FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FAMILY PAC, 

Plaintiff-Appellee,

v.

ROB MCKENNA, in his official

capacity as Attorney General of

Washington; JIM CLEMENTS,

member of the Public Disclosure

Commission, in his official

capacity; DAVID SEABROOK, No. 10-35832 member of the Public Disclosure

Commission, in his official  D.C. No.

capacity; JANE NOLAND, member of 3:09-cv-05662-RBL

the Public Disclosure Commission,

in her official capacity; JENNIFER

JOLY, member of the Public

Disclosure Commission, in her

official capacity; BARRY SEHLIN,

member of the Public Disclosure

Commission, in his official

capacity,

Defendants-Appellants. 

889
FAMILY PAC, 

Plaintiff-Appellant,

v.

ROB MCKENNA, in his official

capacity as Attorney General of

Washington; JIM CLEMENTS,

member of the Public Disclosure No. 10-35893

Commission, in his official D.C. No.

capacity; DAVID SEABROOK, 3:09-cv-05662-RBL

member of the Public Disclosure  ORDER Commission, in his official AMENDING capacity; JANE NOLAND, member of OPINION AND the Public Disclosure Commission, AMENDED in her official capacity; JENNIFER OPINION JOLY, member of the Public

Disclosure Commission, in her

official capacity; BARRY SEHLIN,

member of the Public Disclosure

Commission, in his official

capacity,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

November 16, 2011—Portland, Oregon

Filed December 29, 2011

Amended January 31, 2012

Before: Raymond C. Fisher, Richard A. Paez and

Richard R. Clifton, Circuit Judges.

890 FAMILY PAC v. MCKENNA
Opinion by Judge Fisher

FAMILY PAC v. MCKENNA 891
COUNSEL

Robert M. McKenna, Attorney General, Linda A. Dalton,

Senior Assistant Attorney General, and Nancy J. Krier

(argued), Special Assistant Attorney General, Olympia,

Washington, for the defendants-appellants-cross appellees.

James Bopp, Jr. (argued), Joseph E. La Rue and Noel Johnson, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for the

plaintiff-appellee-cross appellant.

FAMILY PAC v. MCKENNA 893
William R. Maurer, Seattle, Washington; William H. Mellor

and Paul M. Sherman, Arlington, Virginia, for amicus curiae

Institute for Justice.

Peter S. Holmes, Seattle City Attorney, and Gary Keese,

Assistant City Attorney, for amicus curiae Seattle Ethics and

Election Commission.

ORDER

The mandate issued January 20, 2012, is recalled. The

opinion filed December 29, 2011, and reported at 664 F.3d

296, is amended as follows:

In footnote 4, delete <In any event, a survey purporting to

show that respondents in six states other than Washington

would “think twice” before contributing to a ballot measure

campaign offers little insight into the deterrent effect of

Washington’s disclosure requirements on individuals’ actual

decisionmaking.>, and replace it with <In any event, a survey

purporting to show that respondents in six states would “think

twice” before contributing to a ballot measure campaign

offers little insight into the deterrent effect of Washington’s

disclosure requirements on individuals’ actual decisionmaking.>. 

With this amendment, the mandate shall issue forthwith.

OPINION

FISHER, Circuit Judge:

We address the constitutionality of three provisions of

Washington election law as applied to the political committees that support and oppose ballot measures. We hold that

894 FAMILY PAC v. MCKENNA
Washington’s disclosure requirements, Washington Revised

Code § 42.17.090 and Washington Administrative Code

§ 390-16-034, which require these committees to disclose the

name and address of contributors giving more than $25, and

additionally to disclose the employer and occupation of contributors giving more than $100, survive exacting scrutiny

because they are substantially related to the important governmental interest in informing the electorate. We hold that

Washington Revised Code § 42.17.105(8), which prohibits a

political committee from accepting from any one person contributions exceeding $5,000 within 21 days of a general election, is not closely drawn to achieve the state’s important

interest in informing the electorate. Section 42.17.105(8) is

therefore unconstitutional as applied to ballot measure committees. We affirm the judgment of the district court.

I.

Family PAC is a continuing political committee organized

under Washington Revised Code § 42.17.040. Compl. ¶ 21.

According to the verified complaint, Family PAC organized

as a political committee to support “traditional family values”

by soliciting and receiving contributions and making contributions and expenditures to support or oppose ballot measures. Id. ¶ 22. Family PAC’s initial project was to oppose

Washington’s domestic partnership law by urging voters to

support Referendum 71 in the 2009 election. Id.

