California Pro-Life Council, Inc. v. Randolph

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA PRO-LIFE COUNCIL, INC., 

Plaintiff-Appellant,

v.

LIANE RANDOLPH, Chairman of the

Fair Political Practices No. 05-15507

Commission; PHILIP BLAIR, FPP

Commissioner; SHERIDAN DOWNEY,  D.C. No.

CV-00-01698-FCD

III, FPP Commissioner; EUGENE

OPINION

HUGUENIN, FPP Commissioner;

PAMELA KARLAN, FPP

Commissioner; BILL LOCKYER,

Attorney General,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

February 12, 2007—San Francisco, California

Filed November 14, 2007

Before: John T. Noonan, Ronald M. Gould, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

14797

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14801

COUNSEL

James Bopp, Jr. (briefed and argued), Richard E. Coleson

(briefed), Terre Haute, Indiana, for the appellant.

Teri L. Block (argued), Luisa Menchaca (briefed), Lawrence

T. Woodlock (briefed and argued), Fair Political Practices

Commission General Counsel; Louis R. Mauro, Senior Assis-

tant Attorney General, Catherine M. Van Aken, Supervising

Deputy Attorney General, Robert E. Leidigh, Deputy Attor-

ney General, Kathryn Gimple (briefed), Sacramento, Califor-

nia, for the appellees.

Trevor Potter, J. Gerald Hebert, Paul S. Ryan, Washington,

D.C.; Daniel R. Ortiz, Charlottesville, Virginia, for amicus

curiae Campaign Legal Center.

Rob McKenna, Attorney General, Nancy Krier, Senior Coun-

sel, Olympia, Washington for amici curiae States of Washing-

ton, Arizona, Hawaii, Iowa, Montana, Nevada, New Mexico

and Oregon.

OPINION

RAWLINSON, Circuit Judge:

California Pro-Life Council, Inc. (CPLC) challenges certain

provisions of California’s Political Reform Act (PRA),

including the PRA’s definition of “contribution” and the

recipient committee requirements imposed on a multi-purpose

organization, such as CPLC. On cross-motions for summary

judgment, the district court granted summary judgment in

14802 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

favor of Appellees (collectively referred to as California) and

denied CPLC’s motion for summary judgment. Because strict

scrutiny applies and CPLC conceded the existence of a com-

pelling governmental interest in the disclosure of the informa-

tion at issue, we focus on the narrow tailoring inquiry,

concluding that the definition of contribution is narrowly tai-

lored, and the additional recipient committee requirements are

not.

I. BACKGROUND

CPLC, a non-profit corporation under 26 U.S.C.

§ 501(c)(4), is a nonpartisan, nonsectarian, educational orga-

nization dedicated to educating the public on abortion, infanti-

cide, and euthanasia. CPLC is the state affiliate of the

National Right to Life Committee (NRLC), one of the

nation’s most powerful lobbying and interests groups.

According to CPLC, its major purpose is not the nomination

or election of candidates or the passage or defeat of ballot

measures, but rather to educate Californians regarding the

value of life. In keeping with its expressed purpose, CPLC

periodically generates mass mailings, ranging from 15,000 to

in excess of 100,000 in number.

The purpose of the PRA is to inform voters of the identity

of individuals and/or organizations who expend money in

support of or in opposition to ballot measures. The informa-

tion collected pursuant to PRA disclosure requirements is

accessible to the public via the Secretary of State’s website.

In 2004, there were 18,243,899 documented hits on this site,

in 2005 11,118,821 documented hits, and in 2006 20,049,141

documented hits.

CPLC filed a ten-count amended verified complaint for

declaratory and injunctive relief, alleging that particular pro-

visions of the PRA violate the First and Fourteenth Amend-

ments. Because CPLC disseminated voter guides before the

1998 primary and general elections and the 2000 primary

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14803

election, expending, in excess of $1,000, it would be deemed

a recipient committee under the Act. Although it would like

to provide similar information to the general public in the

future, as long as the PRA remains in effect, CPLC asserts

that it will refrain, due to the requirements imposed upon a

recipient committee and the consequent penalties for failure

to comply.

Counts 1 (overbreadth — candidate communications), 2

(overbreadth — ballot measures), 3 (overbreadth — advocacy

regarding candidates), 4 (overbreadth — advocacy regarding

ballot measures), and 6 (facial challenge) were dismissed by

the district court. Counts 5 (vagueness) and 10 (vagueness)

were also dismissed to the extent that they were directed at

regulation of communications involving candidates and mere

discussion of ballot measure initiatives. The counts were not

dismissed to the extent they were directed at express ballot

measure advocacy. Thereafter, the parties stipulated to the

dismissal without prejudice of counts 7 (major purpose), 8

(major purpose), and 9 (major purpose), i.e., all claims relat-

ing to state regulation of groups as committees without regard

to their major purpose.

In 2003, we remanded this case to the district court to “de-

termine whether California’s informational interest is suffi-

ciently compelling to justify its regulation of groups like

CPLC and, if so, whether the PRA regulations are closely tai-

lored to advance this interest.” California Pro-Life Council,

Inc. v. Getman, 328 F.3d 1088, 1101 (9th Cir. 2003).

Although we noted a lack of clarity regarding the appropriate

level of scrutiny, we applied strict scrutiny. Id. at 1101 n.16.

Upon remand, the district court concluded that the regula-

tory scheme imposed on CPLC and groups like CPLC who

engage in express ballot measure advocacy is the least restric-

tive means available for California to achieve its compelling

interest in fully informing voters and preventing organizations

14804 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

from disguising their involvement in express ballot measure

advocacy. CPLC filed a timely appeal.

Although we agree with the district court that strict scrutiny

applies and that the definition of contribution is narrowly tai-

lored, we hold that the additional recipient committee require-

ments are not.

II. STANDARD OF REVIEW

“The district court’s grant of summary judgment is

reviewed de novo.” Qwest Communications, Inc. v. City of

Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006) (citation omit-

ted). “We must determine, viewing the evidence in the light

most favorable to . . . the non-moving party, whether there are

any genuine issues of material fact and whether the district

court correctly applies the substantive law.” Olsen v. Idaho

State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) (cita-

tion omitted).

III. DISCUSSION

A. For Purposes Of Summary Judgment, CPLC Cannot

Rely On “Factual Presuppositions.”

CPLC argued to the district court that “the factual frame-

work for th[e] remand is that provided [by the panel’s deci-

sion in Getman.]” This argument raised several issues: (1)

whether CPLC was relieved of its duty to present evidence;

(2) if not, whether CPLC presented sufficient admissible evi-

dence to raise an issue of material fact; (3) if CPLC failed to

present sufficient evidence, whether its failure to do so is fatal

to its appeal; (4) whether a district court is bound by the

remand instructions from an appellate court; and (5) in the

context of a motion under Rule 12(b)(6) of the Federal Rules

of Civil Procedure (FRCP), whether the district court was

bound by the factual underpinnings of the remand order.

