106, 112.
"The First Amendment prohibits Congress from enacting laws `abridging the freedom of speech.'" Long Beach Area Peace Network v. City of Long Beach ("Long Beach"), 574 F.3d 1011, 1020-21 (9th Cir.2009) (quoting U.S. Const. amend. I); see also SpeechNow.org v. Federal Election Commission ("SpeechNow"), 599 F.3d 686, 692 (D.C.Cir.2010). That Amendment "is applicable to the States through the Fourteenth [Amendment]." First National Bank of Boston v. Bellotti, 435 U.S. 765, 778, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); see also Long Beach, 574 F.3d at 1021. In addition, "certain types of speech enjoy special status." Long Beach, 574 F.3d at 1021. For example, "[p]olitical speech is core First Amendment speech," that has been deemed "critical to the functioning of our democratic system." Id.
In terms of free speech and anonymity, the Supreme Court has held in the literary context that the decision of an author "to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) ("[A]t least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry"). Id. "The freedom to publish anonymously," however, "extends beyond the literary realm." Id.
In addition to protecting "political expression," the First Amendment protects "political association as well." Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); see also Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, California ("Citizens Against Rent Control"), 454 U.S. 290, 295, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981); Long Beach, 574 F.3d at 1020-21 ("The First Amendment prohibits Congress from enacting laws `abridging ... the right of people peaceably to assemble.'") (quoting U.S. Const. amend. I). Indeed, the Supreme Court has found the right of association is "a `basic constitutional freedom' ... that is `closely allied to freedom of speech.'" Buckley, 424 U.S. at 25, 96 S.Ct. 612; see also Citizens Against Rent Control, 454 U.S. at 295, 102 S.Ct. 434 (recognizing importance of freedom of association in guaranteeing right of people to make voice heard on public issues); National Association for the Advancement of Colored People v. State of Alabama ("NAACP"), 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (noting "close nexus between the freedoms of speech and assembly," and that "[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.").
"[G]roup association is protected [under the First Amendment,] because it enhances `(e)ffective [sic] advocacy.'" Buckley, 424 U.S. at 65, 96 S.Ct. 612 (quoting NAACP, 357 U.S. at 460, 78 S.Ct. 1163). Further, "compelled disclosure of affiliation with groups engaged in advocacy may" be an "effective ... restraint on freedom of association." NAACP, 357 U.S. at 462, 78 S.Ct. 1163 ("This Court has recognized the vital relationship between freedom to associate and privacy in one's association."). "The right to join together `for the advancement of beliefs and ideas,'" furthermore, "is diluted if it does not include the right to pool money through contributions, for funds are often essential if `advocacy' is to be truly or optimally `effective.'" Buckley, 424 U.S. at 65-66, 96 S.Ct. 612 (internal citation omitted). "Moreover," the Supreme Court has noted that "the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for `(f)inancial transactions can reveal much about a person's activities, associations, and beliefs.'" Id. at 66, 96 S.Ct. 612 (quoting California Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974)).
Plaintiffs argue that what RCW 42.17.200 "calls `grassroots lobbying' is more accurately described as `grass roots issue advocacy' or grass roots political speech," not lobbying "as that term is commonly understood" — i.e., that which involves "direct contact with public officials." ECF # 22, pp. 9-10. Rather, plaintiffs assert the type of activity RCW 42.17.200 governs is core political speech involving individuals or groups communicating with the general public about various issues. See id. at p. 10. Because the "[e]ffective exercise" of the right to communicate with the general public in this manner also "requires [the ability to engage in both] anonymous speech and association," that law's reporting and disclosure requirements "impose serious impediments to the exercise [all of these protected] rights." Id. Plaintiffs thus are "essentially contend[ing]" here that RCW 42.17.200 is invalid because it "sweeps too broadly" —
"A law will be struck down for overbreadth when `it does not aim specifically at evils within the allowable area of government control but instead sweeps within its ambit other activities that constitute an exercise' of protected expressive or associational rights." CICU, 534 F.Supp. at 493 (quoting Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)). "[V]oiding a law for overbreadth," however, "is `strong medicine' that" should only be applied "as a last resort." Id. at 494 (quoting Broadrick, 413 U.S. at 613, 615, 93 S.Ct. 2908 ("[O]verbreadth adjudication is an exception to our traditional rules of practice and ... where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.")). Accordingly, "claimed flaws must be of a substantial concern in the context of the statute as a whole before" the statute will be invalidated. Kimbell, 164 Vt. at 85, 665 A.2d 44. Further, the protected speech a plaintiff intends to engage in — but has refrained from doing so for fear of prosecution — must "arguably" fall "within the [challenged] statute's reach" to establish a "constitutionally sufficient injury." Human Life, 624 F.3d at 1001 (citations omitted); see also CPLC-I, 328 F.3d at 1095.
Since "compelled disclosure, in itself, can seriously infringe on privacy of association and belief," disclosure requirements "burden First Amendment interests." SpeechNow, 599 F.3d at 696 (quoting Buckley, 424 U.S. at 64, 96 S.Ct. 612).
Nevertheless, the Supreme Court has "recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest." Buckley, 424 U.S. at 64, 96 S.Ct. 612; see also Davis, 554 U.S. at 744, 128 S.Ct. 2759. Rather, "the subordinating interests of the State [offered to justify compelled disclosure]" must "survive exacting scrutiny"
Id. at 66-67, 96 S.Ct. 612 (internal footnotes omitted). The government, however, "need not ... employ the least restrictive means to satisfy its [asserted] interest," but, as noted above, "it need only ensure that its means are substantially related to that interest." Human Life, 624 F.3d at 1013.
Disclosure requirements consistently have been upheld on the basis of "a governmental interest in `provid[ing] the electorate with information' about the sources of political campaign funds, not just the interest in deterring corruption and enforcing anti-corruption measures," as is the case regarding limitations on contributions for political speech. SpeechNow, 599 F.3d at 692, 696 (noting that only interest Supreme Court has recognized as being sufficiently important to outweigh First Amendment interests implicated by contribution limits is preventing corruption or appearance of corruption) (quoting Buckley, 424 U.S. at 66, 96 S.Ct. 612; citing Davis, 128 S.Ct. at 2773, McConnell, 540 U.S. at 196, 124 S.Ct. 619 (upholding similar requirements for same reasons), FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 496-97, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985)); see also Citizens United, 130 S.Ct. at 913-14 (citing government interest in providing information to electorate in upholding disclaimer and disclosure requirements for electioneering communications); Human Life, 624 F.3d at 1005-06 (providing information repeatedly has been recognized as sufficiently important, if not compelling, interest) (citing Buckley, 424 U.S. at 66-67, 96 S.Ct. 612).
The courts thus have found "[p]roviding information to the electorate" to be "vital to the efficient functioning of the marketplace of ideas, and thus to advancing the democratic objectives underlying the First Amendment."
As the Federal Circuit also has noted in the election context:
SpeechNow, 599 F.3d at 698. In Citizens United, the Supreme Court stated that in such a context, "the public has an interest in knowing who is speaking about a candidate." 130 S.Ct. at 915. It went on to note:
Id. at 916; see also Buckley, 424 U.S. at 82, 96 S.Ct. 612 (noting disclosure to be "reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view").
