United States Court of Appeals

For the First Circuit

Nos. 10-2000

10-2049

NATIONAL ORGANIZATION FOR MARRIAGE,

Plaintiff, Appellant/Cross-Appellee,

AMERICAN PRINCIPLES IN ACTION,

Plaintiff,

v.

WALTER F. MCKEE, in his official capacity as member of the

Commission on Governmental Ethics and Election Practices, ET AL.,

Defendants, Appellees/Cross-Appellants,

MATTHEW DUNLAP, in his official capacity as Secretary of the

State of Maine,

Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Boudin, and Lipez, Circuit Judges.

James Bopp, Jr., with whom Randy Elf, Joseph A. Vanderhulst,

James Madison Center for Free Speech, Stephen C. Whiting, and The

Whiting Law Firm were on brief, for appellant/cross-appellee.

Thomas A. Knowlton, Assistant Attorney General, with whom

Janet Mills, Attorney General, and Phyllis Gardiner, Assistant

Attorney General, were on brief, for appellees/cross-appellants.

Lisa J. Danetz, Brenda Wright, DEMOS, and John Brautigam on
brief for Maine Citizens for Clean Elections, amicus curiae. 

August 11, 2011
LIPEZ, Circuit Judge. This appeal requires us to address

the constitutionality of several Maine election laws governing,

inter alia, the registration of political action committees

("PACs") and the disclosure and reporting of information about

expenditures made for election-related advocacy. Appellant 1

National Organization for Marriage ("NOM"), a New Jersey-based

nonprofit corporation organized for the purpose of providing

"organized opposition to same-sex marriage in state legislatures,"

contends that Maine's laws are unconstitutionally vague and

overbroad. Claiming a chill of its First Amendment-protected

advocacy efforts in Maine, NOM brought a facial and as-applied

challenge seeking an injunction against the laws' enforcement and

a declaration of their unconstitutionality. On summary judgment,

the district court largely rejected NOM's claims, agreeing only

that the phrase "for the purpose of influencing," which the court

severed from the provisions in which it appeared, was

unconstitutionally vague. 

2

NOM renews here its arguments challenging Maine's laws on

vagueness and overbreadth grounds. NOM asks as well that we

reverse a ruling by the district court unsealing the trial record. 

In a companion opinion filed today, we consider appellant's 1

challenges to a related provision of Rhode Island's election laws. 

See Nat'l Org. for Marriage v. Daluz, No. 10-2304 (1st Cir. 2011). 

The court also held unconstitutional a regulation governing 2

the timing of disclosures. That holding is not at issue in this

appeal.

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In turn, the defendants (various Maine officials) contend that the

district court erred in finding vague, and severing from Maine's

statutes, the phrase "for the purpose of influencing."

After careful consideration of the parties' arguments and

key precedents, we conclude that Maine's laws pass constitutional

muster. Central to our holding is the nature of the laws NOM

challenges here. These provisions neither erect a barrier to

political speech nor limit its quantity. Rather, they promote the

dissemination of information about those who deliver and finance

political speech, thereby encouraging efficient operation of the

marketplace of ideas. As the Supreme Court recently observed, such

compulsory "transparency enables the electorate to make informed

decisions and give proper weight to different speakers and

messages." Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). 

While we acknowledge that disclosure can, in some cases, unduly

burden or chill political speech, there is no evidence that the

Maine laws at issue here have had such a deleterious effect on NOM

or its constituents.

We agree with the appellees that the use of "for the

purpose of influencing" in the statutes at issue, given the

appropriately limited reading offered by Maine's Commission on

Governmental Ethics and Election Practices, is not

unconstitutionally vague, and therefore we vacate the district

court's holding as to that phrase and the consequent severance of

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portions of Maine's statutes. We otherwise affirm the district

court's judgment in its entirety.

I. Statutory and Procedural Background

A. Maine's Election Laws

Maine has enacted a comprehensive set of election laws

that embraces, among other things, contribution limits, a public

financing system for state-office candidates, and various reporting

and disclosure requirements for those engaged in election-related

advocacy. We have previously described the contribution limit and

public financing aspects of Maine's regulation of elections --

which are not at issue here -- in some detail. See Daggett v.

Comm'n on Governmental Ethics & Election Practices, 205 F.3d 445,

450-52 (1st Cir. 2000). The provisions challenged here, all

relating solely to reporting and disclosure, fall into three

categories: rules governing PACs, rules governing "independent

expenditures," and general attribution and disclaimer requirements.

1. PAC Provisions

Maine's PAC provisions are, as the appellees aptly

characterize them, "pure disclosure laws." Maine imposes no

limitation on the amount of money PACs may raise, nor does it cap

the sum a PAC may spend independently of a candidate or candidate

committee. If they contribute money directly to a candidate, PACs

are subject to the same per-candidate contribution limits -- $750

per election for gubernatorial candidates and $350 per election for

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legislative candidates -- as any other donor. See Me. Rev. Stat.

tit. 21-A, § 1015(1), (2). The only PAC-specific requirements

relate to registration, recordkeeping, and reporting.

An organization may qualify as a PAC under Maine law in

one of several ways, of which two are relevant here. The first

pertains to so-called "major-purpose" PACs. An organization that

"has as its major purpose initiating, promoting, defeating or

influencing a candidate election, campaign or ballot question" must

register as a PAC in Maine if it receives contributions or makes

expenditures aggregating more than $1,500 in a given calendar year

for that purpose. Id. §§ 1052(5)(A)(4), 1053. The second relates

to "non-major-purpose PACs," which are subject to a significantly

higher contribution/expenditure threshold for registration. 

Specifically, Maine law requires that an organization register as

a PAC if it "does not have as its major purpose promoting,

defeating or influencing candidate elections but . . . receives

contributions or makes expenditures aggregating more than $5,000 in

a calendar year for the purpose of promoting, defeating or

influencing in any way the nomination or election of any candidate

to political office." Id. §§ 1052(5)(A)(5), 1053.

Within seven days of exceeding the relevant contribution

or expenditure threshold, a PAC must register with the Maine

Commission on Governmental Ethics and Election Practices (the

"Commission"). Id. § 1053. Registration requires that the

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organization supply a name and address for the PAC; identify its

form of organization and date of origin; name its treasurer,

principal officers, and primary fundraisers and decisionmakers; and

indicate which candidates, committees, referenda, or campaigns it

supports or opposes. Id. An organization need not make any formal

changes, such as forming a separate legal entity or creating a

segregated fund, to operate as a PAC in Maine.

Once registered, a PAC is subject to two ongoing

obligations under Maine law. First, the PAC treasurer must

maintain records of certain election-related expenditures and

contributions for four years following the election to which the

records pertain. Id. § 1057. Second, the PAC must electronically

file campaign finance reports on a quarterly basis, with additional

reports due eleven days before any primary or general election and

forty-two days after. Id. § 1059. The contents of the report vary

by type of PAC. 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), while a nonmajor-purpose PAC reports only those contributions made "for the

purpose of promoting, defeating or influencing a ballot question or

the nomination or election of a candidate to political office." 

Id. § 1060(6). The reporting of expenditures breaks down along

similar lines: major-purpose PACs report all expenditures,

including operational and administrative expenses, whereas non-

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major-purpose PACs report "only those expenditures made for the

purpose of promoting, defeating or influencing a ballot question or

the nomination or election of a candidate to political office." 

Id. § 1060(4), (5), (7).

Maine law also explicitly requires PACs that are

organized in another state to comply with all applicable

registration and reporting requirements. See id. § 1053-B. There

is, however, a narrow exemption: out-of-state PACs may contribute

to candidates, party committees, and PACs in Maine without

registering with the Commission, provided that (1) such

contributions are the out-of-state PAC's only financial activity

within Maine and (2) the out-of-state PAC "has not raised and

accepted any contributions during the calendar year to influence an

election or campaign" in Maine. Id. 

2. "Independent Expenditure" Provision

In addition to its PAC-specific requirements, Maine's

election laws also require across-the-board reporting of certain

"independent expenditures." At a general level, an "independent

expenditure" is any payment or obligation made "for the purpose of

influencing the nomination or election of any person to political

office" other than a direct contribution to candidates and their

campaign committees. Id. §§ 1012(3), 1019-B(1). Maine law

provides that any individual or entity making independent

expenditures aggregating more than $100 over the course of a

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particular candidacy must file a report with the Commission. Id.

§ 1019-B(3). That report must simply identify the expenditures by

date, payee, and purpose, state whether the expenditures were made

in support of or opposition to the relevant candidate, and state

under oath or affirmation whether the expenditures were coordinated

with a candidate or candidate committee. Id.

An expenditure may qualify as an "independent

expenditure" in one of two ways. First, an expenditure will fall

within the independent expenditure reporting requirement where it

is made to finance a communication that "expressly advocates the

election or defeat of a clearly identified candidate" and it is not

a direct contribution to a candidate or candidate's committee.3

Id. § 1019-B(1)(A). Second, certain expenditures for

communications made close to an election -- twenty-one days before

a primary and thirty-five days before the general election -- are

presumed to be "independent expenditures." Id. The presumption

applies only to an expenditure "made to design, produce or

disseminate a communication that names or depicts a clearly

identified candidate" in a race where at least one candidate has

accepted public financing. Id. § 1019-B(1)(B). The person

making the expenditure is afforded a chance to rebut the

A candidate will be considered "clearly identified" where 3

the name or a depiction of the candidate appears, or where the

"identity of the candidate is apparent by unambiguous reference." 

Me. Rev. Stat. tit. 21-A, § 1012(1).

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presumption by filing a written statement with the Commission

within forty-eight hours of the expenditure "stating that the cost

was not incurred with the intent to influence the nomination,

election or defeat of a candidate." Id. § 1019-B(2). Once a

rebuttal statement is filed, the Commission will determine by a

preponderance of the evidence, after gathering relevant material,

whether the expenditure was incurred with such an intent. Id.

3. Attribution and Disclaimer Requirements

Finally, Maine law also requires that political

advertisements and certain other political messages contain

statements of attribution and disclaimer. The governing statute

provides that any "communication expressly advocating the election

or defeat of a clearly identified candidate . . . clearly and

conspicuously state" whether it has been authorized by the

candidate (the disclaimer) and state the name and address of the

person who financed the communication (the statement of

attribution). Id. § 1014(1)-(2). These disclaimer and attribution

statements must also be included in any communication shortly

before an election that "names or depicts a clearly identified 4

candidate," unless the communication "was not made for the purpose

As with the independent expenditure reporting requirements, 4

the relevant period is twenty-one days before a primary and thirtyfive days before a general election. Me. Rev. Stat. tit. 21-A, §

1014(2-A).

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of influencing the candidate's nomination for election or

election." Id. § 1014(2-A).

4. Sanctions

The Commission may level a variety of sanctions --

primarily in the form of fines -- for violations of the provisions

discussed above. An entity that falls within the definition of a

PAC but fails to register may be subject to a civil fine of $250,

id. § 1062-A(1), and a PAC's failure to file reports within thirty

days of a reporting deadline can result in a fine of up to $10,000

or a criminal misdemeanor charge. Id. § 1062-A(8). Likewise,

violations of the independent expenditure reporting requirement are

punishable by a civil fine of up to $5,000. Id. § 1020-A(5-A)(A). 

Finally, violations of the attribution and disclosure requirements

are subject to lesser fines (up to $200 if made within 20 days

before an election, and no more than $100 at other times), but may

be punished by a special fine of up to $5,000 if the violation was

committed with the intent to misrepresent the source or candidate

authorization of the advertisement. Id. § 1014(4).

B. Procedural History

NOM filed the initial complaint in this case in October

2009, shortly before a referendum election in Maine on a raft of

issues that included same-sex marriage. The complaint challenged 5

NOM was joined in its initial complaint by co-plaintiff 5

American Principles in Action. The specific claims at issue in

this appeal were only pursued by NOM, and, accordingly, American

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the constitutionality of a provision relating to ballot question

committees, Me. Rev. Stat. tit. 21-A, § 1056-B, and was 6

accompanied by motions for a temporary restraining order and a

preliminary injunction. Following an expedited hearing, the

district court denied NOM's motion for a temporary restraining

order. NOM subsequently amended its complaint to add the claims at

issue here: those targeting the constitutionality of Maine's PAC

registration, independent expenditure, and attribution and

disclaimer laws.