In this action, filed in October 2009, Family PAC alleged

that three provisions of Washington election law violate the

First Amendment as applied to ballot measure committees: (1)

Washington Revised Code § 42.17.090, which requires a

political committee to report the name and address of each

person contributing more than $25 to the committee; (2)

Washington Administrative Code § 390-16-034, which adds

the requirement that a political committee report the occupation and employer of each person contributing more than

$100 to the committee; and (3) Washington Revised Code

FAMILY PAC v. MCKENNA 895
§ 42.17.105(8), which prohibits a political committee from

accepting from any one person contributions exceeding

$5,000 within 21 days of a general election.1,2,3 Washington

imposes no limit on contributions accepted by ballot measure

committees outside this 21-day period. Nor do the rules limit

1Section 42.17.090 provides in relevant part: 

Each report required under RCW 42.17.080 (1) and (2) shall disclose the following: . . . (b) The name and address of each person

who has made one or more contributions during the period,

together with the money value and date of such contributions and

the aggregate value of all contributions received from each such

person during the campaign or in the case of a continuing political committee, the current calendar year: PROVIDED, That

pledges in the aggregate of less than one hundred dollars from

any one person need not be reported: PROVIDED FURTHER,

That the income which results from a fund-raising activity conducted in accordance with RCW 42.17.067 may be reported as

one lump sum, with the exception of that portion of such income

which was received from persons whose names and addresses are

required to be included in the report required by RCW 42.17.067:

PROVIDED FURTHER, That contributions of no more than

twenty-five dollars in the aggregate from any one person during

the election campaign may be reported as one lump sum so long

as the campaign treasurer maintains a separate and private list of

the name, address, and amount of each such contributor: PROVIDED FURTHER, That the money value of contributions of

postage shall be the face value of such postage . . . . 

Wash. Rev. Code § 42.17.090(1). The parties agree this provision requires

committees to disclose the name and address of contributors giving over

$25. 

2Section 390-16-034 states: 

Pursuant to RCW 42.17.090, each report required under RCW

42.17.080 shall disclose, in addition to the name and address of

each person who has made one or more contributions in the

aggregate amount of more than one hundred dollars, the occupation and the name and address of the person’s employer. 

Wash. Admin. Code § 390-16-034; see also Wash. Rev. Code

§ 42.17.090(k) (authorizing the Washington State Public Disclosure Commission to issue disclosure requirements in addition to those specified in

§ 42.17.090(1) itself). 

3Section 42.17.105(8) provides: 

896 FAMILY PAC v. MCKENNA
what a ballot measure committee can spend, either before or

during the 21-day period.

The complaint asserted that Family PAC intends to accept

contributions in excess of $25 and $100, and that “[p]otential

donors to Family PAC have indicated that they are unwilling

to donate if Family PAC is required to report their name and

address pursuant to [the disclosure laws].” Compl. ¶¶ 28-30.

Family PAC also presented evidence that, but for the $5,000

contribution limit, it would have received contributions of

$60,000 and $20,000 from Focus on the Family during the

Referendum 71 campaign. Passignano Decl. ¶¶ 7-13.

Family PAC sought a declaration that the three challenged

provisions violate the First Amendment and an order enjoining the state from enforcing the provisions against ballot measure committees. The defendants are the Washington State

Attorney General and the members of the Washington State

Public Disclosure Commission (PDC), which administers and

enforces the challenged provisions. We refer to the defendants

collectively as “the state.”

Family PAC moved for summary judgment, which the district court granted in part and denied in part. The court held

that the $25 and $100 disclosure requirements survived exacting scrutiny because they are substantially related to an

It is a violation of this chapter for any person to make, or for any

candidate or political committee to accept from any one person,

contributions reportable under RCW 42.17.090 in the aggregate

exceeding fifty thousand dollars for any campaign for statewide

office or exceeding five thousand dollars for any other campaign

subject to the provisions of this chapter within twenty-one days

of a general election. This subsection does not apply to contributions made by, or accepted from, a bona fide political party as

defined in this chapter, excluding the county central committee or

legislative district committee. 

Wash. Rev. Code § 42.17.105(8). 

FAMILY PAC v. MCKENNA 897
important governmental interest in allowing voters to “follow

the money” behind ballot measures. The court explained:

[T]hough the limits may seem low to [Family PAC],

small contributions when aggregated by organizations of people (“special interests,” as we so often

refer to them in the political debate: unions, business

interests, occupational guilds or associations) they

can have a powerful impact on the debate and voters

can benefit from the information that disclosure provides.

The court accordingly denied summary judgment with respect

to the $25 and $100 disclosure requirements. The court subsequently dismissed these claims with prejudice.

The court construed the 21-day contribution limit as “a ban

on political speech,” and accordingly applied strict scrutiny.

It agreed with the state that the government has a compelling

interest in allowing voters to identify contributors to ballot

measure campaigns, but concluded that the 21-day limit was

insufficiently tailored to achieve this interest:

The State focuses on the fact that all but one of

Washington counties use a vote-by-mail system and

they mail ballots 18 days before the election date.

This system is offered up as modern-day justification

for a 1970s-era law that may have needed up to 21

days to gather, organize, and distribute the information about campaign contributions.