This is because, the Eleventh Circuit continued, indirect lobbying expenses "implicate the correlative interests of voters (in appraising the integrity and performance of officeholders and candidates, in view of the pressures they face) and legislators (in `self-protection' in the face of coordinated pressure campaigns)." Id. at 460-61 (further noting that "these interests continue to apply when the pressures to be evaluated by voters and government officials are `indirect' rather than `direct'"); see also Minnesota State Ethical Practices Board v. National Rifle Ass'n of America ("MSEPB"), 761 F.2d 509, 512-13 (8th Cir.1985) (recognizing interest in requiring reporting of intra-organization lobbying activity not involving direct contact with state officials, and finding no "constitutionally significant" distinction between such indirect activity and direct lobbying, because "[w]hen persons engage in an extensive letter[]writing campaign for the purpose of influencing specific legislation," state's "interest is the same whether or not those persons are members of an association").
Plaintiffs assert the Supreme Court has never upheld laws aimed at disclosure of "citizen-to-citizen speech" outside the electoral context based on the government's
Plaintiffs, however, have provided no evidence to support their interpretation of the term "grassroots lobbying" contained in RCW 42.17.200, other than the declaration and report of Dr. Milyo, which, as discussed above, are not admissible in this case. The Court notes, furthermore, that the term "grassroots lobbying" — which is expressly employed within the statute to describe the activities governed thereby — itself contains the term "lobbying," which is defined in relevant part as follows:
RCW 42.17.200(31) (emphasis added). In addition, a "sponsor" of grassroots lobbying is any person who spends more than the statutorily specified expenditure amount "in presenting a program addressed to the public, a substantial portion of which is intended, designed, or calculated primarily to influence legislation." RCW 42.17.200(1) (emphasis added).
The above statutory language thus is "quite clear" in aiming the reporting and disclosure requirements contained in RCW 42.17.200 at lobbying — and, in particular, "grassroots lobbying" — not grassroots "issue advocacy." Taylor, 582 F.3d at 12. As noted by the Federal Circuit in Taylor, "the Supreme Court has repeatedly emphasized that courts should" not reach beyond the plain meaning of a statute — such as by "resort[ing] to legislative history" — "to cloud a statutory text that is clear." 582 F.3d at 12 (quoting Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)); see also Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 457, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (noting source material outside statutory provision "cannot [be used to] amend the clear and unambiguous language" thereof). In addition, as noted above, the official declaration of policy contained in Washington's campaign finance, lobbying and public disclosure laws, expressly provides in relevant part that "lobbying contributions and expenditures be fully disclosed" to the public. RCW 42.17.010(1), (10) (emphasis added).
Accordingly, the Court declines to adopt plaintiffs' use of the term "issue advocacy" here or to find the reporting and disclosure requirements contained in RCW 42.17.200 impose a direct limit on core speech or any related associational rights. Plaintiffs further seem to argue that the term "legislation" is defined so broadly that "there appears to be no political activity that the law does not reach," and thus that RCW 42.17.200 governs more than just lobbying activity designed to influence governmental decision-making. ECF # 22, p. 3. The Court, however, finds plaintiffs' argument is supported neither by the statutory definition of that term nor case law
As noted above, the term "legislation" is statutorily defined to mean:
RCW 42.17.020(30). Specifically, plaintiffs take issue with the phrase "any other matter that may be the subject of action by... the legislature" contained in the above definition, which also as noted above, they assert indicates there is "no political activity" the reporting and disclosure requirements set forth in RCW 42.17.200 do not reach. The "primary objective in interpreting a statute," however, "is to ascertain and give effect to the Legislature's intent as manifested in the statute's express language." Peacock v. Public Disclosure Commission, 84 Wn.App. 282, 286, 289, 928 P.2d 427 (1996) (citing American Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991) (in construing statute, statutory definitions generally control)). "Legislative intent," furthermore, "is derived" not just from the specific provision being challenged, but "from the statutory context as a whole." Id. at 286-87, 928 P.2d 427.
Accordingly, the Court must interpret RCW 42.17.200 in light of the purpose of RCW Chapter 42.17, which is, as noted above "to inform the public and its elected representatives about `sponsors of campaigns and lobbying efforts which seek to affect, directly or indirectly, governmental decision making.'" Id. at 287, 928 P.2d 427 (noting also court's duty to consider official public policy declaration contained in RCW Chapter 42.17, which requires liberal construction of that chapter "to promote complete disclosure of all information respecting the financing of ... lobbying and ... assure continuing public confidence in fairness of ... governmental processes") (quoting Young Americans for Freedom, Inc. v. Gorton ("YAF"), 83 Wn.2d 728, 733, 522 P.2d 189 (1974), and RCW 42.17.010(11) (emphasis in original)).
In Peacock, the Washington State Court of Appeals was tasked with interpreting the term "legislation" used in RCW 42.17.200(1) and defined in RCW 42.17.020(30). In so doing, it first observed the term's "full statutory meaning as set forth by the Legislature" must be considered. 84 Wash.App. at 288, 928 P.2d 427. The court of appeals then focused on the phrase "and includes any other matter that may be the subject of action by ... the legislature," to find the petition-drive begun by the plaintiff was "directed at legislation," because its hope was that "its signed petitions [would] force the Legislature to create a new county," which would "have to create and pass legislation" to do so. Id. at 289, 928 P.2d 427. The court of appeals went on to state that "[b]ecause the matter of creating a new county will be the subject of future legislative action if the [plaintiff] is successful, the petition drive is directed at legislation." Id. (emphasis added). In so holding, the court of appeals gave no indication any activities other than those that are designed to be the subject of legislative action, would fall within that portion of the above statutory definition that reads "any other matter that may be the subject" thereof.
In YAF, upon which as noted above the court in Peacock relied in part, the Washington State Supreme Court was even more specific in its analysis of the relation between the reporting and disclosure requirements contained in RCW 42.17.200 and the term "legislation":
83 Wash.2d at 732-34, 522 P.2d 189 (emphasis in original). Accordingly, it is clear that only those activities and issues, which are designed to be the subject of pending or proposed legislative action, fall within the statutory definition of the term "legislation".
The interpretation of the term "legislation" adopted by the Washington state courts also is well in line with the long-held rule of statutory construction that "[l]aws are to be interpreted in a reasonable way to avoid constitutional overreaching." Kimbell, 164 Vt. at 88, 665 A.2d 44, 49. If a provision of a statute therefore "is readily susceptible to a narrowing construction that will remedy [an alleged] constitutional infirmity" — as it is in this case — that provision then "will be upheld." Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F.3d 1174, 1194 (10th Cir. 2000) (it is well-settled that statute must be upheld if it is "readily susceptible" to
Plaintiffs next argue no sufficiently important governmental interest is advanced by the reporting and disclosure requirements contained in RCW 42.17.200. As discussed above, the promotion of complete disclosure of all information in regard to lobbying to assure continuing public confidence in fairness of governmental processes has been advanced as the primary policy behind Washington's laws governing lobbying in general. This has been upheld as a sufficiently important governmental interest, and valid basis for requiring disclosure of financial information under RCW Chapter 42.17, by several Washington courts. See Voters Education Committee, 161 Wash.2d at 479-80, 498, 166 P.3d 1174; YAF, 83 Wash.2d at 732-34, 522 P.2d 189 (upholding the validity of RCW 42.17.200); Fritz, 83 Wash.2d at 298, 306-10, 517 P.2d 911
Plaintiffs assert that accepting the government's information interest as justification for its grassroots lobbying disclosure laws would lead to "breathtaking" implications. ECF # 22, p. 17 (quoting Reed, 130 S.Ct. at 2824 (Alito, J., concurring), and citing United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 97 L.Ed. 770 (1953)). But, as discussed above, neither the Supreme Court nor any of the other many federal courts that have upheld this interest in a number of contexts have found it to be so. Rather, they have found it to be sufficiently important to outweigh the constitutional burdens imposed by reporting and disclosure requirements. Plaintiffs cite Rumely for the uncontroversial proposition that statutes that give the government "the power to inquire into all efforts of private individuals to influence public opinion[,] ... raises doubts of constitutionality." 345 U.S. at 46, 73 S.Ct. 543. But this is not what reporting and disclosure statutes such as RCW 42.17.200 do, again as many courts, including this one, have recognized.
