United States v. 2006-03-21 | 04-35599 | ALASKA RIGHT TO LIFE VMILES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ALASKA RIGHT TO LIFE COMMITTEE,
Plaintiff-Appellant, No. 04-35599
v. D.C. No.
BROOKE MILES; ANDREA JACOBSON; CV-02-00274-A- 
LARRY WOOD; MARK HANDLEY; RRB
JOHN DAPCEVICH; SHEILA OPINION
GALLAGHAER,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
July 12, 2005—Anchorage, Alaska
Filed March 22, 2006
Before: Alfred T. Goodwin, Melvin Brunetti, and William
A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
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COUNSEL
Kenneth P. Jacobus, Anchorage, Alaska, Richard E. Coleson
and James Bopp, Jr., Bopp Coleson & Bostrom, Terre Haute,
Indiana, for the plaintiff-appellant.
Michael G. Mitchell, Office of the Alaska Attorney General,
Anchorage, Alaska, for the defendants-appellees.
OPINION
W. FLETCHER, Circuit Judge:
Alaska Right to Life Committee (“AKRTL”) challenges
certain aspects of Alaska’s campaign finance law, Alaska
Stat. § 15.13.030 et seq. Prior to the 2002 Alaska gubernato-
rial election, AKRTL was informed by the Alaska Public
Offices Commission that if it wished to engage in “election-
eering communications” as a “nongroup entity,” it would
have to comply with registration, reporting, notification, and
disclosure-of-identity requirements. AKRTL brought suit in
federal district court based on the First Amendment, seeking
declaratory and injunctive relief against these requirements.
On cross-motions for summary judgment, the district court
upheld the Alaska law. We affirm.
I. Factual and Procedural Background
AKRTL is a nonprofit corporation headquartered in
Anchorage, Alaska. It describes itself as “a membership-
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based association that seeks to promote its pro-life perspective
to the Alaska public.” It describes its major purpose as pro-
moting “a pro-life consensus in Alaska’s public through the
presentation of its pro life message.” It seeks to accomplish
its goals through various forms of communication to the pub-
lic, including a newsletter, telemarketing, and the Internet.
AKRTL states that it is not affiliated with any political party,
political candidate, or campaign committee.
AKRTL is affiliated with the Alaska Right to Life Political
Action Committee (“AKRTL-PAC”) and Alaska Right to
Life, Inc. (“AKRTL Inc.”). AKRTL-PAC is an advocacy
organization, and AKRTL Inc. is a tax-exempt educational
organization. The three entities share the same director and
the same board of directors. The degree of financial separa-
tion among the three entities is unclear from the record.
AKRTL-PAC is registered as a “group” with the Alaska Pub-
lic Offices Commission (“APOC”), which interprets and
enforces Alaska’s campaign finance disclosure law. AKRTL
is not registered.
Fundraising by AKRTL is primarily accomplished through
telemarketing campaigns. In 2002, AKRTL developed a pro-
posed telemarketing campaign costing more than $500 (the
monetary threshold under Alaska law) that would mention
candidates’ names; discuss political issues that were relevant
to the then-upcoming gubernatorial election on November 5,
2002; and state the candidates’ position on those issues. Spe-
cific language that AKRTL planned to use in the campaign
was as follows:
Alaska Right to Life is always on the forefront of
implementing pro-life legislation within our state,
such as banning partial birth abortion, establishing
parental consent and stopping state funding. We
believe these are important issues affecting all Alas-
kans. Frank Murkowski supports Alaska Right to
Life’s pro-life vision by supporting a ban on partial
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birth abortion, establishing parental consent and
stopping state funding. But Fran Ulmer stands in
opposition to these measures. Please be sure to vote.
Frank Murkowski and Fran Ulmer were, respectively, the
Republican and Democratic candidates for governor in 2002.
In late September 2002, the Indiana-based lawyer now rep-
resenting AKRTL made general telephone inquiries to APOC
concerning Alaska’s campaign finance law without revealing
the identity of his client. The same lawyer made two later
inquiries, again without identifying his client. Finally, on
November 1, 2002, local Alaska counsel provided a draft
complaint, signed by AKRTL Inc., to the Alaska Attorney
General’s office. The local counsel indicated that he planned
to file the complaint the next day. The draft complaint asked
for a temporary restraining order allowing AKRTL Inc. to
engage in a telemarketing campaign prior to the November 5,
2002 election using the above-quoted language.
APOC responded by telephone and letter. The letter, dated
November 1, noted that “AkRTL” (by which it appears to
have meant AKRTL-PAC) had already registered under the
Alaska statute. The letter also noted that the fundraising was
intended to benefit “the committee” (by which it appears to
have meant AKRTL). APOC approved the proposed commu-
nication on the assumption that AKRTL-PAC, which had pre-
viously registered with APOC as a “group,” would be the
entity making the telephone calls. APOC specified that “be-
cause the script includes an electioneering communication,
the costs must be paid for with group-reported funds.”
AKRTL Inc. did not file its proposed complaint on Novem-
ber 2. Instead, on November 4, AKRTL — not AKRTL Inc.
or AKRTL-PAC — filed suit in federal district court, naming
as defendants Brook Miles, Andrea Jacobson, Larry Wood,
Mark Handley, John Dapcevich, and Sheila Gallagher in their
official capacities as director and members of APOC (collec-
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tively “APOC”). As noted above, AKRTL (unlike AKRTL-
PAC) has not registered under Alaska’s campaign finance
law.
AKRTL challenged five provisions of the Alaska law: (1)
the definition of “electioneering communication”; (2) the
requirement that it register before making campaign finance
expenditures; (3) the requirement that it make reports; (4) the
requirement that it notify contributors and potential contribu-
tors that their contributions may be used to influence an elec-
tion; and (5) the requirement that it disclose in its
communications who is paying for the communication.
AKRTL contended that these provisions violate the First
Amendment both facially and as applied.
The district court granted summary judgment to APOC.
AKRTL appealed everything except the district court’s
approval of the notification requirement for contributors
(issue (4), above). We have jurisdiction under 28 U.S.C.
§ 1331 and 28 U.S.C. § 1291. We affirm.
II. Statutory Background
Alaska has a long history of regulating political influence
and campaign finance, beginning in 1913 when the Alaska
legislature passed a statute requiring lobbyists to register.
1913 Alaska Sess. Law ch. 43 § 1 (1913). In 1974, Alaska
adopted a law limiting individual contributions to candidates,
limiting the amount of money candidates could spend, and
requiring that written receipts for all expenditures promoting
candidates that exceeded $100 be filed with the state election
commission. 1974 Alaska Sess. Law ch. 76 § 1 (1974).
A 1990 report commissioned by the Alaska State Senate
revealed that public confidence and trust in the integrity of the
legislature was “ ‘disturbingly low’ ” and that this was attrib-
utable in part to “ ‘calculated evasions of the purpose and
spirit of campaign laws.’ ” Alaska v. Alaska Civil Liberties
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Union (“AKCLU”), 978 P.2d 597, 602 (Alaska 1999) (quoting
the report). A former member of the State House of Represen-
tatives stated that “[t]he constant refrain I heard from citizens
. . . was that the Legislature was owned by special interests
[and] that nothing was going to change the corruption caused
by big money.” Id. (internal quotation marks omitted).
