United States Court of Appeals For the First Circuit

No. 20-1944

GASPEE PROJECT and ILLINOIS OPPORTUNITY PROJECT,

Plaintiffs, Appellants,

v.

DIANE C. MEDEROS, in her official capacity as member of the Rhode Island State Board of Elections, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Barron and Selya, Circuit Judges, and Delgado-Hernández,* District Judge.

Daniel R. Suhr, with whom Jeffrey M. Schwab, Liberty Justice Center, Joseph S. Larisa, Jr., and Larisa Law were on brief, for appellants. Katherine Connolly Sadeck, Special Assistant Attorney General, with whom Peter F. Neronha, Attorney General of Rhode Island, was on brief, for appellees. Megan P. McAllen, Tara Malloy, Austin Graham, and Campaign Legal Center on brief for Campaign Legal Center, Common Cause Rhode Island, and League of Women Voters of Rhode Island, amici curiae.

* Of the District of Puerto Rico, sitting by designation. September 14, 2021 SELYA, Circuit Judge. The Rhode Island General Assembly

has enacted a comprehensive statutory scheme designed to increase

transparency in regard to election-related spending. The law

requires limited disclosure of funding sources responsible for

certain independent expenditures and electioneering communications

(as defined). The appellants — two organizations that fall within

the statutory sweep — challenge particular disclosure and

disclaimer provisions, positing that those provisions do not

withstand the requisite degree of scrutiny and, in any event, that

they infringe constitutionally protected privacy, associational,

and free-speech rights. The district court, in a comprehensive

rescript, rejected the appellants' multifaceted facial challenge.

See Gaspee Project v. Mederos,

, 13 (D.R.I.

2020). After careful consideration, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case. The Rhode Island State Board of Elections is the state

agency chiefly responsible for administering and enforcing the

Independent Expenditures and Electioneering Communications Act

(the Act). See R.I. Gen. Laws § 17-25.3-4(b). The plaintiffs

(appellants here) are the Gaspee Project and the Illinois

Opportunity Project. Both entities are not-for-profit

organizations that engage in issue advocacy related to matters of

public policy. They have sued the seven members of the Board of

- 3 - Elections in their official capacities (and we henceforth refer to

the defendants, collectively, as "the Board").

At a high level of generality, the appellants allege

that various aspects of Rhode Island law compelling disclosure of

the identities of certain donors and certain disclaimers

transgress their rights under the First Amendment. See U.S. Const.

amend. I. The regulatory scheme that they challenge came into

effect in 2012, when the Rhode Island General Assembly passed the

Act. See R.I. Gen. Laws § 17-25.3. This legislative initiative

followed closely on the heels of a landmark Supreme Court decision

that invalidated certain restrictions on corporations' independent

expenditures while upholding various disclosure and disclaimer

requirements imposed under federal law. See Citizens United v.

FEC,

(2010).

The Act's disclosure and disclaimer requirements relate

to persons or entities that spend $1,000 or more in any calendar

year for either of two types of defined activities: "independent

expenditures" or "electioneering communications." R.I. Gen. Laws

§ 17-25.3-1. Those disclosure requirements, though, are not

absolute. They provide, for instance, that covered organizations

need not disclose any donor who elects not to have his donation

used in the funding of independent expenditures or electioneering

communications. See id. § 17-25.3-1(i).

- 4 - The Act defines an "independent expenditure" as an

expenditure that, when taken in context, "expressly advocates the

election or defeat of a clearly identified candidate, or the

passage or defeat of a referendum."1 Id. § 17-25-3(17). It exempts

from the definition of independent expenditures, however, "news

stor[ies], commentar[ies], or editorial[s]," "candidate debate[s]

or forum[s]," or "communications made by any business entity to

its members, owners, stockholders, or employees" as well as most

"internet communications." Id. § 17-25-3(17)(i)(A)-(D). An

"electioneering communication" is a communication that

"unambiguously identifies a candidate or referendum" and which is

made within sixty days of a general election or referendum or

within thirty days of a primary election. Id. § 17-25-3(16).

The appellants challenge three requirements that the Act

imposes on organizations (including the appellants) that cross the

$1,000 threshold. First, they challenge the requirement that the

organization must file a report with the Board disclosing all

donors who contributed $1,000 or more to the organization's general

fund if the general fund was used to finance qualifying

expenditures. See id. § 17-25.3-1(h). Second, they challenge the

requirement that covered organizations must register with the

The Act incorporates definitions found in an earlier 1

statute, namely, the Rhode Island Campaign Contributions and Expenditures Reporting Act, R.I. Gen. Laws § 17-25-3.

- 5 - Board and furnish their names and mailing addresses. See id.

§ 17-25.3-1(f). Third, they challenge the requirement that

covered organizations must include their own names and list their

five largest donors from the previous year on the electioneering

communication itself (subject, however, to several exceptions).

See id. § 17-25.3-3. In all cases — regardless of whether it

appears in television, mail, radio, or internet advertising — the

list of donors is limited to those who are required to be disclosed

in such a report. See id. § 17-25.3-3(a), (c)(3), (d)(3)(A), (e).

