Nagr v. Jeff Mangan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL ASSOCIATION FOR GUN No. 18-35010

RIGHTS, INC.,

Plaintiff-Appellant, D.C. No.

6:16-cv-00023-

v. DLC

JEFF MANGAN, in his official

capacity as the Commissioner of OPINION

Political Practices for the State of

Montana; Timothy G. Fox, in his

official capacity as Attorney General

for the State of Montana; LEO J.

GALLAGHER, in his official capacity

as County Attorney for the County of

Lewis and Clark,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted March 5, 2019

Portland, Oregon

Filed August 12, 2019

2 NAGR V. MANGAN

Before: Susan P. Graber and Marsha S. Berzon, Circuit

Judges, and John R. Tunheim, * District Judge.

Opinion by Judge Berzon

SUMMARY **

Civil Rights

The panel affirmed in part and reversed in part the

district court’s summary judgment in favor of Montana

defendants in an action brought by the National Association

of Gun Rights, a non-profit advocacy group, challenging

Montana’s electioneering disclosure laws on First

Amendment grounds.

Under Montana law, an organization that makes an

expenditure of more than $250 on a single electioneering

communication must register as a political committee,

subject to certain organizational and disclosure

requirements. An electioneering communication is, in part,

a paid communication made within 60 days of the initiation

of voting in an election, that can be received by more than

100 recipients in a voting district and that refers to

candidates, political parties or ballot issues. Mont. Code

Ann. § 13-1-101(16). Plaintiff filed suit asserting that the

State’s definition of electioneering communication was both

*

The Honorable John R. Tunheim, Chief United States District

Judge for the District of Minnesota, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

NAGR V. MANGAN 3

facially overbroad in violation of the First Amendment and

unconstitutional as applied to plaintiff. Plaintiff alleged that

the First Amendment permits states to require disclosure

only of express advocacy and its functional equivalent.

Plaintiff asserted that because its proposed mailers did not

specifically advocate for or against a specific candidate, but

just provided information about a candidate’s position on

Second Amendment issues, plaintiff could not

constitutionally be required to comply with Montana’s

disclosure requirements.

The panel held that the First Amendment does not limit

states’ election disclosure requirements solely to regulating

express advocacy. The panel reasoned that requiring

disclosure of information related to subtle and indirect

communications likely to influence voters’ votes was critical

to the State’s interest in promoting transparency and

discouraging circumvention of its electioneering laws.

Applying exacting scrutiny, the panel held that like the

disclosure provisions that were approved in Human Life of

Washington Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir.

2010) and Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015),

most of Montana’s disclosure and related requirements were

substantially related to important governmental interests

connected with informing the electorate.

The panel held that only Montana’s requirement

pursuant to §§ 13-37-203, that organizations designate a

treasurer registered to vote in Montana, was constitutionally

infirm. The panel held that the registered-Montana-voter

requirement was not substantially related to any important

governmental interest. The panel also held, however, that

the registered-voter provision was severable from the rest of

the Montana disclosure regime, which could remain in force.

The panel therefore affirmed the district court’s summary

4 NAGR V. MANGAN

judgment in favor of Montana except with respect to the

treasurer provision.

COUNSEL

David Warrington (argued), Kutak Rock LLP, Washington,

D.C.; Matthew G. Monforton, Monforton Law Offices

PLLC, Bozeman, Montana; for Plaintiff-Appellant.

Jere Stuart Segrest (argued) and Matthew T. Cochenour,

Assistant Attorneys General; Timothy Fox, Attorney

General; Office of the Attorney General, Helena, Montana;

for Defendants-Appellees.

Randy Elf, Lakewood, New York, as Amicus Curiae.

OPINION

BERZON, Circuit Judge:

The National Association of Gun Rights (“NAGR” or

“the Association”), a non-profit advocacy group, challenges

Montana’s electioneering disclosure laws on First

Amendment grounds. This appeal treads on familiar

territory. In Human Life of Washington Inc. v. Brumsickle,

624 F.3d 990, 1016 (9th Cir. 2010) (“HLW”), we upheld the

State of Washington’s disclosure regime, and in Yamada v.