In 1996, Alaska passed a comprehensive campaign reform
statute, commonly referred to as SB 191. SB 191 contained a
finding that “the purpose of this Act [is] to substantially revise
Alaska’s election campaign finance laws in order to restore
the public’s trust in the electoral process and to foster good
government.” Alaska Sess. Law ch. 48 § 1. Under SB 191,
independent expenditures by an entity supporting or opposing
a candidate for state office were banned unless the entity qual-
ified as a “group.” AKCLU, 978 P.2d at 607-08. A “group”
was defined as “any combination of two or more individuals
acting jointly who organize for the principal purpose of influ-
encing the outcome of one or more elections and who take
action the major purpose of which is to influence the outcome
of an election.” Id. at 608 n.65. All entities not qualifying as
“groups” were banned from making such independent expen-
ditures.
In 1999, the Supreme Court of Alaska upheld most of SB
191 in AKCLU. The court upheld the ban on expenditures by
what it called “nongroup entities,” but only after defining that
term narrowly. Guided by the United States Supreme Court’s
decisions in Federal Election Commission v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238 (1986), and Austin v.
Michigan Chamber of Commerce, 494 U.S. 652 (1990), the
Alaska court defined “nongroup entities” as “organizations
potentially able to amass great wealth through state-created
advantages.” AKCLU, 978 P.2d at 611-12. Included in the
court’s definition of “nongroup entities” were corporations
and labor unions. 978 P.2d at 607-08. Excluded from its defi-
nition were entities that “(1) . . . cannot participate in business
activities, (2) . . . have no shareholders who have a claim on
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corporate earnings, and (3) . . . are independent from the
influence of business corporations.” The court held that “non-
group entities,” so defined, could constitutionally be banned
from making independent expenditures to support or oppose
candidates. Id. at 612. Entities excluded from the court’s defi-
nition of “nongroup entities” were not banned by the statute
from making such expenditures. Id. at 611-12.
A separate challenge to SB 191 was brought in federal dis-
trict court. The district court stayed proceedings until the
Alaska Supreme Court decided AKCLU. After that decision
became final, the district court ruled on the constitutionality
of two provisions of SB 191 that had not been addressed in
AKCLU. Jacobus v. State of Alaska, 182 F. Supp. 2d 881 (D.
Alaska 2001). The district court struck down a $5,000 per
year limitation on “soft-money” contributions by individuals
to political parties, as well as a limitation on professional ser-
vices volunteered by individuals on behalf of a candidate or
ballot proposition when the services were those for which that
individual “would ordinarily be paid a fee or wage.” Id. at
885, 890. On appeal, we upheld the statutory limitation on
“soft money” contributions, but struck down the limitation on
individual volunteer services. Jacobus v. State of Alaska, 338
F.3d 1095, 1107-22, 1122-25 (9th Cir. 2003).
Partly in response to the decisions by the Alaska Supreme
Court in AKCLU and the federal district court in Jacobus, the
Alaska legislature significantly amended Alaska’s campaign
finance law in 2001 and 2002. Preventing corruption and the
appearance of corruption, as well as providing information to
voters, were cited by various members of the State legislature
as compelling interests supporting the amendments. As Rep-
resentative Jeanette James stated during debates on the
amendments, the primary focus of campaign finance laws is
to inform the public, and that “wherever there is money
involved in affecting policy in the State, either by law or by
choice, the public has a right to know.”
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Among other things, the 2001 and 2002 amendments
extended various disclosure requirements to “nongroup enti-
ties.” As a result, “nongroup entities” became subject to the
same disclosure rules as “groups.”
The amendments also provided a broad definition of “elec-
tioneering communication,” thereby closing a loophole that
had allowed evasion of disclosure requirements if the use of
certain, specified words was avoided in advertisements. This
new broad definition was influenced by our description of the
“magic words requirement,” and its associated problems, in
Federal Election Commission v. Furgatch, 807 F.2d 857, 863
(9th Cir. 1987):
A test requiring the magic words “elect,” “support,”
etc., or their nearly perfect synonyms for a finding of
express advocacy would preserve the First Amend-
ment right of unfettered expression only at the
expense of eviscerating the Federal Election Cam-
paign Act. “Independent” campaign spenders work-
ing on behalf of candidates could remain just beyond
the reach of the Act by avoiding certain key words
while conveying a message that is unmistakably
directed to the election or defeat of a named candi-
date.
Finally, and somewhat confusingly, the amendments essen-
tially adopted as their definition of “nongroup entities” the
Alaska Supreme Court’s description in AKCLU of entities that
had been excluded from that court’s definition of “nongroup
entities” in SB 191. Under AKCLU, “nongroup entities” were
defined to include only organizations, such as business corpo-
rations and labor unions, that were capable of “amassing great
wealth” through state-created advantages. “Nongroup enti-
ties,” so defined, were banned by SB 191 from making inde-
pendent expenditures. Other entities — neither “groups” nor
“nongroup entities” — were permitted to make independent
expenditures under SB 191. Now, under the new amend-
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ments, those other entities were called “nongroup entities.”
Under the newly adopted Alaska Stat. § 15.13.400(13),
“nongroup entity” means a person, other than an
individual, that takes action the major purpose of
which is to influence the outcome of an election, and
that
(A) cannot participate in business activi-
ties;
(B) does not have shareholders who have
a claim on corporate earnings; and
(C) is independent from the influence of
business corporations.
A “nongroup entity” under the newly adopted amendments is
not banned from making expenditures. “Nongroup entities”
are merely required to make various forms of disclosure in
connection with their expenditures.
AKRTL’s First Amendment challenge is addressed to dis-
closures now required of “nongroup entities” that make
expenditures.
III. Mootness
[1] AKRTL’s suit is not moot simply because the 2002
election has come and gone. We have held that “election
cases often fall within the ‘capable of repetition, yet evading
review’ exception to the mootness doctrine, because the
inherently brief duration of an election is almost invariably
too short to enable full litigation on the merits.” Cal. Pro-Life
Council, Inc. v. Getman, 328 F.3d 1088, 1095 n.4 (9th Cir.
2003) (quoting Porter v. Jones, 319 F.3d 483, 490 (9th Cir.
2003)) (internal quotation marks and alterations omitted). The
provisions of Alaska law challenged by AKRTL remain in
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place, and there is sufficient likelihood that AKRTL will
again be required to comply with them that its appeal is not
moot.
IV. Standard of Review
We review the district court’s grant of summary judgment
de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). Viewing the evidence in the light most favorable to the
nonmoving party, we must determine whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. Id.