The district court held a hearing on NOM's motion for a

preliminary injunction, consolidated with a bench trial on the

merits, on August 12, 2010. The parties stipulated to a joint 7

trial record, which was submitted under seal. At the hearing, the

district court expressed doubt about the basis for sealing the

record, and subsequently issued an order to show cause why the

trial record should be maintained under seal.

In a decision issued on August 19, 2010, the district

court largely denied NOM's claims and upheld the constitutionality

of the challenged statutes. See Nat'l Org. for Marriage v. McKee,

Principles in Action does not appear as an appellant.

The constitutionality of § 1056-B is not at issue in this 6

appeal.

The hearing addressed solely the specific claims at issue 7

in this appeal, leaving the challenges to § 1056-B for a later

summary judgment hearing.

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723 F. Supp. 2d 245 (D. Me. 2010). Finding that NOM had adequately

demonstrated an interest in engaging in expressive activity that

was deterred by the prospect of regulation under Maine's laws, the

court held that NOM had standing to challenge the statutes at

issue. Id. at 256-58. On the merits, the court found for NOM on 8

only two points. 

First, the court held the phrase "for the purpose of

influencing" to be unconstitutionally vague, citing the treatment

of similar language in the Supreme Court's opinion in Buckley v.

Valeo, 424 U.S. 1 (1976). Nat'l Org. for Marriage, 723 F. Supp. 2d

at 261. The phrase (and variants thereof) appears in several

places throughout the challenged statutes, including in the

definition of a non-major-purpose PAC, the rebuttal provision for 9

presumed independent expenditures (i.e., those made shortly prior

to an election), and in the provisions defining which 10

The court declined, however, to reach the constitutionality 8

of the "major-purpose" PAC provision, § 1052(5)(A)(4), noting that

the record showed no basis for concluding that NOM would be subject

to that regulation. See Nat'l Org. for Marriage, 723 F. Supp. 2d

at 254.

See Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5) (defining non- 9

major-purpose PAC to include "[a]ny organization that . . .

receives contributions or makes expenditures aggregating more than

$5,000 . . . for the purpose of promoting, defeating or influencing

in any way the nomination or election of any candidate to political

office").

See Me. Rev. Stat. tit. 21-A, § 1019-B(2) ("A person 10

presumed . . . to have made an independent expenditure may rebut

the presumption by filing a signed written statement . . . stating

that the cost was not incurred with the intent to influence the

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communications are subject to disclaimer and attribution

requirements. The court determined that the appropriate remedy 11

was to sever the phrase from the statutes. Id. The most

significant impact of this holding was on the independent

expenditure statute. Because the rebuttal procedure for presumed

independent expenditures was dependent on the term "influencing,"12

the court's ruling severed the entire rebuttal procedure. Thus,

the independent expenditure presumption became conclusive for

expenditures for communications clearly identifying a candidate

made shortly before an election. The court held that the

provision, as altered, nonetheless passed constitutional muster, as

recent Supreme Court decisions "have made the rebuttal exercise

pointless." Id. at 265.13

nomination, election or defeat of a candidate . . . .").

See Me. Rev. Stat. tit. 21-A, § 1014(2-A) ("[D]isclosure is 11

not required if the communication was not made for the purpose of

influencing the candidate's . . . election.").

The other statutes contained additional advocacy-related 12

terms that remained after "influencing" was stricken -- e.g.,

"promoting" and "defeating," Me. Rev. Stat. tit. 21-A,

§ 1052(5)(A)(5) -- whereas the independent expenditure rebuttal

procedure turned solely on the word "influence," see id. § 1019-

B(2) (applying to expenditures made "with the intent to influence"

candidate elections).

The district court reached this conclusion primarily on the 13

basis of Citizens United, which upheld a similar federal-law

disclosure provision for advertisements made shortly before an

election. The Court ruled that the statute, which contained no

rebuttal provision analogous to Maine's, passed First Amendment

muster in light of a general "public . . . interest in knowing who

is speaking about a candidate shortly before an election." 

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Second, the court held one of the implementing

regulations for the independent expenditure statute

unconstitutional, finding that it impermissibly burdened First

Amendment speech. Id. at 266. The regulation was one of a pair

governing the timing of reporting independent expenditures. The

first, which the court upheld, required that independent

expenditures of over $100 made within two weeks of an election be

reported to the Commission within twenty-four hours. See 94-270-

001 Me. Code R. § 10(3)(A). The second required the reporting

within twenty-four hours of any independent expenditures

aggregating over $250, regardless of when made. Id. § 10(3)(B). 

Finding the short reporting time frame mandated by both regulations

to be burdensome, the court held that the second regulation, unlike

the first, could not be justified by a close relationship to "the

state's interest in providing information to voters at precisely

the time that such information can be of greatest use." Nat'l Org.

for Marriage, 723 F. Supp. 2d at 266. The defendants do not

challenge this holding on appeal.

In addition to its merits holdings, the district court

also ruled that the trial evidence must be unsealed. Explaining

that it was "not willing to make a First Amendment decision based

Citizens United, 130 S. Ct. at 915. 

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upon a sealed record," the court ordered the parties to refile the

record in publicly available form. Id. at 249 n.4. 14

This timely appeal followed.

II. Standing

We begin, as we must, with the defendants' argument that

NOM lacks standing to prosecute some of its constitutional claims. 

We review a district court's ruling on the question of standing de

novo. Sullivan v. City of Augusta, 511 F.3d 16, 24 (1st Cir.

2007). 

The standing requirement -- or, more accurately,

requirements, as standing "comprises a mix of constitutional and

prudential criteria," Osediacz v. City of Cranston, 414 F.3d 136,

139 (1st Cir. 2005) -- flows from the limited nature of federal

court jurisdiction, and specifically from the grounding of the

federal judicial power in "Cases" and "Controversies." U.S. Const.

art. III, § 2; Ariz. Christian Sch. Tuition Org. v. Winn, 131 S.

Ct. 1436, 1441-42 (2011). The constitutional aspect of standing

embraces three core requirements:

"First, the plaintiff must have suffered an

'injury in fact' —- an invasion of a legally

protected interest which is (a) concrete and

particularized, and (b) 'actual or imminent,

not "conjectural" or "hypothetical."' Second,

there must be a causal connection between the

injury and the conduct complained of -— the

injury has to be 'fairly trace[able] to the

We subsequently stayed the unsealing order upon NOM's 14

emergency motion for a stay pending appeal.

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challenged action of the defendant, and not

. . . th[e] result [of] the independent action

of some third party not before the court.' 

Third, it must be 'likely,' as opposed to

merely 'speculative,' that the injury will be

'redressed by a favorable decision.'"

Ariz. Christian Sch., 131 S. Ct. at 1442 (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The Supreme

Court has overlaid these constitutional dictates with several

prudential limitations on standing, including "'the general

prohibition on a litigant's raising another person's legal rights,

the rule barring adjudication of generalized grievances more

appropriately addressed in the representative branches, and the

requirement that a plaintiff's complaint fall within the zone of

interests protected by the law invoked.'" Osediacz, 414 F.3d at

139 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). In

certain facial First Amendment challenges to a statute, we may

relax these prudential limitations, Osediacz, 414 F.3d at 141, but

the constitutional requirements apply with equal force in every

case, Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 326 n.6 (1st

Cir. 2009).

Defendants do not seek to dispose of the entire suit on

standing grounds, but instead surgically target NOM's standing to

challenge Maine's PAC-related election laws. They assert that NOM 15

Such a targeted approach is consistent with the claim- 15

specific nature of standing; "standing is not dispensed in gross,"

Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996), and thus a plaintiff

must separately prove standing "for each claim he seeks to press." 

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lacks standing to bring the PAC claims because it failed to prove

that it came within the reach of Maine's PAC laws, i.e., that NOM's

activities would have qualified it as a PAC. In light of the fact

that prudential limitations on standing may be relaxed in the

context of First Amendment challenges -- and because defendants

cite the constitutional standards for standing in making their

argument -- we construe this argument as a challenge to the

adequacy of NOM's Article III injury-in-fact showing.16

Preenforcement First Amendment challenges like this one

occupy a somewhat unique place in Article III standing

jurisprudence. By definition, such cases present us with

situations where the government has not yet applied the allegedly

unconstitutional law to the plaintiff, and thus there is no

tangible injury. However, in these circumstances the Supreme Court

has recognized "self-censorship" as "a harm that can be realized

even without an actual prosecution." Virginia v. Am. Booksellers

Ass'n, 484 U.S. 383, 393 (1988); see also N.H. Right to Life

Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996)

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). 

 Defendants do not appear to contest that the second and 16

third prongs of the constitutional standing analysis would be met

here; to the extent that the plaintiff has suffered a cognizable

injury at all, the injury can "be traced to the existence and

threatened enforcement of the challenged statutes," and is

redressable in an action against the defendants here, who are

charged with enforcing Maine's election laws. N.H. Right to Life

Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996).

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("[I]t is not necessary that a person expose herself to arrest or

prosecution under a statute in order to challenge that statute in

a federal court."). The chilling of protected speech may thus

alone qualify as a cognizable, Article III injury.

The mere allegation of a "chill," however, will not

suffice to open the doors to federal court. See Laird v. Tatum,

408 U.S. 1, 13-14 (1972) ("Allegations of a subjective 'chill' are

not an adequate substitute for a claim of specific present

objective harm or a threat of specific future harm . . . ."). 

Where, as here, the plaintiff claims injury based on such a

chilling of speech, the plaintiff must establish with specificity

that she is "within the class of persons potentially chilled." 

Osediacz, 414 F.3d at 142. This burden will be satisfied by record

evidence supporting "an objectively reasonable possibility that she

would be subject to the allegedly unconstitutional [law]." Id. at

143; see also N.H. Right to Life, 99 F.3d at 14 ("A party's

subjective fear that she may be prosecuted for engaging in

expressive activity will not be held to constitute an injury for

standing purposes unless that fear is objectively reasonable.").

NOM challenges three separate provisions of Maine's PAC

laws: the major-purpose PAC definition, the non-major-purpose PAC

definition, and the provision governing out-of-state PACs. We

examine in turn whether the record supports an "objectively

reasonable possibility" that each provision would be applied to

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NOM, Osediacz, 414 F.3d at 143, and then turn briefly to a related

inquiry specific to NOM's vagueness challenges to the PAC statutes.

A. Standing to Challenge Major-Purpose PAC Provision

It is plain that NOM has no objectively reasonable

apprehension of being regulated as a major-purpose PAC. Among

other things, a major-purpose PAC must have "as its major purpose

initiating, promoting, defeating or influencing a candidate

election, campaign or ballot question" in Maine. Me. Rev. Stat.

tit. 21-A, § 1052(5)(A)(4). NOM identifies itself as a nonprofit

advocacy organization with a national scope, dedicated to providing

"organized opposition to same-sex marriage in state legislatures." 

NOM's advocacy efforts and expenditures have spanned the country,

with significant expenditures in California, Iowa, New York, and

New Hampshire, among others. In 2009, the year of NOM's largest

expenditures in Maine (made to support repeal of Maine's same-sex

marriage law), NOM spent $1.8 million in Maine out of $8 million in

total expenditures for the year. In light of this record, NOM does

not have as its "major purpose" election advocacy in Maine, and it

is accordingly not subject to regulation as a major-purpose PAC. 

NOM therefore lacks standing to challenge § 1052(5)(a)(4).

B. Standing to Challenge Non-Major-Purpose PAC Provision

It is a closer question whether the record reveals an

objectively reasonable possibility that NOM would be regulated as

a non-major-purpose PAC under Maine law. To so qualify, NOM would

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have to anticipate receiving contributions or making expenditures

of more than $5,000 in a year "for the purpose of promoting,

defeating or influencing in any way the nomination or election of

any candidate to political office." Me. Rev. Stat. tit. 21-A, §

1052(5)(A)(5). The evidence is inconclusive as to whether NOM

actually crossed the $5,000 threshold during the 2010 election

cycle. However, we need not determine whether NOM in fact became 17

subject to the provision during the relevant period, because NOM

claims injury based upon self-censorship in anticipation of the

law's application to it, and not upon the actual burdens of the

law. NOM's executive director, Brian Brown, testified --

consistently with the allegations in NOM's complaint -- that NOM's

fear of enforcement of Maine's election laws was curtailing NOM's

speech, and that "[u]ntil Maine's law is changed," NOM was "not

going to expend precious resources" becoming involved in campaigns

in the state. The appropriate inquiry, then, is whether it was

objectively reasonable for NOM to believe that the non-majorpurpose PAC provision might apply to it and that it would have to

curtail its activities in Maine to avoid such a result.