And with respect to printed communications, the requirement does

not apply to news editorials, campaign paraphernalia (such as

campaign buttons and bumper stickers), or signage measuring under

thirty-two square feet. See id. § 17-25.3-3(b).

Invoking

, the appellants repaired to

the United States District Court for the District of Rhode Island

and filed suit against the Board. In their amended complaint,

they sought a declaration that the challenged provisions violated

their privacy, associational, and free-speech rights under the

First Amendment. The amended complaint alleged — and we take as

true — that the appellants come within the purview of the Act

because they each intended to spend over $1,000 in connection with

"paid issue-advocacy communications" regarding the impact of local

referenda on property taxes. The appellants also alleged — and we

- 6 - take as true — that these communications would not include any

"express ballot-advocacy."

The Board moved to dismiss the amended complaint for

failure to state a cognizable claim. See Fed. R. Civ. P. 12(b)(6).

At a hearing held on July 21, 2020, the appellants represented

that they were mounting only a facial challenge to the

constitutionality of the Act. The district court reserved decision

and later granted the motion to dismiss. See Gaspee, 482 F. Supp.

3d at 13. Applying exacting scrutiny, the court determined that

the challenged provisions of the Act passed constitutional muster.

See id. at 16-20. Pertinently, the court held that the Board's

interest in an informed electorate with respect to the funding of

political speech was sufficiently important to justify the

challenged provisions of the Act. See id. at 17-18. It further

held that those provisions were substantially related to that

important governmental interest. See id. at 18-20. Finally, the

court rejected the appellants' counter-arguments as to why, all

else aside, the challenged provisions violated their privacy,

associational, and/or free-speech rights. See id. at 20-22. This

timely appeal followed.

II

A matter of jurisdictional dimension demands our

immediate attention. The dispute between the parties first

surfaced in the context of the 2020 election cycle, which now has

- 7 - run its course. Even though the parties have proceeded on the

assumption that the dispute is still velivolant, we have an

independent obligation to determine whether it is moot. See

Weaver's Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council,

(1st Cir. 2009).

A dispute is moot only "when the issues presented are no

longer live or the parties lack a legally cognizable interest in

the outcome." Town of Portsmouth v. Lewis,

(1st

Cir. 2016) (internal citation omitted). Withal, there is a well-

established exception to the mootness doctrine for cases

presenting issues that are "capable of repetition, yet evading

review." Barr v. Galvin,

(1st Cir. 2010) (quoting

S. Pac. Terminal Co. v. Interstate Com. Comm'n,

(1911)). Cases in the election context are not moot simply because

the election is over, at least when the allegedly aggrieved parties

are likely to be subject to the challenged regulation in the

future. See FEC v. Wisc. Right to Life, Inc.,

(2007); Barr,

. That is the situation here: the

Act is still on the books, and the appellants assert — without

contradiction — that they plan to engage in similar advocacy during

future election cycles. The dispute, therefore, is not moot. See

Storer v. Brown,

, 737 n.8 (1974) (holding challenge

to election regulation not moot despite election being "long over"

- 8 - because regulation remained in effect and applied to "future

elections").

III

With the specter of mootness laid to rest, we review the

district court's grant of the Board's motion to dismiss de novo.

See Maloy v. Ballori-Lage,

(1st Cir. 2014); SEC

v. Tambone,

(1st Cir. 2010) (en banc). "In the

process, we accept as true all well-pleaded facts set out in the

complaint and indulge all reasonable inferences in favor of the

pleader." Tambone,

.

The appellants argue that the challenged provisions of

the Act cannot withstand the requisite degree of constitutional

scrutiny. And even if they do, the appellants say, three

additional lines of argument operate to invalidate the challenged

provisions. The first such line of argument posits that the

challenged provisions violate the appellants' right to engage

anonymously in political speech. Their second line of argument

posits that the challenged provisions violate their right to

associational privacy. Their third line of argument posits that

the Act's on-ad disclaimer requirement forces the appellants to

engage in an unconstitutional species of compelled speech.

Our analysis proceeds in two main parts, each with

subparts. First, we establish the appropriate level of

constitutional scrutiny — here, exacting scrutiny — and then

- 9 - explain why the Act survives that level of scrutiny. We thereafter

proceed to address the appellants' trio of counter-arguments.

A

Regulations that burden political speech must typically

withstand strict scrutiny. See Citizens United,

.

This baseline rule applies to many aspects of election law. See,

e.g.,

; Wis. Right to Life,

. Even

so, disclosure and disclaimer regimes are cut from different cloth.

See, e.g., Citizens United,

; McConnell v. FEC,

(2003); Buckley v. Valeo,

(1976);

Nat'l Org. for Marriage v. McKee (NOM),

(1st Cir.

2012); cf. Ams. for Prosp. Found. v. Bonta,

, 2382-

83 (2021) (explaining unique context of laws compelling

disclosure).

This distinction arises because — unlike limits on

election-related spending — election-related disclosure and

disclaimer requirements "impose no ceiling on campaign-related

activities." Citizens United,

(quoting Buckley

). Nor do they "prevent anyone from speaking."