V. Discussion
On appeal to this court, AKRTL argues that it cannot be
required to make disclosures as a condition of making “ex-
penditures” for “electioneering communications” as those
terms are defined under Alaska Stat. §§ 15.13.400(3), (5) and
(6). The centerpiece of AKRTL’s First Amendment challenge
is its argument that the definition of “electioneering commu-
nications” is unconstitutionally vague and overbroad. In addi-
tion, AKRTL challenges three specific disclosure
requirements. First, it challenges the requirement that a “non-
group entity” register under Alaska Stat. § 15.13.050(a)
before it can make an “expenditure” under Alaska Stat.
§ 15.13.067. Second, it challenges the requirement that a non-
group entity report expenditures under Alaska Stat.
§§ 15.13.040(d), (e), and (j), 15.13.074(i), 15.13.082(b),
15.13.100, and 15.13.135(a). Third, it challenges the require-
ment that a nongroup entity disclose under Alaska Stat.
§§ 15.13.090 and 15.13.135(b) that it is paying for a commu-
nication.
None of the challenged provisions limits the amount of
money a nongroup entity such as AKRTL may spend. Rather,
the provisions require only that certain forms of disclosure be
made. With that in mind, we consider AKRTL’s challenges.
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A. Definition of “Electioneering Communications”
As a result of the 2001 and 2002 amendments, “nongroup
entities” are required to make disclosures in connection with
their “expenditures.” For example, a nongroup entity “making
an expenditure” must register with APOC as required by
§ 15.13.050; a nongroup entity making an expenditure is
required to make a “full report” of that expenditure under
§ 15.13.040(d); a nongroup entity is prohibited by
§ 15.13.067 from making “an expenditure in an election for
candidates for elective office” unless it has registered with
APOC; a nongroup entity may not make an expenditure
unless the source of the expenditure has been disclosed as
required by § 15.13.082(b); and a nongroup entity making an
“independent expenditure” supporting or opposing a candi-
date for election to public office is required by § 15.13.135(b)
to disclose the source of the expenditure.
An “expenditure” is defined as the transfer of anything of
value for the purpose of making “an express communication”
or “an electioneering communication.” Alaska Stat.
§ 15.13.400(6)(A) and (C). An “expenditure” does not include
the transfer of something of value for making “an issues com-
munication.” Id. at § 15.13.400(6)(C).1
1The syntax of the statute is somewhat garbled. The text provides as fol-
lows:
(6) “expenditure”
(A) means a purchase or a transfer of money or anything
of value, or promise or agreement to purchase or transfer
money or anything of value, incurred or made for the pur-
pose of
(i) influencing the nomination or election of a candidate
or of any individual who files for nomination at a later
date and becomes a candidate;
(ii) use by a political party;
(iii) the payment by a person other than a candidate or
political party of compensation for the personal services of
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The various forms of “communication” referred to in the
section defining “expenditure” are defined as follows:
“[C]ommunication” means an announcement or
advertisement disseminated through print or broad-
cast media, including radio, television, cable, and
satellite, the Internet, or through a mass mailing,
excluding those placed by an individual or nongroup
entity and costing $500 or less and those that do not
directly or indirectly identify a candidate or proposi-
tion, as that term is defined in AS 15.13.065(c)[.]
Id. at § 15.13.400(3).
“[E]xpress communication” means a communication
that, when read as a whole and with limited refer-
ence to outside events, is susceptible of no other rea-
sonable interpretation but as an exhortation to vote
for or against a specific candidate[.]
Id. at § 15.13.400(7).
“[E]lectioneering communication” means a commu-
nication that
(A) directly or indirectly identifies a can-
didate;
another person that are rendered to a candidate or political
party; or
(iv) influencing the outcome of a ballet proposition or
question;
(B) does not include a candidate’s filing fee or the cost of
preparing reports and statements required by this chapter;
(C) includes an express communication and an election-
eering communication, but does not include an issues com-
munication[.]
Alaska Stat. § 15.13.400(6) (emphasis added).
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(B) addresses an issue of national, state,
or local political importance and attributes
a position on that issue to the candidate
identified; and
(C) occurs within the 30 days preceding a
general or municipal election[.]
Id. at § 15.13.400(5).
“[I]ssues communication” means a communication
that
(A) directly or indirectly identifies a can-
didate and
(B) addresses an issue of national, state,
or local political importance and does not
support or oppose a candidate for election
to public office[.]
Id. at § 15.13.400(12).
[2] AKRTL argues that the definition of “electioneering
communication” is unconstitutionally vague and overbroad,
both on its face and as applied. The Alaska definition of
“electioneering communication” is comparable to the defini-
tion of the same term in the federal Bipartisan Campaign
Reform Act of 2002 (“BCRA”). “Electioneering communica-
tion” is defined under BCRA as any “broadcast, cable, or sat-
ellite communication” that
(I) refers to a clearly identified candidate for Federal
office:
(II) is made within —
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(aa) 60 days before a general, special, or
runoff election for the office sought by the
candidate; or
(bb) 30 days before a primary or prefer-
ence election, or a convention or caucus of
a political party that has authority to nomi-
nate a candidate, for the office sought by
the candidate; and
(III) in the case of a communication which refers
to a candidate for an office other than President or
Vice President, is targeted to the relevant electorate.
2 U.S.C. § 434(f)(3)(A)(i). A communication is “targeted to
the relevant electorate” if it “can be received by 50,000 or
more persons” in the congressional district or state. Id. at
§ 434(f)(3)(C).
The definition of “electioneering communication” under
Alaska law is different from the federal definition of that
same term in the following respects. First, under Alaska law,
the communication must identify a candidate for office “di-
rectly or indirectly.” Under the federal law, the communica-
tion must identify a candidate “clearly.” Second, under Alaska
law, the communication must “address[ ] an issue of national,
state or local political importance,” and must “attribute[ ] a
position on that issue to the candidate.” Under federal law, the
content of the communication is not specified; however, with
the exception of communications referring to candidates for
the Presidency and the Vice-Presidency, the communication
must be “targeted to the relevant electorate.” Third, under
Alaska law, the communication must occur within 30 days of
any general or municipal election. Under federal law, the
communication must occur within 60 days of a general or
comparable election, or within 30 days of a primary or com-
parable election.
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1. Vagueness
We have little trouble concluding that the definition of
“electioneering communication” contained in § 15.13.400(15)
is not unconstitutionally vague, either facially or as applied.
In McConnell v. Federal Election Commission, 540 U.S. 93
(2003), the Supreme Court upheld the federal definition of
“electioneering communication” in BCRA against a facial
vagueness challenge. The Court did not merely uphold the
definition as constitutionally permissible; indeed, because the
definition was so obviously constitutional, the Court also did
not narrow the definition by judicial construction in order to
avoid a constitutional question. The Court wrote:
[W]e observe that [the] definition of “electioneering
communication” raises none of the vagueness con-
cerns that drove our analysis in Buckley [v. Valeo,
424 U.S. 1 (1976)]. The term “electioneering com-
munication” applies only (1) to a broadcast (2)
clearly identifying a candidate for federal office, (3)
aired within a specific time period, and (4) targeted
to an identified audience of at least 50,000 viewers
or listeners. These components are both easily under-
stood and objectively determinable. Thus, the consti-
tutional objection that persuaded the Court in
Buckley to limit FECA’s reach to express advocacy
is simply inapposite here.
