United States Court of Appeals

For the First Circuit

No. 10-2304

NATIONAL ORGANIZATION FOR MARRIAGE,

Plaintiff, Appellant,

v.

JOHN DALUZ, in his official capacity as chairman of the Rhode

Island Board of Elections, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Boudin, and Lipez, Circuit Judges.

James Bopp, Jr., with whom Randy Elf, Jeffrey P. Gallant,

Austin J. Hepworth, James Madison Center for Free Speech, Stephen

A. Izzi, and Moses & Afonso, Ltd. were on brief, for appellant.

Rebecca Tedford Partington, Assistant Attorney General, with

whom Peter F. Kilmartin, Attorney General, was on brief, for

appellee.

Catherine R. Connors, Matthew D. Manahan, Michael J. Daly,

Pierce Atwood LLP, Thomas R. Bender, and Hanson Curran LLP on brief

for Gay & Lesbian Advocates & Defenders and Common Cause Rhode

Island, amici curiae. 

August 11, 2011
LIPEZ, Circuit Judge. Appellant National Organization

for Marriage ("NOM") appeals the denial of a preliminary injunction

in its challenge to the constitutionality of a Rhode Island

election law requiring the reporting of so-called "independent

expenditures." NOM argues that Rhode Island's reporting

requirement is both overbroad under the First Amendment and so

vague in its terms as to violate due process. The district court,

noting the minimal burden imposed by the law and the valuable

governmental interest underlying it, concluded that NOM had failed

to show a likelihood of success on the merits of its challenge. 

After careful review, we find no abuse of discretion in the

district court's denial of preliminary relief. We therefore

affirm.

Our opinion in this appeal accompanies an opinion

resolving a separate set of challenges to provisions of Maine's

election laws, including an independent expenditure reporting

requirement similar to Rhode Island's. See Nat'l Org. for Marriage

v. McKee, Nos. 10-2000 & 10-2049 (1st Cir. 2011). The vagueness

and overbreadth arguments NOM presses here are substantially the

same as those addressed in our companion opinion. We therefore

rely heavily here on our more thorough discussion in the Maine

opinion.

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I.

In September 2010, NOM filed a verified complaint in the

District Court for the District of Rhode Island challenging the

constitutionality of several aspects of Rhode Island's Campaign

Contributions and Expenditures Reporting Act, R.I. Gen. Laws § 17-

25-1 et seq., on vagueness and First Amendment overbreadth

grounds. Specifically, NOM's complaint targeted provisions of the 1

state's election laws governing (1) registration of political

action committees ("PACs"), id. § 17-25-3(10); (2) contributions to

and expenditures on behalf of candidates, id. § 17-25-10.1(h)(1),

(j); and (3) reporting of independent expenditures, id. § 17-25-10. 

The complaint alleged that NOM sought, in the lead-up to the 2010

elections as well as in future election cycles, to "engage in

multiple forms of speech in Rhode Island, including radio ads,

television ads, direct mail, and publicly accessible internet

postings" that would "clearly identify candidates for state or

local office in Rhode Island." The complaint further alleged that

NOM would refrain from engaging in such activities if it had to

register as a PAC to do so. If no PAC registration were required,

however, NOM would proceed with its activities and "comply with the

independent expenditure reporting requirements under protest."

This initial complaint was dismissed by the district court 1

under Federal Rule of Civil Procedure 8 on the ground that the

"pertinent factual allegations in the complaint [were] buried"

amidst "conclusory and argumentative passages." NOM filed an

amended complaint in October.

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NOM's motion for a preliminary injunction came before the

district court for a hearing on October 21, 2010. At the hearing,

in light of prior assurances from the defendants that NOM could

engage in its intended speech without registering as a PAC, the 2

district court narrowed the issues to NOM's challenge to the

independent expenditure reporting provision. Finding that the

reporting requirement was not "terribly burdensome" and served an

important public interest of informing voters "as to the origins of

. . . speech," the district court held that NOM had not met its

burden of demonstrating a likelihood of success on the merits. The

court therefore denied NOM's motion for a preliminary injunction. 