At the time the district court issued its merits decision 17

in August 2010, "NOM ha[d] endorsed no one, d[id] not . . . plan to

make expenditures, and did not even budget for expenditures in [the

2010] Maine election cycle." Nat'l Org. for Marriage, 723 F. Supp.

2d at 258.

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The record evidence confirms that NOM's fears were

objectively reasonable and led NOM to engage in self-censorship.18

The complaint, which was verified by Brown, explained that NOM

sought to engage in a variety of forms of election-related speech,

including "radio ads, direct mail, and publicly accessible Internet

postings of its radio ads and direct mail." NOM alleged that some

portion of these advertisements would relate to "clearly identified

candidates for state or local offices." To this end, NOM discussed

potential advertisements with a marketing vendor, and went so far

as to have the vendor create three template advertisements

(specifically, copy for two broadcast advertisements and one

mailer) to be used in not-yet-identified candidate races. One such

template, titled "Consequences," raised fears that legalizing samesex marriage would lead to schools teaching children about same-sex

relationships, and concluded:

As defendants note, NOM did expend some resources in two 18

legislative races in September 2010 (after the district court

issued its opinion). Specifically, NOM sent out postcards that

read: "In May 2009, the Maine Legislature approved homosexual

'marriage.' Rep. Linda Valentino and Rep. Donald Pilon voted to

support same-sex 'marriage.' Now it's time to let Don Pilon and

Linda Valentino know we don't agree with their decision to back

same-sex 'marriage.' Email [them] . . . and tell them they stand

on the wrong side of House District[s] 133 and 134." The other

side of the postcards contained pictures of the candidates'

opponents, identified them as "stand[ing] for marriage as between

one man and one woman," and urged voters to email them to "thank

them for standing for traditional marriage." However, because

these mailings took place after NOM had filed its notice of appeal,

they are not properly part of the record here and we do not

consider them in our standing analysis.

-22-
Legislator Z and some politicians in Maine

can't fix the real problems in these troubled

times, but they've got time to push gay

marriage on Maine families? Call Legislator Z

and tell him/her: "Don't mess with marriage."

While the record does not indicate how much the contemplated

advertisements would cost, NOM alleged generally that each of its

communications costs more than $250. The advertisements were never

used, in line with NOM's claim to have curtailed its planned

speech. The record also contained evidence that NOM had made

political expenditures in Maine in the past, including

contributions of $1.8 million in 2009 to a committee opposed to

Maine's same-sex marriage law.

We agree with the district court that, although NOM's

"showing certainly could have been stronger," Nat'l Org. for

Marriage, 723 F. Supp. 2d at 258, NOM has met its standing burden

with respect to its challenge to § 1052(5)(A)(5). The burden of

proving that one's speech was chilled is a modest one. See

Osediacz, 414 F.3d at 143. The record evidence adequately

establishes both "an objectively reasonable possibility" that NOM

would be subject to Maine's requirements for non-major-purpose PACs

if it engaged in its intended speech, and that NOM forwent

political speech to avoid the alleged burdens (and possible

penalties for non-compliance) attending the non-major-purpose PAC

provision. Id. Such self-censorship in the face of possible legal

repercussions suffices to show Article III injury. See N.H. Right

-23-
to Life, 99 F.3d at 13 ("[A]n actual injury can exist when the

plaintiff is chilled from exercising her right to free expression

or forgoes expression in order to avoid enforcement

consequences.").

C. Standing to Challenge Out-of-State PAC Provision

We next examine NOM's standing to challenge § 1053-B,

which provides generally that a "political action committee

organized outside of [Maine] shall register and file reports with

the [C]ommission" in accordance with Maine's PAC laws. Me. Rev. 19

Stat. tit. 21-A, § 1053-B. The question of whether NOM might be

considered a "political action committee" retreads ground we have

just covered. Maine law defines "political action committee" to

include, among other things, a non-major-purpose PAC. Moreover,

the record shows that NOM, which operates from New Jersey, is

organized as a Virginia nonprofit. Thus, there is no question that

NOM is "organized outside of [Maine]," and there is a reasonable

possibility that it would be considered a "political action

committee" within the meaning of the statute. NOM therefore has

standing to challenge the out-of-state PAC provision. 

As described above, the provision also establishes a narrow 19

exemption from registration and reporting for an out-of-state PAC

if its "only financial activity within the State is to make

contributions to candidates, party committees, political action

committees or ballot question committees." Me. Rev. Stat. tit. 21-

A, § 1053-B. As NOM indicated that it intended to make independent

expenditures for political advertising, it would not fall within

this exemption.

-24-
D. Standing to Bring Vagueness Challenge

We last address a standing-related argument specific to

NOM's vagueness claims. Defendants argue that NOM cannot bring a

vagueness challenge to the non-major-purpose PAC definition, as

well as to its corresponding definition of the term "expenditure,"20

because NOM's advocacy efforts were clearly covered by the

provisions' terms. In so arguing, defendants rely on the wellestablished proposition that a "'plaintiff who engages in some

conduct that is clearly proscribed cannot complain of the vagueness

of the law as applied to the conduct of others.'" Holder v.

Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010) (quoting

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

495 (1982)). Defendants contend that certain postcards NOM sent 21

in September 2010 targeting state legislative candidates were

"Expenditure," which appears in the definition of a non- 20

major-purpose PAC, is defined by another portion of the statute to

include a "purchase, payment, distribution, loan, advance, deposit

or gift of money or anything of value, made for the purpose of

influencing the nomination or election of any person to political

office; or for the initiation, support or defeat of a campaign,

referendum or initiative, including the collection of signatures

for a direct initiative, in this State." Me. Rev. Stat. tit 21-A,

§ 1052(4)(A)(1).

While Supreme Court precedent does not explicitly brand 21

this an issue of standing, see, e.g., Humanitarian Law Project, 130

S. Ct. at 2719, it is conceptually related to standing doctrine and

has been so treated by a number of circuit courts. See, e.g.,

United States v. Tyler, 281 F.3d 84, 91 n.6 (3d Cir. 2002); United

States v. Hill, 167 F.3d 1055, 1064 (6th Cir. 1999); see also Hunt

v. City of Los Angeles, 638 F.3d 703, 710 (9th Cir. 2011)

(referring to the bar on vagueness challenges by those whose

conduct is clearly covered as a "special standing principle[]").

-25-
unambiguously covered by the non-major-purpose PAC statute and

expenditure definition, i.e., that they were "for the purpose of

promoting, defeating or influencing in any way" a candidate

election, Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5), and "for the

purpose of influencing the . . . election of any person to

political office; or for the initiation, support or defeat of a

campaign," id. § 1052(4)(A)(1).

The defendants' argument is off-target for at least two

reasons. First, the question of whether the non-major-purpose PAC

provisions clearly applied to NOM's September mailings is

irrelevant to NOM's standing to bring its vagueness claims. 

Because this is a preenforcement challenge based on conduct forgone

due to an alleged chill, the appropriate focus for the defendants'

arguments would be on whether "the statutory terms are clear in

their application to [NOM's] proposed conduct." Humanitarian Law

Project, 130 S. Ct. at 2720 (emphasis added). Moreover, the

judgment in this case was entered and NOM's appeal was filed in

August 2010, and thus evidence of NOM's September 2010 advocacy

efforts is not properly part of the record on appeal. At the time 22

of the hearing below, NOM had not yet engaged in any advocacy

efforts in Maine in 2010.

Second, NOM's claim is not simply a challenge to the

vagueness of the provisions as they would be applied to its actual

 See supra note 18. 22

-26-
or intended advocacy efforts; NOM also brings a facial challenge to

the provisions under the First Amendment overbreadth doctrine. The

bar against vagueness challenges by those whose conduct the law

clearly proscribes is "relaxed . . . in the First Amendment

context, permitting plaintiffs to argue that a statute is overbroad

because it is unclear whether it regulates a substantial amount of

protected speech." United States v. Williams, 553 U.S. 285, 304

(2008). We thus see no bar to reaching the merits of NOM's 23

vagueness challenge to the non-major-purpose PAC provisions.

III. First Amendment Overbreadth Challenges

Turning to the merits of NOM's constitutional challenges,

we first address its First Amendment arguments that Maine's

election laws are unconstitutionally overbroad, reviewing those

claims de novo. United States v. Morales-de Jesús, 372 F.3d 6, 8

(1st Cir. 2004) (constitutional challenges are reviewed de novo). 

The First Amendment's guarantee of free speech applies with special

vigor to discussion of public policy and the qualifications of

Humanitarian Law Project is not to the contrary. 23

Humanitarian Law Project simply noted, in the context of an asapplied vagueness challenge to a federal criminal statute, that the

general rule prohibiting such challenges where the petitioner's

speech is clearly proscribed applies in the First Amendment arena. 

Humanitarian Law Project, 130 S. Ct. at 2719 ("Th[e] rule makes no

exception for conduct in the form of speech."). Consistent with

Williams, however, Humanitarian Law Project noted that the

petitioner's vagueness arguments might make out a valid claim if

framed as an "overbreadth claim under the First Amendment." Id.

-27-
political candidates. Buckley v. Valeo, 424 U.S. 1, 14 (1976). 24

Indeed, "there is practically universal agreement that a major

purpose of [the First] Amendment was to protect the free discussion

of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218

(1966). Accordingly, "[t]he First Amendment affords the broadest

protection to such political expression in order 'to ensure [the]

unfettered interchange of ideas for the bringing about of political

and social changes desired by the people.'" Buckley, 424 U.S. at

14 (alteration in original) (quoting Roth v. United States, 354

U.S. 476, 484 (1957)). 

NOM has framed its First Amendment challenges to Maine's

election laws as overbreadth claims, arguing that each law is

unconstitutional on its face. Under the overbreadth doctrine, "a

statute is facially invalid if it prohibits a substantial amount of

protected speech." Williams, 553 U.S. at 292. The overbreadth

doctrine is "'strong medicine'" that should be "employed . . . with

hesitation, and then 'only as a last resort.'" New York v. Ferber,

458 U.S. 747, 769 (1982) (quoting Broadrick v. Oklahoma, 413 U.S.

601, 613 (1973)). For that reason, courts "vigorously enforce[]

the requirement that a statute's overbreadth be substantial, not

The First Amendment is incorporated through the Fourteenth 24

Amendment and thus applies to Maine's laws. Vote Choice, Inc. v.

DiStefano, 4 F.3d 26, 31 (1st Cir. 1993) (citing N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 276-77 (1964)).

-28-
only in an absolute sense, but also relative to the statute's

plainly legitimate sweep." Williams, 553 U.S. at 292. 

A. Distinction Between Issue Discussion and Express Advocacy 

We first address NOM's arguments that the statutes

challenged here are overbroad because they may reach discussion of

issues as well as express advocacy of a candidate's election or

defeat. The division between pure "issue discussion" and "express

advocacy" of a candidate's election or defeat is a conceptual

distinction that has played an important, and at times confounding,

role in a certain set of modern Supreme Court election law

precedents. Though the contours (and significance) of the

distinction have never been firmly fixed, the core premise is that

regulation of speech expressly advocating a candidate's election or

defeat may more easily survive constitutional scrutiny than

regulation of speech discussing political issues more generally. 

Because a number of NOM's arguments here raise, both

directly and indirectly, this distinction between issue discussion

and express advocacy, we pause briefly to describe how the

distinction arose and developed. We ultimately conclude, however,

that the distinction is not important for the issues addressed in

this appeal.

1. Issue/Express Advocacy Distinction Generally

The issue discussion/express advocacy distinction has its

roots in the Supreme Court's decision in Buckley v. Valeo. Perhaps

-29-
the Court's seminal decision in the area of campaign finance

regulation, Buckley resolved a wide-ranging series of challenges to

provisions of the Federal Election Campaign Act of 1971 ("FECA"). 