540 U.S. at 194 (internal citations omitted).
From the standpoint of vagueness, there are only two possi-
bly significant differences between the federal and the Alaska
definition of “electioneering communication.” First, under the
federal definition, the candidate must be identified “clearly.”
By contrast, under the Alaska definition, the candidate must
be identified “directly or indirectly.” Second, under the fed-
eral definition, the content of the communication is not
described beyond what might be implicit in the requirement
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that the communication be “targeted to the relevant elector-
ate.” By contrast, under the Alaska definition, the communi-
cation must “address[ ] an issue of national, state, or local
political importance and attribute[ ] a position on that issue to
the candidate identified.” We take these two differences in
turn.
a. Facial Challenge to Candidate Identification
AKRTL argues that the definition of “electioneering com-
munication” is unconstitutionally vague on its face because
the candidate must be identified “directly or indirectly” rather
than “clearly,” as in the federal definition. Specifically,
AKRTL argues that the use of the word “indirectly” is consti-
tutionally fatal. We disagree.
[3] The federal and the Alaska definitions operate in the
same way. Under both definitions, if the candidate is identi-
fied by the communication, it is an “electioneering communi-
cation.” Under both definitions, it does not matter how the
identification of the candidate takes place. The federal defini-
tion specifies no method of identification. The Alaska defini-
tion specifies that the method may be direct or indirect;
however, since the words “direct and indirect” together
describe the complete universe of possible methods of identi-
fication, the Alaska statute has the actual effect of requiring
no specific method of identification, just like the federal defi-
nition.
If the Alaska definition had only used the word “directly,”
omitting the word “indirectly,” it would have left open the
possibility that a communication identifying a candidate
would have escaped regulation. As we stated in rejecting the
“magic words” approach in our opinion in Furgatch,
A proper understanding of the speaker’s message
can best be obtained by considering speech as a
whole. Comprehension often requires inferences
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from the relation of one part of speech to another.
The entirety may give a clear impression that is
never succinctly stated in a single phrase or sen-
tence.
807 F.2d at 863.
[4] The Alaska legislature chose two words — “directly”
and “indirectly” — that in combination were well suited to its
purpose of regulating campaign communications identifying
particular candidates. “Indirectly” is an easily understood
word in common English usage. In the context in which it is
used, it is neither vague nor difficult to understand. We there-
fore reject AKRTL’s facial vagueness challenge to the defini-
tion of “electioneering communication.”
b. Facial Challenge to Requirement That the
Communication “Address[ ] an Issue of National, State, or
Local Political Importance”
The Alaska definition of “electioneering communication”
requires that the communication “address an issue of national,
state, or local political importance.” AKRTL argues that this
provision of the Alaska’s definition is unconstitutionally
vague on its face. We disagree.
[5] The challenged provision restricts the scope of the defi-
nition so that it covers only certain kinds of communication.
By comparison, the only restriction in the federal definition is
that the communication be “targeted to the relevant elector-
ate.” The Supreme Court in McConnell upheld the federal
definition against a vagueness challenge, despite the failure to
describe the content of an “electioneering communication”
except for whatever description might be implicit in the
phrase “relevant electorate.” In our view, “relevant,” as used
in the federal definition, is at least as vague a term as the
phrase “addresses an issue of national, state, or local political
importance,” as used in the Alaska definition. In context, the
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requirement in the federal definition that the communication
be targeted to the “relevant electorate” pretty clearly means
that the communication must concern some issue of political
importance to that electorate. But, of course, “issue” and “po-
litical importance” are precisely the words used in the Alaska
statute. Those words are accompanied by the words “national,
state, or local,” but, if anything, those words make the provi-
sion less rather than more vague.
c. As-Applied Vagueness Challenge
[6] We also reject AKRTL’s as-applied vagueness chal-
lenge. An “electioneering communication” as defined under
Alaska law, clearly applies to AKRTL’s proposed telephone
message. That proposed message specifically identifies, by
name, the 2002 Republican and Democratic gubernatorial
candidates, Frank Murkowski and Fran Ulmer. AKRTL’s pro-
posed communication also clearly addresses an issue of “na-
tional, state, or local political importance.” Indeed, the
proposed communication itself refers to the issues of “ban-
ning partial birth abortion, establishing parental consent and
stopping state funding,” and then states, “We believe these are
important issues affecting all Alaskans.”
2. Overbreadth
We also have little trouble concluding that the definition of
“electioneering communication” is not unconstitutionally
overbroad. AKRTL argues that the definition of “electioneer-
ing communication” is not restricted to “express advocacy” or
its functional equivalent, and that “electioneering communica-
tion” under Alaska law can be interpreted to include “issue
advocacy.” AKRTL further argues that if the definition of
“electioneering communication” includes “issue advocacy,”
the definition is unconstitutionally overbroad. We disagree.
a. Facial Overbreadth
AKRTL’s argument is based on the Supreme Court’s anal-
ysis of the Federal Election Campaign Act of 1971 in Buckley
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v. Valeo, 424 U.S. 1 (1976). In Buckley, the Court construed
a provision of the Act that limited expenditures “relative to a
clearly identified candidate” to $1,000 per year. 18 U.S.C.
§ 608(e)(1) (1970 ed., Supp. IV). Influenced by the First
Amendment, the Court construed that provision to apply only
to “expenditures for communications that in express terms
advocate the election or defeat of a clearly identified candi-
date for federal office.” 424 U.S. at 44. Employing what have
later been called “magic words,” the Court noted that the limi-
tation on expenditures applied only to expenditures for com-
munications “containing express words of advocacy of
election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast
your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’
‘reject.’ ” Id. at 44 n.52.
In McConnell, the Supreme Court retreated from its state-
ments in Buckley. Plaintiffs in McConnell challenged the fed-
eral definition of “electioneering communication” in BCRA,
arguing “that Buckley drew a constitutionally mandated line
between express advocacy and so-called issue advocacy, and
that speakers possess an invaluable First Amendment right to
engage in the latter category of speech.” 540 U.S. at 190. The
Court in McConnell emphasized that the distinction drawn in
Buckley between “express advocacy” and “so-called issue
advocacy” was not constitutionally compelled, but was rather
“the product of statutory interpretation rather than a constitu-
tional command.” Id. at 192. “In short, the concept of express
advocacy and the concomitant class of magic words were
born of an effort to avoid constitutional infirmities.” Id.
Despite the Court’s retreat from Buckley in McConnell,
AKRTL argues that Alaska’s definition of “electioneering
communications” is overbroad because it includes “issue
advocacy.” We disagree for two reasons.