II.

On interlocutory appeal from the district court's denial

of its motion for preliminary relief, NOM argues that the court

erred as a matter of law in concluding that NOM had not

demonstrated a likelihood of success on the merits of its challenge

to Rhode Island's independent expenditure statute. We review the

denial of a preliminary injunction under a deferential standard, 

reversing only upon finding a mistake of law, a clear error in

fact-finding, or other abuse of discretion, González-Droz v.

Prior to filing suit, NOM sought an advisory opinion from 2

the Rhode Island Board of Elections as to whether it would be

required to form a PAC to engage in its speech. The Board issued

an opinion indicating that NOM could proceed with its speech

without forming a PAC, and the defendants reiterated this point in

responding to NOM's motion for preliminary relief.

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González-Colon, 573 F.3d 75, 79 (1st Cir. 2009). In ruling on a

motion for preliminary relief, a district court must consider

several factors, among which likelihood of success carries

particular weight. Id. 3

NOM offers two lines of argument challenging the

constitutionality of the independent expenditure provision, the

first based on First Amendment overbreadth grounds and the second

on due process vagueness grounds. After examination of each of

these, we find no abuse of discretion in the district court's

holding that NOM failed to show a likelihood of success.

A. First Amendment Challenges

Campaign finance disclosure laws challenged on First

Amendment grounds are subject to "exacting scrutiny," "which

requires a 'substantial relation' between the disclosure

requirement and a 'sufficiently important' governmental interest." 

Citizens United v. FEC, 130 S. Ct. 876, 914 (2010) (quoting Buckley

v. Valeo, 424 U.S. 1, 64, 66 (1976)). As the district court

correctly concluded, Rhode Island's independent expenditure law

requires only disclosure, and, as a disclosure law, is adequately

The other factors a district court must consider are "the 3

potential for irreparable harm in the absence of an injunction," 

"whether issuing an injunction will burden the defendants less than

denying an injunction would burden the plaintiffs," and "the

effect, if any, on the public interest." Bos. Duck Tours, LP v.

Super Duck Tours, LLC, 531 F.3d 1, 11 (1st Cir. 2008) (internal

quotation marks omitted).

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supported by a governmental interest in providing information to

the electorate.

In pertinent part, Rhode Island's independent expenditure

provision provides that any person "not acting in concert with any

other person or group" who makes expenditures aggregating over $100

in a given calendar year "to support or defeat a candidate" must

file a report within seven days with (1) the Rhode Island Board of

Elections (the "Board") and (2) the treasurer of the candidate "on

whose behalf the expenditure . . . was made." R.I. Gen. Laws § 17-

25-10(b). The report, which is filed on a one-page form provided

by the Board, simply requires disclosure of the name and contact

information of the person making the expenditure, identification of

the candidate or candidates the expenditures were made to support

or defeat, and the date, amount, recipient, and purpose of each

expenditure. The individual submitting the report must also

certify that the expenditures were not made in concert with any

other person or group.

These disclosure requirements are substantially the same

as those imposed by Maine's independent expenditure provision,

which we uphold today in our companion opinion. As with Maine's

law, the disclosures required by the provision here impose no great

burden on the exercise of election-related speech. All that is

required is the completion of a one-page form, which can be filled

out and submitted to the Board online. This relatively small

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imposition serves the recognizedly important government interest in

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

campaign money comes from and how it is spent." Buckley, 424 U.S.

at 66 (internal quotation marks omitted). 

NOM nonetheless argues that the district court erred on

several grounds in finding insufficient likelihood of success on

the merits to warrant preliminary relief. First, NOM contends that

Rhode Island's independent expenditure law is unconstitutionally

overbroad because it extends beyond regulation of express advocacy. 

As we explain in our companion opinion, the Supreme Court has

explicitly rejected the contention that disclosure laws must be

limited to regulation of express advocacy, Citizens United, 130 S.