Now, however, campaign contributions can be

reported and made publicly available within minutes,

and certainly within 24 hours. Given that reality, a

21-day ban on large contributions cannot be viewed

as necessary or narrowly tailored to effectuate the

original purpose.

898 FAMILY PAC v. MCKENNA
The fact that voters have access to ballots earlier

than before, and that they may choose to vote before

all the election debate is in fact over, is not a sufficient reason to save this statute as it pertains to [ballot measures].

The compelling State interest here is providing

access to voters to information relevant to voting

decision[s]. That information can be provided to voters without a ban on large donations lasting for as

long as 21 days prior to the election. The 21 days

prior to an election is a time when the political

debate is fully joined and the attention of voters is

most focused. . . .

Such a ban may pass constitutional muster if limited to a time more carefully calculated to reflect the

current time necessary to gather and organize and

disseminate the relevant information about contributions and contributors that the government legitimately seeks to convey.

The court accordingly granted Family PAC’s motion for summary judgment with respect to the 21-day contribution limit,

declaring the $5,000 limit unconstitutional as applied to ballot

measure committees.

The court entered judgment, and both parties appealed. We

have jurisdiction under 28 U.S.C. § 1291, we review de novo,

see City of L.A. v. San Pedro Boat Works, 635 F.3d 440, 446

(9th Cir. 2011), and we affirm.

II.

We begin by addressing Family PAC’s argument that the

disclosure requirements, Washington Revised Code

§ 42.17.090(1)(b) and Washington Administrative Code

§ 390-16-34, are unconstitutional as applied to ballot measure

FAMILY PAC v. MCKENNA 899
committees. Disclosure requirements are subject to exacting

scrutiny. See Human Life of Wash. Inc. v. Brumsickle, 624

F.3d 990, 1005 (9th Cir. 2010). To survive such scrutiny, the

disclosure requirements must be “substantially related to a

sufficiently important governmental interest.” Id.

A. Important Governmental Interest

Family PAC argues that requiring disclosure of contributions to ballot measure committees serves no important governmental interest. Family PAC acknowledges that courts

have often held that states have an important informational

interest in requiring such disclosures, but points out that the

Tenth Circuit called that interest into question in Sampson v.

Buescher, 625 F.3d 1247, 1256 (10th Cir. 2010).

[1] Sampson did not ultimately reject the longstanding

principle that the public has an interest in learning who supports and opposes ballot measures. See id. at 1259. Even if

Sampson had done so, however, Family PAC’s argument

would be foreclosed by circuit precedent. We have repeatedly

recognized an important (and even compelling) informational

interest in requiring ballot measure committees to disclose

information about contributions. See Human Life, 624 F.3d at

1005-06; Canyon Ferry Rd. Baptist Church of E. Helena, Inc.

v. Unsworth, 556 F.3d 1021, 1031-32 (9th Cir. 2009); Cal.

Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1178-79

& n.8 (9th Cir. 2007), abrogation on other grounds recognized in Human Life, 624 F.3d at 1013; Cal. Pro-Life Council,

Inc. v. Getman, 328 F.3d 1088, 1104-07 (9th Cir. 2003).

Washington therefore has an important governmental interest

— informing the voting public — in requiring the disclosure

of contributions made to ballot measure committees. Family

PAC’s argument to the contrary is without merit.

B. Substantial Relation

We turn to whether the state has shown that the $25 and

$100 disclosure requirements are substantially related to the

900 FAMILY PAC v. MCKENNA
state’s informational interest. To survive exacting scrutiny,

“the strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment rights.”

Davis v. FEC, 554 U.S. 724, 744 (2008).

1. The Actual Burden on First Amendment Rights

As relevant here, Washington’s disclosure requirements

can burden First Amendment rights in two ways. First, they

can deter individuals who would prefer to remain anonymous

from contributing to a ballot measure committee. See Buckley

v. Valeo, 424 U.S. 1, 68 (1976) (“It is undoubtedly true that

public disclosure of contributions to candidates and political

parties will deter some individuals who otherwise might contribute.”); id. at 83 (“[S]trict [disclosure] requirements may

well discourage participation by some citizens in the political

process.”); Canyon Ferry, 556 F.3d at 1036 (Noonan, J., concurring) (observing that “[f]or business or social reasons, a

small contributor may wish not to be publicly identified with

one side of a controversial public issue. The required report

strips this contributor of his chosen anonymity,” which may

discourage him from contributing).

[2] This burden, however, is modest. Disclosure requirements “may burden the ability to speak, but they impose no

ceiling on campaign-related activities, and do not prevent

anyone from speaking.” Citizens United v. FEC, 130 S. Ct.