One of those challenged provisions, of relevance to our discussion

here, imposed an absolute cap on independent expenditures, stating

that "'[n]o person may make any expenditure . . . relative to a

clearly identified candidate during a calendar year which, when

added to all other expenditures made by such person during the year

advocating the election or defeat of such candidate, exceeds

$1,000.'" Buckley, 424 U.S. at 39 (alterations in original)

(quoting 18 U.S.C. § 608(e)).

Reviewing this language, the Court first noted that the

"use of so indefinite a phrase as 'relative to' a candidate" raised 

serious vagueness concerns. Id. at 41. The Court construed the

phrase (by reference to its surrounding terms) as limited to

expenditures "advocating the election or defeat of" a candidate. 

However, this construction, in the Court's estimation, merely

"refocus[ed] the vagueness question." Id. at 42. The Court's

evident concern was that the statute, even as limited, failed to

draw a sharp enough line between advocacy of a candidate's election

and discussion of issues, and that the resulting uncertainty over

what the statute covered would "'compel[] the speaker to hedge and

trim,'" id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535

(1945)): 

-30-
[T]he distinction between discussion of issues

and candidates and advocacy of election or

defeat of candidates may often dissolve in

practical application. Candidates, especially

incumbents, are intimately tied to public

issues involving legislative proposals and

governmental actions. Not only do candidates

campaign on the basis of their positions on

various public issues, but campaigns

themselves generate issues of public interest.

Id. at 42. To avoid this uncertainty, the Court limited the scope

of the statute to "expenditures for communications that in express

terms advocate the election or defeat of a clearly identified 25

candidate for federal office." Id. at 44.26

The constitutional basis for this concern with

distinguishing between laws that regulate advocacy of a candidate's

election and those that regulate pure issue discussion has never

been entirely clear. Buckley explicitly framed its discussion in

terms of unconstitutional vagueness under the Due Process Clause,

and there is, to be sure, a vagueness dimension to the analysis. 

See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 497

(2007) (Scalia, J., concurring in part) (referring to the express

advocacy portion of Buckley as the decision's "vagueness holding"). 

The Court provided specific examples of such "express 25

terms," including "'vote for,' 'elect,' 'support,' 'cast your

ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' [and]

'reject.'" Buckley, 424 U.S. at 44 n.52.

The Court grafted a similar limiting construction onto the 26

language of a disclosure statute, 2 U.S.C. § 434(e), to address

perceived problems with its use of the phrase "for the purpose of

influencing [a candidate election]." Buckley, 424 U.S. at 80.

-31-
However, this interpretation has its limits; the mere fact that a

statute may cover issue discussion as well as candidate advocacy

does not alone render it vague under due process standards,

provided that the statute is reasonably clear in its coverage. 

Perhaps for this reason, there are hints in Buckley that

the constitutional basis for the Court's concern lay more in

overbreadth – i.e., that statutes that reached issue discussion

might be deemed to regulate impermissibly a substantial amount of

speech protected by the First Amendment -- than in vagueness. See,

e.g., 424 U.S. at 80 (limiting a second, disclosure-related

provision of FECA to communications that "expressly advocate" a

candidate's election to "insure that the reach of [the provision]

is not impermissibly broad"). This reading finds considerable

support in subsequent authority. See Osborne v. Ohio, 495 U.S.

103, 120 n.14 (1990) (describing Buckley as a "case where a law was

construed to avoid potential overbreadth problems"); FEC v. Mass.

Citizens for Life, Inc., 479 U.S. 238, 248 (1986) (stating that

Buckley's "express advocacy" limitation was imposed to "avoid

problems of overbreadth"); cf. McConnell v. FEC, 540 U.S. 93, 192

(2003) (noting that Buckley "narrowly read[] the FECA provisions

. . . to avoid problems of vagueness and overbreadth"), overruled

on other grounds by Citizens United, 130 S. Ct. 876. Regardless of

its origins, the dividing line between issue discussion and express

advocacy, as it evolved, came to be associated more strongly with

-32-
First Amendment overbreadth analysis than with due process

vagueness concerns. See, e.g., Wis. Right to Life, 551 U.S. at 27

457 (noting that the "law in this area requires us . . . to draw

such a line, because we have recognized that the interests held to

justify the regulation of campaign speech [under the First

Amendment] . . . 'might not apply' to the regulation of issue

advocacy" (quoting McConnell, 540 U.S. at 206 n.88)).

2. Application to Maine's Election Statutes

Drawing on these cases, NOM argues that the statutes

before us are unconstitutionally overbroad because they reach issue

advocacy as well as express advocacy of a candidate's election or

defeat. NOM's argument presumes that the distinction between issue

discussion and express advocacy is relevant to the review of the

statutes here. That is not the case for a couple of reasons.

First, the issue/express advocacy dichotomy has only

arisen in a narrow set of circumstances not present here. From the

beginning, the distinction's primary purview has been cases

This is so to the extent that the line between issue 27

advocacy and candidate advocacy was considered a valid distinction

at all. Indeed, the majority in McConnell indicated that it was

not "persuaded, independent of our precedents, that the First

Amendment erects a rigid barrier between express advocacy and

so-called issue advocacy," noting that the "notion cannot be

squared with our longstanding recognition that the presence or

absence of magic words cannot meaningfully distinguish

electioneering speech from a true issue ad." McConnell, 540 U.S.

at 193.

-33-
scrutinizing limits on independent expenditures. The statute that 28

prompted the Buckley Court to introduce the "express advocacy"

construction was a blanket $1,000 limit on independent

expenditures. 424 U.S. at 41-44. The more recent Supreme Court

precedents to make use of the express/issue advocacy distinction

addressed a narrower federal law prohibiting corporations and labor

unions from employing general treasury funds to pay for

"electioneering" communications targeting candidates for election. 

See McConnell, 540 U.S. at 189-209; Wis. Right to Life, 551 U.S. at

464-82. This line of cases came to a definitive end with Citizens

United, which held limitations on such expenditures by corporations

and unions to be unconstitutional, and thus effectively prohibited

any law limiting independent expenditures regardless of the

identity of the regulated entity. 130 S. Ct. at 896-913. As the

present case does not involve a limit on independent expenditures,

the relevance of these cases is limited at best.

Second, and more fundamentally, the Supreme Court has

explicitly rejected an attempt to "import [the] distinction"

between issue and express advocacy into the consideration of

disclosure requirements. Id. at 915; see also id. ("[W]e reject

Citizens United's contention that the disclosure requirements must

In FEC v. Akins, 524 U.S. 11, 27 (1998), the Court 28

explicitly entertained the possibility, but did not decide, that

Buckley's "express advocacy" narrowing construction was limited to

addressing "the First Amendment problems presented by regulation of

'independent expenditures.'" 

-34-
be limited to speech that is the functional equivalent of express

advocacy."). The provisions before us are all effectively

disclosure laws, in that they require the divulgence of information

to the public or the Commission, but do not directly limit speech.29

We find it reasonably clear, in light of Citizens United, that the

distinction between issue discussion and express advocacy has no

place in First Amendment review of these sorts of disclosureoriented laws. Accord Human Life of Wash. Inc. v. Brumsickle, 624

F.3d 990, 1016 (9th Cir. 2010) ("Given the Court's analysis in

Citizens United, and its holding that the government may impose

disclosure requirements on speech, the position that disclosure

Of the provisions at issue here, Maine's requirement that 29

non-major-purpose PACs register with the Commission is, on its

face, the furthest from a traditional disclosure law. In function,

however, it too is first and foremost a disclosure provision. The

registration requirement does not obligate the PAC to form a

separate entity, create a segregated fund, or make any substantive

change to its operation or form; the law merely requires the

reporting of certain information about the PAC after it crosses the

applicable contribution/expenditure threshold (along with certain

other de minimis requirements, such as ongoing maintenance of

records). See Me. Rev. Stat. tit. 21-A, § 1053. 

Moreover, Citizens United may be read to suggest that the

Court views this type of information-gathering registration

requirement as akin to a disclosure requirement. In explaining why

it was not importing the express advocacy limitation into its

analysis of the disclosure law before it, the Court cited a case

upholding against First Amendment challenge a federal law that

imposed both disclosure and registration requirements on lobbyists,

noting that such requirements were found permissible "even though

Congress has no power to ban lobbying itself." Citizens United,

130 S. Ct. at 915 (citing United States v. Harriss, 347 U.S. 612,

625 (1954)).

-35-
requirements cannot constitutionally reach issue advocacy is

unsupportable.").

Thus, to the extent that NOM's overbreadth arguments turn

on the distinction between issue discussion and express advocacy,

we reject them.

B. Standard of Scrutiny

Since Buckley, the Supreme Court has distinguished in its

First Amendment jurisprudence between laws that restrict "the

amount of money a person or group can spend on political

communication" and laws that simply require disclosure of

information by those engaging in political speech. 424 U.S. at 19,

64. The Court has recognized that disclosure laws, unlike

contribution and expenditure limits, "impose no ceiling on

campaign-related activities," id. at 64, and thus are a "less

restrictive alternative to more comprehensive regulations of

speech." Citizens United, 130 S. Ct. at 915; see also Buckley, 424

U.S. at 68 ("[D]isclosure requirements certainly in most

applications appear to be the least restrictive means of curbing

the evils of campaign ignorance and corruption that Congress found

to exist."). For that reason, disclosure requirements have not

been subjected to strict scrutiny, but rather to "'exacting

scrutiny,' which requires a 'substantial relation' between the

disclosure requirement and a 'sufficiently important' governmental

interest." Citizens United, 130 S. Ct. at 914 (quoting Buckley,

-36-
424 U.S. at 64, 66); see also Doe v. Reed, 130 S. Ct. 2811, 2818

(2010).30

While NOM concedes that exacting scrutiny applies to

review of Maine's independent expenditure and disclaimer and

attribution laws, it contends that Maine's PAC definitions are

subject to strict scrutiny. In fact, NOM suggests that any law

defining an organization as a PAC is subject to strict scrutiny,

because, "[a]s a matter of law, not fact," PAC status is burdensome

and subjects an entity to "extensive regulations." NOM's argument

here reflects two contradictory points. On the one hand, NOM seeks

to justify the application of strict scrutiny by reference to some

undefined set of "full-fledged political committee burdens." On

the other, NOM disclaims any challenge to the disclosure

requirements attendant to PAC status under Maine law -- i.e., the

actual burdens of registration and reporting imposed by the state's

PAC provisions -- but purports to challenge only the "PAC

definition, through which Maine unconstitutionally imposes fullfledged political committee burdens." NOM's point appears to be

that "by giving government the power to license speech" by defining

Additionally, the application of a disclosure requirement 30

may be held to violate the First Amendment where the challengers

can show "'a reasonable probability that the compelled disclosure

[of personal information] will subject them to threats, harassment,

or reprisals from either Government officials or private parties.'" 

Reed, 130 S. Ct. at 2820 (alteration in original) (quoting Buckley,

424 U.S. at 74). NOM has not attempted to make such a showing here

with respect to the disclosures required by Maine law.

-37-
an entity as a PAC, whatever obligations are imposed on PACs "in

effect are prior restraints."

NOM's attempt to ascribe a free-standing significance to

the PAC label is unpersuasive. It is not the designation as a PAC

but rather the obligations that attend PAC designation that matter

for purposes of First Amendment review. Those obligations -- as

well as the basic definition of a "PAC" -- vary across the

jurisdictions that regulate PACs. Maine's requirements are

substantially different from those at issue in the cases NOM cites

in support of its contention that PAC status is inherently

burdensome. For example, in Citizens United, where, as NOM points

out, the Supreme Court characterized federal-law PACs as "expensive

to administer and subject to extensive regulations," 130 S. Ct. 31

at 897, the Court was considering a regime that required

corporations to set up a separate legal entity and create a

segregated fund prior to engaging in any direct political speech. 