Ct. at 915, and thus this argument finds no support.

Second, NOM argues that Rhode Island lacks a sufficiently

important interest to support the $100 threshold at which the

independent expenditure reporting requirement applies, and

therefore the law fails exacting scrutiny. We reject an identical

argument with respect to Maine's $100 independent expenditure

reporting threshold in our companion opinion. As we note in that

case, this sort of monetary threshold for a disclosure law is not

subject to exacting scrutiny, but instead will be upheld unless it

is "'wholly without rationality.'" Vote Choice, Inc. v. DiStefano,

4 F.3d 26, 32 (1st Cir. 1993) (quoting Buckley, 424 U.S. at 83). 

We cannot say that the $100 threshold fails that standard.

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Third, NOM challenges the requirement that independent

expenditure reports be provided to the candidate "on whose behalf"

the expenditure is made, R.I. Gen. Laws § 17-25-10(b), contending 4

that this aspect of the law bears no relation to the government's

interest in the disclosure of information. We disagree. To be 5

sure, the report-to-candidate requirement is not as closely related

to the government's informational interest as the report-to-Board

requirement. However, prompt notification to a candidate of the

expenditure of money on her behalf indirectly serves the

informational interest by permitting a candidate to distance

herself from individuals or organizations whose views she does not

share. As Buckley observed, "[t]he sources of a candidate's

financial support . . . alert the voter to the interests to which

a candidate is most likely to be responsive," 424 U.S. at 67, and

As we explain below, see infra Part II.B, the statutory 4

context makes plain that this language requires that a report be

provided to the candidate who stands to benefit from the

independent expenditure.

NOM relies for this argument on the Tenth Circuit's decision 5

in Citizens for Responsible Government State Political Action

Committee v. Davidson, 236 F.3d 1174, 1196-98 (10th Cir. 2000),

which held unconstitutional portions of a Colorado independent

expenditure reporting provision. Davidson provides little support

for NOM's argument. Not only did the court there incorrectly

subject the disclosure requirement to strict rather than exacting

scrutiny, but the requirement under review also imposed a far

greater burden than does Rhode Island's provision. Colorado's law

required submittal of a report to every candidate in a race, not

just the candidate on whose behalf the expenditure was made, and

specified that reports be submitted within twenty-four hours of an

independent expenditure (versus seven days under Rhode Island's

statute).

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thus the imperative for accurate information about electoral

candidates is well served by facilitating candidate response to

support from parties unaffiliated with the candidate's campaign. 

The report-to-candidate requirement also contributes to the proper

functioning of Rhode Island's regulatory regime, as candidates are

required to report all expenditures on their behalf to the Board. 

R.I. Gen. Laws § 17-25-10(b); cf. Buckley, 424 U.S. at 67-68

(noting the collection of data for purposes of enforcing a

regulatory regime to be an important government interest supporting

disclosure).6

In sum, NOM identifies no error of law or clear error of

fact-finding in the district court's holding that NOM did not

satisfy its burden of showing a likelihood of success on the First

Amendment challenge. Absent such error or other indicia of abuse

of discretion, NOM's arguments fail.

B. Vagueness Challenges

In denying preliminary relief, the district court did not

expressly address NOM's arguments that portions of Rhode Island's

independent expenditure provision are unconstitutionally vague. 

NOM notes that candidates could simply obtain the reported 6

information from the Board, as the independent expenditure reports

are publicly available. While that may be so, the incremental

burden involved here is negligible -- the person making an

independent expenditure does not need to prepare a separate or

different report, but merely must send to the candidate a second

copy of a report already prepared for the Board -- and we see some

benefit in direct and prompt notification to the candidates of

expenditures on their behalf. 

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Regardless, as we briefly explain, NOM's vagueness contentions are

without merit.7

NOM argues that two specific instances of language in the

independent expenditure provision raise vagueness problems: the

word "support," in the phrase "to support or defeat a candidate,"

and the phrase "on whose behalf." R.I. Gen. Laws § 17-25-10(b). 