(quoting McConnell,

(internal quotation marks and

brackets omitted)). Against this backdrop, the Supreme Court has

described disclosure and disclaimer regimes, in the election-law

context, as "less restrictive alternative[s] to more comprehensive

regulations of speech." Id. at 369.

- 10 - Given this taxonomy, it is unsurprising that such

disclosure and disclaimer requirements are subject to a less

intense standard of constitutional review. That standard bears

the label of "exacting scrutiny." Id. at 366; NOM,

; cf. Ams. for Prosp.,

(applying exacting

scrutiny to disclosure laws outside the election context). Such

a level of scrutiny has been infused in the Court's approach to

disclosure and disclaimer regimes for decades. See Buckley,

(considering compelled disclosure of election-

related spending).

To withstand exacting scrutiny, a law or regulation must

be narrowly tailored to serve a sufficiently important

governmental interest. See Ams. for Prosp.,

.

Prior to the Court's recent decision in Americans for Prosperity,

exacting scrutiny was widely understood to require only a

"substantial relation" between the challenged regulation and the

governmental interest. NOM,

. In refining its

articulation of exacting scrutiny, the Americans for Prosperity

Court heightened this requirement, emphasizing that "[i]n the

First Amendment context, fit matters."

(quoting

McCutcheon v. FEC,

(2014)). The Court went on

to say that exacting scrutiny "require[s] a fit that is not

necessarily perfect, but reasonable."

(quoting McCutcheon,

). A "[s]ubstantial relation is necessary but not

- 11 - sufficient" for a challenged requirement to survive exacting

scrutiny.

And in addition, "the challenged requirement must

be narrowly tailored to the interest it promotes."

1

Before applying this more muscular test for exacting

scrutiny, we first must resolve a threshold matter. That matter

concerns the import, if any, of the appellants' ipse dixit that

express advocacy and issue advocacy trigger different degrees of

scrutiny. Specifically, the appellants argue that cases such as

Buckley, McConnell, and Citizens United are inapposite because

those cases deal primarily with express advocacy (that is,

candidates and political action committees (PACs)), not with issue

advocacy (that is, the mere conveying of information and

education), which is the appellants' avowed stock and trade.

For present purposes, the distinction that the

appellants draw does not make a difference. In the election

context, the Supreme Court has rejected the attempt to distinguish

between express advocacy and issue advocacy when evaluating

disclosure laws — even though the Court has deemed such a

distinction relevant when evaluating limits on expenditures. See

Citizens United,

. This makes perfect sense.

As we explained in NOM, the Court has cabined the application of

limits on expenditures to express advocacy in part because it was

concerned that such laws impermissibly regulated a substantial

- 12 - amount of constitutionally protected speech. See

.

Unlike limits on expenditures (which place a brake on political

speech), disclosure regimes do not limit political speech at all.

A disclosure regime is, therefore, "a less restrictive alternative

to more comprehensive regulations of speech." Citizens United,

.

Seen in this light, there is no principled basis for us

to distinguish between express advocacy and issue advocacy with

respect to election-law disclosure regimes. The distinction is

viable solely in the context of limits on independent expenditures,

see NOM,

, and it is irrelevant in the

disclosure/disclaimer context.2 Our sister circuits have, with

conspicuous consistency, rejected the appellants' proposed

distinction, see, e.g., Del. Strong Fams. v. Denn,

(3d Cir. 2015); Human Life of Wash. Inc. v. Brumsickle,

(9th Cir. 2010), and so do we.

2We take no view on the appellants' attempt to categorize their mailings as nothing more than informational materials. Although the appellants' proposed mailings do not expressly advocate how voters should vote on the referenda to which they refer, they identify the particular referenda and forecast the negative consequences that will supposedly flow from certain outcomes. Communications such as these, which subtly advocate for a position even though not including explicit directives on how to vote, illustrate why federal courts regularly have spurned rigid distinctions between express advocacy and issue advocacy in the election-law disclosure context.

- 13 - 2

Having set the appellants' proposed distinction to one

side, we turn to the question of whether the Board's proffered

justification is sufficiently important to support the Act's

disclosure and disclaimer regime. See Ams. for Prosp.,

. To this end, the Board submits that its interest in

promoting an informed electorate is adequate to support the Act's

disclosure and disclaimer requirements. The amici, whose insights

we appreciate, echo this refrain. The appellants rejoin that the

Board's informational interest is weak and, thus, insufficient to

justify the compelled disclosure and disclaimer regime.

The case law makes pellucid that the Board's interest in

an informed electorate vis-à-vis the source of election-related

spending is sufficiently important to support reasonable

disclosure and disclaimer regulations. See Buckley,

("In a republic where the people are sovereign, the ability

of the citizenry to make informed choices . . . is essential.").

The Buckley Court, for example, upheld disclosure requirements for

independent expenditures. See

. It explained that

"provid[ing] the electorate with information as to where political

campaign money comes from,"

(internal quotations

omitted), is sufficient to outweigh the possibility of

infringement on First Amendment freedoms because it concerns "the

free functioning of our national institutions,"

(quoting

- 14 - Communist Party v. Subversive Activities Control Bd.,

(1961)).