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14805

1. CPLC Was Not Relieved Of Its Duty To Present

Evidence.

[1] Contrary to CPLC’s position that it could rely on “fac-

tual presuppositions” of the prior panel decision, the Getman

panel noted that “a more fully developed record” was needed

to resolve the compelling interest and narrowly tailored inqui-

ries. See 328 F.3d at 1107. The panel’s decision in no way

relieved CPLC of its duty to present evidence to support its

summary judgment motion or to challenge California’s

motion.

2. CPLC Failed To Present Sufficient Admissible

Evidence To Raise An Issue Of Material Fact.

CPLC contends that its amended verified complaint quali-

fies as an affidavit for summary judgment purposes.1 We dis-

agree.

[2] “[A] verified complaint may serve as an affidavit for

purposes of summary judgment if [1] it is based on personal

knowledge and if [2] it sets forth the requisite facts with spec-

ificity.” Moran v. Selig, 447 F.3d 748, 760 n.16 (9th Cir.

2006) (citation omitted) (emphasis added). The verified com-

plaint in this case was signed by Brian Johnston, the Execu-

tive Director of CPLC. During his deposition, Johnston’s lack

of personal knowledge regarding CPLC was apparent. A

series of questions was asked regarding CPLC’s PACs and

Johnston responded that he did not know to nearly every

inquiry. His knowledge regarding how CPLC funds are spent

was also scant. As could be expected in view of Johnston’s

lack of personal knowledge, the verified complaint was

impermissibly heavy on legal conclusions and light on “facts

relevant to the summary judgment motion.” Lew v. Kona Hos-

pital, 754 F.2d 1420, 1424 (9th Cir. 1985), as amended.

1

CPLC also submitted a “Supplemental Affidavit in Support of Plain-

tiff’s Motion for Preliminary Injunction,” detailing CPLC’s prospective

plans for the November 2000 election.

14806 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

3. CPLC’s Failure To Present Sufficient Evidence To

Raise An Issue Of Material Fact Is Not Fatal To Its

Appeal.

[3] Even though we conclude that CPLC failed to present

sufficient admissible evidence in support of its motion for

summary judgment or in opposition to California’s motion for

summary judgment to raise a material question of fact, this

determination is not dispositive. We must still determine

whether the undisputed facts entitle California to summary

judgment as a matter of law. See Tellis v. Godinez, 5 F.3d

1314, 1316 (9th Cir. 1993). This leads us to an examination

of the remand order.

4. A District Court Is Bound To Follow The

Instructions Of An Appellate Court Upon Remand.

“A district court, on remand, has a duty to follow this

court’s instructions as to how the case is to proceed.” United

States v. Montgomery, 462 F.3d 1067, 1072 (9th Cir. 2006)

(citation omitted). “[C]lear direction to the district court on

how to proceed continues to be binding precedent . . .” Oper-

ating Engineers Pension Trust v. Charles Minor Equip.

Rental, Inc., 766 F.2d 1301, 1304 (9th Cir. 1985).

[4] The district court was bound by the Getman panel’s

instructions: “On remand, the district court should determine

whether California’s informational interest is sufficiently

compelling to justify its regulation of groups like CPLC and,

if so, whether the PRA regulations are closely tailored to

advance this interest.” Getman, 328 F.3d at 1101. The Get-

man panel described CPLC as a group “whose major purpose

is not campaign advocacy, but who occasionally make[s]

independent expenditures.” Id. at 1101 n.21 (citation omitted).

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14807

5. In The Specific Context Of A FRCP 12(b)(6)

Motion, No Factual Determinations Were Made

That Would Bind The District Court On Remand.

In reviewing a motion to dismiss under FRCP 12(b)(6),2

“we assume all facts alleged in the . . . Complaint are true

. . .” Sacks v. Office of Foreign Assets Control, 466 F.3d 764,

773 (9th Cir. 2006) (citation omitted). Because of the assump-

tion that all facts in the Complaint are true, there is no need

for judicial factfinding. See FRCP 52(a) (“Findings of fact

and conclusions of law are unnecessary on decisions of

motions under Rule 12 . . .”). Indeed, the court is not “faced

[with any] factual issue.” Adams v. United States, 225 F.3d

787, 797 (9th Cir. 2001). As the Getman panel was not faced

with any factual issues, its passing statement regarding

CPLC’s “major purpose” could not reasonably be construed

as making a factual determination.3

[5] Therefore, although CPLC had a duty to present evi-

dence, its failure to present relevant admissible evidence is

not fatal to its appeal because we must still consider whether

the undisputed facts entitle California to summary judgment

as a matter of law. Moreover, because in a motion to dismiss

under FRCP 12(b)(6), we assume all facts to be true, the dis-

trict court was not bound by our passing statement regarding

CPLC’s “major purpose.”

B. Strict Scrutiny Applies In This Case.4

2

See Getman, 328 F.3d at 1101 (reviewing “the district court’s dismissal

for failure to state a claim”).

3

In any event, the determination regarding CPLC’s “major purpose” has

no bearing on this case because: (1) the parties voluntarily stipulated to the

dismissal of the major purpose claims, and (2) neither party disputes that

CPLC is a multi-purpose organization.

4

The Supreme Court’s recent decision in Federal Election Commission

v. Wisconsin Right to Life, Inc. (WRL), 127 S. Ct. 2652 (2007), does not

affect our treatment of this case. WRL concerned a corporation’s “ability

to engage in political speech.” Id. at 2660. WRL did not undertake an anal-

ysis of statutory disclosure requirements.

14808 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

This case was remanded to the district court for application

of strict scrutiny to its analysis of the PRA. See Getman, 328

F.3d at 1101 n.16. Nonetheless, because McConnell v. Fed-

eral Election Commission, 540 U.S. 93 (2003), was decided

subsequent to the Getman remand, the parties dispute the

applicable standard.5

As noted, we are bound to apply strict scrutiny. See Get-

man, 328 F.3d at 1101 n.16 (selecting the strict scrutiny stan-

dard). Because neither the McConnell decision nor the

Supreme Court’s recent decision in WRL, 127 S. Ct. 2652,

called into question the analysis reflected in Federal Election

Commission v. Massachusetts Citizens for Life, Inc. (MCFL),

479 U.S. 238, 252 (1986), upon which we relied in Getman,6

we are not compelled to abandon the standard adopted in Get-

man. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.