Snipes, 786 F.3d 1182 (9th Cir. 2015), we rejected

challenges to a similar regime in Hawaii. Montana’s

disclosure regulations closely resemble those of these other

states.

NAGR V. MANGAN 5

Like the disclosure provisions we approved in HLW and

Yamada, most of Montana’s disclosure and related

requirements are substantially related to important

governmental interests connected with informing the

electorate. Only Montana’s requirement that organizations

designate a treasurer registered to vote in Montana is

constitutionally infirm. We therefore affirm the district

court’s summary judgment in favor of Montana except with

respect to that provision.

I

A

NAGR is a tax-exempt non-profit organization under

26 U.S.C. § 501(c)(4); its principal place of business is in

Colorado. NAGR’s articulated mission is to “defend the

right to keep and bear arms, and advance that God-given

Constitutional right by educating the American people and

urging them to action in the public policy process.” NAGR

reports that it has approximately 36,000 members and

supporters in Montana and 4.5 million members nationwide.

To retain its federal tax status, NAGR cannot engage in

“direct or indirect participation or intervention in political

campaigns on behalf of or in opposition to any candidate for

public office.” 26 C.F.R. § 1.501(c)(4)–1(a)(2)(ii).

As part of its mission, NAGR seeks to “let[] the public

know where legislators and governmental officials stand on

issues related to the Second Amendment.” “[D]uring [the

2020] election cycle,” NAGR intends “to mail educational

literature to Montanans . . . describing which public officials

have supported the rights of citizens to keep and bear arms

and engage in lawful self-defense, as well as those who have

6 NAGR V. MANGAN

not done so.” 1 NAGR represents that its proposed future

mailer would cost more than $250 to distribute. The

Association does not intend to distribute the literature,

however, if the literature would be deemed an

“electioneering communication,” subjecting the

organization to disclosure requirements under Montana law.

B

In 2015, the Montana State Legislature enacted S.B. 289

(“the Statute”), covering a category of speech, denominated

“electioneering communications,” with the purpose of

“increasing transparency, informing Montanans about who

is behind the messages vying for their attention, and

decreasing circumvention” of campaign finance laws. The

Statute defines “electioneering communication” as follows:

(a) “Electioneering communication” means a

paid communication that is publicly

distributed by radio, television, cable,

satellite, internet website, newspaper,

periodical, billboard, mail, or any other

distribution of printed materials, that is made

1

The proposed literature would be similar in content to the material

NAGR mailed during a previous election cycle. In 2012, NAGR sent

several mailers to residents in Flathead County, Montana, that discussed

state Senator Bruce Tutvedt’s alleged attempts to “kill” a state bill

encouraging gun ammunition manufacturing. The mailer read: “Bruce

Tutvedt: Working Against the Flathead’s Burgeoning Small-Arms

Industry.” It further stated, “FACT: Flathead County was poised to get a

new smokeless powder plant until Bruce Tutvedt took to the Senate Floor

and demanded it be killed. (S.B. 371, 04/13/11 Audio) Now, thanks to

Bruce Tutvedt, unemployment in the Flathead is nearly 11% percent.”

The mailer called on residents to “[c]ontact Bruce Tutvedt right away

and DEMAND he apologize for killing new manufacturing for Flathead

County.”

NAGR V. MANGAN 7

within 60 days of the initiation of voting in an

election, that does not support or oppose a

candidate or ballot issue, that can be received

by more than 100 recipients in the district

voting on the candidate or ballot issue, and

that:

(i) refers to one or more clearly identified

candidates in that election;

(ii) depicts the name, image, likeness, or

voice of one or more clearly identified

candidates in that election; or

(iii) refers to a political party, ballot issue,

or other question submitted to the voters

in that election.