In addition, these federal-law PACs were subject to numerous

obligations and restrictions, among them a prohibition on an

organization soliciting contributions for its segregated fund from

anyone except its "members," which excluded "those persons who have

Partly for this reason, the Court refused to consider the

31

option of financing speech through a PAC to be a factor mitigating

the corporate and union independent expenditure ban's burden on

speech. See Citizens United, 130 S. Ct. at 897 ("Section 441b is

a ban on corporate speech notwithstanding the fact that a PAC

created by a corporation can still speak.").

-38-
merely contributed to or indicated support for the organization in

the past." Mass. Citizens for Life, 479 U.S. at 253-54 (citing 2

U.S.C. § 441b(b)(4)(A), (C)). In contrast, Maine's non-majorpurpose PAC provision does not condition political speech on the

creation of a separate organization or fund, establishes no funding

or independent expenditure restrictions, and imposes three simple 32

obligations on an entity qualifying as a PAC: filing of a

registration form disclosing basic information, quarterly reporting

of election-related contributions and expenditures, and simple

recordkeeping.

Because Maine's PAC laws do not prohibit, limit, or

impose any onerous burdens on speech, but merely require the

maintenance and disclosure of certain financial information, we

reject NOM's argument that strict scrutiny should apply. 

Accordingly, we review each of the laws at issue under the

"exacting scrutiny" standard applicable to disclosure requirements.

C. Application of Exacting Scrutiny to Maine's Laws

As we have stated, we will consider a law constitutional

under exacting scrutiny standards where there is a "substantial

relation" between the law and a "'sufficiently important'

governmental interest." Citizens United, 130 S. Ct. at 914

(quoting Buckley, 424 U.S. at 64, 66). In Buckley, the Court

The only restriction on a PAC's expenditures is for direct 32

contributions to candidates; PACs are subject to the same percandidate contribution limits as any other entity or individual.

-39-
recognized the goal of "provid[ing] the electorate with information

as to where political campaign money comes from and how it is

spent" to be such a "sufficiently important" governmental interest

capable of supporting a disclosure law. 424 U.S. at 66 (internal

quotation marks omitted). The Court's more recent decisions have

continued to recognize the importance of this informational

interest. See, e.g., Citizens United, 130 S. Ct. at 914-15;

McConnell, 540 U.S. at 196.

Buckley tied the government's interest in the

dissemination of information to the functioning of the electoral

process, noting that "[i]n a republic where the people are

sovereign, the ability of the citizenry to make informed choices

among candidates for office is essential." 424 U.S. at 14-15. The

Court observed that disclosure has several benefits in this regard:

It allows voters to place each candidate in

the political spectrum more precisely than is

often possible solely on the basis of party

labels and campaign speeches. The sources of

a candidate's financial support also alert the

voter to the interests to which a candidate is

most likely to be responsive and thus

facilitate predictions of future performance

in office.

Id. at 67.

However, the informational interest is not limited to

informing the choice between candidates for political office. As

Citizens United recognized, there is an equally compelling interest

in identifying the speakers behind politically oriented messages. 

-40-
In an age characterized by the rapid multiplication of media

outlets and the rise of internet reporting, the "marketplace of

ideas" has become flooded with a profusion of information and

political messages. Citizens rely ever more on a message's source

as a proxy for reliability and a barometer of political spin. 

Disclosing the identity and constituency of a speaker engaged in

political speech thus "enables the electorate to make informed

decisions and give proper weight to different speakers and

messages." Citizens United, 130 S. Ct. at 916; see also Cal. Pro- 33

Life Council, Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir. 2003)

(recognizing that, in the "cacophony of political communications

through which . . . voters must pick out meaningful and accurate

messages[,] . . . being able to evaluate who is doing the talking

is of great importance"). Additionally, in the case of corporate

or organizational speakers, disclosure allows shareholders and

members to "hold [them] accountable for their positions." Citizens

United, 130 S. Ct. at 916. In short, "[t]he First Amendment

protects political speech; and disclosure permits citizens and

shareholders to react to [that] speech . . . in a proper way." Id. 

As the Court observed in First National Bank v. Bellotti,

33

435 U.S. 765 (1978), "the people in our democracy are entrusted

with the responsibility for judging and evaluating the relative

merits of conflicting arguments. They may consider, in making

their judgment, the source and credibility of the advocate." Id.

at 791-92 (footnote omitted).

-41-
In line with these precedents, defendants offer Maine's

interest in disseminating information about political funding to

the electorate in support of the laws challenged here. As the 34

district court found, the interest is plainly a motivating factor

behind Maine's laws, and "Maine, through its Commission website and

otherwise, makes [the financial disclosure] information easily

available to the public." Nat'l Org. for Marriage, 723 F. Supp. 2d

at 263. We thus proceed under the exacting scrutiny framework to

examine whether there is a "substantial relation" between Maine's

informational interest and each of the laws at issue.

1. Non-Major-Purpose PAC Provisions

As we have described, Maine considers an entity to be a

non-major-purpose PAC when it receives contributions or makes

expenditures of more than $5,000 annually "for the purpose of

promoting, defeating or influencing in any way" a candidate's

election. Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(5). Upon

crossing that threshold, the newly-deemed non-major-purpose PAC

must register with the Commission, maintain records of certain

expenditures as well as donor contributions aggregating more than

$50, and file reports both on a quarterly basis and shortly before

Defendants also cite an interest in "gathering data 34

necessary to enforce substantive election law restrictions." 

Though we note that Buckley recognized a similar interest in

"gathering the data necessary to detect violations of [FECA's]

contribution limitations," 424 U.S. at 68, we find the

informational interest sufficient to support Maine's laws and thus

do not reach this second class of interests. 

-42-
and after each election. Id. §§ 1053, 1057, 1059-60. The

reporting requirements are well tailored to Maine's informational

interest, requiring disclosure only of the candidates or campaigns

the non-major-purpose PAC supports or opposes, its expenditures

made to support or oppose the same, and identifying information for

any contributors who have given more than $50 to the PAC to support

or oppose a candidate or campaign. Id. § 1060.

NOM does not challenge the substantive obligations

attendant to non-major-purpose PAC status, nor contest that the

registration, recordkeeping, and reporting requirements bear a

substantial relation to Maine's informational interest. Instead,

NOM contends that Maine's definition of a non-major-purpose PAC,

standing alone, is unconstitutionally overbroad. In rejecting

NOM's argument for strict scrutiny, we have already addressed the

claim that PAC status is somehow inherently burdensome apart from

the specific requirements it entails. However, there is a second

aspect to NOM's argument. NOM contends that Supreme Court

precedent sharply limits regulation of PACs to those that are under

the control of a candidate or have as their "major purpose" the

election of a candidate. By its very definition, Maine's nonmajor-purpose PAC provision covers entities that fall outside of

that allegedly limited zone of permissible regulation, and thus,

NOM contends, the provision is fatally overbroad. We disagree.

-43-
NOM extracts support for its argument from a dictum in

Buckley, albeit a dictum that has had some reach. In Buckley, the

Court concluded that the definition of expenditure used in

connection with FECA's disclosure provision -- and particularly the

phrase "for the purpose of influencing" -- raised significant linedrawing problems because it had the "potential for encompassing

both issue discussion and advocacy of a political result." 424

U.S. at 79. In the course of its discussion, the Court noted that

FECA's definition of "political committees," which, like the

disclosure provision, was defined in terms of contributions and

expenditures, "could raise similar vagueness problems." Id. The

provision escaped these concerns, the Court explained, because it

could be construed more narrowly:

To fulfill the purposes of [FECA, political

committees] need only encompass organizations

that are under the control of a candidate or

the major purpose of which is the nomination

or election of a candidate. Expenditures of

candidates and of "political committees" so

construed can be assumed to fall within the

core area sought to be addressed by Congress. 

They are, by definition, campaign related.

Id. Buckley's narrow reading of FECA's political committee

definition, though dictum, appears to have been accepted by later

opinions. See McConnell, 540 U.S. at 170 n.64; Mass. Citizens for

Life, 479 U.S. at 252 n.6; cf. FEC v. Akins, 524 U.S. 11, 26-27

(1998) (noting dispute over extent of narrowing construction). NOM

draws from this the conclusion that the First Amendment permits an

-44-
entity to be designated a "PAC" only where it (1) "is under the

control of a candidate" or (2) has as its major purpose "the

nomination or election of a candidate."

We find no reason to believe that this so-called "major

purpose" test, like the other narrowing constructions adopted in

Buckley, is anything more than an artifact of the Court's

construction of a federal statute. See McConnell, 540 U.S. at 191-

92. The Court has never applied a "major purpose" test to a

state's regulation of PACs, nor have we. And, as we have

discussed, the line-drawing concerns that led the Court to read

FECA's definition of "political committee" narrowly are not

relevant to our First Amendment review of Maine's statutes. 

Moreover, as the district court aptly observed, application of

NOM's "major-purpose" test would "yield perverse results" here:

Under NOM's interpretation, a small group with

the major purpose of re-electing a Maine state

representative that spends $1,500 for ads

could be required to register as a PAC. But a

mega-group that spends $1,500,000 to defeat

the same candidate would not have to register

because the defeat of that candidate could not

be considered the corporation's major purpose.

Nat'l Org. for Marriage, 723 F. Supp. 2d at 264. We, like the

district court, see no basis to conclude "that the First

Amendment's protections should apply so unequally." Id.

We therefore reject NOM's argument that the non-majorpurpose PAC definition is unconstitutionally overbroad. Because we

find a substantial relation between Maine's disclosure-oriented

-45-
regulation of non-major-purpose PACs and its interest in the

dissemination of information regarding the financing of political

speech, we conclude that the law does not, on its face, offend the

First Amendment.

2. Independent Expenditure Provision

We similarly find that Maine's independent expenditure

reporting provision poses no First Amendment concerns. The law

primarily obligates anyone spending more than an aggregate of $100

for communications expressly advocating the election or defeat of

a candidate to report the expenditure to the Commission. Me. Rev.

Stat. tit. 21-A, § 1019-B(1)(A), (3). Reviewing a prior,

substantially similar version of this provision in Daggett v.

Commission on Governmental Ethics and Election Practices, 205 F.3d

445, 466 (1st Cir. 2000), we held that "the modest amount of

information requested is not unduly burdensome and ties directly

and closely to the relevant government interests." We see no

reason to depart from that conclusion here.

The independent expenditure law also presumptively

requires a report of any expenditure over $100 for communications

naming or depicting a clearly identified candidate within a set

period prior to any election. Me. Rev. Stat. tit. 21-A, § 1019-

B(1)(B), (3). Though we did not review this aspect of the law in

Daggett, the Supreme Court upheld in Citizens United a similar

provision of federal election law that required disclosure in

-46-
connection with expenditures for electioneering communications

(communications made shortly before an election that refer to a

clearly identified candidate for federal office). 130 S. Ct. at

913-16. In so doing, the Court noted that "the public has an

interest in knowing who is speaking about a candidate shortly

before an election." 130 S. Ct. at 915-16. The law here is

perhaps more tailored than that at issue in Citizens United, as it

offers an opportunity to rebut the presumption that a communication

made shortly before an election and identifying a candidate had the

"intent to influence the nomination, election or defeat of a

candidate." Me. Rev. Stat. tit 21-A, § 1019-B(2). Regardless, the

information that must be reported under this subsection is, as

Daggett found, "modest," 205 F.3d at 466, and it bears a

substantial relation to the public's "interest in knowing who is

speaking about a candidate shortly before an election." Citizens

United, 130 S. Ct. at 915-16.

NOM argues that Maine lacks a "sufficiently important"

interest in the $100 threshold at which the reporting requirement

adheres, and, alternatively, that the threshold lacks a

"substantial relation" to a sufficiently important governmental

interest. NOM's argument operates from a mistaken premise; we do

not review reporting thresholds under the "exacting scrutiny"

framework. In Buckley, facing a similar challenge to a $10

threshold for a recordkeeping provision and a $100 reporting

-47-
threshold, the Supreme Court noted that the choice of where to set

such monetary thresholds "is necessarily a judgmental decision,

best left in the context of this complex legislation to

congressional discretion." 424 U.S. at 83. The Court concluded

that, although there was no evidence in the record that Congress

had "focused carefully on the appropriate level at which to require

recording and disclosure," and despite the fact that the low

thresholds might "discourage participation by some citizens in the

political process," it could not say that "the limits designated

are wholly without rationality." Id.; see also id. n.111 ("[W]hen

it is seen that a line or point there must be, and that there is no

mathematical or logical way of fixing it precisely, the decision of

the legislature must be accepted unless we can say that it is very

wide of any reasonable mark." (quoting Louisville Gas Co. v.

Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting))). The

Court thus upheld FECA's recordkeeping and reporting thresholds.

Following Buckley, we have granted "judicial deference to

plausible legislative judgments" as to the appropriate location of

a reporting threshold, and have upheld such legislative

determinations unless they are "'wholly without rationality.'" 

Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 32-33 (1st Cir. 1993)

(quoting Buckley, 424 U.S. at 83). In Daggett, for example, we

applied these standards in rejecting a challenge to the $50

reporting threshold in the prior iteration of Maine's independent

-48-
expenditure law. 205 F.3d at 466 ("We remain unconvinced . . .

that, if $100 was an appropriate threshold for requiring the

reporting of independent expenditures in federal elections in

Buckley, $50 is an illegitimate threshold for Maine elections."). 

Despite the fact that the threshold has been doubled

since Daggett, NOM argues that we should find the line

unconstitutional because it is not indexed to inflation. In so

arguing, it relies on an observation in Randall v. Sorrell, 548

U.S. 230, 261 (2006), that "[a] failure to index limits means that

limits which are already suspiciously low . . . will almost

inevitably become too low over time." The limits at issue in

Sorrell, however, were substantive contribution limits, the setting

of which presents different considerations than the determination

of the threshold for a reporting requirement, and which is subject 35

to different standards of review. Neither we nor the Supreme Court

has ever second-guessed a legislative decision not to index a

reporting requirement to inflation. Indeed, in Buckley, the Court

acknowledged that Congress, in setting FECA's $100 reporting

threshold, appeared to have simply adopted the threshold used in

similar disclosure laws since 1910 -- i.e., over the course of more

than sixty years, without any adjustment for inflation. 424 U.S.

For instance, we have held that the First Amendment would 35

permit, in some cases, a first-dollar reporting requirement, see

Vote Choice, 4 F.3d at 33, whereas the First Amendment clearly sets

a "lower bound" for contribution limits. Sorrell, 548 U.S. at 248.

-49-
at 83. We thus reject NOM's argument that the $100 threshold is

unconstitutional simply because it is static. Moreover, we cannot 

conclude that Maine's choice of a $100 threshold, double the amount

we upheld just a decade ago in Daggett, is wholly without

rationality.

3. Disclaimer and Attribution Provisions

Finally, we agree with the district court that "Citizens

United has effectively disposed of any attack on Maine's

attribution and disclaimer requirements." Nat'l Org. for Marriage,

723 F. Supp. 2d at 267. NOM argues that Maine's "attribution and

disclaimer requirements are so great that the government's interest

does not reflect the burden on speech," as the required disclosures

will "distract readers and listeners from NOM's message." We

disagree. The requirements are minimal, calling only for a

statement of whether the message was authorized by a candidate and

disclosure of the name and address of the person who made or

financed the communication. Me. Rev. Stat. tit. 21-A, § 1014(1)-

(2). These are precisely the requirements approved in Citizens

United, see 130 S. Ct. at 913-14 (citing 2 U.S.C. § 441d), and 36

they bear a close relation to Maine's interest in dissemination of

In fact, the statute at issue in Citizens United was 36

slightly more prescriptive, specifying that, for video messages,

"[t]he required statement must be made in a 'clearly spoken

manner,' and displayed on the screen in a 'clearly readable manner'

for at least four seconds." 130 S. Ct. at 914 (quoting 2 U.S.C. §

441d(d)(2)).

-50-
information regarding the financing of political messages. The

disclaimer and attribution requirements are, on their face,

unquestionably constitutional.37

IV. Due Process Vagueness Challenges

Having found that each of the challenged statutes pass

muster under the First Amendment, we turn next to NOM's contention

that portions of the statutes are unconstitutionally vague.

The vagueness doctrine, a derivative of due process,

protects against the ills of laws whose "prohibitions are not

clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108

(1972); see also Williams, 553 U.S. at 304. In prohibiting overly

vague laws, the doctrine seeks to ensure that persons of ordinary

intelligence have "fair warning" of what a law prohibits, prevent

"arbitrary and discriminatory enforcement" of laws by requiring

that they "provide explicit standards for those who apply them,"

and, in cases where the "statute 'abut(s) upon sensitive areas of

basic First Amendment freedoms,'" avoid chilling the exercise of

First Amendment rights. Grayned, 408 U.S. at 108-09 (alteration in

original) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)). 

In view of this last interest, the Constitution requires a

NOM argues that, though Citizens United and other courts may 37

have approved disclaimer and attribution limitations in the precise

circumstances before them, such measures have never been approved

per se. That may be so, but the mere fact that disclaimer and

attribution requirements have not been considered in the

environment in which we review them now does not weaken our

conclusion that the requirements withstand exacting scrutiny. 

-51-
"'greater degree of specificity'" in cases involving First

Amendment rights. Buckley, 424 U.S. at 77 (quoting Smith v.

Goguen, 415 U.S. 566, 573 (1974)). 

Even under the heightened standard for First Amendment

cases, though, not all vagueness rises to the level of

constitutional concern. "Many statutes will have some inherent

vagueness, for '[i]n most English words and phrases there lurk

uncertainties.'" Rose v. Locke, 423 U.S. 48, 49-50 (1975) (per

curiam) (quoting Robinson v. United States, 324 U.S. 282, 286

(1945)); 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."). 

Moreover, "[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). We have thus said

that "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)). 

With these standards in mind, we review NOM's vagueness

challenges de novo. Hussein, 351 F.3d at 14. NOM poses challenges

to three sets of terms, and variations thereof: (1) "promoting,"

-52-
"support," and "opposition"; (2) "influencing"; and (3)

"initiation." In addition, NOM claims that the definition of

"expressly advocate" is unconstitutionally vague because it invites

the use of context to determine the purpose of a communication. 

A. "Promoting," "Support," and "Opposition"

We begin with NOM's vagueness challenge to variations of

the terms "promoting," "support," and "opposition," which appear in

three separate provisions: the definition of a non-major-purpose 38

PAC, the PAC statute's definition of an "expenditure," and the 39 40

independent expenditure provision. The district court held each 41

of these terms to be sufficiently clear to evade due process

concerns. We agree.

The term "promoting" also appears in the definition of a

38

major-purpose PAC, Me. Rev. Stat. tit. 21-A, § 1052(5)(A)(4), which

we do not address here in light of our holding that NOM lacks

standing to challenge the major-purpose PAC provision. 

The statute defines a non-major-purpose PAC to mean an 39

entity that crosses the requisite threshold of contributions or

expenditures "for the purpose of promoting, defeating or

influencing in any way" a candidate election. Me. Rev. Stat. tit

21-A, § 1052(5)(A)(5) (emphasis added). 

The statute defines "expenditure" to include giving 40

something of value "for the initiation, support, or defeat" of a

campaign or initiative. Me. Rev. Stat. tit. 21-A, § 1052(4)(A)(1)

(emphasis added).

The independent expenditure statute instructs that reports 41

submitted pursuant to the provision "must state whether the

expenditure is in support of or in opposition to the candidate." 

Me. Rev. Stat. tit. 21-A, § 1019-B(3)(B) (emphasis added). 

-53-
The Supreme Court rejected a vagueness challenge to

substantially similar statutory language in McConnell, 540 U.S. 93,

overruled on other grounds by Citizens United, 130 S. Ct. 876. The

language at issue was a provision of federal election law defining

"Federal election activity" to include "a public communication that

refers to a clearly identified candidate for Federal office . . .

and that promotes or supports a candidate for that office, or

attacks or opposes a candidate for that office (regardless of

whether the communication expressly advocates a vote for or against

a candidate)." 2 U.S.C. § 431(20)(A)(iii). Applying due process

standards, the Court observed that "[t]he words 'promote,'

'oppose,' 'attack,' and 'support' clearly set forth the confines

within which potential party speakers must act in order to avoid

triggering the provision." McConnell, 540 U.S. at 170 n.64. The

Court concluded that "[t]hese words 'provide explicit standards for

those who apply them' and 'give the person of ordinary intelligence

a reasonable opportunity to know what is prohibited,'" and thus

held that the provision was not unconstitutionally vague. Id.

(quoting Grayned, 408 U.S. at 108-09).

NOM acknowledges McConnell's relevance, but argues that

the opinion's holding is limited to the context of the federal law

at issue there, citing several authorities that purportedly held

similar statutory language to be "vague and overbroad vis-à-vis

other speech or other speakers." NOM's argument is misguided. The

-54-
authorities NOM cites -- circuit court opinions and a partial

concurrence to the Court's 2007 decision in Wisconsin Right to Life

-- address the conceptually distinct question of whether terms such

as "promote," "oppose," "attack," and "support" maintain an

acceptably clear distinction between express campaign advocacy and

issue advocacy. See Wis. Right to Life, 551 U.S. at 492-93

(Scalia, J., concurring); Ctr. for Individual Freedom v. Carmouche,

449 F.3d 655, 662-66 (5th Cir. 2006); N.C. Right to Life, Inc. v.

Bartlett, 168 F.3d 705, 712-13 (4th Cir. 1999). This is, as we

have discussed, primarily an overbreadth issue, and we have already

rejected NOM's arguments that the statutes here are

unconstitutionally overbroad.

If, on the other hand, NOM offers these authorities

solely for the purpose of countering McConnell's vagueness holding

-- which is the relevant point here -- they also fall short of the

mark. None of the cited cases is a majority Supreme Court opinion

issued after McConnell, so McConnell remains the leading authority

relevant to interpretation of the terms before us. Of course, the

statutes here are distinct from the provision that McConnell

construed, and thus the Court's reading is not dispositive. 

However, contrary to NOM's assertion, the statutory context here is

close enough to McConnell to make the Court's conclusion that the

terms are not vague particularly persuasive. In each of the

provisions, the terms "promote"/"promoting," "support," and

-55-
"oppose"/"opposition" have an election-related object: "candidate"

in the federal law, 2 U.S.C. § 431(20)(A)(iii), and "candidate,"

"nomination or election of any candidate" and "campaign, referendum

or initiative" in the Maine provisions, Me. Rev. Stat. tit. 21-A,

§§ 1019-B(3)(B), 1052(4)(A)(1), (5)(A)(5). If anything, the terms

of Maine's statutes provide slightly more clarity: for example,

§ 1052(5)(A)(5)'s reference to "promoting . . . the nomination or

election of any candidate" is more precise than the federal law's

reference to "promot[ing] . . . a candidate," 2 U.S.C. §

431(20)(A)(iii). We thus find the use of "promoting," "support,"

and "opposition" in §§ 1019-B and 1052 clear enough to "give the

person of ordinary intelligence a reasonable opportunity to know

what is prohibited." Grayned, 408 U.S. at 108.

B. "Influencing"

The term "influencing" (appearing also as "influence")

presents a closer question. The district court held "influencing" 42

"Influencing" appears in a number of places throughout the 42

statutes challenged by NOM. These include: the definition of a

non-major-purpose PAC, Me. Rev. Stat. 21-A, § 1052(5)(A)(5)

(defining non-major-purpose PAC to mean an entity that crosses the

requisite threshold of contributions or expenditures "for the

purpose of promoting, defeating or influencing in any way" a

candidate election (emphasis added)); the out-of-state PAC

provision, id. § 1053-B (providing that an out-of-state PAC need

not register if, among other things, it "has not raised and

accepted any contributions during the calendar year to influence an

election or campaign in [Maine]" (emphasis added)); the attribution

and disclaimer provision, id. § 1014(2-A) (clarifying that

disclaimer and attribution requirements do not apply to

communications made shortly before an election that name or depict

a candidate "if the communication was not made for the purpose of

-56-
to be unconstitutionally vague and severed it from the various

statutes challenged here. On appeal, defendants urge that we find

"influencing" sufficiently clear to avoid due process concerns. 

NOM, in turn, contends that the district court erred in severing

"influencing," suggesting that we should find the statutes

unconstitutional in their entirety. Because we agree with

defendants that the use of "influencing" in the statutes before us

is, when given a properly limited meaning, not unconstitutionally

vague, we need not reach the question of severance.