The Supreme Court built on this foundation when

addressing challenges to the Bipartisan Campaign Reform Act

(BCRA). See

(2002). The McConnell Court

accepted the informational interest articulated in Buckley as

sufficiently important to justify a new set of disclosure

requirements encompassed within Title II of the BCRA. See

. It concluded that Buckley "foreclose[d] a facial

attack" on the BCRA's requirement that entities meeting a spending

threshold on electioneering communications must disclose a certain

subset of donors.3

.

In Citizens United, the Supreme Court reaffirmed its

view that the government's interest in an informed electorate is

sufficient to justify reasonable disclosure and disclaimer

provisions. See

. There, the Court considered

(among other things) challenges to the BCRA's disclosure and

disclaimer requirements as applied both to a film attacking a

3 The McConnell Court's conclusion was reached with respect to section 201 of the BCRA, which amended the law considered in Buckley. Section 201 requires a corporation or labor union that spends $10,000 or more on qualifying communications to file a disclosure identifying any donors of $1,000 or more. See

. There is a marked similarity between section 201 of the BCRA and the Rhode Island regulations that are challenged here: the Act requires a comparable disclosure if the covered organization spends $1,000 or more on qualifying communications. See R.I. Gen. Laws § 17-25.3-1(h).

- 15 - presidential candidate and to advertisements for that film. See

id. Citing Buckley and McConnell, the Court reiterated the value

of an electorate with knowledge about those responsible for speech

during the period shortly before an election. See id. at 369.

The law in this circuit is of a piece with the Supreme

Court's approach. In NOM, we held that Maine's interest in an

informed electorate was sufficiently important to justify

reasonable disclosure and disclaimer requirements.4 See

. We added that the government's interest in an informed

electorate extends beyond the dissemination of information

concerning candidates for office. See

. Rather, "there

is an equally compelling interest in identifying the speakers

behind politically oriented messages."

This is especially

true in the age of new media, given the proliferation of speakers

in the marketplace of ideas. See

Consequently, reasonable

disclosure regimes "enable[] the electorate to make informed

decisions and give proper weight to different speakers and

messages." Citizens United,

.

Justice Brandeis famously observed that "public

discussion is a political duty." Whitney v. California, 274 U.S.

4On the same day, we upheld the constitutionality of Rhode Island's previous campaign finance scheme. See Nat'l Org. for Marriage v. Daluz,

(1st Cir. 2011). We found that Rhode Island's interest in an informed electorate was sufficient to justify a disclosure and disclaimer regime. See

.

- 16 - 357, 375-76 (Brandeis, J., concurring). Through the "discovery

and spread of political truth," public discussion allows us to

apply our "power of reason."

The failure to uphold that duty

in the sphere of elections would be most devasting to our

democracy. And yet, in this setting, the public faces an uphill

battle of identifying whether and how money is talking. Given

these concerns, we hold that Rhode Island's interest in an informed

electorate is sufficiently important to satisfy the first

imperative of exacting scrutiny. And with this holding in place,

we turn to the Act's specific requirements.

3

The next question is whether the Act's disclosure and

disclaimer requirements are narrowly tailored to the Board's

informational interest. See Ams. for Prosp.,

.

Those requirements need not reflect the least restrictive means

available to achieve the Board's goals, but they need to achieve

a reasonable fit. See

. Here, the appellants train

their fire on three provisions of the Act: the requirement that

covered organizations disclose donors of over $1,000; the

requirement that covered organizations disclose their own identity

to the Board; and the requirement that covered organizations

identify themselves and their five largest donors on certain

electioneering communications. As we explain below, we think that

- 17 - both the disclosure and disclaimer requirements are narrowly

tailored to further the Board's interest in an informed electorate.

We start with the first two challenged provisions, which

require certain organizations to disclose particular information

to the Board. The provisions of the Act (including the disclosure

and disclaimer requirements) apply only to organizations that

satisfy a series of criteria. The first criterion is a spending

threshold: the Act applies if an organization spends $1,000 or

more on independent expenditures or electioneering communications

within one calendar year. See R.I. Gen. Laws § 17-25.3-1(b). The

Supreme Court upheld similar disclosure requirements in Citizens

United, focusing on the close relationship between the

requirements and the public's interest in knowing who is speaking

as an election approached. See

. Consistent with

this focus, the spending threshold tailors the Act to reach only

larger spenders in the election arena and at the same time shapes

the Act's coverage to capture organizations involved in election-

related spending as opposed to those engaged in more general

political speech. With respect to covered organizations, this

spending threshold helps to ensure that the electorate can

understand who is speaking and, thus, to "give proper weight to

different speakers and messages" when deciding how to vote.

.

- 18 - In addition to the spending threshold, the Act contains

temporal limitations that tether the Act's disclosure requirements

to the Board's informational interest. The fact that the Act only

applies when an organization crosses the spending threshold and

spends that money in a particular time frame — within one year of

an election for independent expenditures and, for electioneering

communications, within either thirty or sixty days of an election

(depending on the type) — links the challenged requirements neatly

to the Board's objective of securing an informed electorate. See

Nat'l Ass'n for Gun Rights, Inc. v. Mangan,

(9th Cir. 2019); Del. Strong Fams.,

; Vt. Right to

Life Comm., Inc. v. Sorrell,

(2d Cir. 2014).