(b) The term does not mean:

(i) a bona fide news story, commentary,

blog, or editorial distributed through the

facilities of any broadcasting station,

newspaper, magazine, internet website,

or other periodical publication of general

circulation unless the facilities are owned

or controlled by a candidate or political

committee;

(ii) a communication by any membership

organization or corporation to its

members, stockholders, or employees;

(iii) a commercial communication that

depicts a candidate's name, image,

likeness, or voice only in the candidate’s

8 NAGR V. MANGAN

capacity as owner, operator, or employee

of a business that existed prior to the

candidacy;

(iv) a communication that constitutes a

candidate debate or forum or that solely

promotes a candidate debate or forum and

is made by or on behalf of the person

sponsoring the debate or forum; or

(v) a communication that the

commissioner determines by rule is not

an electioneering communication.

Mont. Code Ann. § 13-1-101(16). 2

An organization that makes an expenditure of more than

$250 on a single electioneering communication must register

as a “political committee.” 3 Section 13-1-101(31)(a) defines

“political committee” as:

2

Montana Administrative Rule 44.11605(2)(b) defines “the

initiation of voting” for purposes of electioneering communications to

occur “when absentee ballot packets are mailed.” The Commissioner of

Political Practices has interpreted “the initiation of voting” date to be

25 days before an election, the date when general absentee ballots are

mailed. Mont. Code Ann. § 13-13-205(1)(a)(ii). NAGR contends that the

earliest date absentee ballots are mailed is 45 days before an election,

when absentee ballots for overseas service members are sent. § 13-13-

205(2). For our purposes, we need not determine whether electioneering

communications are those made within 85 days of an election or within

105 days.

3

For clarity, we refer to any money an organization spends, whether

on advertisements or donations to a candidate, ballot issue, or another

organization, as an “expenditure.” We refer to funds an organization

receives from any source as a “contribution.”

NAGR V. MANGAN 9

[A] combination of two or more individuals

or a person other than an individual who

receives a contribution or makes an

expenditure:

(i) to support or oppose a candidate or a

committee organized to support or

oppose a candidate or a petition for

nomination;

(ii) to support or oppose a ballot issue or

a committee organized to support or

oppose a ballot issue; or

(iii) to prepare or disseminate an election

communication, an electioneering

communication, or an independent

expenditure.

Political committees ordinarily must abide by certain

organizational requirements. 4 All such organizations must

file a registration form with the Commissioner of Political

Practices containing an organizational statement and the

names and addresses of all officers, § 13-37-201(2)(b);

appoint a treasurer registered to vote in Montana, §§ 13-37-

201(1), -203; deposit all contributions received and

expenditures to be disbursed into a bank authorized to

transact business in Montana, § 13-37-205; abide by certain

4

These political committee requirements do not apply, with certain

exceptions, to political committees organized to support an issue or

campaign in a school district or other special districts comprising “a unit

of local government authorized by law to perform a single function or a

limited number of functions.” Mont. Code Ann. § 13-37-206.

10 NAGR V. MANGAN

depository requirements, § 13-37-207; and keep up-to-date

records of contributions and expenditures, § 13-37-208.

In addition to meeting these organizational requirements,

political committees are subject to disclosure requirements

depending on their level of political activity. Montana law

distinguishes among several types of political committees,

§ 13-1-101(31)(b), two of which are relevant to this case:

“incidental” committees and “independent” committees. 5

An “incidental committee” is a political committee “not

specifically organized or operating for the primary purpose

of supporting or opposing candidates or ballot issues but that

may incidentally become a political committee by receiving

a contribution or making an expenditure.” § 13-1-

101(23)(a). A prototypical incidental committee is a

business that operates continuously. If such a committee

makes an expenditure of more than $250, it is considered an

incidental political committee under S.B. 289, but only for

the election cycle in which it makes a qualifying

expenditure. An incidental committee must report to whom

it is making expenditures, but it is not required to report from

whom it is receiving contributions unless those contributions

were solicited or earmarked for a particular candidate, ballot

issue, or petition for nomination. § 13-37-232.