[7] First, AKRTL is incorrect in arguing that “issue advoca-
cy” is included in the Alaska definition of “electioneering
communications.” Under Alaska’s law, “electioneering com-
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munications” have a distinct and non-overlapping definition
from “issues communications.” The disclosure requirements
to which AKRTL objects are triggered only by an expenditure
that supports an “express communication” or an “electioneer-
ing communication.” Alaska Stat. § 15.13.400(6)(C). The dis-
closure requirement is not triggered by an expenditure that
supports an “issues communication.” Id. The statute states
explicitly, “[E]xpenditure” . . . includes an express communi-
cation and an electioneering communication, but does not
include an issues communication.” Id. (emphasis added).
[8] Under the Alaska law, an “issues communication” is
defined as “a communication that (A) directly or indirectly
identifies a candidate; and (B) addresses an issue of national,
state, or local political importance and does not support or
oppose a candidate for election to public office.” Id. at
§ 15.13.400(12) (emphasis added). This definition of “issues
communication” is fully consistent with Buckley’s definition
of “issues advocacy.” Even if we were to agree with
AKRTL’s argument that issue advocacy cannot constitution-
ally come within the definition of “electioneering communi-
cation,” we would be compelled by the plain words of the
Alaska statute to conclude that “issue advocacy” is not
included within that definition.
[9] Second, as the Supreme Court noted in McConnell, the
line between express and issues advocacy is, in any event, not
constitutionally compelled. In construing the federal defini-
tion of “electioneering communication” under BCRA, the
Court upheld the constitutionality of the definition without
applying the Buckley distinction between the two kinds of
advocacy. The Court wrote:
Nor are we persuaded . . . that the First Amendment
erects a rigid barrier between express advocacy and
so-called issue advocacy. That notion cannot be
squared with our longstanding recognition that the
presence or absence of magic words cannot mean-
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ingfully distinguish electioneering speech from a
true issue ad. . . . Not only can advertisers easily
evade the line by eschewing the use of magic words,
but they would seldom choose to use such words
even if permitted. And although the resulting adver-
tisements do not urge the viewer to vote for or
against a candidate in so many words, they are no
less clearly intended to influence the election. Buck-
ley’s express advocacy line, in short, has not aided
the legislative effort to combat real or apparent cor-
ruption, and Congress enacted BCRA to correct the
flaws in the existing system.
540 U.S. at 193-94 (footnote omitted); see also ACLU of Nev.
v. Heller, 378 F.3d 979, 985 (9th Cir. 2004) (“After McCon-
nell, the line between ‘express’ and all other election-related
speech is not constitutionally material[.]”).
b. Overbreadth as Applied
[10] Alaska’s definition of “electioneering communica-
tions” as applied to AKRTL’s proposed telephone message is
not unconstitutionally overbroad as applied to AKRTL’s pro-
posed telephone message. That proposed message refers to
several issues concerning abortion, ascribes positions on those
issues to the two gubernatorial candidates, and urges the lis-
tener to vote. Under any reasonable understanding of that
message, the listener is being urged to vote for or against
these two candidates based on the positions described in the
message. Such a message is clearly regulable under both
Buckley and McConnell.
B. Disclosure Requirements
AKRTL challenges three different kind of disclosures that
a “nongroup entity” must make if it wishes to make an “elec-
tioneering communication.” First, the entity must register
with APOC. Second, the entity must report expenditures.
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Third, the entity must disclose that it is paying for its commu-
nications.
AKRTL argues that these disclosure requirements violate
its First Amendment rights. In part its argument depends on
its contention — which we have just rejected — that the defi-
nition of “electioneering communication” is unconstitution-
ally vague and overbroad. But in part its argument depends on
a free-standing contention that because it is an “MCFL orga-
nization,” as described in Federal Election Commission v.
Massachusetts Citizens for Life, 479 U.S. 238 (1986)
(“MCFL”), it is protected by the First Amendment from hav-
ing to make such disclosures.
We agree with AKRTL that it is a “nongroup entity” under
Alaska law, and that such an entity is an MCFL organization.
We also agree that MCFL organizations have greater protec-
tions under the First Amendment than traditional business
corporations. However, we disagree with AKRTL’s conten-
tion that Alaska’s disclosure requirements violate the First
Amendment rights of an MCFL organization.
1. MCFL Organizations
We begin our analysis with a description of the Supreme
Court’s holding in MCFL. Massachusetts Citizens for Life,
Inc. (“MCFL”), a nonprofit, nonstock corporation, brought a
First Amendment challenge to a provision of the Federal
Election Campaign Act of 1974, 2 U.S.C. § 441b. Section
441b imposed certain requirements on all corporations mak-
ing expenditures “in connection with” any federal election.
Among other things, § 441b required that campaign expendi-
tures not come from money in the corporation’s general fund.
Instead, such expenditures had to come from a separate, seg-
regated fund. The money in that fund could come only from
voluntary contributions “earmarked for that purpose by the
donors.” Id. at 252.
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In its majority opinion, the Court distinguished between a
“traditional corporatio[n] organized for economic gain” and a
corporation like MCFL. Id. at 259. In the Court’s view, a tra-
ditional corporation — an “organization that amass[es] great
wealth in the marketplace,” id. at 263 — may be regulated to
a greater extent. The Court defined a corporation like MCFL
as having three critical features: First, it “was formed for the
express purpose of promoting political ideas, and cannot
engage in business activities.” Second, it has no shareholders
or other affiliated persons with “a claim on assets or earn-
ings.” Third, it “was not established as a business corporation
or labor union, and it is its policy not to accept contributions
from such organizations.” Id. at 263-64.
The Court majority in MCFL construed § 441b to apply
only to expenditures and contributions for “express advoca-
cy.” Id. at 249. It then held that an organization meeting the
above criteria could not constitutionally be required to main-
tain a separate, segregated fund containing money specifically
solicited for campaign contributions. It wrote, “The limitation
on solicitation in this case . . . means that nonmember corpo-
rations can hardly raise any funds at all to engage in political
speech warranting the highest constitutional protection.” Id. at
260. The Court held that the limitation contained in § 441b
could not be constitutionally applied to corporations meeting
the MCFL criteria because it was too “broad [a] prophylactic
rule.” Id.
The Federal Election Commission (“FEC”) had advanced
two primary justifications for applying § 441b to MCFL.
First, the FEC had argued that MCFL-type organizations
might use an individual’s money for purposes not supported
by that individual. It contended that “even if contributors may
be aware that a contribution to appellee will be used for politi-
cal purposes in general, they may not wish such money to be
used for electoral campaigns in particular.” Id. at 261. The
Court majority responded by noting that this concern could be
met “by means far more narrowly tailored and less burden-
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some,” simply by “requiring that contributors be informed
that their money may be used for such a purpose.” Id. Second,
the FEC had argued that if the requirements of § 441b were
not applicable to MCFL, this “would open the door to mas-
sive undisclosed political spending by similar entities, and to
their use as conduits for undisclosed spending by business
corporations and unions.” Id. at 262. The majority responded
by noting that whatever interest the government had in disclo-
sure was satisfied by another, unchallenged provision of the
statute under which MCFL was required to report information
about independent expenditures “of as little as $200.” Id. The
Court therefore concluded that the FEC had not advanced a
“compelling state interest” sufficient to justify the application
of § 441b to MCFL. Id. at 263 (emphasis in original).