In arguing that "influencing" is unconstitutionally

vague, NOM relies on the Supreme Court's construction of similar

language in Buckley v. Valeo. The relevant portion of Buckley

concerned a disclosure requirement applicable to anyone "'who makes

contributions or expenditures' aggregating over $100 in a calendar

year." Buckley, 424 U.S. at 74-75 (quoting 2 U.S.C. § 434(e)). 

The statute defined "expenditures" to include "the use of money or

other valuable assets 'for the purpose of . . . influencing' the

influencing the candidate's . . . election" (emphasis added)); the

independent expenditure provision, id. § 1019-B(2) (providing that

a person presumed to have made an independent expenditure may rebut

the presumption by filing a statement that "the cost was not

incurred with the intent to influence the nomination, election or

defeat of a candidate" (emphasis added)); and the definitions of

"expenditure" used in connection with the attribution and

disclaimer, independent expenditure, and PAC provisions, id. §§

1012(3) (defining "expenditure" to include giving something of

value "for the purpose of influencing the nomination or election of

any person to political office" (emphasis added)), 1052(4)(A)(1)

(same).

-57-
nomination or election of candidates for federal office." Id. at

77 (quoting 2 U.S.C. § 431(f)). The Court noted that the

"ambiguity" of the phrase "for the purpose of influencing" "poses

constitutional problems" and "raises serious problems of

vagueness," id. at 76-77, in that it had the "potential for

encompassing both issue discussion and advocacy of a political

result," id. at 79. This was, of course, the same concern the

Court raised with respect to the phrase "relative to a candidate"

in FECA's independent expenditures cap, and the Court reached an

identical solution. The Court skirted its constitutional concerns

by imposing a limiting construction on the definition of

expenditure "to reach only funds used for communications that

expressly advocate the election or defeat of a clearly identified

candidate." Id. at 80 (footnote omitted).

NOM's argument that Buckley dictates a finding of

vagueness here is flawed on several counts. First, as more recent

Supreme Court precedents have made clear, Buckley's narrowing

interpretation of the phrase "for the purpose of influencing" "was

the product of statutory interpretation rather than a

constitutional command." McConnell, 540 U.S. at 192. The Court

never squarely held in Buckley that the term "influencing" was

unconstitutionally vague under due process standards, and the

constitutional concern that prompted the Court to narrow the term

-- the fear that the statute might be read to reach issue

-58-
discussion -- is, as we have said, not a relevant one for review of

disclosure laws. Second, even if Buckley were to have found

"influencing" unconstitutionally vague in FECA, it would not be

dispositive of the question here. Terms claimed to be vague must

be interpreted in light of their precise statutory context, see URI

Student Senate v. Town of Narragansett, 631 F.3d 1, 14 (1st Cir.

2011); Welch v. United States, 750 F.2d 1101, 1112 (1st Cir. 1985),

and thus a phrase deemed problematic in federal election statutes

might not run afoul of vagueness standards in Maine's statutes. 

Nonetheless, Buckley's concerns aside, the term

"influencing" does present some vagueness problems. The other

candidate-related terms employed by the statutes here -- such as

"promoting," "opposition," "defeat," and "support," Me. Rev. Stat.

tit. 21-A, §§ 1019-B(3)(B), 1052(4)(A)(1), (5)(A)(5) -- are more

plainly result-oriented, focusing on advocacy for or against a

particular candidacy. Influence, on the other hand, covers a wider

range of objectives. Conceivably falling within the meaning of

"influence" are objectives as varied as advocacy for or against a

candidate's election; championing an issue for inclusion in a

candidate's platform; and encouraging all candidates to embrace

public funding. Without more context, we believe the intended

meaning of "influence" to be uncertain enough that a person of

average intelligence would be forced to "'guess at its meaning and

modes of application.'" Councilman, 418 F.3d at 84 (quoting

-59-
Hussein, 351 F.3d at 14).

Arguing that the statutes' use of "influencing" is

adequately clear, defendants point us to the interpretive canon of

noscitur a sociis, which provides that an ambiguous statutory term

may be "given more precise content by the neighboring words with

which it is associated." Williams, 553 U.S. at 294. For example,

in the non-major-purpose PAC definition, defendants suggest that

"influencing" should be given a meaning similar to or consistent

with "promoting" and "defeating." See Me. Rev. Stat. tit. 21-A, §

1052(5)(A)(5) ("for the purpose of promoting, defeating or

influencing in any way"). This argument fails for two reasons. 

First, "influencing" appears on its own in some of the

statutes before us, thus defeating the noscitur a sociis exercise

for those provisions. See, e.g., id. § 1014(2-A) ("The disclosure

is not required if the communication was not made for the purpose

of influencing the candidate's nomination for election or

election."). Second, in those statutes where "influencing" is

paired with other terms, we find more persuasive the countervailing

interpretive canon counseling that a statute should "'be so

construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.'" TRW Inc. v.

Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S.

167, 174 (2001)). Our interpretation is guided by the fact that,

even where it appears with other terms, "influencing" appears to

-60-
have been intentionally set apart. For example, the relevant

language of § 1052(5)(A)(5) reads "for the purpose of promoting,

defeating or influencing in any way;" the addition of "in any way"

logically gives "influencing" a broader sweep than the foregoing

terms. The differentiation is even more apparent in the PAC

statute's definition of expenditure, where the term "influencing"

appears in a different clause and is given a different (though

related) object from the other terms. See Me. Rev. Stat. tit.

21-A, § 1052(4)(A)(1) (defining expenditure to cover the transfer

of anything of value "for the purpose of influencing the nomination

or election of any person to political office; or for the

initiation, support or defeat of a campaign, referendum or

initiative."). The natural inference from this separation is that

the drafters intended "influencing" to carry a different meaning

from the words with which it appears.

Despite their continued insistence that the use of

"influencing" in the statutes here is not vague, defendants

recognize that we, like the district court, might find

"influencing" insufficiently clear on its face to satisfy due

process standards. Therefore, as a fallback position, defendants

offer a narrowing construction that has been adopted by the

Commission with respect to a separate statute regulating ballot

question committees. In written guidance, the Commission has

clarified that it interprets the phrase "for the purpose of

-61-
initiating, promoting, defeating or influencing in any way a

campaign," Me. Rev. Stat. tit. 21-A, § 1056-B, in the context of

ballot-question campaigns, to "include communications and

activities which expressly advocate for or against a ballot

question or which clearly identify a ballot question by apparent

and unambiguous reference and are susceptible of no reasonable

interpretation other than to promote or oppose the ballot

question," Me. Comm'n on Governmental Ethics & Elections Practices,

Guidance on Reporting as a Ballot Question Committee, available at

http://www.maine.gov/ethics/bqcs/guidance.htm (last visited July

25, 2011). This narrowing construction was not offered to the

district court. However, there is no barrier to our considering 43

it here -- and, indeed, we are required to do so. See Hoffman

Estates, 455 U.S. at 494 n.5 ("In evaluating a facial challenge to

a state law, a federal court must . . . consider any limiting

construction that a state court or enforcement agency has

proffered.").

As narrowed, the terms "influencing" and "influence," as

used in the statutes at issue here, would include only

The Maine Attorney General had offered in prior litigation 43

before the district court a narrowing construction limiting the

term "influencing" to express advocacy. See Volle v. Webster, 69

F. Supp. 2d 171, 175 (D. Me. 1999). In light of the fact that

Supreme Court precedent subsequent to that litigation "made clear

that the state may regulate speech other than express advocacy,"

the Attorney General believed that the narrowing construction was

"no longer required" and therefore did not offer it in the

proceedings below.

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"communications and activities that expressly advocate for or

against [a candidate] or that clearly identify a candidate by

apparent and unambiguous reference and are susceptible of no

reasonable interpretation other than to promote or oppose the

candidate." This narrowed formulation is considerably more precise

than the original, and succeeds both in "provid[ing] explicit

standards for those who apply" the provisions at issue here and in

ensuring that persons of average intelligence will have reasonable

notice of the provisions' coverage. Grayned, 408 U.S. at 108. We

thus conclude that the provisions' use of the terms "influencing"

and "influence," so limited, is not so vague as to offend due

process.

C. "Initiation"

Among the statutes at issue in this appeal, the term

"initiation" appears only in the PAC statute's definition of

"expenditure." NOM offers no support for its argument that 44

"initiation" is vague, contending only that "initiation" "fare[s]

no better" than the other terms challenged on vagueness grounds. 

We find "initiation" to be adequately clear. The context --

defining "expenditure" to include giving something of value "for

The statute defines "expenditure" to include the transfer 44

of something of value "for the initiation, support or defeat of a

campaign, referendum or initiative." Me. Rev. Stat. tit. 21-A, §

1052(4)(A)(1) (emphasis added). NOM also challenges the use of

"initiating" in the definition of a major-purpose PAC, but we have

held that it lacks standing to pursue that claim.

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the initiation . . . of a campaign" -- makes plain that

"initiation" is being used as the noun form of the verb "initiate,"

the primary definition of which is "to begin, set going, or

originate." The Random House Dictionary of the English Language

982 (2d ed. unabr. 1987). Used in this way, the language is

unequivocal, and easily would put an individual of average aptitude

on notice that the act of incurring an expense for the purpose of

beginning an electoral campaign will constitute an "expenditure"

within the meaning of § 1052(4)(A)(1). See Grayned, 408 U.S. at

108. NOM's argument that "initiation" is unconstitutionally vague

thus fails.

D. Use of Context in Definition of "Expressly Advocate"

NOM's final vagueness argument is somewhat distinct from

the preceding ones. While NOM's claim focuses on the phrase

"expressly advocate" in the independent expenditure statute, NOM 45

does not contend that the phrase itself is unconstitutionally

vague. Instead, NOM argues that Maine's definition of "expressly

advocate," set forth in regulations promulgated by the Commission,

renders the term vague because it invites reliance on a

communication's context and employs a purportedly unconstitutional

The statute defines an "independent expenditure" to be one 45

"that expressly advocates the election or defeat of a clearly

identified candidate." Me. Rev. Stat. tit. 21-A, § 1019-B(1)(A). 

Though the attribution and disclaimer provisions also use the

phrase "expressly advocating," see id. § 1014(1), the regulations

challenged here relate solely to the definition of an "independent

expenditure." 

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"appeal-to-vote" formulation for determining what qualifies as

express advocacy. Specifically, the regulations provide that a

communication will be considered to "expressly advocate" when it

employs phrases that "in context can have no other reasonable

meaning than to urge the election or defeat of one or more clearly

identified candidate(s), such as posters, bumper stickers,

advertisements, etc. which say 'Pick Berry,' 'Harris in 2000,'

'Murphy/Stevens' or 'Canavan!'" 94-270-001 Me. Code R. §

10(2)(B). As we explain, NOM's arguments read far too much into 46

a limited line of Supreme Court precedents, and provide no basis

for concluding that Maine's regulations are unconstitutionally

vague.

NOM's arguments have their roots in the recent trio of

 The full text of the definition is as follows: 46

"Expressly advocate" means any communication that uses

phrases such as "vote for the Governor," "reelect your

Representative," "support the Democratic nominee," "cast

your ballot for the Republican challenger for Senate

District 1," "Jones for House of Representatives," "Jean

Smith in 2002," "vote Pro-Life" or "vote Pro-Choice"

accompanied by a listing of clearly identified candidates

described as Pro-Life or Pro-Choice, "vote against Old

Woody," "defeat" accompanied by a picture of one or more

candidate(s), "reject the incumbent," or communications

of campaign slogan(s) or individual word(s), which in

context can have no other reasonable meaning than to urge

the election or defeat of one or more clearly identified

candidate(s), such as posters, bumper stickers,

advertisements, etc. which say "Pick Berry," "Harris in

2000," "Murphy/Stevens" or "Canavan!". 

94-270-001 Me. Code R. § 10(2)(B). 

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Supreme Court cases addressing the constitutionality of the federal

prohibition of independent expenditures by corporations and unions

for "electioneering" communications -- those made shortly before a

primary or general election that clearly identify a candidate for

federal office. The trio began with McConnell, in which the Court

upheld the electioneering provision against a facial overbreadth

challenge. In so doing, the Court found unavailing the contention

that the provision would regulate a substantial amount of issue

advocacy, noting that the argument "fail[ed] to the extent that the

issue ads broadcast during the [relevant period] are the functional

equivalent of express advocacy." McConnell, 540 U.S. at 206. 