2001) (“Once a panel resolves an issue in a precedential opin-

ion, the matter is deemed resolved, unless overruled . . . by

the Supreme Court.”) (footnote reference omitted).

5

Two cases in this Circuit have discussed how McConnell may have

changed the legal landscape. These cases have drawn a “distinction

between direct regulation of the content of political speech and requiring

the later reporting of the funding of speech . . .” American Civil Liberties

Union of Nevada v. Heller, 378 F.3d 979, 987 (9th Cir. 2004) (applying

strict scrutiny to the former and implying that “McConnell cases new

light” on the latter); see also Alaska Right to Life Committee v. Miles

(ARLC), 441 F.3d 773, 788 (9th Cir. 2006) (concluding that “the Court [in

McConnell] did not apply ‘strict scrutiny’ or require a ‘compelling state

interest[,]’ ” but nonetheless “assum[ing] without deciding that strict scru-

tiny applies to all of the challenged disclosure requirements”) (citation

omitted). We need not resolve any potential conflict because we are bound

by the “law of the case” to apply strict scrutiny. Minidoka Irrigation Dis-

trict v. U.S. Dept. of Interior, 406 F.3d 567, 574 (9th Cir. 2005) (“[W]e

are bound by the opinion of the prior panel as the law of the case.”) (cita-

tion and internal quotation marks omitted).

6

See, e.g., McConnell, 540 U.S. at 211 (referring to MCFL without criti-

cism); see also Getman, 328 F.3d at 1101 (relying on MCFL’s application

of strict scrutiny).

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14809

Applying strict scrutiny, California bears the burden of

proving that the PRA provisions at issue are “(1) narrowly tai-

lored, to serve (2) a compelling state interest.” Republican

Party of Minnesota v. White, 536 U.S. 765, 774-75 (2002)

(citation omitted).7

C. California Has A Compelling Interest In Requiring

Disclosure Of Contributions To Groups Who Seek To

Influence Voters.

CPLC concedes that “California has a compelling interest

in regulating true contributions (gifts to groups like CPLC

that are made for the purpose of influencing voters . . .).”

CPLC makes a distinction between “true contributions” and

“mere donations,” which CPLC contends are not made for the

purpose of influencing voters. Citing to McConnell, 540 U.S.

at 206, CPLC argues that for California “[t]o justify its

required disclosure of mere donations, California had the bur-

den of proving that donations are the ‘functional equivalent’

of contributions.” However, CPLC’s framing of the issue is

unsupported by governing law.

[6] California seeks disclosure of “contributions” of $100

or more. See California Government Code (CGC) § 84211(f).

Thus, the appropriate inquiry is whether the PRA’s definition

of “contributions” impermissibly classifies donations that

were not made for the purpose of influencing voters as “con-

tributions.”

[7] CPLC’s “functional equivalent” argument is unavailing.

California does not attempt to extend the coverage of the dis-

7

We note that for purposes of the narrow tailoring analysis, the district

court adopted the framework outlined by the Second Circuit in Landell v.

Sorrell, 382 F.3d 91 (2d Cir. 2004), as amended. Because there are “cases

on point from this circuit,” we need not consider opinions from other cir-

cuits. Roy v. Lampert, 465 F.3d 964, 971 (9th Cir. 2006), as amended; see,

e.g., Getman, 328 F.3d at 1104 & n.16 (discussing narrow tailoring).

14810 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

closure requirements to donations unless the donee expends

funds to influence voters. Therefore, California does not have

to establish that donations are the functional equivalent of

“contributions.” Cf. McConnell, 540 U.S. at 205-06 (conclud-

ing that issue advocacy that is the “functional equivalent” of

express advocacy may fall within the statute’s provisions); see

also WRL, 127 S. Ct. at 2659, 2664 (2007) (addressing the

issue of “whether the speech at issue is the ‘functional equiva-

lent’ of speech expressly advocating the election or defeat of

a candidate for federal office, or instead a genuine issue ad[ ]”

and reiterating the holding in McConnell) (citation and alter-

ation omitted). Rather, we must determine whether the statute

is narrowly tailored to advance California’s compelling inter-

est in disclosure of those groups who seek to influence voters.8, 9

(Text continued on page 14812)

8

We note that in the context of disclosure requirements, the govern-

ment’s interest in providing the electorate with information related to elec-

tion and ballot issues is well-established. See, e.g., McConnell, 540 U.S.

at 196; see also Buckley v. Valeo, 424 U.S. 1, 66 (1976); Goland v. United

States, 903 F.2d 1247, 1261 (9th Cir. 1990); ARLC, 441 F.3d at 791.

Despite the fact that CPLC conceded that California has a compelling

informational interest, California also presented persuasive evidence dem-

onstrating the importance of providing the electorate with pertinent infor-

mation. Researcher David Binder conducted a telephone survey from June

23-26, 2001. “The goals of this project were to determine objectively,

using established methods of scientific public opinion research, what

sources of information regarding candidates and ballot measures are

important to California voters.” According to Binder’s findings, “[m]ore

than seven of ten California voters (71%) state that it is important to know

the identity of the source and amount of campaign contributions to the bal-

lot measure by both supporters and opponents, including unions, busi-

nesses or other interest groups.” “Fifty seven percent (57%) of California

voters state that endorsements by interest groups, politicians or celebrities

are important in helping them make up their own mind on how to vote on

ballot measures.” “A majority of California voters (57%) state they would

be less likely to vote for a proposition to build senior citizen housing if

the proposition was supported by a well-known and respected senior activ-

ist who was discovered to have been paid by developers to promote the

proposition. Only one-third (34%) stated that this information would not

make any difference in their vote.”

Professor Bruce Cain, a Professor of Political Science at the University

of California, Berkeley, and Director of the Institute of Governmental

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14811

Studies, added that “there are several compelling reasons for such a

requirement. Foremost among them is the fact that the names groups give

themselves for disclosure purposes can be, and frequently are, ambiguous

or misleading.”

Sandy Harrison, a former journalist for radio stations and newspapers

and since 1995, a press secretary and communications director for the

president pro tem of the state Senate, the state Department of Finance, and

the state Controller, emphasizes this point in her affidavit:

A prime example of this was Proposition 188 on the November

1994 ballot, an effort to overturn California’s recently enacted

workplace smoking ban. Supporters falsely portrayed the mea-

sure as a grassroots effort by small businesses. By reviewing the

campaign finance report, I was able to report to readers that it

was not the work of small businesses, but actually giant tobacco

Companies . . . . If the campaign finance report had not been pub-

lic, I could not have substantiated or conveyed this important

information to the readers, and they may never have learned the

truth about who was really behind this proposition.