An incidental committee must file periodic reports of

expenditures and, if applicable, contributions during an

election cycle in which it makes an expenditure, so long as

it continues to accept qualifying contributions or make

5

Political committees also include “ballot issue committees” and

“political party committees.” Mont. Code Ann. § 13-1-101(31)(b).

NAGR V. MANGAN 11

qualifying expenditures. 6 If, however, an incidental

committee has terminated all qualifying contribution and

expenditure activity for an election cycle, it may file a

closing report at any time. § 13-37-226(9). If it does so, the

committee need not file any subsequent reports. In practice,

if an incidental committee makes only a single expenditure

in an election cycle, it can fulfill all registration, reporting,

and closing requirements in a single filing of two forms. If

an incidental committee makes multiple expenditures, it is

required to file reports at the intervals required by law.

An “independent committee” differs from an incidental

committee in purpose. It is a political committee “organized

for the primary purpose of receiving contributions and

making expenditures that is not controlled either directly or

indirectly by a candidate and that does not coordinate with a

candidate in conjunction with the making of expenditures”

except pursuant to certain provisions not relevant here. § 13-

1-101(24). An independent committee is subject to more

detailed disclosure and reporting requirements than an

incidental committee. It must report the source and amount

6

Specifically, an incidental committee making multiple

expenditures must file a report on the 90th, 35th, and 12th day preceding

the date of an election during an election cycle in which it makes an

expenditure. § 13-37-226(5)(a). If an incidental committee receives a

qualifying contribution or makes an electioneering communication

greater than or equal to $500 within 17 days of an election, the incidental

committee must file a report within 2 business days of receiving the

contribution or making the electioneering communication. § 13-37-

226(5)(b), (c). An incidental committee also must file reports within

20 days after an election and at the close of the calendar year. § 13-37-

226(5)(d), (e).

12 NAGR V. MANGAN

of its contributions, as well as the target and amount of its

expenditures. § 13-37-229.

An independent committee must make the required

disclosures in the same periodic intervals as an incidental

committee. § 13-37-226(4). 7 Like an incidental committee,

an independent committee may file closing reports at any

time. However, because its primary purpose is to advocate

during elections, an independent committee often does not

close after an election cycle but instead carries over from one

election cycle to the next.

C

In 2016, NAGR filed suit against several Montana

officials and agencies alleging, among other challenges, that

the State’s definition of “electioneering communication,”

§ 13-1-101(16), is both facially overbroad in violation of the

First Amendment and unconstitutional as applied to NAGR. 8

NAGR’s primary contention in district court was that the

First Amendment, as a categorical matter, permits states to

7

Both incidental and independent committees must file more

frequent reports if they receive a contribution or make an expenditure

“supporting or opposing a candidate . . . or a statewide ballot issue.”

§ 13-37-226(1)–(3). The timing of such reports depends on whether the

candidate or ballot issue in question is statewide, district, or local. Id.

8

NAGR brought two other claims: Claim 1—Declaratory and

injunctive relief preventing the Commissioner from prosecuting NAGR

for educational mailings it made in 2012; and Claim 3—Declaratory and

injunctive relief preventing the Commissioner from enforcing the

compelled-vote-reporting provision of Montana Code Annotated

section 13-35-225(3)(a). On cross-motions for summary judgment, the

district court denied NAGR’s first claim as time barred and granted

NAGR summary judgment on the third claim, holding § 13-35-225(3)(a)

unconstitutional. Neither claim is at issue in this appeal.

NAGR V. MANGAN 13

require disclosure only of express advocacy and its

functional equivalent, defined as speech “susceptible of no

reasonable interpretation other than as an appeal to vote for

or against a specific candidate.” FEC v. Wis. Right To Life,

Inc., 551 U.S. 449, 470 (2007) (“WRTL”). NAGR asserted

that because its proposed mailers did not specifically

advocate for or against a specific candidate, but just provided

information about a candidate’s position on Second

Amendment issues, the Association could not

constitutionally be required to comply with Montana’s

disclosure requirements.