Plaintiffs also rely on California Pro-Life Council, Inc. v. Randolph ("CPLC-II"), 507 F.3d 1172 (9th Cir.2007), arguing the Ninth Circuit there held the interest in informing voters did not justify requiring those engaging in ballot issue advocacy to create formal committees and regularly report all contributions and expenditures. But the statute at issue in that case imposed "political action committee-like requirements" on groups such as the plaintiff, requirements that clearly are not required by RCW 42.17.200. Id. at 1187-88. Earlier in CPLC-II, furthermore, the Ninth Circuit expressly stated that "in the context of disclosure requirements, the government's interest in providing the electorate with information [on contributions made to groups seeking to influence voters in the context of] election and ballot issues is well-established." Id. at 1179 n. 8 (emphasis added). The relevance of the holding in CPLC-II is even more suspect, given that the Ninth Circuit itself subsequently recognized intervening Supreme Court precedent has resulted in that opinion's abrogation. See Human Life, 624 F.3d at 1013.
As the Ninth Circuit explained:
Human Life, 624 F.3d at 1013. Plaintiffs argue Human Life does not control here, because that case dealt with the ballot initiative context, and thus, as with Buckley and Citizens United, it is limited to the electoral situation. This argument, however, fails for the same reasons plaintiffs' argument regarding Buckley and Citizens United fails, and thus the Court finds it to be without merit.
Plaintiffs further attempt to distinguish Human Life by making much of the Ninth Circuit's statement in that case that "[r]eporting requirements do not extend indiscriminately to all issue advocacy conducted at any time, for example ... at a time when no related ballot measure is pending," but "[r]ather, by definition," they "do not apply absent a pending election or ballot initiative campaign." 624 F.3d at 1018. But plaintiff takes this statement out of context. The Ninth Circuit there was making the point that disclosure requirements in the ballot measure context pose far fewer potential constitutional issues than those in the electoral campaign context, stating in relevant part:
Id. (emphasis in original) (internal citations omitted). Plaintiffs' crabbed reading of Human Life ignores the general acknowledgment by courts discussed elsewhere herein, that the government has an important interest in providing information to the public in contexts other than those dealing with campaign elections or ballot measures, including direct and indirect lobbying. Further, the reasoning of the Ninth Circuit here applies equally to grassroots lobbying, since in that context — as in the case of ballot measures — RCW Chapter 42.17 targets only those expenditures and contributions "made in conjunction" with proposed or pending legislation, and therefore do not pose the potential overbreadth dangers that similar disclosure requirements in the candidate election context do. See id. at 1018 n. 7 (contrasting vote on ballot measure with "a candidate election, where there is a greater distance between speech urging a vote for or against a particular candidate and advocating or attacking one of a `broad range of issues' on which the candidate may have a particular view").
Plaintiffs also look to Tenth Circuit case law for help. They note the Court of Appeals in Sampson v. Buescher, 625 F.3d 1247 (2010), declined to find a government interest in providing information regarding disclosure of activities of grassroots groups in the "ballot issue" context. 625 F.3d at 1249. The Court, however, finds Sampson to be both distinguishable on its facts and unpersuasive in terms of its legal reasoning, particularly in light of the Ninth Circuit's own precedent — which is binding on this Court — and the other court decisions discussed above. In Sampson, a statute
Id. at 1254 (quoting Colo. Const. art. XXVIII, § 1) (emphasis added by court of appeals). "It would take a mighty effort to characterize the [plaintiffs'] expenditure of $782.02," the Tenth Circuit continued, "as an exercise of a `disproportionate level of influence over the political process' by a wealthy group that could `unfairly influence the outcome' of an election." Id. "The disconnect between the avowed purpose of [Colorado's] constitutional disclosure requirements and their effect in this case," the Court of Appeals went on to note, "should in itself provoke doubt about whether the burden on the First Amendment associational rights of the members of the [plaintiffs] could be justified." Id. at 1254, 1261.
Accordingly, Sampson is wholly inapplicable to the case at hand, where the citizens of Washington — through the initiative process — overwhelmingly supported a law that requires the reporting and full disclosure of campaign finance and lobbying information, without distinction between wealthy and less wealthy actors. See id. at 1254 ("It is unlikely that the Colorado voters who approved the disclosure requirements of Article XXVIII of the state's Constitution were thinking of [groups such as the plaintiff]."). The Tenth Circuit in Sampson also found "the public interest in knowing who is spending and receiving money" — at least in the context of that case — was "not obvious." Id. at 1256. This, though, is directly contrary to the holdings of the majority of other courts that have considered this issue, again including the Ninth Circuit. Finally, the Tenth Circuit found the difficulty of complying with the law's reporting disclosure requirements was not outweighed by the state's interest in requiring disclosure at the above threshold levels. See id. at 1259-61. But as the Court discusses in greater detail below, such is not the case here.
Despite earlier arguing that the Supreme Court has not found the government information interest to be sufficient outside the electoral campaign context, plaintiffs now admit that interest has been applied in the lobbying context, but only in the direct lobbying context. See ECF # 22, p. 18 (citing Harriss, at 620-21, 74 S.Ct. 808). But, as discussed above, at least two circuit courts have found a sufficient government information interest in the indirect lobbying context. See Meggs, 87 F.3d at 461; MSEPB, 761 F.2d at 512-13. Indeed, the informational interest "may in some ways be stronger when the [lobbying] pressures [on government officials] are indirect," and the Supreme Court in Harriss, as noted by the Eleventh Circuit,
Plaintiffs go on to argue, though, that there is no evidence that disclosure of information related to grassroots lobbying in Washington is necessary. In other words, plaintiffs assert that because the state "has failed to identify any problem that prompted its" reporting and disclosure requirements, the state "can do no more than simply `posit the existence of the disease sought to be cured.'" ECF # 22, p. 20 (quoting Davidson, 236 F.3d at 1198). But plaintiffs misapprehend the level of empirical evidence the state is required to show to justify its reporting and disclosure requirements. It is true that the state "must demonstrate that the recited harms [it seeks to protect against] are real, not merely conjectural," that the law at issue "will in fact alleviate these harms in a direct and material way" and that "mere conjecture" is inadequate "to
In Nixon, the Supreme Court found it sufficient that the state had presented an affidavit from a State Senator intimately involved in working on the contribution limits law at issue in that case, and that the district court had cited "newspaper accounts of large contributions supporting inferences of impropriety." Id. at 393, 120 S.Ct. 897; see also Taylor, 582 F.3d at 15 (noting that although legislative record was limited, it was "no less substantial" than record Supreme Court regarded as sufficient in Nixon). The Supreme Court further noted that an "overwhelming 74 percent of the [state's voters] determined that contribution limits [were] necessary to combat corruption and the appearance thereof." Id. at 394, 120 S.Ct. 897. Significantly, the Supreme Court went on to posit in relevant part as follows:
Id. "The First Amendment," furthermore, "does not require" the government, for example, "to conduct new studies or produce evidence independent of that already generated," as long as "whatever evidence the [government] relies upon is reasonably believed to be relevant to the problem that the [law at issue] addresses." Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Taylor, 582 F.3d at 15 (rejecting plaintiff's contention that Congress's findings set forth in Lobbying Disclosure Act were insufficient to support informational interest, and that there must be studies, statistics or empirical evidence explaining why organizations like plaintiff should be required to file disclosure statements).