According to Stephen K. Hopcraft, the President and co-owner of “a

full-service public relations firm specializing in grass roots and public

education campaigns[,]” “the information gleaned from . . . disclosure

reports is absolutely critical to assist news media and voters in sorting

through the claims and counter-claims in a ballot measure campaign . . . .

With all the hyperbole in campaigning, the financial backing of each side

gives voters a yardstick to measure the truth of the assertions.” Indeed,

CPLC admitted that “[b]ecause political operators in many states are able

to avoid campaign finance disclosure requirements, citizens are likely to

be uninformed and unaware of the tens of millions of dollars that are spent

on ballot measure campaigns by veiled political actors (VPAs) . . .”

9

Although we are satisfied that California has a compelling interest in

disclosure of pertinent information to the electorate, we do not completely

adopt the district court’s articulation of the compelling governmental

interest. The district court concluded that California had a compelling state

interest in both “[1] informing the electorate regarding contributions and

expenditures made to pass or defeat ballot measure initiatives and[,] [2] in

maintaining the integrity of its electoral and legislative processes prevent-

ing veiled political actors from concealing their involvement in the politi-

cal process.” The latter interest implicates the notion of deterring

corruption, which has been rejected as a constitutionally sufficient interest

14812 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

D. CPLC’s Challenge To The Narrow Tailoring Of The

Statute Is Valid As To The PAC-Like Reporting

Requirements But Not As To The Other Provisions.

CPLC posits that (1) California’s presumption, described in

California Code of Regulations, tit. 2 (CCR) § 18215(b)(1),

“transmogrifies” donations into contributions and thus is not

narrowly tailored to California’s compelling interest in disclo-

sure of information to the electorate;10 and, (2) the resulting

recipient committee requirements are not narrowly tailored.11

in the ballot measure disclosure context. See, e.g., Montana Chamber of

Commerce v. Argenbright, 226 F.3d 1049, 1056 (9th Cir. 2000)

(“Referenda are held on issues, not candidates for public office. The risk

of corruption perceived in cases involving candidate elections simply is

not present in a popular vote on a public issue.”); see also First National

Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of corrup-

tion perceived in cases involving candidate elections, simply is not present

in a popular vote on a public issue.”) (citation and footnote references

omitted).

10

CPLC refers to the presumption contained in CCR § 18215(b)

throughout its brief as a transmogrifying presumption. “Transmogrify”

means “[t]o change into a different shape or form, especially one that is

fantastic or bizarre.” The American Heritage College Dictionary 1347 (3d

ed. 2000).

11

Citing to Buckley, 424 U.S. at 79 and MCFL, 479 U.S. at 252 n.6,

CPLC maintains that because its major purpose is not campaign advocacy,

it was improper for California to “treat [CPLC] like a PAC.” Having

determined that “the major purpose test is inapplicable,” the district court

did not reach the issue of “whether CPLC’s major purpose is campaign

activity.” In any event, in addition to the fact that the parties stipulated to

dismissal of the “major purpose” claims, this Court has held that irrespec-

tive of the major purpose of an organization, disclosure requirements may

be imposed. See, e.g., ARLC, 441 F.3d at 786. CPLC’s argument to the

contrary is unpersuasive.

CPLC’s supplemental citation to the recent Tenth Circuit case of Colo-

rado Right to Life Committee, Inc. v. Coffman (CRLC), Nos. 05-1519, 05-

1538, 2007 WL 2372368 (10th Cir. Aug. 21, 2007), does not persuade us

otherwise. Not only are we unable to stray from our prior precedent, see

Hulteen v. AT&T, 498 F.3d 1001, 1010 (9th Cir. 2007) (en banc), but the

Tenth Circuit expressly limited its holding to the confines of “restrictions

on expenditures.” See CRLC, 2007 WL 2372368 at *11.

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14813

1. The PRA Provisions Contain Three Alternatives To

Determine If Disclosure Requirements Are

Triggered.12

The PRA’s stated purpose is to ensure that “[r]eceipts and

expenditures in election campaigns [are] fully and truthfully

disclosed in order that the voters may be fully informed and

improper practices may be inhibited.” CGC § 81002(a).

Pursuant to CGC § 82013, a committee subject to disclo-

sure requirements may be formed in three ways. First, a recip-

ient committee forms if “any person or combination of

persons . . . receives contributions totaling $1,000 or more in

a calendar year.” § 82013(a). Second, an independent expen-

diture committee forms if “any person or combination of per-

sons . . . makes independent expenditures totaling $1,000 or

more in a calendar year . . .” § 82013(b). Third, a major donor

committee forms if “any person or combination of persons . . .

makes contributions totaling $10,000 or more in a calendar

year to or at the behest of candidates or committees.”

§ 82013(c).

Pursuant to CGC § 82013:

“Independent expenditure” means an expenditure

made by any person in connection with a communi-

cation which expressly advocates the election or

defeat of a clearly identified candidate or the qualifi-

cation, passage or defeat of a clearly identified mea-

sure, or taken as a whole and in context,

unambiguously urges a particular result in an elec-

tion but which is not made to or at the behest of the

affected candidate or committee.

12

Although the focus on this appeal is on the recipient committee provi-

sions, it is useful to peruse the other provisions for context.

14814 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

Under CGC § 82015(a), “contribution” is a term of art

which “means a payment, a forgiveness of a loan, a payment

of a loan by a third party, or an enforceable promise to make

a payment except to the extent that full and adequate consid-

eration is received, unless it is clear from the surrounding cir-

cumstances that it is not made for political purposes.”

(emphases added). CCR § 18215(a) defines a “contribution”

as “any payment made for political purposes for which full

and adequate consideration is not made to the donor . . .”

[8] The PRA considers a payment to be “made for political

purposes if it is . . . [f]or the purpose of influencing or

attempting to influence the action of the voters for or against

the nomination or election of a candidate or candidates, or the

qualification or passage of any measure . . .” CCR

§ 18215(a)(1). CCR § 18215(b)(1) further defines “contribu-

tion” to include:

Any payment made to a person or organization other

than a candidate or committee, when, at the time of

making the payment, the donor knows or has reason

to know that the payment, or funds with which the

payment will be commingled, will be used to make

contributions or expenditures. If the donor knows or

has reason to know that only part of the payment

will be used to make contributions or expenditures,

the payment shall be apportioned on a reasonable

basis in order to determine the amount of the contri-

bution.

(emphases added). This section further presumes that:

the donor does not have reason to know that all or

part of the payment will be used to make expendi-

tures or contributions, unless the person or organiza-

tion has made expenditures or contributions of at

least one thousand dollars ($1,000) in the aggregate

during the calendar year in which the payment

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14815

occurs, or any of the immediately preceding four cal-

endar years.

Id.