876, 914 (2010) (citations and internal quotation marks omitted). Here, although Family PAC cites a survey conducted in

six states (not including Washington) purporting to show that

people may “think twice” about contributing to ballot measure

committees if their names and addresses are to be publicly

disclosed, Family PAC has not presented evidence suggesting

that Washington’s disclosure laws actually and meaningfully

deter contributors.4 The Washington requirements accordingly

serve as only a modest deterrent to contributors.

4

In the survey cited by Family PAC, 82% of respondents agreed that the

government should require that the identities of those who contribute to

FAMILY PAC v. MCKENNA 901
[3] Second, “disclosure requirements can chill donations to

an organization by exposing donors to retaliation.” Citizens

United, 130 S. Ct. at 916. Here, however, Family PAC has

made no showing that Washington’s disclosure requirements

expose contributors to a significant or systemic risk of harassment or retaliation. In Doe v. Reed, 130 S. Ct. 2811 (2010),

the Supreme Court considered whether disclosure of referendum petitions — containing the names and addresses of

signers — violates the First Amendment. The Court acknowlballot issue campaigns be available to the public. See Dick M. Carpenter

II, Disclosure Costs: Unintended Consequences of Campaign Finance

Reform, Institute for Justice, 7 (Mar. 2007), available at http://www.ij.org/

images/pdf_folder/other_pubs/DisclosureCosts.pdf. When asked whether

public disclosure would impact their own decisions to contribute, however, respondents suggested that they might “think twice” before contributing. Almost 60% of respondents agreed with the following statement: “If

by contributing to a ballot issue campaign my name and address were

released to the public by the state, I would think twice before donating

money.” Id. Almost 50% agreed with the following statement: “If by contributing to a ballot issue campaign my employer’s name were released to

the public by the state, I would think twice before donating money.” Id.

The state properly points out that Carpenter was not presented as an expert

witness, and his survey was neither presented as evidence nor tested by the

evidentiary rigors that apply to expert reports. We therefore decline to give

it evidentiary weight. In any event, a survey purporting to show that

respondents in six states would “think twice” before contributing to a ballot measure campaign offers little insight into the deterrent effect of Washington’s disclosure requirements on individuals’ actual decisionmaking.

We do not doubt that disclosure requirements have some deterrent effect

on contributions, see Buckley, 424 U.S. at 68, 83, but the evidence in this

case does not show that this burden is substantial. Notably, notwithstanding the state’s disclosure requirements, Washington’s ballot measure committees have been able to raise a great deal of money. In 2008, 12

statewide ballot measure committees reported $9.5 million in contributions and expenditures; 89 local ballot measure committees reported

another $3.7 million in contributions and expenditures. Ellis Decl. ¶ 23.

In 2005, expenditures on a single statewide initiative reached more than

$15.6 million. Id. ¶ 24. And in the 2008 Washington election as a whole,

more than $1.4 million was contributed by persons giving between $25.01

and $30 in 54,502 contributions. Id. ¶ 44. 

902 FAMILY PAC v. MCKENNA
edged that in the case of “particularly controversial petitions,”

public disclosure could lead to harassment or intimidation of

petition signers. See id. at 2820-21. There was, however, “no

reason to assume that any burdens imposed by disclosure of

typical referendum petitions would be remotely like th[ose]

burdens.” Id. at 2821. Thus, notwithstanding the possibility of

harassment and retaliation in an isolated case, the disclosure

rules as a general matter imposed only modest First Amendment burdens. See id. The Court explained that in an atypical

case presenting a bona fide threat of harassment or retaliation,

an aggrieved party could seek an exemption from compelled

disclosure by making a sufficient evidentiary showing in an

as-applied challenge. See id. at 2820-21.

[4] This same reasoning applies here. Family PAC has

made no showing that §§ 42.17.090 and 390-16-034, as a general matter, expose contributors to harassment, intimidation or

retaliation. In the unusual case presenting a genuine threat of

harassment or retaliation, the affected party can challenge

these disclosure requirements as applied. See Citizens United,

130 S. Ct. at 914 (“[A]s-applied challenges would be available if a group could show a ‘reasonable probability’ that disclosure of its contributors’ names ‘will subject them to

threats, harassment, or reprisals from either Government officials or private parties.’ ” (quoting McConnell v. FEC, 540

U.S. 93, 198 (2003))). Here, Family PAC has not asserted an

as-applied challenge or attempted to make the particularized

showing required by Supreme Court precedent.5 Thus, as in

5Family PAC challenges §§ 42.17.090 and 390-16-034 on their face, but

only as applied to ballot measure committees. For the reasons given in

Doe, we treat this as a facial challenge: 

The claim is “as applied” in the sense that it does not seek to

strike the [regulation] in all its applications, but only to the extent

it covers referendum petitions. The claim is “facial” in that it is

not limited to plaintiffs’ particular case, but challenges application of the law more broadly to all referendum petitions. 