The Act's time frames for disclosure are no longer than either

those in the Maine statute discussed in NOM, see

-

43, or those in the BCRA, see Citizens United,

(describing BCRA § 201, currently codified at

).

The Act is narrowed further by another aspect of the way

in which it defines "electioneering communication." Such a

communication must be "targeted to the relevant electorate." R.I.

Gen. Laws § 17-25-3(16). An electioneering communication

satisfies this targeting requirement only if it "can be received

by two thousand . . . or more persons in the district the candidate

seeks to represent or the constituency voting on the referendum."

See id. This limitation further ties the Act's coverage (in the

- 19 - case of electioneering communications) to the Board's

informational interest by requiring disclosure only when the

relevant electorate receives the communication. Notwithstanding

the Act's other requirements, covered organizations are free to

speak without disclosure when addressing audiences disconnected

from the upcoming election.

The appellants make much of the fact that the Act's

disclosure and disclaimer provisions apply to general funds, even

though other regimes (such as the BCRA) require that organizations

subject to disclosure requirements establish segregated bank

accounts to avoid disclosure of individual names. See

(f)(2)(E)-(F). The application of the Act to general funds

is problematic, the appellants suggest, because many general-fund

donors may not endorse all of an organization's election-related

expenditures. This suggestion, though, fails to take into account

the fact that — unlike the BCRA — the Act provides ample

opportunity for donors to opt out from having their donations used

for independent expenditures or electioneering communications,

even if the entity to which they contribute has not created a

segregated fund.

Importantly, the Act provides off-ramps for individuals

who wish to engage in some form of political speech but prefer to

avoid attribution. To begin, such an individual may choose to

contribute less than $1,000; covered organizations need only

- 20 - disclose donors who contribute $1,000 or more during the relevant

time frame. See R.I. Gen. Laws § 17-25.3-1(h). This readily

available means of avoiding disclosure punches a sizable hole in

the appellants' insistence that the Act's disclosure requirements

are tantamount to the compelled disclosure of membership lists.

Nor does the Act require disclosure of individuals who meet the

$1,000 threshold but opt out of having their monies used for

independent expenditures or electioneering communications. See

id. § 17-25.3-1(i).

Taken together, these limitations on the Act's reach

only require disclosure of relatively large donors who choose to

engage in election-related speech. The Act simply does not apply

to others, including those who engage in political speech outside

the election context. Given this circumscription and given the

continuing force of the Court's rulings in Citizens United and our

rulings in NOM, the challenged provisions are narrowly tailored to

enable "the citizenry to make informed choices" at the polls about

issues of public import. Buckley,

. Indeed,

Rhode Island's $1,000 trigger point for disclosure of donors is

higher than the trigger point upheld in NOM for reporting PAC

contributors. See NOM,

("A major-purpose PAC must

report any contribution to the PAC of more than $50 (including the

name, address, occupation, and place of business of the

contributor)."). It is also no lower than the contributor trigger

- 21 - point upheld in Citizens United. See Citizens United,

;

(f)(2) (providing that a disclosure

statement identify contributors who "contributed an aggregate

amount of $1,000 or more").

In view of the number of criteria that an organization

must satisfy before being required to file, the appellants' claim

that the Act's disclosure requirements are "expansive" is an

exercise in hyperbole. Both the circumscribed scope of the Act's

requirements and the rather modest quantity of information

demanded by the Board argue to the contrary. In combination, these

facts bolster our conclusion that the Act's disclosure

requirements are narrowly tailored enough to avoid any First

Amendment infirmity. We uphold those requirements against the

appellants' facial challenge.

4

This brings us to the appellants' remonstrance

concerning the Act's on-ad disclaimer requirement. See R.I. Gen.

Laws § 17-25.3-3. The Act's spending and temporal thresholds

coalesce to render the disclaimer requirement applicable in only

a limited set of circumstances. That set of circumstances shrinks

even further in view of the fact that donors need not be listed if

they have opted out of election-related spending. See, e.g., id.

§ 17-25.3-3(a).

- 22 - Disclaimer requirements are reviewed under exacting

scrutiny (not strict scrutiny, as the appellants assert). See

Citizens United,

. In NOM, we upheld aspects of

Maine's campaign finance law, including an on-ad disclaimer

requirement that bore a family resemblance to the requirement

challenged here. See NOM,

. The Maine law

demanded that a communication identify the "person who made or

financed the expenditure for the communication." See Me. Rev.

Stat. Ann. tit. 21-A, § 1014(1)-(2). The Act goes a step further;

it demands not only identification of the funding organization

itself but also identification of its five largest donors. See

R.I. Gen. Laws § 17-25.3-3. Put another way, the Act requires

that the on-ad disclaimer both disclose the relevant speaker and

some donors to that speaker.

Although the NOM Court was not obliged to apply a narrow-

tailoring test to requirements like the ones before us, we

nonetheless find that court's reasoning instructive. Here, as in

Maine, the Act's disclaimer requirement has "a close relation to

[the Board's] interest in dissemination of information regarding

the financing of political messages." NOM,

.