The district court rejected this contention. It granted

summary judgment to Montana on NAGR’s electioneering

communication claim, holding that the “electioneering

communication” definition was not constitutionally

overbroad. The court reasoned that NAGR’s argument was

foreclosed by HLW, 642 F.3d at 1016, which, said the district

court, “reject[ed] [the] contention that . . . disclosure

requirements must be limited to speech that is the functional

equivalent of express advocacy.” Applying exacting

scrutiny, the district court held that Montana’s interests in

“increasing transparency, informing Montanans about who

is behind the messages vying for their attention, and

decreasing circumvention” are important governmental

interests, and that Montana’s disclosure requirements are

substantially related to those interests because “they are

tailored to the degree of an organization’s political activity.”

In support of its determination, the court noted that NAGR

would likely need only to register as an incidental

committee, a minimal burden, and that the Montana law’s

disclosure requirements are further tailored because the

requirements are limited to a communication that costs more

than $250 and is made within a few months before an

election.

14 NAGR V. MANGAN

This appeal followed. We review de novo the district

court’s grant of summary judgment. See Nigro v. Sears,

Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015).

II

A

The First Amendment, made applicable to the states

through the Fourteenth Amendment, forbids the enactment

of any law “abridging the freedom of speech.” U.S. Const.

amend. I. Political speech lies at the core of speech protected

by the First Amendment, as it is the means by which citizens

disseminate information, debate issues of public importance,

and hold officials to account for their decisions in our

democracy. “The right of citizens to inquire, to hear, to

speak, and to use information to reach consensus is a

precondition to enlightened self-government and a necessary

means to protect it.” Citizens United v. FEC, 558 U.S. 310,

339 (2010). Thus, “[t]he First Amendment ‘has its fullest

and most urgent application’ to speech uttered during a

campaign for political office.” Id. (quoting Eu v. S.F. Cty.

Democratic Cent. Comm., 489 U.S. 214, 223 (1989)).

Generally, “[l]aws that burden political speech are

‘subject to strict scrutiny’”—that is, they must be narrowly

tailored to further a compelling government interest.

Citizens United, 558 U.S. at 340 (quoting WRTL, 551 U.S.

at 464). But regulations directed only at disclosure of

political speech are subject to somewhat less rigorous

judicial review—“exacting scrutiny,” which requires the

government to show that the challenged laws are

“substantially related to a sufficiently important

governmental interest.” HLW, 624 F.3d at 1005.

NAGR V. MANGAN 15

This difference derives from the principle that “the

strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment

rights.” Davis v. FEC, 554 U.S. 724, 744 (2008). The two

types of regulation—expenditure and contribution

limitations on the one hand and disclosure requirements on

the other—have different effects. Expenditure and

contribution limitations “necessarily reduce[] the quantity of

expression by restricting the number of issues discussed, the

depth of their exploration, and the size of the audience

reached.” Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per

curiam). By contrast, “[d]isclaimer and disclosure

requirements may burden the ability to speak, but they

‘impose no ceiling on campaign-related activities’ and ‘do

not prevent anyone from speaking.’” Citizens United,

558 U.S. at 366 (quoting Buckley, 424 U.S. at 64; McConnell

v. FEC, 540 U.S. 93, 201 (2003)). Far from restricting

speech, electioneering disclosure requirements reinforce

democratic decisionmaking by ensuring that voters have

access to information about the speakers competing for their

attention and attempting to win their support. “[T]he people

in our democracy are entrusted with the responsibility for

judging and evaluating the relative merits of conflicting

arguments. They may consider, in making their judgment,

the source and credibility of the advocate.” First Nat’l Bank

of Bos. v. Bellotti, 435 U.S. 765, 791–92 (1978) (footnote

omitted). Recognizing the important information-enhancing

role that disclosure laws play, the Supreme Court and our

court have subjected laws requiring speakers to disclose

information in the electoral context to a somewhat less

demanding standard than strict scrutiny, described as

“exacting scrutiny.” See Doe v. Reed, 561 U.S. 186, 196

(2010) (collecting cases).