The label is not what matters. The important point is that plaintiffs’ claim and the relief that would follow . . . reach beyond the

FAMILY PAC v. MCKENNA 903
Doe, the challenged disclosure requirements impose only a

modest burden on First Amendment rights.6

2. The Strength of the Governmental Interest

[5] We next consider whether the strength of the governmental interest in disclosure justifies these modest burdens.

The governmental interest in informing the electorate about

who is financing ballot measure committees is of great importance. Disclosure enables the electorate to “give proper

weight to different speakers and messages,” Citizens United,

130 S. Ct. at 916, by “providing the voting public with the

information with which to assess the various messages vying

for their attention in the marketplace of ideas,” Human Life,

624 F.3d at 1008. The money in ballot measure campaigns

“produces a cacophony of political communications through

which . . . voters must pick out meaningful and accurate messages.” Getman, 328 F.3d at 1105. “Given the complexity of

the issues and the unwillingness of much of the electorate to

independently study the propriety of individual ballot measures, we think being able to evaluate who is doing the talking

is of great importance.” Id. Disclosure also gives voters

insight into the actual policy ramifications of a ballot measure. “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 longterm policy ramifications of the ballot measure are often

unknown.” Id. at 1106. “At least by knowing who backs or

particular circumstances of these plaintiffs. They must therefore

satisfy our standards for a facial challenge to the extent of that

reach. 

130 S. Ct. at 2817. 

6These disclosure requirements also impose administrative burdens on

ballot committees, which are responsible for compiling and filing required

disclosure reports. See, e.g., Canyon Ferry, 556 F.3d at 1034 (discussing

“the burden of reporting”). These burdens too, however, are generally

modest, and Family PAC does not challenge them on an as-applied basis.

904 FAMILY PAC v. MCKENNA
opposes a given initiative, voters will have a pretty good idea

of who stands to benefit from the legislation.” Id. In addition,

“mandating disclosure of the financiers of a ballot initiative

may prevent ‘the wolf from masquerading in sheep’s clothing.’ ” Canyon Ferry, 556 F.3d at 1032 (quoting Getman, 328

F.3d at 1106 n.24); see also Human Life, 624 F.3d at 1017;

Randolph, 507 F.3d at 1179 n.8 (observing that the names

groups give themselves for disclosure purposes are frequently

ambiguous or misleading). Washington’s disclosure requirements therefore serve a strong governmental interest.

[6] Balancing the aforementioned burdens against the governmental interest, we have little trouble in holding that

Washington’s disclosure requirements are, as a general matter, substantially related to an important governmental interest. The requirements impose only modest burdens on First

Amendment rights, while serving a governmental interest in

an informed electorate that is of the utmost importance. We

therefore reject Family PAC’s broad challenge to Washington

Revised Code § 42.17.090 and Washington Administrative

Code § 390-16-034.

That is not the end of the inquiry, however, because, even

if §§ 42.17.090 and 390-16-034 are permissible as a general

matter, Family PAC argues that the $25 and $100 thresholds

themselves are too low to survive exacting scrutiny.

Family PAC’s argument rests on a generally sound premise

— that the informational interest in disclosure applies with

greater force to large contributions than to small ones. We

explained in Canyon Ferry that, “[a]s a matter of common

sense, the value of this 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 omitted).7

 The informational interest weakens as the size

7As the size of the contribution falls, and the informational value of disclosure thereby declines, the deterrent effect of disclosure may actually

FAMILY PAC v. MCKENNA 905
of the contributions decrease, and at some point contributions

are so small that disclosure may provide voters with little relevant information.8

 When that point is reached, a court presumably should ask whether the burdens imposed by disclosure

outweigh the informational interests served by it.

[7] We are not persuaded, however, that the tipping point

has been reached in the case of Washington’s $25 and $100

thresholds. Critically, we do not agree with Family PAC’s

contention that disclosure of small contributors does not provide information that enables the electorate to evaluate campaign messages and make informed decisions. It is true that

the public disclosure of a single $25.01 contribution to a balincrease. See Buckley, 424 U.S. at 83 (“Contributors of relatively small

amounts are likely to be especially sensitive to recording or disclosure of

their political preferences.”). If this is the case, then applying disclosure

requirements to smaller and smaller contributions eventually risks tipping

the constitutional balance against disclosure. It is far from clear, however,

that even a zero-dollar disclosure threshold would succumb to exacting

scrutiny. See Citizens Against Rent Control v. City of Berkeley, 454 U.S.

290, 300 (1981) (“[I]f it is thought wise, legislation can outlaw anonymous contributions.”); Canyon Ferry, 556 F.3d at 1034 (“It may very well

be that . . . all monetary contributions convey sufficiently valuable information about the supporters of an initiative to justify the burden of disclosure.”). We need not confront that question here, because Washington has

not chosen a zero-dollar threshold, and, as we explain in text, the information disclosed at the $25 and $100 levels established by Washington law

is sufficiently important to the electorate that the thresholds withstand

exacting scrutiny. 