To be sure, the appellants labor to distinguish NOM and

consign it to the scrap heap. The distinctions upon which the

appellants rely, however, cannot carry the weight that the

- 23 - appellants pile upon them. We explain briefly and then turn

directly to the top-five-donor mandate.

At the outset, the appellants point out that the

plaintiffs in NOM advanced only vagueness and overbreadth

challenges. That is true as far as it goes — but it does not take

the appellants very far. Because the NOM court applied exacting

scrutiny to analogous election-law requirements, some of its

reasoning can usefully be transplanted to the case at hand.

The appellants next note that the Maine statute has an

"escape hatch" for avoiding the state's disclosure and disclaimer

requirements, whereas the Act contains none. Placing reliance on

this distinction, though, is too much of a stretch. The "escape

hatch" to which the appellants allude — which, at any rate, was

not deemed essential by the NOM court — is a provision in the Maine

statute that allows for a hearing to rebut a presumption of

applicability. See

. Rhode Island law offers a

functionally equivalent mechanism: it allows a party to seek an

advisory opinion from the Board regarding the Act's applicability

to a communication. See R.I. Gen. Laws § 17-25-5(c)(1). Though

not identical, any discrepancy between these approaches does not

throw shade on the persuasive reasoning of NOM.

The appellants also note that Maine's law — unlike the

Act — applies only to communications concerning candidates'

elections rather than referenda and suggest that the government's

- 24 - interest in regulating the latter is weaker. But there is nothing

in NOM that indicates that we predicated our decision on the Maine

statute's exclusive focus on candidates. The well-established

interest articulated in NOM pertains to the ability of "the

electorate to make informed decisions and give proper weight to

different speakers and messages."

(quoting Citizens

United,

). This interest applies to the passage of

referenda in the same way in which it applies to the election of

candidates. And in the last analysis, disclaimer requirements —

like the requirement challenged here — help to ensure a well-

informed electorate by preventing those who advocate for either

candidates or issues from hiding their identities from the gaze of

the public. See McConnell,

.

This brings us to the appellants' contention that the

requirement to identify in a disclaimer the top five donors to the

entity that places the advertisement cannot withstand exacting

scrutiny. Such a requirement, the appellants assert, serves no

informational interest and is essentially redundant of the

disclosure requirement. We are not persuaded.

There is plainly an informational interest served by an

on-ad disclaimer that identifies some of the speaker’s donors, as

both Citizens United and NOM recognized in upholding disclosure

requirements for equivalent funders. The on-ad donor disclaimer,

moreover, is not entirely redundant to the donor information

- 25 - revealed by public disclosures. The appellants cannot plausibly

dispute that on-ad donor information is a more efficient tool for

a member of the public who wishes to know the identity of the

donors backing the speaker. As we have explained, "[c]itizens

rely ever more on a message's source as a proxy for reliability

and a barometer of political spin." NOM,

. And

even though citizens have become reliant on such cues, they may be

too easily overlooked or obscured. The public is "flooded with a

profusion of information and political messages,"

and the on-

ad donor disclaimer provides an instantaneous heuristic by which

to evaluate generic or uninformative speaker names.

And even beyond increased efficiency, the form of

disclosure — an on-ad disclaimer — may be more effective in

generating discourse that facilitates the ability of the public to

make informed choices in the specialized electoral context. The

donor disclosure alerts viewers that the speaker has donors and,

thus, may elicit debate as to both the extent of donor influence

on the message and the extent to which the top five donors are

representative of the speaker’s donor base — questions that the

appellants seem to think the citizenry too dull to ask. Citizens

United gives us reason to believe that the appellants' view is

myopic. There, the Court recognized that the disclaimers at issue

were intended to "insure that the voters are fully informed,"

(quoting Buckley,

), and it nowhere

- 26 - indicated that the state interest in "provid[ing] the electorate

with information" has force only when such disclaimers can be said

to facilitate disclosure requirements,

(quoting McConnell,

).

The appellants also contend that the on-ad donor

disclaimer furnishes potentially irrelevant information while

unduly burdening their speech. But even though the degree of

relevancy may vary, the identification of top donors is relevant

in all cases. To illustrate this point, we take one of the

appellants' proffered hypotheticals. A top-five-donor disclaimer

may be less helpful than a top-six-donor disclaimer, if an entity's

sixth-largest donor is somehow directly connected to the

advertisement. But this line-drawing exercise — which asks, at

bottom, whether to mandate a list of five top donors or some

greater or lesser number — is a task best left to the legislature.

Cf. Buckley,

(observing that the level at which to

set monetary thresholds for reporting and disclosure is

"necessarily a judgmental decision, best left . . . to

congressional discretion"). What matters is that the disclaimer

includes a limited set of data points, readily available to the

speaker, that is directly tied to educating voters on the message's

source.

Additionally, the appellants say that they worry that

the top-five-donor list might mislead a viewer either as to the

- 27 - makeup of a speaker's contributor base or as to a donor's

endorsement of the message. They also worry that the donor list

could elicit threats or harassment. But the on-ad donor disclaimer

is subject to the same off-ramps that apply to the disclosure

requirement. See, e.g., R.I. Gen. Laws § 17-25.3-3(a) ("[N]o donor

shall be listed who is not required to be disclosed in a report to

the board of elections by the person, business entity, or political

action committee."). These off-ramps serve to mitigate the

appellants' stated concerns, which do not necessarily arise in all

cases, and ensure the disclaimer provision is narrowly tailored.