[9] This presumption contained in CCR § 18215(b)(1) is

known as the “one bite (or first bite) of the apple” rule.

According to the California Fair Political Practices Commis-

sion, once an organization makes expenditures or contribu-

tions of at least $1,000, this is considered the “first bite.”

California Fair Political Practices Commission, Diane M.

Fishburn Advice Letter No. A-06-075 (Fishburn Advice Let-

ter) at *4 (June 9, 2006). “For the remainder of the year [after

the $1,000 or more contribution and/or expenditure] and the

following four years, any donor to the organization would

presumably know or have reason to know that funds with

which the donations will be commingled may be used for

political purposes.” Id. Thus,

[i]f a subsequent contribution or expenditure of

$1,000 or more is made by the organization during

the applicable period (current year plus 4 following

years), the organization becomes a recipient commit-

tee, and any donations or membership fees it

receives after the “first bite” contribution or expen-

diture of $1,000 or more has been taken, are deemed

to have been received for political purposes, and the

sources of any funds used by the organizations to

make those contributions would [be] subject to dis-

closure on a reasonably apportioned basis.

Id. (emphasis added).13

Within ten days after a person or group of persons qualifies

13

CPLC refers to the current year plus the four previous years as the

“lookback period” and refers to the “time from the second expenditure

back to the beginning of the calendar year” as the “reachback period.”

14816 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

as a recipient committee, a statement of organization must be

filed. CGC § 84101(a); see also id., § 84102 (describing the

contents of the statement of organization). The committee

must have a treasurer. Id., § 84100. “It shall be the duty of

each candidate, treasurer, and elected officer to maintain

detailed accounts, records, bills, and receipts necessary to pre-

pare campaign statements, to establish that campaign state-

ments were properly filed, and to otherwise comply with the

provisions of this chapter.” Id., § 84104. A recipient commit-

tee must file semi-annual statements. Id., § 84200(a).

The required contents of a campaign statement are listed in

§ 84211(f). In pertinent part, subsection (f) requires:

If the cumulative amount of contributions (including

loans) received from a person is one hundred dollars

($100) or more and a contribution or loan has been

received from that person during the period covered

by the campaign statement, all of the following

[must be reported]:

(1) His or her full name.

(2) His or her street address.

(3) His or her occupation.

(4) The name of his or her employer, or if

self-employed, the name of the business.

(5) The date and amount received for each

contribution received during the period

covered by the campaign statement and if

the contribution is a loan, the interest rate

for the loan.

(6) The cumulative amount of contribu-

tions.

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14817

Id., § 84211(f). To determine whether a particular donor or

member’s contribution was $100 or more for any given calen-

dar year, a pro-rata amount may be used for reporting purposes.14

According to Carla Wardlow, Chief of the Technical Assis-

tance Division of the California Fair Political Practices Com-

mission, “[d]uring even-numbered years, CPLC may be

required to file up to four pre-election campaign reports (two

reports to the primary election and two reports prior to the

general election), if the committee makes contributions or

independent expenditures totaling $500 or more during the

period covered by the pre-election statement.” CGC

§ 84200.7 specifies the time for filing pre-election statements.

For example, pursuant to § 84200.7(b)(1), pre-election state-

ments for the November election should be filed no later than

October 5. For those contributions received after the applica-

ble date, a committee like CPLC would have to file a late con-

tribution form. Id., § 82036(a). However, according to

Wardlow, “most campaign disclosure reports are required

only when CPLC engages in campaign activity. If CPLC has

no activity, only two reports are required each year - simple

statements affirming that CPLC is conducting no campaign

activity . . . .”

14

In a 2003 advice letter, the California Fair Political Practices Commis-

sion provided the following example of pro-rating:

[The organization] raises money from membership dues and by

holding an annual fundraiser . . . Money raised from the fund-

raiser and membership dues . . . equals $40,000. [The organiza-

tion] also contributes $10,000 to candidates and committees dur-

ing this time. Thus, one quarter of all receipts are used for

political purposes. Any person who donates $400 or more to [the

organization] during this time period must be itemized, as

required in section 84211(f), since one quarter of their donations

are deemed contributions to the committee . . . .

California Fair Political Practices Commission, Ginger Osborne Advice

Letter, No. A-03-108 (Osborne Advice Letter), at *2 (June 11, 2003).

14818 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

Thereafter, if a recipient committee wishes to terminate, it

must file a notice of its termination pursuant to CGC § 84214.

By terminating, the committee “insure[s] that [it] will have no

activity which must be disclosed . . .” Id., § 84214.

2. California Satisfied Its Burden Of Demonstrating

That The Definition Of Contribution Is Narrowly

Tailored To Advance Its Compelling Governmental

Interest In Disclosure Of Groups Who Seek To

Influence Voters.

In determining whether legislation is narrowly tailored, we

consider whether the restriction “(1) promotes a substantial

government interest that would be achieved less effectively

absent the regulation, and (2) [does] not burden substantially

more speech than is necessary to further the government’s

legitimate interests.” Kuba v. 1-A Agriculural Ass’n, 387 F.3d

850, 861 (9th Cir. 2001) (quoting Ward v. Rock Against Rac-

ism, 491 U.S. 781, 798 (1989)) (alteration and internal quota-

tion marks omitted).15

a. Other Methods of Defining What Payments Must

Be Disclosed Do Not Advance California’s

Informational Interest.

CPLC argues that California’s compelling interest only jus-

tifies the disclosure of those payments that are expressly

“made for political purposes for which full and adequate con-

sideration is not made to the donor[,]” CCR § 18215(a). Cali-

fornia counters that:

By simply discouraging donors from earmarking

their donations for expenditures on express cam-

paign advocacy or by commingling earmarked con-

15

Our earlier discussion of California’s compelling interest explains

why the regulation is necessary to meet the governmental interest in dis-

closing the sources of political speech to the voting public.

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14819

tributions with other funds, any multi-purpose group

could escape classification as a ‘recipient committee’

under [CGC] section 82013(a), and thereby avoid the

duty to disclose its contributors regardless of the size

of the contribution or the level of its political activ-

ity.

[10] Supreme Court precedent supports a definition of

“contribution” broader than that advocated by CPLC. In

MCFL, 479 U.S. at 241, 252, 262, the Court upheld the dis-

closure requirements in 2 U.S.C. § 434(c). In that statute,

“contribution” was defined as “any gift . . . or anything of

value made by any person for the purpose of influencing any

election for Federal office[.]” 2 U.S.C. § 431(8)(A)(I)

(emphasis added). The Court did not question the constitu-

tionality of these disclosure provisions, i.e., what is meant by

“to influence elections” or when the corporation will know

that there is a “contribution.” The fact that California has

more explicitly defined “contribution” does not weaken its

legislation. Cf. Garza v. County of Los Angeles, 918 F.2d 763,

772 (9th Cir. 1990) (noting that “while more frequent appor-

tionment was not constitutionally required, it would be consti-

tutionally permissible, and even practically desirable[ ]”)

(internal quotation marks and citation omitted).