2. Degree of Scrutiny
The degree of scrutiny that we must apply to Alaska’s dis-
closure requirements for “nongroup entities” is somewhat
unclear. In Buckley, the Court applied “exacting scrutiny” to
various disclosure requirements in the Federal Election Cam-
paign Act, including disclosures of contributions as small as
$11 or $101 to minor-party and independent candidates, and
disclosures “by those who make independent contributions
and expenditures.” Buckley, 424 U.S. at 61-62; see also id. at
44-45 (“[T]he constitutionality of § 608(e)(1) turns on
whether the governmental interests advanced in its support
satisfy the exacting scrutiny applicable to limitations on core
First Amendment rights of political expression.” (emphasis
added)). “Exacting scrutiny,” in the words of Buckley,
required that a “ ‘substantial relation’ ” be shown “between
the governmental interest and the information required to be
disclosed.” Id. at 64. This “exacting scrutiny” standard in
Buckley was later characterized by the Court as requiring that
a restriction on corporate political expenditures be “narrowly
tailored to serve a compelling state interest.” Austin, 494 U.S.
at 657 (citing Buckley, 424 U.S. at 44-45).
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In McConnell, the Court appears to have relaxed the degree
of scrutiny. It explicitly applied a less exacting scrutiny to
campaign contributions. It wrote:
Because the electoral process is the very means
through which a free society democratically trans-
lates political speech into concrete governmental
action, contribution limits, like other measures aimed
at protecting the integrity of the process, tangibly
benefit public participation in political debate. For
that reason, when reviewing Congress’ decision to
enact contribution limits, there is no place for a
strong presumption against constitutionality, of the
sort often thought to accompany the words “strict
scrutiny.”
540 U.S. at 137 (internal quotation marks and citations omit-
ted). The Court was not as explicit about the appropriate stan-
dard of scrutiny with respect to disclosure requirements.
However, in addressing extensive reporting requirements
applicable to money gathered and disbursed to finance “elec-
tioneering communications” (as that term is defined in
BCRA), the Court did not apply “strict scrutiny” or require a
“compelling state interest.” See id. at 194-95 (describing dis-
closure requirements). Rather, the Court upheld the disclosure
requirements as supported merely by “important state inter-
ests.” Id. at 196 (“We agree with the District Court that the
important state interests that prompted the Buckley Court to
uphold FECA’s disclosure requirements . . . apply in full to
BCRA.” (emphasis added)). In the Court’s view, those “im-
portant state interests” “amply support[ed] application of [the]
disclosure requirements to the entire range of ‘electioneering
communications.’ ” Id.
In our recent opinion in Heller, relying on McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995), we applied strict
scrutiny in deciding a facial challenge to a state law requiring
“persons paying for or ‘responsible for paying for’ the publi-
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cation of ‘any material or information relating to an election
candidate or any question on a ballot’ to identify their names
and addresses on ‘any [published] printed or written matter or
any photograph.’ ” 378 F.3d at 981-82. We noted that
McConnell “casts new light” on some aspects of First Amend-
ment protections of election-related speech, but we concluded
that “nothing in McConnell undermines McIntyre’s under-
standing that proscribing the content of an election communi-
cation is a form of regulation of campaign activity subject to
traditional strict scrutiny.” Id. at 987.
[11] In some respects, the disclosure requirements in the
case now before us resemble the disclosure requirements at
issue in McConnell. In other respects — in particular the
requirements of Alaska Stat. §§ 15.13.090 and 15.13.135(b)
that the identity of a person paying for a “communication” be
disclosed — they resemble those at issue in Heller. For pur-
poses of this opinion we will assume without deciding that
strict scrutiny applies to all of the challenged disclosure
requirements, and that Alaska must advance a “compelling
state interest” to justify them. Even under this standard, we
hold that Alaska’s disclosure requirements are justified.
3. Three Forms of Required Disclosure
The three forms of challenged disclosure are registration,
reporting, and disclosure of who is paying for a communica-
tion. We first address AKRTL’s facial challenge. We then
address its as-applied challenge.
a. Facial Challenge to Disclosure Requirements
i. Registration
A nongroup entity must comply with the registration
requirements of Alaska Stat. §§ 15.13.050(a) and 15.13.067
before it can make an expenditure in support of or in opposi-
tion to a political candidate. Section 15.13.050(a) provides:
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Before making an expenditure in support of or in
opposition to a candidate . . . each person other than
an individual shall register, on forms provided by the
commission, with the commission.
The registration form provided by APOC in connection with
§ 15.13.050(a) is two pages long. It asks for basic informa-
tion, such as a nongroup entity’s name, its purpose, the names
and contact information of its officers, its campaign plans,
and banking information if it plans to raise more than $5,000.
Section 15.13.067 provides:
Only the following may make an expenditure in an
election for candidates for elective office:
(1) the candidate;
(2) an individual;
(3) a group that has registered under AS
15.13.050; and
(4) a nongroup entity that has registered
under AS 15.13.050.
The provision of this section covering a nongroup entity was
added to the Alaska campaign finance law as part of the 2001
and 2002 amendments.
The registration requirements of Alaska Stat.
§§ 15.13.040(a) and 15.13.167 are not significantly burden-
some in themselves. They are only burdensome to the extent
that they trigger the reporting and disclosure-of-who-is-
paying requirements applicable once a nongroup entity has
registered. We therefore postpone our consideration of bur-
dens, and the state’s justification for imposing them, to our
consideration of these requirements.
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ii. Reporting
AKRTL challenges the following reporting requirements
with which a nongroup entity must comply once it has regis-
tered.
First, AKRTL challenges Alaska Stat. §§ 15.13.040(d), (e),
and (j),2 which require a nongroup entity making an expendi-
2The full text of § 15.13.040(d), (e), and (j) is as follows:
(d) Every individual, person, nongroup entity, or group making
an expenditure shall make a full report of expenditures, upon a
form prescribed by the commission, unless exempt from report-
ing. (e) The report required under (d) of this section must contain
the name, address, principal occupation, and employer of the
individual filing the report, and an itemized list of expenditures.
The report shall be filed with the commission no later than 10
days after the expenditure is made.
. . .