An organization could, of course, raise any concerns particular to

its circumstances by means of an as-applied challenge.

We cut to the chase. In the election-related context,

it is clear beyond hope of contradiction that the state can require

speakers to self-identify through disclosures and disclaimers.

Beyond self-identification, though, the state does not have

limitless power to require more from a speaker, such as

identification of its donors. Our task today, however, does not

involve setting the outer constitutional bounds of what a state

might demand in terms of election-related disclaimers. It suffices

to say that Rhode Island's disclaimer requirement, including its

top-five-donor provision, survives exacting scrutiny when faced

with a facial challenge.

- 28 - 5

In a Rumpelstiltskin-like effort to turn dross into

gold, the appellants beseech us to consider the potential effects

that the Act — and particularly, its disclaimer requirement — will

have on their own organizations and memberships. We are aware

that the Supreme Court has left open the possibility of as-applied

challenges to disclosure and disclaimer requirements if a threat

of retaliation looms. See Citizens United,

;

McConnell,

. To mount this type of challenge,

though, a party must show "a reasonable probability that the

compelled disclosure . . . will subject [donors] to threats,

harassment, or reprisals." Buckley,

.

The appellants' amended complaint is bereft of any such

factual allegations. And to cinch the matter, the appellants

concede that they have mounted only a facial challenge to the Act.

Generally speaking, facial challenges leave no room for

particularized considerations and must fail as long as the

challenged regulation has any legitimate application. See Wash.

State Grange v. Wash. State Republican Party,

(2008); Hightower v. City of Bos.,

(1st Cir.

2012). That is the case here: the appellants have wholly failed

to demonstrate that the alleged lack of tailoring is "categorical"

and present in every application of the challenged requirements.

Ams. for Prosp.,

. There is no "dramatic

- 29 - mismatch . . . between the interest that [Rhode Island] seeks to

promote and the [disclosure and disclaimer] regime that [it] has

implemented in service of that end."

. It bears

emphasis that the disclaimer requirement, for example, applies to

a small number of donors, based on a reasonable assessment of their

likely roles in financing the particular electioneering

communication. And it does so predicated on a sensible concern

that — without this information being readily

accessible — "independent groups [could run] election-related

advertisements 'while hiding behind dubious and misleading

names.'" Citizens United,

(quoting McConnell,

).

Nor is it evident on this record that "a substantial

number of [the Act's] applications are unconstitutional, judged in

relation to the statute's plainly legitimate sweep." Ams. for

Prosp.,

(quoting United States v. Stevens,

(2010)). Indeed, the parties have made it evident,

both before the district court and in their briefs on appeal, that

they do not contend that the Act is overbroad. See Gaspee, 482 F.

Supp. 3d at 19. Needless to say, any individual challenges,

including those alleging that the requirements impose an unusual

burden in particular circumstances (such as a chilling effect on

speech resulting from harassment), may be brought in the form of

as-applied challenges.

- 30 - B

The appellants attempt to move the goalposts. They say

that even if the challenged provisions of the Act withstand

exacting scrutiny, we should still strike down those provisions on

other grounds. To this end, they offer three counter-arguments as

to why the challenged provisions infringe their First Amendment

rights. We turn next to these counter-arguments.

1

The appellants argue that the Act's disclosure and

disclaimer requirements transgress the First Amendment's

protection of anonymous political speech. Their argument relies

primarily on the Supreme Court's decision in McIntyre v. Ohio

Elections Commission,

(1995). In that case, the Court

invalidated a blanket ban on anonymous campaign literature under

which an individual pamphleteer had been charged, convicted, and

fined. See

.

The threshold question is whether the Court's later

decision in Citizens United pretermits this argument. Although

the Citizens United Court did not directly address McIntyre, the

appellants in Citizens United made a McIntyre-based argument in

their brief. See Citizens United, Appellants' Br. at 44. The

fact that the Court did not adopt the McIntyre framework in the

election-law context speaks eloquently to its inapplicability.

- 31 - The Ohio statute at issue in McIntyre constituted an

outright ban on anonymous literature. See

. That

is at a considerable remove from a disclosure requirement in the

election-law context. We deem this to be a dispositive difference

because — in contrast to the broad sweep of the Ohio statute — the

Act's disclosure regime applies only to a small subset of campaign

finance spending. See Worley v. Fla. Sec. of State,

(11th Cir. 2013) (finding McIntyre inapplicable for similar

reasons).

Indeed, the McIntyre Court itself distinguished between

election-related disclosures and political pamphlets, emphasizing

the more robust interest in protecting the latter. See

. In the Court's words, mandatory campaign finance

disclosures are "a far cry from compelled self-identification on

all election related writings."

Money, the Court wrote, is

"less specific, less personal, and less provocative than a

handbill."

Given these salient differences, we conclude that

the appellants' McIntyre-based "speaker privacy" argument lacks

force.