In addition to a pure earmarking system, California consid-

ered “the system applicable to PACs, under which all receipts

are reported as contributions[.]” California noted that such a

system is “more restrictive and more burdensome than the

current reporting requirements of the PRA.” Consideration of

alternatives and selection of a less burdensome alternative that

furthers California’s compelling interest supports a conclusion

of narrow tailoring. Cf. Kuba, 387 F.3d at 862 n.12 (consider-

ing alternatives in assessing narrow tailoring).

b. Section 18215(b)(1)’s Presumption, Used To

14820 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

Identify Those Payments That Qualify As

Contributions, Is Permissible.16

Citing to Riley v. Nat’l Federation of the Blind, 487 U.S.

781 (1988), and Virginia v. Black, 538 U.S. 343 (2003),

CPLC postulates that California’s presumption violates the

First Amendment. It also urges us to conclude that presump-

tions cannot be applied to it, because it is not a PAC. CPLC’s

argument fails because both cases it relies on are distinguish-

able.

In Riley, 487 U.S. at 784-85, the Supreme Court considered

the constitutionality of a North Carolina statute in which “a

fee [to a professional fundraiser] exceeding 35% [wa]s pre-

sumed unreasonable, but the fundraiser [could] rebut the pre-

sumption . . .” The Court stated that “using percentages to

decide the legality of the fundraiser’s fee is not narrowly tai-

lored to the State’s interest in preventing fraud.” Id. at 789.

In Black, 538 U.S. at 348, the Supreme Court considered

the constitutionality of a Virginia cross-burning statute pro-

viding that “burning of a cross shall be prima facie evidence

of an intent to intimidate a person or group of persons.” (cita-

tion omitted). The provision was held to be unconstitutional

because it “would create an unacceptable risk of the suppres-

sion of ideas.” Id. at 365 (citation omitted). “[T]he provision

chills constitutionally protected political speech because of

the possibility that the Commonwealth will prosecute - and

potentially convict - someone engaging only in lawful politi-

cal speech at the core of what the First Amendment is

designed to protect.” Id.

In both cases, the Supreme Court was concerned with the

chilling of speech. Although CPLC implies that California’s

16

CPLC does not take issue with the definition of “contribution” in CCR

§ 18215(a). Therefore, this discussion focuses on the provisions of

§ 18215(b)(1).

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14821

presumption may cause a group to “give up its right to

express itself” to avoid designation as a recipient committee,

there is no evidence in the record suggesting that such a chill-

ing effect has occurred.17

[11] Contrary to CPLC’s contentions, the record reflects

that the presumption in § 18215(b)(1) is rebuttable, thus pro-

viding flexibility for a group like CPLC to adopt a reasonable

method for identifying donors who are on notice of the exis-

tence of qualifying contributions.18

CGC § 82015(a) defines “contribution” as “a payment . . .

unless it is clear from the surrounding circumstances that [the

payment] is not made for a political purpose.” (Emphasis

added). Additionally, CCR § 18215(b) specifies that when a

donor has reason to know that its donation may be used for

17

In a related argument challenging the use of a presumption, CPLC

contends that by using the term “purpose” in CCR § 18215(a), California

is precluded from relying on a presumption. This argument is unavailing

because it assumes that California is required to have a system in which

only those donations which are specifically earmarked as “for the purpose

of influencing” voters may be regulated. As discussed above, California

has demonstrated that such a system would not advance its compelling

governmental interest. Because CPLC is essentially making an over-

breadth argument, it has the burden of showing that the inclusion of pro-

tected speech, i.e., donations not made “for the purpose of influencing”

voters, is substantial. See Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973). Parsing words used in California’s definition of “contribution”

does not meet this burden.

18

CPLC argues that California may not put forth this argument because

the district court described the one-bite-at-the-apple presumption as irre-

buttable and because California advances this argument for the first time

on appeal. These arguments are unconvincing. To the extent that the dis-

trict court’s order may be read as classifying the presumption as irrebutt-

able, we are not bound by its interpretation because “[this Court] review[s]

any element of legal analysis and statutory interpretation . . . de novo.”

Siegel v. The Federal Home Loan Mortgage Corp., 143 F.3d 525, 528 (9th

Cir. 1998) (citation omitted). Because claims, not arguments, are waived,

we may address California’s argument. See United States v. Pallares-

Galan, 359 F.3d 1088, 1095 (9th Cir. 2004).

14822 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

political purposes, the recipient committee may “apportion[ ]

[the payment] on a reasonable basis in order to determine the

amount of the contribution.” Thus, in the event that a donation

was made during a calendar year but before CPLC made the

$1,000 expenditure that would put donors on notice, CPLC

would not have to disclose those donations, because it is not

reasonable to assume the donors had notice of the potential

use of their donations for political purposes. Pursuant to CGC

§ 82015, the circumstances would convey that the donation

was not meant to be a “contribution.”19 CPLC represents that

“[a] presumption based on what the payee has done [i.e. made

expenditures or contributions of $1,000 or more during the

“lookback period”], not what the payor knows, that is applied

even where the payor knows nothing of the payee’s activity

is not narrowly tailored to an interest in the disclosure of gifts

‘made for the purpose of influencing’ voters.” This argument

is unconvincing, because it is based on an erroneous interpre-

tation of the PRA provisions. As discussed above, the pre-

19

This interpretation is supported by the Fishburn Advice Letter. “For

the remainder of that year [after the $1,000 or more contribution and/or

expenditure] and the following four years, any donor to the organization

would presumably know or have reason to know that funds with which the

donations will be commingled may be used for political purposes.” Id. at

*4. Thus,

[i]f a subsequent contribution or expenditure of $1,000 or more

is made by the organization during the applicable period (current

year plus 4 following years), the organization becomes a recipient

committee, and any donations or membership fees it receives

after the “first bite” contribution or expenditure of $1,000 or

more has been taken, are deemed to have been received for politi-

cal purposes, and the sources of any funds used by the organiza-

tions to make those contributions would [be] subject to disclosure

on a reasonably apportioned basis.

Id. (emphasis added).

We do not determine the constitutionality of the presumption in

§ 18215(b)(1) on its face. Rather, we review the statute as interpreted by

California. See Tollis, Inc. v. San Bernardino County, 827 F.2d 1329, 1333

(9th Cir. 1987) (reviewing ordinance as interpreted by County).