Thus, although the government "must base its conclusions upon substantial evidence," "`substantiality is to be measured' by a `deferential' standard," and "deference must be accorded to [the government's] findings as to the harm to be avoided and to the remedial measures adopted for that end," if the courts are not to "infringe on traditional legislative authority to make predictive judgments." Taylor, 582 F.3d at 15 (quoting Turner Broadcasting, 520 U.S. at 195-96, 117 S.Ct. 1174); see also Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (observing that legislative determination as to the need for prophylactic measures where corruption is evil feared will not be second-guessed). Further, "while `[i]t is true that in some First Amendment cases the Supreme Court has demanded an evidentiary showing in support of a state's law,'" as the Federal Circuit has noted:
Taylor, 582 F.3d at 15 (also quoting Nat'l Cable & Telecomms. Ass'n, 555 F.3d at 1000) (citing Turner Broadcasting, 520 U.S. at 195, 117 S.Ct. 1174).
As the Federal Circuit found in Taylor, the Court here too finds the record in this case is "no less substantial" than the record the Supreme Court regarded as sufficient in Nixon. First, as noted above, as in Nixon, an overwhelming percentage of Washington voters — 72% and thus almost nearly identical to that in Nixon as well — approved Initiative 276, which became RCW Chapter 42.17. Also as noted above, defendants have provided the declaration of Jolene Unsold, a former State Senator and member of Congress from Washington, who was "an early participant in the effort that led to the passage of Initiative 276, and who described the "strong" public interest in and "overall thrust" of that Initiative being "the people's right to know, and to enable citizens to `follow the money,'" not only in electoral campaigns, but in ballot measure campaigns and with respect to "legislative lobbying" as well. ECF # 25-2, Exhibit 1, ¶¶ 2, 4-5.
Also similar to Nixon, defendants have provided newspaper editorials from the time of the Initiative 276 campaign, noting the emphasis on open disclosure in regard to both campaigns and lobbying, and endorsing that effort. See id. at Exhibits A-1-A-4. In addition, the Court notes the strong open disclosure language contained in the public policy declaration set forth in RCW Chapter 42.17, which emphasizes the importance of full disclosure in the campaign and lobbying contexts — and recognized, also as discussed above, by both Washington State and federal courts — and views this in mind of the "deferential" standard with which the legislature's findings are to be accorded. As succinctly put by the Washington State Supreme Court:
Fritz, 83 Wash.2d at 309-10, 517 P.2d 911. Given the widely recognized interest the state has in informing the public as to the potential influences on the electoral and
Plaintiffs argue the reporting and disclosure requirements contained in RCW 42.17.200 are not narrowly tailored to the state's informational interest. Specifically, plaintiffs argue the expenditure reporting amounts contained in RCW 42.17.200 are so low, that the value of having that information disclosed to the public is negligible. As noted above, the current amounts are $500 in any one-month period and $1,000 in any three-month period. See ECF # 25, ¶ 35; RCW 42.17.200(1). In addition, the names and addresses of each person contributing $25 or more to a grassroots lobbying campaign, along with the "aggregate amount contributed," must be reported as well. RCW 42.17.200(2)(c). These numbers, though, are not out of line with those that both the Supreme Court and other federal courts have upheld.
For example, in Buckley, the law at issue there required records to be "kept by political committees of the names and addresses of those who make contributions in excess of $10," and of those whose contributions "aggregate more than $100" 424 U.S. at 82, 96 S.Ct. 612. In upholding those thresholds, the Supreme Court stated in relevant part:
Id. at 83, 96 S.Ct. 612 (internal footnote omitted) (emphasis added); see also Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth ("Canyon Ferry"), 556 F.3d 1021, 1033 (9th Cir.2009); CICU, 534 F.Supp. at 499 ("This Court ... will not substitute its judgment as to what
In support of their argument here, plaintiffs cite Canyon Ferry for the proposition that "[a]s a matter of common sense, the value of [the] financial information to the voters declines drastically as the value of the expenditure or contribution sinks to a negligible level." 556 F.3d at 1033 (emphasis in original). Plaintiffs, however, take this quote completely out of context. The Ninth Circuit in Canyon Ferry declined to apply the disclosure provisions at issue in that case to the plaintiff church's "de minimis in-kind expenditures." Id. at 1034 (emphasis in original). As the Court of Appeals went on to explain:
Id. Indeed, the "question" for the Ninth Circuit in Canyon Ferry was whether the state's "`zero dollar' threshold for disclosure was `wholly without rationality.'" Id. at 1033 (quoting Buckley, 424 U.S. at 83, 96 S.Ct. 612). The Court of Appeals explained in further relevant part:
Id. at 1033-34 (finding, as noted above, that the above de minimis in-kind expenditures
The Ninth Circuit therefore concluded that "by applying its disclosure provisions" as it did to the plaintiff's "de minimis in-kind contributions," the state violated the plaintiff's First Amendment rights. Id. at 1034. But the Court of Appeals expressly limited its holding "to this formulation." Id. It went on to note that it was "not concerned with — and express[ed] no view about — the constitutionality of [the state's] disclosure requirements ... as applied to monetary contributions of any size." Id. (emphasis added). The Ninth Circuit also did "not purport to establish a level above de minimis at which a disclosure requirement for in-kind expenditures ... passes constitutional muster." Id. Rather, the Court of Appeals noted, "[t]he fixing of any such level" was for the state "authorities in the first instance." Id.
Plaintiffs point as well to the decision in Sampson, wherein the Tenth Circuit stated there was "virtually no proper governmental interest in imposing disclosure requirements on" groups such as the plaintiff, which had raised "so little money" in that case, namely "less than $1,000 in monetary and in-kind contributions." 625 F.3d at 1249. As noted above, the disclosure statute at issue in Sampson required any group "that ha[d] accepted or made contributions or expenditures exceeding $200" to register, and to "report the names and addresses of anyone" who contributed "$20 or more." Id. The Tenth Circuit held the expenditures at issue to be "sufficiently small that they [said] little about the contributors' views of their financial interest." Id. at 1261.
In so holding, though, the Tenth Circuit explicitly relied on the Ninth Circuit's language in Canyon Ferry that the value of such financial information to voters declined "drastically as the value of the expenditure or contribution [sank] to a negligible level." Id. at 1260-61 (quoting 556 F.3d at 1033). As just discussed, the focus of the Ninth Circuit's inquiry in Canyon Ferry was de minimis in-kind expenditures that essentially approached "zero" value. Indeed, also as discussed above, the Ninth Circuit expressly declined to set a minimum threshold level for expenditures or contributions, leaving that to the state "in the first instance." 556 F.3d at 1034. Nor should can the Court ignore, again as discussed above, the fact that the public policy animating Colorado's disclosure requirements concerned primarily large expenditures and contributions, which played an important part in the Tenth Circuit holding in that case.