2

The appellants next strive to draw an analogy between

the Act's disclosure requirements and the compelled disclosure of

membership lists invalidated by the Court in NAACP v. Alabama, ex

- 32 - rel. Patterson,

(1958). This analogy does not hold

water.

In NAACP, the Court was confronted with a challenge to

a state court order requiring disclosure of the NAACP’s membership

rolls to the Alabama state attorney general. See

. The

state’s asserted interest in the membership information was to

address business registration fraud, see

, but the proof

revealed that the state was motivated by a desire to drive out the

organization and its racial integration efforts during the Jim

Crow era. The Court rejected the state's bid. See

In contrast, the challenge mounted by the appellants is

a purely facial challenge to a disclosure regime designed to

increase transparency with respect to election-related spending.

As Citizens United and NOM evince, the election-law context is a

breed apart, implicating the government's substantial interest in

transparent elections — the bedrock of our democracy.

If more is needed — and we do not think that it is — we

note that NAACP involved what amounted to an as-applied challenge

based on a developed record. There, the plaintiffs had made an

"uncontroverted showing 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 physical hostility."

. This stands in sharp contradistinction to the case at hand

- 33 - — a case in which the appellants have made no faintly comparable

showing.

That ends this aspect of the matter. Equating the

production order invalidated in NAACP with the disclosure

requirements of the Act is like equating aardvarks with alligators.

Consequently, we reject the appellants’ attempt to place this case

under the carapace of NAACP.

By a similar token, there is no parallel between the

Act's narrowly tailored disclosure regime, focused on election-

related spending, and the general donor-disclosure requirements

struck down in Americans for Prosperity (a decision that traced

its reasoning back to NAACP). See Ams. for Prosp.,

. In Americans for Prosperity, the government's asserted

interest was to prevent the mismanagement of charitable

contributions. See

. The Court focused on "the

dramatic mismatch" between this asserted interest and an overbroad

disclosure regime, striking down the challenged provisions because

the information collected played little to no part in assisting

the government's anti-fraud efforts. See

. That

reasoning does not assist the appellants, given that the fit

between the Act and the state's informational interest is

reasonable.

- 34 - 3

The appellants' third counter-argument attempts to

characterize the Act's on-ad disclaimer requirement as a form of

unconstitutionally compelled speech. They say that forcing an

organization to identify itself and its five largest donors in a

disclaimer on certain types of electioneering communications

violates their First Amendment right to refrain from expressing

particular viewpoints. See Wooley v. Maynard,

(1977) (holding that First Amendment protects "both the right to

speak freely and the right to refrain from speaking at all").

In support, the appellants rely on the Supreme Court's

decision in National Institute of Family and Life Advocates v.

Becerra (NIFLA),

(2018). There, a group of pro-

life pregnancy centers challenged a state statute requiring such

facilities both to advise women that California provides free or

low-cost abortions and to furnish a telephone number that could be

called. See

. The Court determined that the California

statute was content-based because it commanded the centers to

"speak a particular message."

. In that regard, the

Court emphasized that the statute required pregnancy centers to

communicate information about abortion accessibility, which is

"the very practice that [the centers] are devoted to opposing."

In those circumstances, the Court found that the statute

- 35 - likely abridged the centers' First Amendment rights. See

.

The appellants assert that the Act's on-ad disclaimer

requirement is equally vulnerable because it compels a covered

organization to recite a "government-drafted script,"

when

announcing itself and its five largest donors. The appellants

submit that because they are organizations that value privacy,

such a compelled disclosure is fairly analogous to the mandatory

abortion announcement considered in NIFLA.

On-ad disclaimer regimes concerning funding sources in

election-related contexts are simply not comparable to requiring

pro-life clinics to explain to patients that they may seek free

abortion services from the government. Disclaimers — in the unique

election-related context — serve the salutary purpose of helping

the public to understand where "money comes from." Buckley,

. The election-related context implicated here is alone

sufficient to distinguish NIFLA.

Other facets of the attempted comparison underscore the

infirmity of the appellants’ position. The on-ad disclaimer

requirement burdens speech modestly and does not require any

organization to convey a message antithetic to its own principles.

The speaker can for the most part control the content of any

particular communication and must disclose only some of the funding

sources undergirding that communication. This arrangement imposes

- 36 - no obligation to annunciate something inimical either to the

message of the communication itself or to the fundamental beliefs

of the speaker. So viewed, the appellants' attempt to analogize

this challenge to other compelled speech cases poses no obstacle

here, and we hold that the challenged provision of the Act does

not unconstitutionally require compelled speech.

IV

Mindful that a well-informed electorate is as vital to

the survival of a democracy as air is to the survival of human

life, we hold that the challenged provisions of the Act bear a

substantial relation to a sufficiently important governmental

interest and are narrowly tailored enough to withstand exacting

scrutiny. We also hold that those provisions overcome the

appellants' facial challenge and their array of counter-arguments.

We need go no further. For the reasons elucidated above,

we uphold the challenged aspects of Rhode Island's disclosure and

disclaimer regime. Accordingly, the district court's entry of

judgment in favor of the Board must be

Affirmed.

- 37 -