16 NAGR V. MANGAN

B

NAGR’s primary argument—that the First Amendment,

as a categorical matter, permits states to require disclosure

only with respect to express advocacy—has been rejected by

both the Supreme Court and this court. 9 In Wisconsin Right

To Life, the Supreme Court limited federal restrictions on

independent campaign expenditures to express advocacy

and its functional equivalent. WRTL, 551 U.S. at 469–70.

But Citizens United declined to impose the same categorical

limitation on disclosure requirements. 558 U.S. at 369.

There, the Court upheld a federal law requiring certain

electioneering communications to include a disclaimer by

the organization that funded the communication.

The electioneering communications at issue in Citizens

United were television advertisements promoting a movie

about then-presidential candidate Hillary Clinton. The

advertisements were not the functional equivalent of express

advocacy. “They referred to then-Senator Clinton by name

shortly before a primary and contained pejorative references

9

Neither party contests that NAGR’s intended electioneering

materials are likely electioneering communications covered by Montana

law, subjecting NAGR to prosecution if it does not comply with

Montana’s requirements. NAGR’s decision—not to distribute for fear of

prosecution, election material it would have distributed if the challenged

laws had not been enacted—is sufficient to establish standing. In the

First Amendment context, “self-censorship” is “a harm that can be

realized even without an actual prosecution.” Virginia v. Am. Booksellers

Ass’n, 484 U.S. 383, 393 (1988). So long as the “intended speech

arguably falls within the [challenged] statute’s reach,” refraining from

that speech to avoid disclosure requirements, where speaking without

disclosure could lead to prosecution, is a constitutionally sufficient

injury. HLW, 624 F.3d at 1000–01 (quoting Cal. Pro-Life Council Inc.

v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)).

NAGR V. MANGAN 17

to her candidacy,” but they did not expressly advocate

support or opposition for her candidacy. Id. at 368. 10

Nonetheless, the Court upheld the disclaimer requirements.

Rather than rely on a rigid distinction between express

advocacy and issue advocacy, the Court reasoned that the

“[t]he disclaimers . . . provide the electorate with

information and insure that the voters are fully informed

about the person or group who is speaking” Id.(citations and

alterations omitted).

We relied on this holding in HLW. 624 F.3d at 1016.

Citing Citizens United, we declined to recognize “a bright-

line rule distinguishing express and issue advocacy” and

“reject[ed] [the] contention that the disclosure requirements

must be limited to speech that is the functional equivalent of

express advocacy.” Id. (quoting Citizens United, 558 U.S. at

369).

NAGR cites the Seventh Circuit’s decision in Wisconsin

Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014)

(“Barland”), to support its contention that electioneering

disclosure laws may constitutionally apply only to express

advocacy. We necessarily rejected that proposition in HLW.

Other circuits agree with HLW on this point. “Citizens

United made clear that the wooden distinction between

express advocacy and issue discussion does not apply in the

disclosure context.” Ctr. for Individual Freedom v.

Madigan, 697 F.3d 464, 484 (7th Cir. 2012); accord Vt.

Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 132 (2d

10

The Court held that the film itself constituted express advocacy,

558 U.S. at 325, but did not so determine with respect to the

advertisements for the film.

18 NAGR V. MANGAN

Cir. 2014); Nat’l Org. for Marriage v. McKee, 649 F.3d 34,

54 (1st Cir. 2011).