The Court further notes that although the threshold amounts at issue here may be low, it is important to keep in mind — as did the Honorable Ronald B. Leighton in a recent case dealing with a similar challenge to the reporting and disclosure requirements contained in RCW Chapter 42.17 — that "even low dollar disclosure thresholds have a palliative purpose." Family PAC v. Reed, et al., Case No. 3:09-cv-05662-RBL, ECF # 88, Transcript of Proceedings, p. 9. This is because "in the aggregate those [amounts] can make a profound difference in an election" or the legislative decision-making process, "if they are being orchestrated by some group." Id. (emphasis added). Washington thus "has an interest in making sure that" its citizens "know that," and "that they can follow the money." Id. at pp. 9, 11 (specifically finding this to be true in regard to lower $25 and $100 thresholds at issue in that case).
In arguing that the reporting and disclosure requirements contained in RCW 42.17.200 are unduly burdensome, plaintiffs
As for plaintiff's contention that RCW 42.17.200 "imposes a de facto limitation on the amount of [money] they may spend in advancing their political speech," what they essentially assert is that although that statute does not expressly require that they limit their expenditures, their desire to avoid complying with the reporting and disclosure requirements contained therein have caused them to voluntarily do so. ECF # 22, p. 12; see also ECF # 22, Exhibit 5, Declaration of Ray Akers, p. 17 ("[M]y first inclination [after realizing possibility of having to report] was that I should rachet down my activities to avoid coming under the jurisdiction of the law."), Exhibit 9, Declaration of Alfred R. Petermann, p. 26 ("[W]e had several choices, and one of them was we were to restrict ourselves, which is what we did"). Such a de facto limitation, however, is not what is required to be shown here. Rather, plaintiffs must show the language of the statute itself imposes the alleged limitation.
There is "no allegation" in this case — or at least no credible allegation — that the actual "reporting provisions [contained in RCW 42.17.200] limit the fundraising ability" of those who are regulated thereby. Human Life, 624 F.3d at 1014 (quoting Alaska Right to Life Committee v. Miles ("ARTLC"), 441 F.3d 773, 791 (9th Cir. 2006)). In ARTLC, the Ninth Circuit found the burdens imposed by the state's financial reporting requirements were "not particularly onerous," in part because they required only the "reporting" of contributions and expenditures, and "in no way limit[ed] the amount that may be" contributed or spent. 441 F.3d at 791 (emphasis added). Second, the Court of Appeals noted the requirements did not result in an ability to "hardly raise any funds at all to engage in political speech[.]" Id.; see also Federal Election Com'n v. Massachusetts Citizens for Life, Inc. ("MCFL"), 479 U.S. 238, 260, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986). So too, here, the reporting and disclosure requirements in RCW 42.17.200 themselves pose no such limitation on plaintiffs' ability to raise or spend funds to advance their political speech.
As for having to undergo major, unwarranted structural changes, plaintiffs have not been "forced" by RCW 42.17.200 to make the kind of changes the Ninth Circuit noted in Human Life. There, the disclosure law at issue required political committees to "appoint a treasurer and open a bank account in the state of Washington," in addition to having to comply with certain reporting requirements. 624 F.3d at 998 (citing RCW 42.17.050(1)). The Ninth Circuit found that because these requirements were "somewhat modest" and were "substantially related to the government's interest in informing the electorate," they survived exacting scrutiny. Id. at 1014. In ARTLC, the Ninth Circuit also upheld the challenged disclosure provisions in part on the basis that they were "not `broad prophylactic rule[s]' that require[d] structural changes," such as requiring funds to be "segregated". 441 F.3d at 791; compare MCFL, 479 U.S. at 254, 107 S.Ct. 616
In this case, plaintiffs assert that because of the reporting and disclosure requirements in RCW 42.17.200, they have had to "substantially modify their operations to properly comply with the demands" thereof. ECF # 22, p. 12. In support of this assertion, they point to the declaration of Alfred R. Petermann, a representative of CE, who states therein that "it was obvious to [them] that [they] could not, under the terms and conditions that [they] were operating," do so under the requirements imposed by RCW 42.17.200. ECF # 22, Exhibit 9, p. 26. That is, complying with the law simply "was not a workable thing." Id.
Plaintiffs do argue that the mandatory reporting and disclosure requirements contained in RCW 42.17.200, have prevented — or will prevent — others from contributing to them, thus chilling their First Amendment rights. Mr. Akers states in his declaration that "it's hard to get people... to sign anything in [his] neighborhood," because "[t]hey come from cultures where government cannot be trusted" and "has a real history of abuse," and therefore "you cannot get them to sign their names to things." ECF # 22, Exhibit 5, p. 46. Mr. Akers also voiced having both "a fear" and "an experience" of being "pigeonholed by State elected leaders" as "an archconservative," if MCOM had "to document" themselves and make themselves "official". Id. at p. 48. He further stated that in his community, people would not sign any forms, because, he believed, they do not "want to be associated with membership in a lot of groups," i.e., they "like to fly under the radar." Id. at p. 77. Mr. Akers points as well to "a tremendous language barrier," so that it would make it "difficult enough to get a signature and even more difficult to tell them they need to tell [him] how much they spent" on MCOM-related activities. Id. Ms. Murakami, another representative of MCOM, also states in relevant part in her declaration that:
Id., Exhibit 11, p. 15.
Mr. Sussman, a founder of CE, states in his declaration that Washington's reporting and disclosure requirements are "intimidating [them] from doing the kinds of political things" either they should be or could be doing. ECF # 22, Exhibit 6, p. 40. Mr. Sussman further states CE does not want to report the names and addresses of "people who might be willing to donate to [CE] in the future but now have become afraid because of the invasion of their own privacy." Id. at pp. 40-41. In terms of anyone actually not donating to CE because of this fear, though, Mr. Sussman can only point to one instance as reported to him by Mr. Peterman, of a Ford dealership declining to donate after being informed of the possible disclosure requirements. Id. at pp. 89-90. Indeed, Mr. Sussman states he himself has no direct knowledge of this incident. See id.
Mr. Peterman for his part, states that CE is "deeply concerned," not because the PDC will "come after" it, but because of the belief that there are "some aggressive groups in Seattle," and that if CE was "to be lucky enough to influence legislation" or if it was "mentioned as [being] supporters
These statements do not rise to the requisite level of evidentiary proof plaintiffs have the burden of showing to establish constitutional harm in this case. To satisfy that burden, plaintiffs must establish "`a reasonable probability that the compelled disclosure ... will subject them to threats, harassment, or reprisals from either Government officials or private parties.'" Reed, 130 S.Ct. at 2820 (quoting Buckley, 424 U.S. at 74, 96 S.Ct. 612). Plaintiffs can do so by demonstrating that "on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." NAACP, 357 U.S. at 462, 78 S.Ct. 1163.
As in this case, the plaintiff in Citizens United argued "disclosure requirements can chill donations to an organization by exposing donors to retaliation," and as evidence of such, pointed "to recent events in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation." 130 S.Ct. at 916; see also ECF # 22, Exhibit 9, p. 55 (pointing out in context of petition for gay marriage, as example of harassment, calls by activists in Seattle for names of petition signers, so their bosses and neighbors would know what they are thinking). As the Supreme Court noted, though, while "[t]he examples cited" were "cause for concern," the plaintiff itself had "offered no evidence that its members may face similar threats or reprisals." Citizens United, 130 S.Ct. at 876 (recognizing statute "would be unconstitutional as applied to an organization if there were a reasonable probability that the group's members would face threats, harassment, or reprisals if their names were disclosed.") (emphasis added).