8

 See, e.g., Elizabeth Garrett, Voting with Cues, 37 U. Rich. L. Rev.

1011, 1042 (2003) (“The source and amount of small contributions and

expenditures are not generally informative to voters . . . .”); William

McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. Pa. J. Const. L. 1, 47 (2003) (“[D]iffuse and

hard-to-digest data, concerning modest-sized individual contributions

made for various unknowable reasons, adds little ‘relevant information’ to

a voter’s decision-making process.”); Richard Briffault, Issue Advocacy:

Redrawing the Elections/Politics Line, 77 Tex. L. Rev. 1751, 1789-90

(1999) (“Knowing about [small contributions] provides the voters with little in the way of useful information.”). 

906 FAMILY PAC v. MCKENNA
lot measure campaign may provide little relevant information

to voters. As the district court recognized, however, small

contributions may provide useful information to voters when

considered in the aggregate. On the PDC’s website, voters

can conduct detailed searches and sort ballot measure contribution data by city, state and zip code.9

 Voters can use this

geographical information to determine, for example, whether

statewide ballot measures are financed by out-of-state contributors, or to determine whether county-wide ballot measures

are financed by out-of-county interests. With respect to contributions exceeding $100, voters can also aggregate the data

by employer and occupation to determine whether particular

economic interests stand to benefit from the legislation. This

type of information may not be as critical as knowing that

XYZ Corporation gave $10 million to the campaign, but it is

nonetheless useful and relevant. We therefore hold that the

$25 and $100 thresholds are substantially related to the state’s

informational interest.

Our holding is reinforced by several additional considerations. First, we are not aware of any judicial decision invalidating a contribution disclosure requirement, or holding that

a contribution disclosure threshold was impermissibly low.10

9According to the state’s evidence, the PDC website received 40,423

unique visitors and 596,223 web pages were viewed during fiscal year

2009. Ellis Decl. ¶ 14. 

10In both Canyon Ferry and Sampson, the courts invalidated reporting

requirements — i.e., when an organization is required to file contribution

and expenditure reports with state election regulators — rather than contribution disclosure requirements — i.e., assuming an organization is subject

to a reporting requirement, what contributions must be disclosed in the

reports. See Canyon Ferry, 556 F.3d at 1033-34 (granting the plaintiff’s

challenge to Montana’s “zero-dollar” reporting threshold as applied to the

plaintiff’s in-kind, de minimis expenditures in support of a statewide ballot measure); Sampson, 625 F.3d at 1249, 1259-61 (granting the plaintiffs’

challenge — to a Colorado law requiring any group of two or more persons that has accepted or made contributions or expenditures exceeding

$200 to support or oppose a ballot issue to register as an issue committee

FAMILY PAC v. MCKENNA 907
Second, in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 294 n.4, 298, 299-300 (1981), the Supreme

Court spoke approvingly of a city ordinance requiring political committees to disclose the names and addresses of persons

contributing $50 or more to a ballot measure campaign, a

threshold roughly comparable to the $25 and $100 disclosure

thresholds at issue here. The disclosure requirement was not

challenged in Citizens Against Rent Control, so the Court’s

language is dictum. Nevertheless, the decision certainly suggests that the Court would have upheld the requirement had

the question been raised. See also Randolph, 507 F.3d at 1182

(upholding contribution disclosure requirements covering

contributions totaling $100 or more and requiring disclosure

of the contributor’s name, address, occupation and employer);

Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n, 761

F.2d 509, 512 (8th Cir. 1985) (per curiam) (upholding a Minnesota law requiring disclosure of the name, address and

employer of each person who contributes $50 or more in one

year for legislative races or $100 or more per year for statewide races or ballot questions).

Third, disclosure thresholds, like contribution limits, are

inherently inexact; courts therefore owe substantial deference

to legislative judgments fixing these amounts. As the

Supreme Court explained in Buckley:

[W]e cannot require Congress to establish that it has

chosen the highest reasonable threshold. The line is

necessarily a judgmental decision, best left in the

context of this complex legislation to congressional

and report the names and addresses of contributors — as applied to the

plaintiffs, who opposed the annexation of their neighborhood into the

adjacent town, and who had raised less than $1,000 in monetary and inkind contributions for their cause). By contrast, we are not aware of any

decision invalidating a contribution disclosure requirement, either facially

or as applied to a particular actor. 

908 FAMILY PAC v. MCKENNA
discretion. We cannot say, on this bare record, that

the limits designated are wholly without rationality.

424 U.S. at 83.11 This deference is not absolute, see Randall

v. Sorrell, 548 U.S. 230, 248-49 (2006) (plurality opinion);

Canyon Ferry, 556 F.3d at 1034, but it strongly reinforces our

conclusion that Washington has chosen thresholds within a

permissible range. This deference is all the more appropriate

when, as here, the state’s thresholds are comparable to those

in other states.12

[8] In sum, §§ 42.17.090 and 390-16-34 are, as applied to

ballot measure committees, “substantially related to a sufficiently important governmental interest.” Human Life, 624

F.3d at 1005. They therefore survive exacting scrutiny.