(j) Except as provided in (l) of this section [setting forth report-
ing requirements when fund-raising nets contributions under $50
each], each nongroup entity shall make a full report in accor-
dance with AS 15.13.110 upon a form prescribed by the commis-
sion and certified by the nongroup entity’s treasurer, listing
(1) the name and address of each officer and director of the
nongroup entity;
(2) the aggregate amount of all contributions made to the
nongroup entity for the purpose of influencing the outcome
of an election;
(3) for all contributions described in (2) of this subsection,
the name, address, date, and amount contributed by each
contributor and, for all contributions described in (2) of this
subsection in excess of $250 in the aggregate during a calen-
dar year, the principal occupation and employer of the con-
tributor; and
(4) the date and amount of all contributions made by the
nongroup entity, and, except as provided for certain indepen-
dent expenditures in AS 15.13.135(a), all expenditures made,
incurred, or authorized by the nongroup entity, for the pur-
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ture to make a “full report” of that expenditure on a form pro-
vided by APOC no later than ten days after the expenditure
is made. The report must contain the name, address, principal
occupation, and employer of the individual filing the report,
and an “itemized list” of expenditures (§ 15.13.040(c) and
(d)). Further, a nongroup entity must make a “full report,” at
intervals prescribed by § 15.13.110, listing the name and
address of each officer and director of the entity
(§ 15.13.040(j)(1)); the aggregate amount of all contributions
made to the entity for the purpose of influencing the outcome
of the election (§ 15.13.040(j)(2)); the name, address, date,
and amount contributed by each contributor to the entity, and,
for contributions by a particular contributor exceeding an
aggregate of $250 in any calendar year, the principal occupa-
tion and employer of that contributor (§ 15.13.040(j)(3)); and
the date and amount of all contributions made by the entity,
and, except for certain independent expenditures, all expendi-
tures made by the entity for the purpose of influencing the
outcome of an election (§ 15.13.040(j)(4)).
Second, AKRTL challenges Alaska Stat. § 15.13.074(i),
which requires a nongroup entity to notify a potential contrib-
utor of the purpose to which his contribution may be used if
that contribution is to be to influence the outcome of an elec-
tion.
pose of influencing the outcome of an election; a nongroup
entity shall report contributions made to a different nongroup
entity for the purpose of influencing the outcome of an elec-
tion and expenditures made on behalf of a different nongroup
entity for the purpose of influencing the outcome of an elec-
tion as soon as the total contributions and expenditures to
that nongroup entity for the purpose of influencing the out-
come of an election reach $500 in a year and for all subse-
quent contributions and expenditures to that nongroup entity
in a year whenever the total contributions and expenditures
to that nongroup entity for the purpose of influencing the
outcome of an election that have not been reported under this
paragraph reach $500.
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Third, AKRTL challenges Alaska Stat. § 15.13.082(b),
which provides that a “nongroup entity may not make an
expenditure unless the source of the expenditure has been dis-
closed by this chapter.”
Fourth, AKRTL challenges Alaska Stat. § 15.13.110,3
which specifies the deadlines for filing reports with APOC.
3In relevant part, the text of § 15.13.110 provides:
(a) Each candidate, group, and nongroup entity shall make a
full report in accordance with AS 15.13.040 for the period ending
three days before the due date of the report and beginning on the
last day covered by the most recent previous report. If the report
is a first report, it must cover the period from the beginning of
the campaign to the date three days before the due date of the
report. If the report is a report due February 15, it must cover the
period beginning on the last day covered by the most recent pre-
vious report or on the day that the campaign started, whichever
is later, and ending on February 1 of that year. The report shall
be filed
(1) 30 days before the election; however, this report is not
required if the deadline for filing a nominating petition or
declaration of candidacy is within 30 days of the election;
(2) one week before the election;
(3) 105 days after a special election; and
(4) February 15 for expenditures made and contributions
received that were not reported previously . . . .
(b) Each contribution that exceeds $250 and that is made within
nine days of the election shall be reported to the commission by
date, amount, and contributor within 24 hours of receipt by the
candidate, group, campaign treasurer, or deputy campaign trea-
surer. Each contribution to a nongroup entity for the purpose of
influencing the outcome of an election that exceeds $250 and that
is made within nine days of the election shall be reported to the
commission by date, amount, and contributor within 24 hours of
receipt by the nongroup entity.
. . .
(f) During the year in which the election is scheduled, each of
the following shall file the campaign disclosure reports in the
manner and at the times required by this section:
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Finally, AKRTL challenges Alaska Stat. § 15.13.135(a),4
which requires a nongroup entity making an independent
expenditure supporting or opposing a candidate to make
reports under Alaska Stat. §§ 15.13.040 and 15.13.110, pro-
vided that the entity’s annual operating budget is more than
$150.
[12] We conclude that these reporting requirements survive
strict scrutiny. In Buckley, the Court wrote that in determining
whether a state’s interests in regulating campaign contribu-
tions and expenditures “are sufficient to justify the require-
ments we must look to the extent of the burden that they place
on individual rights.” 424 U.S. at 68. For several reasons, we
believe that the burdens imposed on nongroup entities by
these requirements are not particularly onerous.
[13] First, the challenged provisions require only reporting
of contributions to, and of contributions and expenditures by,
a nongroup entity. The provisions in no way limit the amount
that may be contributed to, or spent by, the entity.
[14] Second, unlike the provisions at issue in MCLF, the
. . .
(4) a group or nongroup entity that receives contributions
or makes expenditures on behalf of or in opposition to a per-
son described in (1)-(3) of this subsection [e.g., an individual
running for governor][.]
4The full text of § 15.13.135(a) is as follows:
Only an individual, group, or nongroup entity may make an inde-
pendent expenditure supporting or opposing a candidate for elec-
tion to public office. An independent expenditure supporting or
opposing a candidate for election to public office, except an inde-
pendent expenditure made by a nongroup entity with an annual
operating budget of $250 or less, shall be reported in accordance
with AS 15.13.040 and 15.13.100-15.13.110 and other require-
ments of this chapter.
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challenged provisions do not “mean that [nongroup entities]
can hardly raise any funds at all to engage in political
speech[.]” MCLF, 479 U.S. at 260. There is no allegation in
this case that the reporting provisions limit the fundraising
ability of nongroup entities.
[15] Third, unlike the provisions at issue in MCLF, the
challenged provisions are not “broad prophylactic rule[s]”
that require structural changes in a nongroup entity, such as
the segregated fund requirement imposed by § 441b of the
Federal Election Campaign Act of 1974. Id. at 260. Instead,
the challenged provisions are very much like those that the
Court suggested in MCLF as alternative means by which Con-
gress could permissibly accomplish its aims. For example,
Alaska Stat. § 15.13.074(i) requires a nongroup entity to
notify a potential contributor of the political purpose to which
his contribution may be used. This provision corresponds
almost exactly to the Court’s suggestion in MCLF that Con-
gress could “requir[e] that contributors be informed that their
money may be used for [electoral campaigns].” Id. at 261.
Further, the reporting requirements of Alaska Stat.
§§ 15.13.040(d), (e) and (j), 15.13.082(b), 15.13.110, and
15.13.135(a) are very much the like the unchallenged report-
ing requirements in MCLF. The Court in MCLF pointed to
those requirements as accomplishing the aims of Congress
more precisely than the “broad prophylactic rule” of § 441b
that it held unconstitutional. Id. at 262.