As the Supreme Court explained in greater detail in Buckley in regard to an overbreadth challenge to the application of disclosure requirements to minor parties and independents, which are in a not dissimilar position to groups such as plaintiffs in this case:
424 U.S. at 69-72, 74, 96 S.Ct. 612. (internal footnotes omitted) (emphasis added). The evidence, or rather the lack thereof, presented by plaintiffs in this case, is substantially similar to that the Supreme Court found lacking in Buckley. For the same reasons, this Court so concludes as well. See Reed, 130 S.Ct. at 2821 ("Plaintiffs... have provided ... scant evidence or argument beyond the burdens they assert disclosure would impose.")
"[A] vague regulation of speech infringes on First Amendment rights." Voters Education Committee, 161 Wash.2d at 484, 166 P.3d 1174 (citing Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871-72, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)) ("The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech."). A statute "is unconstitutionally vague if it fails to provide a reasonable opportunity to know what conduct is prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement." Human Life, 624 F.3d at 1019 (citation omitted); see also Canyon Ferry, 556 F.3d at 1028, 1030 (vagueness found where statute "`fails to provide people of ordinary intelligence a reasonable opportunity to understand' whether their activities require disclosure under the statute"; law unconstitutionally vague where entity "had no way of knowing ex ante" its conduct would be covered thereby) (quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)) (emphasis added); Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) (law void for vagueness when it "either forbids or requires the doing of an act in terms so vague [persons] of common intelligence must necessarily guess at its meaning and differ as to its application") (citation omitted).
"[P]erfect clarity," though, "is not required even when a law regulates protected speech." Human Life, 624 F.3d at 1019 (quoting California Teachers Ass'n v. State Bd. Of Educ., 271 F.3d 1141, 1150 (9th Cir.2001)); see also Taylor, 582 F.3d at 23 (noting "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity") (quoting United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008)). As the Ninth Circuit has noted, "we can never expect mathematical certainty from our language." Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)); see also CICU, 534 F.Supp. at 502 (noting "some weighing" of whether particular activities may come within purview of disclosure statute "is true of all types of disclosure laws," given that such statutes need not "cover every conceivable set of circumstances that may arise under" them); Kimbell, 164 Vt. at 89, 665 A.2d 44 ("[A] statute need not detail every circumstance that would amount to a violation.")
But "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." Human Life, 624 F.3d at 1020 (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). "A statute's vagueness exceeds constitutional limits if its deterrent effect on legitimate expression is both real and substantial, and if the statute is not readily subject to a narrowing construction by the state courts." Human Life, 624 F.3d at 1020 n. 9 (quoting California Teachers Ass'n, 271 F.3d at 1151); see also Buckley, 424 U.S. at 77, 96 S.Ct. 612 ("Where First Amendment rights are involved, an even `greater degree of specificity' is required") (citation omitted). "On the other hand, if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague even though marginal cases could be put where doubts might arise." Harriss, 347 U.S. at 618, 74 S.Ct. 808.
In addition, "speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid `in the vast majority of its intended applications.'" Human Life, 624 F.3d at 1021 (quoting Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). Thus, "`the belief that the mere fact that close cases can be envisioned renders a statute vague' is a `basic mistake.'" Taylor, 582 F.3d at 23 (quoting Williams, 128 S.Ct. at 1845 (2008)) (noting further that while "the statute [in Taylor] may not be a paragon of clarity, it is not so vague as to violate the Constitution, even applying the heightened standard applicable to regulation of speech"); see also CICU, 534 F.Supp. at 502 (declining to accept argument made by plaintiffs concerning vagueness, because it was based on too "expansive" reading of statute); Kimbell, 164 Vt. at 88-89, 665 A.2d 44 ("[F]ears of prosecution must be based on reasonable interpretations of the statute in question.") (citing CICU, 534 F.Supp. at 502).
"Where the constitutional requirement of definiteness is at stake," furthermore, the Court must "construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness." Buckley, 424 U.S. at 77-78, 96 S.Ct. 612; see also Harriss, 347 U.S. at 618, 74 S.Ct. 808 (stating that if "general class of offenses" addressed by statute "can be made constitutionally definite by a reasonable construction" thereof, courts have duty to give it that construction). "Moreover, `otherwise imprecise terms may avoid vagueness problems when used in combination with terms that provide sufficient clarity.'" Human Life, 624 F.3d at 1021 ("[V]agueness challenges will be rejected when it is `clear what the ordinance as a whole prohibits.'") (citing Grayned, 408 U.S. at 110, 92 S.Ct. 2294).
Plaintiffs argue "Washington's law" is unconstitutionally vague, because "[e]ven after a review of the relevant statutory language and agency materials posted on the PDC website," they "were unable to determine whether the law or its exemptions applied to their activities." ECF # 22, p. 13 (emphasis added). "As a result," plaintiffs assert, "they were forced to seek official guidance in the form of a
The Court agrees with defendants, however, that plaintiffs fail to specifically identify any term contained in RCW 42.17.200 or RCW 42.17.160 they allege to be unconstitutionally vague. Indeed, they point to no particular language in either statutory provision — or elsewhere in RCW Chapter 42.17 for that matter — the lack of specificity of which implicates their First Amendment rights. Rather, as indicated above, they merely refer to the "relevant" statutory language, agency materials or the law or its exemptions in general. Without more, the Court is unable to determine with any precision what constitutional infirmity they are claiming, nor will it speculate for them. In addition, the Court finds nothing in the statutory language contained in RCW 42.17.200 or in RCW 42.17.160 fails to provide "a reasonable opportunity" to those who may come within its purview "to know what conduct is prohibited." Human Life, 624 F.3d at 1019.
Indeed, that language is quite clear as to the persons, entities and activities covered and to the threshold levels at which such coverage comes into play, as discussed previously herein. As such, this is not the type of case where plaintiffs "had no way of knowing ex ante" that what they may have wanted to do would be covered by Washington's grassroots lobbying disclosure laws. Canyon Ferry, 556 F.3d at 1030 (emphasis added). As recognized by many courts, a statute need not "cover every conceivable set of circumstances that may arise under it" to pass constitutional muster, and mere "speculation" or "belief" about "possible vagueness... will not support a facial attack ... when" — as in this case — "it surely is valid `in the vast majority of its intended applications.'" Human Life, 624 F.3d at 1021 (quoting Hill, 530 U.S. at 733, 120 S.Ct. 2480); Taylor, 582 F.3d at 23 (quoting Williams, 128 S.Ct. at 1845); CICU, 534 F.Supp. at 503.
More precisely, plaintiffs have not shown either through their own experience or that of any other similar group that either RCW 42.17.200 or RCW 42.17.160 "`fails to provide people of ordinary intelligence a reasonable opportunity to understand' whether their activities require disclosure." Canyon Ferry, 556 F.3d at 1028 (quoting Hill, 530 U.S. at 732, 120 S.Ct. 2480). While it is true that one representative of CE did state in his declaration that at least with respect to events in which CE spends money, "it gets foggy as to exactly who you're going to include" in terms of reporting who participated in those events (ECF # 22, Exhibit 6, p. 42), again "perfect clarity" in a statute's language is not required (see Taylor, 582 F.3d at 23 (quoting Williams, 128 S.Ct. at 1845)). Nor is it even clear that plaintiffs have made a real, let alone reasonable, effort to comply with the disclosure requirements contained in RCW 42.17.200. See ECF # 22, Exhibit 5, p. 48 ("Honestly, I don't know the extent to which reporting is required."); see also ECF # 22, Exhibit 11, ¶¶ 14, 21; ECF # 25, ¶¶ 24-26, 35, 49-50, 68-69.