This conditional assertion was put to the test several

years later in Wisconsin Right to Life, when the Court,

entertaining an as-applied challenge to the electioneering

provision, considered whether several specific advertisements

qualified as the "functional equivalent of express advocacy." The

Court concluded they did not, and accordingly held the provision

unconstitutional in its application. Along the way, the principal

opinion made two points relevant to NOM's arguments here. First,

it suggested that an advertisement would qualify as the "functional

equivalent of express advocacy," and thereby could be regulated

without triggering overbreadth concerns, only when it "is

susceptible of no reasonable interpretation other than as an appeal

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to vote for or against a specific candidate." Wis. Right to Life, 47

551 U.S. at 469-70. NOM refers to this formulation as the "appealto-vote test." Second, the Court criticized efforts to use the

advertisements' context to determine whether they qualified as the

"'functional equivalent' of express advocacy," noting that

"contextual factors of the sort invoked [there] should seldom play

a significant role in the inquiry." Id. at 473-74.

Most recently, the Court concluded in Citizens United

that Congress could not limit the campaign-related speech of

corporations and unions and thus held the electioneering provision

unconstitutional, overturning McConnell. Citizens United provides

the launching point for NOM's first argument that Maine's

definition of "expressly advocate" is vague. NOM contends that

Citizens United eliminated "the appeal-to-vote test as a

constitutional limit on government power," and reads into this an

implicit holding that the test was unconstitutionally vague. 

NOM's reading finds no support in the text of Citizens

United, though we agree with NOM that, in striking down the federal

electioneering expenditure statute, Citizens United eliminated the

En route to this test, the principal opinion rejected 47

proposed intent- and effect-based standards, i.e. frameworks that

would have required inquiry into the intent of the speaker to

affect an election or an examination of the actual effect the

speech would have on an election or on its target audience. Wis.

Right to Life, 551 U.S. at 467-69.

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context in which the appeal-to-vote test has had any significance.48

It is a large and unsubstantiated jump, however, to read Citizens

United as casting doubt on the constitutionality of any statute or

regulation using language similar to the appeal-to-vote test to

define the scope of its coverage. The basis for Citizens United's

holding on the constitutionality of the electioneering expenditure

statute had nothing to do with the appeal-to-vote test or the

divide between express and issue advocacy. Instead, the decision

turned on a reconsideration of prior case law holding that a

corporation's political speech may be subjected to greater

regulation than an individual's. See Citizens United, 130 S. Ct.

at 886. The opinion offered no view on the clarity of the appealto-vote test. In fact, the Court itself relied on the appeal-tovote test in disposing of a threshold argument that the appeal

should be resolved on narrower, as-applied grounds. See id. at

889-90 (applying appeal-to-vote test in determining that

advertisements at issue were the functional equivalent of express

advocacy).

We do not agree, however, with NOM's characterization of the 48

appeal-to-vote test, or any of the other tests proposed by the

Court for distinguishing between express and issue advocacy, as a

"constitutional limit on government power." Citizens United made

clear that at least some forms of regulation may reach issue

advocacy, see 130 S. Ct. at 915, and there are substantial

questions as to whether the line between issue advocacy and express

advocacy is constitutionally rooted, see McConnell, 540 U.S. at 193

(noting doubts that "the First Amendment erects a rigid barrier

between express advocacy and so-called issue advocacy"). 

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We find similarly misguided NOM's argument that the

definition of "expressly advocate" is vague due to the regulation's

reference to consideration of an advertisement's words "in

context." NOM misinterprets Wisconsin Right to Life in suggesting

that the principal opinion barred all consideration of context to

determine whether an advertisement was the functional equivalent of

express advocacy. To the contrary, the opinion explicitly

acknowledges that "[c]ourts need not ignore basic background

information that may be necessary to put an ad in context." Wis.

Right to Life, 551 U.S. at 474. It is apparent from the examples 49

provided by the regulation here -- "'Pick Berry,' 'Harris in 2000,'

'Murphy/Stevens' or 'Canavan!'" -- that "knowing that Berry is a

candidate to be picked on the ballot, that 2000 is an election

where Harris should win, etc.," Nat'l Org. for Marriage, 723 F.

Supp. 2d at 266, is precisely the sort of basic background

information that may be consulted in the express advocacy

determination.

In any event, we find the regulation's definition of

"expressly advocate," as a whole, to be sufficiently clear to

In Citizens United, the Court also relied on contextual 49

factors in determining that the communication at issue -- a ninetyminute documentary about Hillary Clinton -- constituted the

functional equivalent of express advocacy. See 130 S. Ct. at 890

("In light of historical footage, interviews with persons critical

of her, and voiceover narration, the film would be understood by

most viewers as an extended criticism of Senator Clinton's

character and her fitness for the office of the Presidency."). 

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satisfy due process. The definition offers abundant examples

(fourteen in all) of the sorts of language that will constitute

express advocacy, and, as we have noted before, "[t]he existence of

clear examples of conduct covered by a law may . . . help to

insulate the law against an accusation of vagueness." URI Student

Senate, 631 F.3d at 14; see also Hotel & Motel Ass'n v. City of

Oakland, 344 F.3d 959, 972–73 (9th Cir. 2003) (finding ordinance

provided sufficient notice where it listed "no less than nineteen

specific examples of the types of conduct to which th[e] provision

applie[d]"). Moreover, the phrase set forth in the regulation --

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

defeat of one or more clearly identified candidate(s)" -- is

certainly as clear, if not more so, as words such as "support" and

"promote" that the Supreme Court has held non-vague. See

McConnell, 540 U.S. at 170 n.64; see also Wis. Right to Life, 551

U.S. at 474 n.7 (explaining that the appeal-to-vote formulation

meets the "imperative for clarity" in regulation of political

speech). We therefore reject NOM's arguments that the regulation's

definition of the phrase "expressly advocate" is unconstitutionally

vague.

V. Challenge to the District Court's Unsealing Order

The remaining issue in this appeal is whether the

district court erred in ruling that the trial record must be

unsealed. Reviewing the court's unsealing order under a

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deferential standard, see Siedle v. Putnam Invs., Inc., 147 F.3d 7,

10 (1st Cir. 1998) (unsealing orders are reviewed "only for mistake

of law or abuse of discretion"), we find no abuse of discretion.

Decisions on the sealing of judicial documents require a

balancing of interests, although the scales tilt decidedly toward

transparency. The starting point must always be the common-law

presumption in favor of public access to judicial records. See

Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978); Siedle,

147 F.3d at 9. As we have noted in prior cases, "[p]ublic access

to judicial records and documents allows the citizenry to 'monitor

the functioning of our courts, thereby insuring quality, honesty

and respect for our legal system.'" FTC v. Standard Fin. Mgmt.

Corp., 830 F.2d 404, 410 (1st Cir. 1987) (quoting In re Cont'l Ill.

Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984)). The presumption

favoring public access, which extends to both civil and criminal

trials, is not inviolate, and may on some occasions be overcome by

competing interests. Siedle, 147 F.3d at 10; see also id. at 10-12

(finding abuse of discretion where unsealing order would make

public information that was likely subject to the attorney-client

privilege and a confidentiality agreement). That said, "the

presumption is nonetheless strong and sturdy," and thus "'[o]nly

the most compelling reasons can justify non-disclosure of judicial

records.'" Standard Fin. Mgmt. Corp., 830 F.2d at 410 (alteration

in original) (quoting In re Knoxville News-Sentinel Co., 723 F.2d

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470, 476 (6th Cir. 1983)).

Portions of the trial record here were initially filed in

sealed form, albeit by the parties' stipulation rather than court

order. Following trial, the district court issued sua sponte an 50

order to show cause why the entire record should not be filed in

publicly accessible form. NOM responded with a brief arguing,

inter alia, that disclosure of certain of its strategic documents

included in the record would severely burden NOM's ability to

effectively engage in protected political activities, and would

invade the privacy of NOM's third-party service providers and

contractors identified in the record and risk subjecting them to

harassment. The district court found NOM's arguments unavailing

and ordered the record unsealed such that it would be "public in

precisely the way that it would have been had live witnesses been

called to testify." Nat'l Org. for Marriage, 723 F. Supp. 2d at

249 n.4. We granted an emergency motion to stay the unsealing

order during the pendency of this appeal.

On appeal, NOM fields two arguments for abuse of

discretion. It first argues that the district court erred in

In the course of discovery, the parties entered into a

50

confidentiality agreement, which was entered as a consent order by

the magistrate judge overseeing discovery matters. That consent

order required, among other things, that any documents designated

confidential that were filed with the court be submitted under

seal. In subsequently stipulating to a joint trial record, the

parties included a number of documents that had previously been

filed under seal pursuant to the consent order.

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unsealing the documents without a "finding of true necessity." 

NOM's argument flips the proper analysis on its head. The

presumption here favors openness, and a court need make no finding,

let alone one of "true necessity," in order to make the proceedings

and documents in a civil trial public. Instead, it is the party

seeking to keep documents sealed who must make a showing sufficient

to overcome the presumption of public access. See Standard Fin.

Mgmt. Corp., 830 F.2d at 411. Second, NOM suggests that the

district court erred in failing to consider a number of controlling

legal principles. On examination, the authorities it cites are,

without exception, inapposite.51

For example, NOM cites cases involving the validity of a

51

federal regulation that required release of materials compiled by

the FEC during investigations into alleged election law violations,

see Am. Fed'n of Labor & Cong. of Indus. Orgs. v. FEC, 333 F.3d 168

(D.C. Cir. 2003), and a claim of First Amendment privilege against

the compelled disclosure of internal documents pursuant to a court

order enforcing a discovery request, see Perry v. Schwarzenegger,

591 F.3d 1147 (9th Cir. 2010). Those cases involved the possible

compelled disclosure of information to which there was no

presumptive right of public access; here, in contrast, the

documents at issue were voluntarily included in the record filed

with the district court, and thus subject to a presumption of

public access.

NOM also contends that the two-step inquiry set forth in

Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986), must

be applied to determine whether the documents here are within the

public's presumptive right of access. That inquiry relates to the

categorical determination of whether a particular type of

proceeding or class of court documents falls within the public's

right of access, see In re Bos. Herald, Inc., 321 F.3d 174, 182-83

(1st Cir. 2003); it does not govern whether individual documents

filed with a court should be made public. NOM does not contest

that the right of public access extends to the trial record in a

civil matter, Siedle, 147 F.3d at 10, and thus Press-Enterprise's

two-step inquiry is inapplicable.

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On the record before us, we cannot conclude that the

district court abused its discretion in ordering the trial record

unsealed. While NOM claims harm from disclosure of certain

strategic documents, neither before the district court nor in this

appeal has NOM identified any specific information that, if made

public, would damage or chill its political advocacy efforts. 

Indeed, the documents it identifies as particularly sensitive,

including a strategic planning document it terms its "playbook,"

disclose primarily advocacy priorities and expenditures in past

election cycles, and we see little among them that could advantage

NOM's opponents going forward. NOM's claims that its contractors

and service-providers could be subject to harassment also lack

support, resting upon allegations of harassment against a vendor

that performed work for supporters of California's Proposition 8. 

While "'privacy rights of participants and third parties[] are

among those interests which, in appropriate cases, can limit the

presumptive right of access to judicial records,'" Standard Fin.

Mgmt. Corp., 830 F.2d at 411 (internal quotation marks omitted)

(quoting In re Knoxville News-Sentinel Co., 723 F.2d at 478), NOM

failed to make a compelling case that the specific vendors

referenced in the documents here have any reasonable privacy

concerns relating to the disclosure of their business relationship

with NOM. 

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VI. Conclusion

For the reasons set forth above, we vacate the portion of

the district court's judgment finding the terms "influencing" and

"influence" unconstitutionally vague, remand for entry of judgment

in defendants' favor in full on those claims, and affirm the

judgment in all other respects. We also vacate our stay of the

district court's unsealing order. Costs shall be awarded to the

appellees.

So ordered. 

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