[16] In light of the nature of the burdens imposed on a non-
group entity by Alaska’s registration and reporting require-
ments, we hold that these requirements are justified by
compelling state interests. As stated by the Court in Buckley,
those interests are, first, providing “the electorate with infor-
mation as to where political campaign money comes from and
how it is spent . . . in order to aid the voters in evaluating
those who seek . . . office”; second, “deter[ring] actual corrup-
tion and avoid[ing] the appearance of corruption by exposing
large contributors and expenditures to the light of publicity”;
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and, third, imposing “recordkeeping, reporting, and disclosure
requirements [as] an essential means of gathering the data
necessary to detect violations” of the campaign finance law.
Buckley, 424 U.S. at 66-68 (internal quotation marks omitted).
Or, as stated more succinctly by the Court in McConnell,
those interests are “providing the electorate with information,
deterring actual corruption and avoiding any appearance
thereof, and gathering the data necessary to enforce more sub-
stantive electioneering restrictions.” McConnell, 540 U.S. at
196.
[17] We therefore hold that the reporting provisions of
Alaska Stat. §§ 15.13.040(d), (e), (j), 15.13.074(i),
15.13.082(b), 15.13.110, and 15.13.135(a) are constitutional.
iii. Disclosure of Who Pays for a Communication
Once registered, a nongroup entity must also comply with
two provisions requiring that it disclose who is paying for a
communication. AKRTL challenges both provisions.
First, Alaska Stat. § 15.13.090 requires that most campaign
communications be accompanied by a statement indicating
who financed the communication. Specifically, it provides:
(a) All communications shall be clearly identified
by the words “paid for by” followed by the name and
address of the candidate, group, nongroup entity, or
individual paying for the communication. In addi-
tion, candidates and groups may identify the name of
their campaign chairperson.
(b) The provisions of (a) of this section do not
apply when the communication
(1) is paid for by an individual acting
independently of any group or nongroup
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entity and independently of any other indi-
vidual;
(2) is made to influence the outcome of a
ballot proposition as that term is defined by
AS 15.13.065(c); and
(3) is made for
(A) a billboard or sign; or
(B) printed material other than an
advertisement made in a newspaper or
other periodical.
As defined by § 15.13.400(3), a “communication” means an
“announcement or advertisement” that “directly or indirectly
identif[ies] a candidate or proposition[.]”
Second, Alaska Stat. § 15.13.135(b) requires much the
same kind of disclosure as § 15.13.090 for “independent
expenditures.” Specifically, it provides:
(b) An individual, group, or nongroup entity who
makes independent expenditures for a mass mailing,
for distribution of campaign literature of any sort, for
a television, radio, newspaper, or magazine adver-
tisement, or any other communication that supports
or opposes a candidate for election to public office
(1) shall comply with AS 15.13.090; and
(2) shall place the following statement in
the mailing, literature, advertisement, or
other communication so that it is readily
and easily discernible:
This NOTICE TO VOTERS is required
by Alaska law. (I/we) certify that this
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(mailing/literature/advertisement) is not
authorized, paid for, or approved by the
candidate.
[18] In effect, both provisions require that voters be
informed of the source and nature of funding for campaign
communications. Section 15.13.090 requires, with certain
specified exceptions, that communications be accompanied by
such information. Section 15.13.135(b) requires that, in addi-
tion to complying with § 15.13.090, communications support-
ing a candidate paid for by independent expenditures must
notify voters that the candidate did not authorize or pay for
the communication.
AKRTL does not argue that Alaska Stat. §§ 15.13.090 and
15.13.135(b) require disclosures for communications whose
anonymity is protected under McIntyre, 514 U.S. 334 (1995),
and Heller, 378 F.3d 979 (9th Cir. 2004). AKRTL’s challenge
is quite narrow. It only argues that to the degree disclosure of
its identity is required for “issue advocacy” communications
or their “functional equivalent,” there is no compelling state
interest that would justify such a requirement. We disagree for
two reasons.
First, as discussed above, the Court held in McConnell that
the line drawn in Buckley between express and issue advocacy
is not constitutionally compelled. Second, even if there were
some relevant protection of issue advocacy, and even if dis-
closures of the nongroup entity’s identity were required in
connection with such issue advocacy, there is a compelling
state interest justifying such a requirement.
[19] Leaving aside McIntyre-type communications which
are not implicated by the Alaska law, we believe that there is
a compelling state interest in informing voters who or what
entity is trying to persuade them to vote in a certain way. The
Court in McConnell quoted approvingly from the opinion of
the district court in justifying a requirement in BCRA that the
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identity of a corporation or labor union funding “purported
‘issue ads’ ” be disclosed to the voters. The district court had
written,
Plaintiffs [who object to the disclosure requirement]
never satisfactorily answer the question of how “un-
inhibited, robust, and wide-open” speech can occur
when organizations hide themselves from the scru-
tiny of the voting public . . . . Plaintiffs’ argument
for striking down BCRA’s disclosure provisions
does not reinforce the precious First Amendment
values that Plaintiffs argue are trampled by BCRA,
but ignores the competing First Amendment interests
in individual citizens seeking to make informed
choices in the political marketplace.
540 U.S. at 197 (quoting McConnell v. Fed. Election
Comm’n, 251 F.Supp.2d 176, 237 (D.D.C. 2003)). We under-
stand the reasons given by the Court in MCFL for differentiat-
ing between corporations and labor unions, on the one hand,
and so-called MCFL organizations, on the other, when sub-
stantial burdens on raising or spending money for political
speech are at issue. But we do not believe that those reasons
apply when disclosure of the entity funding a campaign com-
munication is at issue. “[I]ndividual citizens seeking to make
informed choices in the political marketplace,” id., have an
equal need to know what entity is funding a communication,
whether that entity is a corporation, a labor union, or a “non-
group entity” as defined under Alaska law.
[20] We therefore conclude that the compelling state inter-
ests of “providing the electorate with information, deterring
actual corruption and avoiding any appearance thereof, and
gathering the data necessary to enforce more substantive elec-
tioneering restrictions,” McConnell, 540 U.S. at 196, justify
the application of Alaska Stat. §§ 15.13.090 and 15.13.135(b)
to nongroup entities.
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b. As-Applied Challenge to Disclosure Requirements
[21] In McConnell, the Court rejected plaintiffs’ as-applied
challenges to disclosure requirements in BCRA because the
plaintiffs had not presented evidence in the district court
establishing the “requisite ‘reasonable probability’ of harm”
to persons making the required disclosures. 540 U.S. at 199.
In this case, as in McConnell, AKRTL has not shown a “ ‘rea-
sonable probability’ of harm,” in the sense intended in
McConnell, as a result of its being required to make the dis-
closures required under the Alaska campaign law. We there-
fore reject its as-applied challenge.
VI. Conclusion
For the foregoing reasons, we conclude that the challenged
provisions of Alaska’s campaign finance law are constitu-
tional, both facially and as applied to AKRTL. We therefore
AFFIRM the decision of the district court.
AFFIRMED.
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