Indeed, while plaintiffs assert they were "forced" to seek official guidance in the form of a declaratory order, the record shows they did not take advantage of the many other avenues for seeking such guidance that are available to the public short of petitioning for a declaratory order. See
"Prior restraints on speech are disfavored and carry a `heavy presumption' of invalidity." Long Beach Area Peace Network v. City of Long Beach ("Long Beach"), 574 F.3d 1011, 1023 (9th Cir. 2009) (quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)). This is because such restraints "are the most serious and the least tolerable infringement on First Amendment rights." Id. (citation omitted). Those that have been "found invalid" have all given "public officials the power to deny use of a forum in advance of actual expression." Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).
While "[a] prior restraint need not actually result in suppression of speech in order to be constitutionally invalid," the "relevant question [in determining whether something is a prior restraint] is whether the challenged regulation authorizes suppression of speech in advance of its expression." Id. (quoting Ward, 491 U.S. at 795 n. 5, 109 S.Ct. 2746) (emphasis in original). "`Reasonable time, place, [and] manner restrictions' on speech are permissible." Id. (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). As the Ninth Circuit has noted:
Id. (quoting Clark, 468 U.S. at 293, 104 S.Ct. 3065).
Plaintiffs allege in their complaint that RCW 42.17.200 and the regulations promulgated by the PDC require them "and others to register ... and file monthly reports in order to engage in constitutionally protected speech and association," and therefore that they "constitute a prior restraint." ECF # 1, ¶¶ 142-43 (emphasis added). However, plaintiffs provide absolutely no argument, or point to any evidence, in support of these allegations. As such, the Court finds plaintiffs have not properly presented them for summary judgment purposes. See Carmickle v. Commissioner of Social Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir.2008) (issue not argued with specificity in briefing will not be addressed); Paladin Associates, Inc. v. Montana Power Co., 328 F.3d 1145, 1164 (9th Cir.2003) (by failing to make argument in opening brief, objection to grant of summary judgment was waived); Kim v. Kang, 154 F.3d 996, 1000 (9th
In addition, the Court notes that even if plaintiffs had properly presented this claim for consideration, they would not succeed in establishing the existence of a constitutionally invalid prior restraint here. First, as discussed previously, the reporting and disclosure requirements in RCW 42.17.200 do not "authorize" the suppression of speech or association, and therefore it does not require plaintiffs to register and file monthly reports in order to engage in free speech or to exercise their right of association. Accordingly, because Washington's grassroots lobbying disclosure laws do not actually restrict speech, they also are not content-based, and thus do not constitute a prior restraint on plaintiffs' asserted rights. It also should be noted here as discussed above, that those laws are sufficiently tailored to an important governmental interest, namely the state's interest in informing the public.
Plaintiffs allege as well in their complaint as follows: (1) that the ability to exercise the First Amendment to petition the government for redress of grievances "depends on their freedom from unreasonable regulations that would substantially burden their activities," (2) that RCW 42.17.200 "is not sufficiently tailored to serve any compelling, important, substantial or even legitimate state interest"; and (3) that the application of RCW 42.17.200 and the regulations the PDC has promulgated, on their face and as applied, "severely burden" the right to petition the government for redress of grievances. ECF # 1, ¶¶ 130-32.
As with their prior restraint argument, though, plaintiffs here too have failed to provide any argument — or point to any evidence — in support of the above claims, and thus the Court declines to give them any credence. See Carmickle, 533 F.3d at 1161 n. 2; Paladin Associates, Inc., 328 F.3d at 1164; Kim, 154 F.3d at 1000. In addition, as discussed elsewhere herein, RCW 42.17.200 does not substantially burden the First Amendment right to engage in free speech or right of association and is sufficiently tailored to an important governmental interest. Given that plaintiffs' argument regarding the right to petition the government is based on these other claims, even if plaintiffs had properly presented this issue for the Court's consideration, they would not have succeeded in summary judgment.
Plaintiffs' last claim is that RCW 42.17.200, RCW 42.17.160 and the PDC's regulations "place an arbitrary burden" on their First Amendment rights and those of others, but do "not impose similar burdens on the First Amendment rights of the media and certain public officials." ECF # 1, ¶ 136. Although not alleged in their complaint, plaintiffs also argue RCW 42.17.160(5) impermissibly exempts from the reporting and disclosure requirements in RCW 42.17.200, those "who restrict their lobbying activities to no more than four days or parts thereof during any three-month period." ECF # 22, p. 22. The existence of these exemptions, plaintiffs claim, deprive both them and others of the equal protection of the law. ECF # 1, ¶ 139. Because "the challenged exemptions are triggered based on the identity of the speaker and their subject," plaintiffs further assert, they are "content-based and must be subject to strict scrutiny," a standard which cannot be met here. ECF # 1, ¶ 138; ECF # 22, p. 23 (emphasis in original).
"Like other classifications, regulatory distinctions among different kinds of speech may fall afoul of the Equal Protection Clause." City of Ladue v. Gilleo, 512 U.S. 43, 51 n. 9, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).
Defendants have met their burden of demonstrating that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Plaintiffs have failed in all instances to allege facts sufficient to form a constitutional violation. As such, plaintiffs' motion for summary judgment (see ECF # 22) hereby is DENIED, and summary judgment for defendants hereby is GRANTED. Plaintiffs' civil rights complaint therefore hereby is DISMISSED.
ECF # 25, Declaration of Doug Ellis, ¶ 35.
ECF # 25, ¶ 15.
However, "[a]ny suspension or modification shall be only to the extent necessary to substantially relieve the hardship," and the PDC "shall act to suspend or modify any reporting requirements only if it determines that facts exist that are clear and convincing proof of the findings required under this section." Id.
Id.
424 U.S. at 68, 96 S.Ct. 612.
Taylor, 582 F.3d at 11 (citation omitted); see also Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464-65, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007); Bellotti, 435 U.S. at 786, 98 S.Ct. 1407. The "narrow tailoring" requirement, furthermore, "is satisfied `so long as the [statute] promotes a substantial government interest that would be achieved less effectively absent" that statute. Turner Broadcasting, 512 U.S. at 662, 114 S.Ct. 2445 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). The challenged statutory provision thus "need not be the least speech-restrictive [or least intrusive] means of advancing the Government's interests." Id. That is, narrow tailoring requires merely that "the means chosen do not `burden substantially more speech than is necessary to further the government's legitimate interests.'" Id.; see also Bellotti, 435 U.S. at 786, 98 S.Ct. 1407 (government "must employ means `closely drawn to avoid unnecessary abridgment.'") (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612).
Plaintiffs also erroneously assert that to survive exacting scrutiny, the statute must be narrowly tailored to advance the governmental interest being asserted. See ECF # 22, p. 11 (citing McIntyre, 514 U.S. at 347, 115 S.Ct. 1511). But in McIntyre, the Supreme Court found the statute at issue — which banned the distribution of anonymous campaign literature — to be "a regulation of pure speech." 514 U.S. at 345, 115 S.Ct. 1511 ("[E]ven though this provision applies evenhandedly to advocates of differing viewpoints, it is a direct regulation of the content of speech."). Thus, while the Supreme Court did use the term "exacting scrutiny," it in effect was applying — and appropriately so — strict scrutiny. See id. at 347, 115 S.Ct. 1511 ("When a law burdens core political speech, we apply `exacting scrutiny,' and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.") (emphasis added). Indeed, in setting forth this standard, the Supreme Court cited its earlier decision in Bellotti, which held that where "a prohibition is directed at speech itself, and the speech is intimately related to the process of governing, `the State may prevail only upon showing a subordinating interest which is compelling.'" 435 U.S. at 786, 98 S.Ct. 1407 (noting further that burden of showing existence of such interest is on government, which "[e]ven then... must employ means `closely drawn to avoid unnecessary abridgement.'") (emphasis added) (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612). In so applying strict scrutiny, the Supreme Court also pointed out specifically that although financial disclosures "undeniably" impede "protected First Amendment activity," that "intrusion is a far cry from compelled self-identification on all election-related writings" at issue in McIntyre, 514 U.S. at 355, 115 S.Ct. 1511. Although plaintiffs — as explained in greater detail below — attempt to frame Washington's grassroots lobbying disclosure requirements in terms of a prohibition directed at core political speech itself, it is well in line with the type of disclosure laws the federal courts have found merely require that the asserted governmental interest be "sufficiently important," or bear "a substantial relation" to, the information to be disclosed.