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14823

sumption is rebuttable. To the extent it can be shown that the

donor had no knowledge of the organization’s activities, then

the organization need not disclose the donation. In addition,

according to CGC § 82015, if it is clear from the surrounding

circumstances that the donor did not intend for the donations

to be for the purpose of influencing voters, no disclosure is

required.

CPLC asserts that California’s scheme is also underinclu-

sive and thus not narrowly tailored. According to CPLC,

“California considers donors to be on some level of construc-

tive notice after a group makes an initial expenditure [during

the current calendar year or the previous four calendar years]

. . . but asserts no interest in disclosure during this period.”

For example, because the “reachback period is only for the

calendar year, . . . it would not reach a large donation on

December 31 of the prior year, even if the second, triggering

independent expenditure occurs on the following day on Janu-

ary 1 of the present year.” However, CPLC itself demon-

strates why its argument does not establish

underinclusiveness, recognizing that “of course, if that gift

[on December 31 of the prior year] were really ‘made for the

purpose of influencing’ voters, it would already be captured

as a disclosable true contribution and the recipient group

would properly be a recipient committee.” Thus, the scheme

is not underinclusive because to the extent that the hypotheti-

cal payment on December 31 were “made for the purpose of

influencing” voters, it would be necessarily disclosed.

[12] Accordingly, we conclude that the presumption in

§ 18215(b)(1) is narrowly tailored. “To be narrowly tailored,

a statute need not be the least restrictive means of furthering

the government’s interests, but the restriction may not burden

substantially more speech than necessary to further the inter-

ests.” Menotti v. City of Seattle, 409 F.3d 1113, 1130-1131

(9th Cir. 2005) (citation and internal quotation marks omit-

ted). California has demonstrated why other alternatives fail

to advance its compelling informational interest. Moreover, as

14824 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

interpreted by California, § 18215(b)(1) does not burden sub-

stantially more speech than necessary and serves to advance

the compelling informational interest. See Arizona Right to

Life Political Action Committee v. Bayless, 320 F.3d 1002,

1011 (9th Cir. 2003) (“In determining whether a statute is nar-

rowly tailored to serve a significant government interest, we

look to the ‘fit’ between the state’s regulation and the stated

purposes[.]”) (citation omitted).

c. Pro-Ration and The Articulated Exception For

Organizations With Other Funds Further

Demonstrate That The Definition Of

“Contribution” Is Narrowly Tailored.

[13] A recipient committee is only required to disclose

those “contributions” that on a pro-rated basis are $100 or

more. According to California, pro-ration advances its com-

pelling governmental interest because “[t]he greater the orga-

nization’s political involvement and the greater the size of the

contribution, the greater the disclosure.”

[14] CPLC counters that the pro-ration is not narrowly tai-

lored because “the larger a group’s receipts, the smaller the

chance that a donation will be disclosed as a ‘contribution.’ ”

Contrary to this assertion, the pro-ration approach actually

demonstrates California’s attempt to narrow the statute and

capture only those payments “made for the purpose of influ-

encing” voters, because a donation is disclosed only to the

extent that the donee corporation participates in ballot mea-

sure advocacy.

CPLC asserts that there is a resulting underinclusiveness

because “the same donation made to two groups (with the

same lack of any communicated ‘purpose to influence’ voters)

would be disclosable as a prorated ‘contribution’ if made to

one but not the other.” CPLC explains that the California

scheme “permits the group to first count any proceeds it has

from sales toward the expenditure, so if a group has offsetting

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14825

proceeds from sales it does not need to report any ‘contribu-

tions.’ ” However, this challenge is based on a misinterpreta-

tion of how the PRA provisions operate. In fact, the pro-ration

provision applies only if the organization’s “contributions or

expenditures are made solely from that source . . .” Fishburn

Advice Letter, at *5 (explaining that this provision addresses

circumstances where “an organization has sufficient income

[from sources other than donations or membership dues] . . .

and [its] contributions or expenditures are made solely from

that source”) (emphasis added).

[15] California examined alternatives and reasonably deter-

mined that the alternatives do not advance its compelling

interest or were more restrictive. Additionally, CPLC failed to

establish that the presumption was impermissibly overinclu-

sive or underinclusive. Therefore, the PRA’s disclosure provi-

sions meet the “narrowly tailored” requirement.

3. California Has Not Satisfied Its Burden Of

Demonstrating That The Political Action

Committee-Like Requirements Imposed On A

Group Like CPLC Are Narrowly Tailored To

California’s Compelling Informational Interest.

[16] In addition to requiring disclosure of “contributions,”

the PRA imposes political action committee-like requirements

on a group like CPLC, a multi-purpose organization. Califor-

nia makes two primary arguments in support of these require-

ments. “First, the Constitution permits California to require

CPLC to form and use a PAC [Political Action Committee]

for its political activities, treating all its ‘donations’ as ‘contri-

butions.’ ” “Second, CPLC is not the kind of organization

exempted from PAC-like reporting obligations under the

teaching of MCFL.”

California’s arguments ignore the distinction between can-

didate and ballot measure elections. Instead, California relies

on its observation that “the federal counterpart to the PRA has

14826 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

required all groups organized in corporate form, including

non-profit corporations, to channel express campaign advo-

cacy through PACs, to which all ‘donations’ are, of course,

‘contributions.’ ” The following language in McConnell is

specified in support of this proposition:

Since our decision in Buckley, Congress’ power to

prohibit corporations and unions from using funds in

their treasuries to finance advertisements expressly

advocating the election or defeat of candidates in

federal elections has been firmly embedded in our

law. The ability to form and administer separate seg-

regated funds authorized by FECA . . . has provided

corporations and unions with a constitutionally suffi-

cient opportunity to engage in express advocacy.

That has been this Court’s unanimous view, and it is

not challenged in this litigation.

Id. (citing McConnell, 540 U.S. at 203) (citation and footnote

reference omitted) (emphasis added). However, California’s

reliance on McConnell and its interpretation of the federal

statute are both mistaken.

McConnell supports the required use of a separate segre-

gated fund when the organization is “expressly advocating the

election or defeat of candidates . . .” 540 U.S. at 203 (empha-

sis added). The reasoning of McConnell extends no further.

See also MCFL, 479 U.S. at 241, 247-48 (interpreting 2

U.S.C. § 441b to cover expenditures made directly to candi-

dates as well as on behalf of candidates). This reading is fur-

ther supported by the language of § 441b(a) making it

unlawful “for any . . . corporation . . . to make a contribution

or expenditure in connection with any election to any political

office, or in connection with any primary election . . . held to

select candidates for any political office . . .” 2 U.S.C.