III.

The state argues that the district court erred by invalidating

Washington Revised Code § 42.17.105(8) as applied to ballot

measure committees. This provision imposes a $5,000 limit

on contributions during the 21 days preceding a general election. All parties agree that the $5,000 limit would be unconstitutional if it applied without temporal restriction. See Citizens

Against Rent Control, 454 U.S. at 299-300 (invalidating a city

ordinance placing a $250 limitation on contributions to committees formed to support or oppose ballot measures). The

11In Buckley, the Court upheld a federal law requiring disclosure of contributions exceeding $100. The Court expressly declined to “reach the

question whether information concerning gifts [between $10 and $100]

can be made available to the public without trespassing impermissibly on

First Amendment rights.” Buckley, 424 U.S. at 84. 

12Washington’s $25 and $100 thresholds are within the range of disclosure requirements in other states. See McGeveran, Mrs. McIntyre’s Checkbook, 6 U. Pa. J. Const. L. at 10 (“Almost all [states] require campaigns

to itemize contributions below the federal threshold of $200. Eight states

set thresholds as low as $20 or $25, and several others require reporting

of all contributions, no matter what their size.” (footnote omitted)). 

FAMILY PAC v. MCKENNA 909
only question, therefore, is whether Washington’s contribution limit can survive constitutional scrutiny because it is limited to a 21-day period.

[9] The district court construed the 21-day contribution

limit as a “ban on large contributions” and therefore applied

strict scrutiny. Contribution limits, however, are not subject to

strict scrutiny. They are constitutionally valid “if the State

demonstrates a sufficiently important interest and employs

means closely drawn to avoid unnecessary abridgment of

associational freedoms.” Buckley, 424 U.S. at 25; see also

Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647,

652 (9th Cir. 2007) (noting that limits on contributions to candidates and ballot measure committees are subject to the same

level of scrutiny). We therefore ask whether § 42.17.105(8) is

“ ‘closely drawn’ to match a sufficiently important interest.”

Thalheimer v. City of San Diego, 645 F.3d 1109, 1117 (9th

Cir. 2011) (quoting Randall, 548 U.S. at 247).

A. Sufficiently Important Interest

As noted, the state has an important interest in giving voters access to contributor information. The only question is

whether the 21-day limit is closely drawn to advance that

interest.

B. Closely Drawn

The state argues that the rule is closely drawn because it is

designed to force big-money contributors to identify themselves by the time the state mails ballots to voters — which

takes place 18 days before the general election. The theory is

that all voters should know who is paying for ballot measure

campaigns by the time they cast their votes, and because voters have the option of voting before election day, this informational interest cannot be adequately protected unless large

contributors make themselves known 21 days in advance of

the election: “Given the timing of Washington’s vote-by-mail

910 FAMILY PAC v. MCKENNA
system, which encompasses the vast majority of voters in the

state, and the timing of Wash. Rev. Code § 42.17.105(8),

there is a substantial relation between the governmental interest and the timing of this disclosure provision.” First Brief on

Cross-Appeal 25.

[10] We disagree. As a threshold matter, we note that

§ 42.17.105(8) imposes a significant burden on First Amendment rights. In Citizens Against Rent Control, the Supreme

Court recognized that contribution limits imposed on ballot

measure committees burden both the freedom of association,

by making it harder for individuals to “band together to

advance their views on a ballot measure,” and the freedom of

speech, because a limit on contributions affects expenditures,

“and limits on expenditures operate as a direct restraint on

freedom of expression of a group or committee desiring to

engage in political dialogue concerning a ballot measure.”

454 U.S. at 296, 299. Washington’s temporal limit is less burdensome than the permanent limit at issue in Citizens Against

Rent Control, because ballot measure committees can arrange

their fundraising around the 21-day limit with respect to

planned contributions. See Thalheimer, 645 F.3d at 1122.

Washington’s limit nonetheless imposes a significant burden,

because it limits contributions during the critical three-week

period before the election, when political committees may

want to respond to developing events. See Human Life, 624

F.3d at 1019 (recognizing “the unique importance of the temporal window immediately preceding a vote”); cf. Anderson

v. Celebrezze, 460 U.S. 780, 786 (1983) (observing that early

candidate filing deadlines prevent independent candidates

from seizing “unanticipated political opportunities”).13 Section

13In decisions upholding temporal restrictions on otherwise protected

political activities, the restrictions at issue generally did not apply to the

period immediately preceding the election. In North Carolina Right to

Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999), the Fourth Circuit

upheld a North Carolina law prohibiting political committees employing

lobbyists from contributing to elected officials while the legislature was in

FAMILY PAC v. MCKENNA 911
42.17.105(8) therefore imposes a significant burden on protected activity.