Fritz v. Gorton, 83 Wn.2d 275, 296, 517 P.2d 911 (1974). Thus, "[t]he right to receive information, or the right of the people to know, has been repeatedly recognized by the United States Supreme Court as a fundamental tenet of the American political system." Id. at 296 n. 3, 517 P.2d 911 (citing Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969)) ("(T)he Constitution protects the right to receive information and ideas. `This freedom (of speech and press)... necessarily protects the right to receive,'" and "[t]his right to receive information and ideas, regardless of their social worth (citation omitted) is fundamental to our free society."); see also Voters Education Committee v. Washington State Public Disclosure Commission, 161 Wn.2d 470, 483, 166 P.3d 1174 (2007).
424 U.S. at 66-67, 96 S.Ct. 612 (internal citation omitted).
Though the Buckley Court discussed the value of disclosure for candidate elections, the same considerations apply just as forcefully, if not more so, for voter-decided ballot measures. "Even more than candidate elections, initiative campaigns have become a money game, where average citizens are subjected to advertising blitzes of distortion and half-truths and are left to figure out for themselves which interest groups pose the greatest threats to their self-interest." David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money at 18 (2000). Knowing which interested parties back or oppose a ballot measure is critical, especially when one considers that ballot-measure language is typically confusing, and the long-term policy ramifications of the ballot measure are often unknown. At least by knowing who backs or opposes a given initiative, voters will have a pretty good idea of who stands to benefit from the legislation.
Voters act as legislators in the ballot-measure context, and interest groups and individuals advocating a measure's defeat or passage act as lobbyists; both groups aim at pressuring the public to pass or defeat legislation. We think Californians, as lawmakers, have an interest in knowing who is lobbying for their vote, just as members of Congress may require lobbyists to disclose who is paying for the lobbyists' services and how much. See United States v. Harriss, 347 U.S. 612, 625, 74 S.Ct. 808, 98 L.Ed. 989 (1954).
In Harriss, the Supreme Court upheld the Lobbying Act, which required lobbyists to disclose to Congress any contributions they had received and any expenditures they had made "for the purpose of influencing the passage or defeat of any legislation by Congress." 347 U.S. at 614, 74 S.Ct. 808. In articulating the governmental interest for this restriction on speech, the Court wrote:
Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose.
Id. at 625, 74 S.Ct. 808.
Id. at 1105-06 (internal footnotes omitted). The Court of Appeals further noted that disclosure in this context "also prevents the wolf from masquerading in sheep's clothing." Id. at 1106 n. 24.
Human Life, 624 F.3d at 1006-07 (internal citations and footnote omitted).
130 S.Ct. at 916 (internal citations omitted) (emphasis added); Human Life, 624 F.3d at 1005-06 ("[B]y revealing information about the contributors to and participants in public discourse and debate, disclosure laws help ensure that voters have the facts they need to evaluate the various messages competing for their attention") (emphasis added); see also McConnell, 540 U.S at 197, 124 S.Ct. 619 (questioning how "uninhibited, robust, and wide-open" speech can occur when organizations hide from scrutiny of voting public) (citation omitted). Plaintiffs also rely on the recent Supreme Court case in Reed, asserting that it had "refused to rely on Washington's asserted information interest in upholding a law requiring disclosure of referendum petitions" in that case. ECF # 22, p. 17; ECF # 32, p. 6. This characterization, though, clearly misstates the holding in that case. The Supreme Court did not refuse to rely on the state's information interest to uphold the law, but merely declined to "address" it, because the state's other asserted interest — "preserving the integrity of the electoral process" — alone was sufficient to defeat the plaintiffs' argument that the law was unconstitutional. Reed, 130 S.Ct. at 2819.
514 U.S. at 355, 115 S.Ct. 1511. Nor, again as discussed herein, are the holdings in Fritz and YAF inconsistent with those decided subsequent to Buckley — including Human Life, Voters Education Committee, Peacock, and Family PAC — which did apply the proper framework and level of scrutiny.
The reliance plaintiffs place on Sampson here is misplaced as well. See 625 F.3d at 1256 n. 4 (distinguishing Harriss on basis that it dealt with issue of preventing appearance of corruption in direct lobbying context, and thus it taught "little" about disclosure requirements in ballot issue campaigns to influence public opinion). For the reasons discussed above, furthermore, the Court finds unpersuasive the Tenth Circuit's intimation that Harriss is limited only to prevention of the appearance of corruption in the direct lobbying context. Finally, plaintiffs cite a Montana State Supreme Court case, arguing that court narrowly construed Harriss as applying only to direct communication with legislators. See Montana Automobile Ass'n v. Greely ("MAA"), 193 Mont. 378, 390-91, 632 P.2d 300 (1981). But in that case, the court was tasked with having to construe a vague statutory provision, which required disclosure from people and entities that appeared not to fall within the definition of the term "lobbying" adopted by the Supreme Court in Harriss, and which the Montana State Supreme Court itself noted included attempts to "influence, directly or indirectly, the passage or defeat of any legislation." MAA, 193 Mont. at 390-91, 632 P.2d 300 (quoting Harriss, 347 U.S. at 620, 74 S.Ct. 808) (emphasis added).
Id. at 83 n. 11, 96 S.Ct. 612 (citation omitted) (emphasis added). But because there was "no warrant" in Buckley "for assuming that public disclosure of contributions between $10 and $100 [was] authorized by the [statute at issue]," the Supreme Court did "not reach the question [of] whether information concerning gifts of this size [could] be made available to the public without trespassing impermissibly on First Amendment rights." Id. at 84, 96 S.Ct. 612.
479 U.S. at 254-55, 107 S.Ct. 616 (internal footnote omitted); but see SpeechNow, 599 F.3d at 698 (stating "organizational requirements... such as designating a treasurer and retaining records" do not "impose much of an additional burden," especially if targeted entity "intends to operate" with "relative simplicity").
582 F.3d at 22 (internal footnote omitted) (emphasis added).
Id. at 51, 114 S.Ct. 2038 (emphasis added) (citations omitted). Plaintiffs reliance on Citizens United here, therefore, is misplaced, given that, as discussed previously, that case dealt with a direct regulation of speech with respect to corporate media entities. See 130 S.Ct. at 898-99 ("Prohibited ... are restrictions distinguishing among different speakers, allowing speech by some but not others.... Speech restrictions based on the identity of the speaker are all too often simply a means to control content."). Indeed, as further discussed previously, Citizens United itself distinguished such direct regulation of speech from the type of reporting and disclosure requirements here, which constitute "a less restrictive alternative to more comprehensive regulations of speech." Id. at 915 (emphasis added).