§ 441b(a) (emphasis added). “Contribution” is defined as

“any gift, subscription, loan, advance, or deposit of money or

anything of value made by any person for the purpose of

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14827

influencing any election for Federal office[.]” § 431(8)(A)(I)

(emphasis added). “Expenditure” is defined as “any purchase,

payment, distribution, loan, advance, deposit, or gift of money

or anything of value, made by any person for the purpose of

influencing any election for Federal office[.]” § 431(9)(A)(I)

(emphasis added). “Federal office” is defined as “the office of

President or Vice President, or of Senator or Representative

in, or Delegate or Resident Commissioner to, the Congress.”

§ 431(3). Thus, the requirement of a separate segregated fund

pursuant to § 441b appears to only be in the context of contri-

butions or expenditures to or on behalf of candidates.

California’s citation to Bellotti does not salvage its argu-

ment. In Bellotti, 435 U.S. at 767, the Supreme Court consid-

ered a “state criminal statute that for[bade] certain

expenditures by banks and business corporations for the pur-

pose of influencing the vote on referendum proposals . . .”

The Court held the statute to be unconstitutional, noting “[t]he

risk of corruption perceived in cases involving candidate elec-

tions, simply is not present in a popular vote on a public

issue.” Id. at 776, 790 (citations and footnote reference omit-

ted). California contends that “[t]he statute at issue in Bellotti

did not provide corporations with the ‘PAC option’ that Buck-

ley found to be a ‘constitutionally sufficient opportunity’ for

corporations wishing to engage in political speech.” Califor-

nia asks us to conclude that the Supreme Court would have

upheld the statute reviewed in Bellotti had such an option

existed. However, the Court’s decision simply does not sup-

port that conclusion.

The weakness of California’s first argument undermines its

second argument. Based on the fact that McConnell recog-

nized an exception from the § 441b segregated-fund require-

ment for MCFL-type corporations, see McConnell, 540 U.S.

at 211, California contends that because CPLC does not qual-

ify as an MCFL-type corporation, it “is not entitled to an

‘exemption’ from requirements that it disclose the sources of

14828 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

money actually spent on ballot measure advocacy.”20 How-

ever, as discussed above, it is not at all certain that the

Supreme Court would apply the same criteria to ballot mea-

sure advocacy as it did when election of candidates was

involved.

In addition to these two primary arguments, California

presented testimony demonstrating that a group such as CPLC

could form a PAC to simplify reporting. However, the Court

in MCFL discounted that fact in analyzing the disclosure

requirements. See 540 U.S. at 203 & n.86.

California also argues that the “reporting, registration,

record-keeping and notice requirements . . . imposed on

CPLC or groups like CPLC are necessary and reasonable[,]”

because the “ ‘burdens’ enumerated [by] CPLC[ ] . . . have all

been upheld by the Supreme Court and could constitutionally

be imposed on CPLC by California.” However, this argument

is again unpersuasive because McConnell dealt solely with

disclosures in the candidate context. See 540 U.S. at 194.

[17] In MCFL, the Federal Election Commission argued

that “the inapplicability of § 441b to MCFL would open the

door to massive, undisclosed political spending by similar

entities, and to their use as conduits for undisclosed spending

by business corporations and unions.” MCFL, 479 U.S. at

262. The Court responded that it “s[aw] no such danger. Even

if § 441b is inapplicable, an independent expenditure of as lit-

20

In its reply brief, CPLC argues that it would “likely qualify as an

MCFL-type because donations from corporations, if any, would be de

minimis, and several federal courts have held that the exception require-

ment is satisfied with de minimis corporate donations.” We need not

address this argument because it is raised for the first time in the reply

brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)

(“It is well established in this circuit that the general rule is that appellants

cannot raise a new issue for the first time in their reply briefs.”) (citation

and alteration omitted). Moreover, insufficient evidence exists in the

record to determine whether corporate donations were in fact de minimis.

CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH 14829

tle as $250 by MCFL will trigger the disclosure provisions of

§ 434(c).” Id. “These reporting obligations provide precisely

the information necessary to monitor MCFL’s independent

spending activity and its receipt of contributions. The state

interest in disclosure therefore can be met in a manner less

restrictive than imposing the full panoply of regulations that

accompany status as a political committee under the Act.” Id.;

see also Bellotti, 435 U.S. at 767, 795 (invalidating a Massa-

chusetts statute that restricted corporations from contributing

to ballot measure referenda).

E. CPLC Has Failed To Establish Overbreadth.

To prevail on its overbreadth challenge, CPLC must dem-

onstrate that “the overbreadth of [the] statute [is] not only . . .

real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.” Broadrick, 413 U.S. at 615.

CPLC argues that the “reason to know” presumption con-

tained in CCR § 18215(b) is irrebuttable and thus overbroad.

CPLC contends that “[i]f a donor makes a gift to a group like

CPLC for the earmarked purpose of building a new office and

the transmogrifying presumption engages, there is no excep-

tion in the PRA regulations that permits the group to exclude

that gift from being considered a prorated contribution . . . .

California insists that it was ‘made for the purpose of influ-

encing’ voters.” This argument fails because as discussed

above, the presumption may be rebutted. See CGC

§ 82015(a), CCR § 18215(b).

CPLC also asserts that its associational rights are violated.

In NAACP v. Alabama, 357 U.S. 449, 462 (1958), the

Supreme Court invalidated compelled disclosure of member-

ship in an organization because the NAACP “made an uncon-

troverted showing that on past occasions revelation of the

identity of its rank-and-file members has exposed these mem-

bers to economic reprisal, loss of employment, threat of phys-

ical coercion, and other manifestations of public hostility.”

14830 CALIFORNIA PRO-LIFE COUNCIL v. RANDOLPH

The Court in McConnell clarified that for compelled disclo-

sure to be unconstitutional, as in NAACP, “the evidence must

demonstrate a reasonable probability that the compelled dis-

closure of a party’s contributors’ names will subject them to

threats, harassment or reprisals from either Government offi-

cials or private parties.” McConnell, 540 U.S. at 198 (citation

omitted). CPLC made no such showing.

Thus, California has met its burden of demonstrating that

the definition of “contribution” is narrowly tailored to its

compelling informational interest, and CPLC may be required

to disclose “contributions,” as defined by the PRA.

CONCLUSION

[18] We hold that California has demonstrated the exis-

tence of a compelling governmental interest and that the

PRA’s definition of “contribution” is narrowly tailored to pro-

mote its compelling informational interest. However, Califor-

nia has failed to demonstrate how the additional political

committee-like requirements are narrowly tailored to advance

its compelling governmental interest.

AFFIRMED in part, REVERSED in part, and

REMANDED.

Each party is to bear its costs on appeal.