[11] We hold that § 42.17.105(8) is not closely drawn to

provide voters with information they need to make informed

choices. The limit is not reasonably necessary to inform votsession. See id. at 709. The court said that “North Carolina’s restrictions

do nothing more than place a temporary hold on appellees’ ability to contribute during the General Assembly session, leaving them free to contribute during the rest of the calendar year and to engage in political speech

for the entire year.” Id. at 715. The rules advanced a compelling interest

by preventing corruption and the appearance of corruption, and the restrictions were narrowly tailored because “they last only during the legislative

session, which typically, though not invariably, has covered just a few

months in an election year,” and “cover only that period during which the

risk of an actual quid pro quo or the appearance of one runs highest.” Id.

at 715-16. In Thalheimer, we upheld a San Diego ordinance making it

unlawful for a candidate to solicit or accept contributions until the 12

months preceding the primary election for the office sought. See 645 F.3d

at 1113-14. The rule did not impose a serious burden because candidates

could concentrate their fundraising activities during the 12 months leading

up to the election. See id. at 1122. In addition, the ban served an important

governmental interest in the prevention of actual and perceived corruption

“because those contributions made near an election are clearer expressions

of political speech, whereas off-year contributions are more likely linked

to business the donor has before the city, thus creating the appearance of

quid pro quo ‘corruption by the sale of influence.’ ” Id. at 1121. The rule

was therefore closely drawn to a sufficiently important state anticorruption interest. See id. at 1123. Both N.C. Right to Life and Thalheimer are distinguishable from this case because the temporal restrictions

did not cover the final phase of the election. 

In Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), by contrast, the Sixth

Circuit upheld a Kentucky rule prohibiting gubernatorial candidates not

participating in the state’s public financing system from accepting contributions during the 28 days preceding a primary or general election. See id.

at 944. That temporal restriction applied to the critical pre-election period.

The court upheld the provision, however, because it was necessary to the

state’s implementation of its public funding system. See id. at 949-50.

Here, Washington has not shown that § 42.17.105(8) is closely drawn to

achieve the state’s informational interest, as we explain in text. 

912 FAMILY PAC v. MCKENNA
ers about large contributions made in the final three weeks of

the election. As the district court found, “campaign contributions can be reported and made publicly available within minutes, and certainly within 24 hours.” In fact, Washington

already has in place a system requiring committees, during the

21 days preceding the election, to disclose contributions from

large contributors within 48 or 24 hours of receiving them.14

It is true that some voters may choose to vote early, and

they may not learn of some large contributions until they have

already voted. The state certainly has an interest in assuring

that all voters, including those who vote early, have the information they need to make informed choices. Voters who cast

their ballots while the campaigning is still in full swing, however, make a voluntary choice to forgo relevant information

that may come to light in the final weeks of the campaign.

The state’s interest in ensuring that these voters — the number of whom has not been identified — are maximally

informed is therefore a weak one. It is outweighed by countervailing interests, including the right of ballot measure committees to raise and spend funds, the right of individuals to

contribute funds to ballot measure committees and the interest

of the voting public in the messages that those committees

may convey in the final weeks of the election. Thus, as the

district court said, “[t]he fact that voters have access to ballots

earlier than before, and that they may choose to vote before

all the election debate is in fact over, is not a sufficient reason

to save th[e] statute.”

Like the district court, we do not imply that a narrower

restriction would suffer from the same infirmity. As the dis14Washington’s disclosure law requires committees making and receiving contributions in excess of $1,000 during a “special reporting period”

to file reports within 48 hours. See Wash. Rev. Stat. § 42.17.105(3). If a

committee has already filed a “special report,” any subsequent contributions from the same contributor must be filed within 24 hours, regardless

of the subsequent contribution’s size. See id. The 21 days before the election is a “special reporting period.” See id. § 42.17.105(1)(a). 

FAMILY PAC v. MCKENNA 913
trict court noted: “Such a [restriction] may pass constitutional

muster if limited to a time more carefully calculated to reflect

the current time necessary to gather and organize and disseminate the relevant information about contributions and contributors that the government legitimately seeks to convey.”

IV.

[12] The district court properly concluded that Washington

Revised Code § 42.17.090 and Washington Administrative

Code § 390-16-034, the state’s $25 and $100 disclosure

requirements, are, as applied to ballot measure committees,

substantially related to the important governmental interest in

informing the electorate about the people and entities financing ballot measure committees. The court also properly invalidated Washington Revised Code § 42.17.105(8), the state’s

$5,000 contribution limit applicable to ballot measure committees during the 21 days preceding a general election. This

provision is not closely drawn to match the state’s important

informational interest. The judgment of the district court

accordingly is affirmed. Each party shall bear its own costs of

appeal.

AFFIRMED.

914 FAMILY PAC v. MCKENNA