As we explain in our companion opinion, "a statute is

unconstitutionally vague only if it 'prohibits . . . an act in

terms so uncertain that persons of average intelligence would have

no choice but to guess at its meaning and modes of application.'" 

United States v. Councilman, 418 F.3d 67, 84 (1st Cir. 2005) (en

banc) (quoting United States v. Hussein, 351 F.3d 9, 14 (1st Cir.

2003)). Measured against this standard, neither phrase challenged

by NOM offends due process.

We note that two of the vagueness arguments NOM makes before 7

this court were never presented to the district court, and thus

cannot be pressed on appeal. See Banco Bilbao Vizcaya Argentaria v.

Wiscovitch-Rentas (In re Net-Velázquez), 625 F.3d 34, 40 (1st Cir.

2010). These arguments both focus on a regulation interpreting the

independent expenditure statute. The regulation defines the phrase

"expressly advocating" to include communications or words "which

[i]n context can have no other meaning than to urge the election or

defeat of one or more clearly identified candidates." 23-1 R.I.

Code R. § 25:2(6). NOM argues that this definition is

unconstitutionally vague due to its use of a purportedly proscribed

"appeal-to-vote test" and because it allows reference to context in

determining whether a communication qualifies as express advocacy. 

NOM may be able to raise these issues before the district court --

though we note that we reject substantially identical arguments in

the companion case -- but we will not consider them in this appeal.

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Rhode Island's independent expenditure statute requires

the reporting of expenditures aggregating over $100, made

independently of a candidate, "to support or defeat a candidate." 

R.I. Gen. Laws § 17-25-10(b). In this context, the word "support"

"clearly set[s] forth the confines within which potential . . .

speakers must act in order to avoid triggering the provision." 

McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003), overruled on other

grounds by Citizens United, 130 S. Ct. 876. Both we (in our

companion opinion) and the Supreme Court have held, in very similar

statutory settings, that the word "support" is sufficiently clear. 

See id. Particularly when paired with the word "defeat," "support"

"'provide[s] explicit standards for those who apply them' and

'give[s] the person of ordinary intelligence a reasonable

opportunity to know what is prohibited." Id. (quoting Grayned v.

City of Rockford, 408 U.S. 104, 108-09 (1972)).8

Nor do we find "on whose behalf" lacking clarity. The

provision requires that reports of independent expenditures be

submitted to the Board and "to the campaign treasurer of the

Though we find "support" to be clear on its face, we note as 8

well that the Board has promulgated regulations further narrowing

and sharpening the text. Those regulations provide that the

reporting requirement is triggered when an expenditure is made

"expressly advocating the support or defeat of a candidate," 23-1

R.I. Code R. § 25:3, and define "expressly advocating" to include

"communications of slogans or individual words which [i]n context

can have no other reasonable meaning than to urge the election or

defeat of one or more clearly identified candidates," id. §

25:2(6).

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candidate . . . on whose behalf the expenditure . . . was made." 

R.I. Gen. Laws § 17-25-10(b). The legislature's failure to

expressly define the phrase "on whose behalf" does not, as NOM

suggests, render the phrase vague. As we have noted, "[t]he mere

fact that a regulation requires interpretation does not make it

vague." Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 93 (1st

Cir. 2004); see also Ward v. Rock Against Racism, 491 U.S. 781, 794

(1989) ("[P]erfect clarity and precise guidance have never been

required even of regulations that restrict expressive activity."). 

In the context of the statute, which requires reporting of

expenditures "to support or defeat a candidate," the meaning of

this phrase is plain: a report must be submitted to the candidate

who stands to benefit from the independent expenditure's advocacy.

Because NOM's vagueness arguments are without merit, the

district court did not abuse its discretion in denying preliminary

relief without explicitly reaching the question of vagueness.

III.

For the reasons set forth above, we affirm the district

court's order denying NOM's motion for a preliminary injunction.

So ordered.

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