Considered as a whole, Barland’s reading of Citizens

United is not to the contrary. That decision asserted that the

Court’s holding in Citizens United regarding disclosure

requirements did not “suggest[] that the Court was tossing

out the express-advocacy limitation for all disclosure

systems” and cautioned that “it’s a mistake to read Citizens

United as giving the government a green light to impose

political-committee status on every person or group that

makes a communication about a political issue that also

refers to a candidate.” Barland, 751 F.3d at 836–37. In

context, when Barland stated that Citizens United “applies

only to the specifics of the disclosure requirement at issue

there,” id. at 836, it was offering a contrast between narrowly

tailored and sweeping disclosure requirements, id. at 837,

not determining that even appropriately tailored disclosure

laws, such as the one considered in Citizens United, may

apply only to express advocacy.

Montana’s disclosure requirements for political speech

that mentions a candidate or ballot initiative in the days

leading up to an election reflect the unremarkable reality that

such speech—express advocacy or not—is often intended to

influence the electorate regarding the upcoming election.

That NAGR intends specifically to send out its mailers

“during this election cycle” reveals its own belief that such

communications are more relevant to voters in the days

before an election. To paraphrase HLW, “[f]or the same

reasons that [NAGR] had a heightened interest in speaking

about [Second Amendment rights] during the run-up to the

. . . vote, [Montanans] had a heightened interest in knowing

who was trying to sway their views on the topic and how

much they were willing to spend to achieve that goal.”

NAGR V. MANGAN 19

624F.3d at 1019. Requiring disclosure of information related

to subtle and indirect communications likely to influence

voters’ votes is critical to the State’s interest in promoting

transparency and discouraging circumvention of its

electioneering laws.

In sum, the First Amendment does not limit states’

election disclosure requirements solely to regulating express

advocacy. Rather, we apply exacting scrutiny in determining

the validity of election disclosure requirements covering

electioneering communications.

C

NAGR also submits that, even if exacting scrutiny

applies, 11 Montana’s disclosure regime for electioneering

communications cannot stand. 12 Not so.

This is not the first time we have addressed the

constitutionality of electioneering communication

disclosure requirements under exacting scrutiny. Both HLW

and Yamada upheld disclosure regimes similar to the one at

11

NAGR acknowledges that, if electioneering communication

disclosure requirements for issue advocacy are permitted at all, exacting

scrutiny—not strict scrutiny—applies. Before HLW, there was some

confusion in this circuit as to whether electioneering disclosure laws are

subject to exacting scrutiny or strict scrutiny. See HLW, 624 F.3d

at 1003–05. HLW clarified that exacting scrutiny is the correct standard.

Id.

12

NAGR maintains that it is challenging only the overbreadth of the

term “electioneering communications” and not the accompanying

disclosure requirements. This attempt at delicately parsing NAGR’s

claim is of no help. The constitutionally permissible scope of the term

“electioneering communications” depends on the disclosure burdens that

attach when a speaker makes such a communication.

20 NAGR V. MANGAN

issue in this case. With one exception, Montana’s

requirements are sufficiently parallel to those in HLW and

Yamada that those precedents control here.

HLW addressed a challenge to the State of Washington’s

laws requiring public disclosures for organizations engaging

in various types of political speech. Under Washington law,

an organization engaged in limited political advocacy is

required to disclose only its “independent expenditures” and

“political advertising.” Id. at 998. Such an organization must

identify the target of its expenditures on a monthly basis so

long as it continues to make expenditures, but generally need

not disclose the source of its contributions. Id. at 998–99.

On the other hand, the Washington disclosure statute

requires an organization that has as its “‘primary or one of

the primary purposes’ to ‘affect, directly or indirectly,

governmental decision making by supporting or opposing

candidates or ballot propositions’” to fulfill more significant

requirements by registering as a “political committee.” Id.

at 997 (quoting Evergreen Freedom Found. v. Wash. Educ.

Ass’n, 49 P.3d 894, 903 (Wash. Ct. App. 2002)). A political

committee must file ongoing reports disclosing the sources

of its expenditures and contributions. Id. at 998. The

frequency of reporting for both types of organizations in

Washington is pegged to fixed intervals before an election.

Id. at 998–99.

In HLW, a non-profit organization, Human Life of

Washington Inc., sought to distribute material opposing

physician-assisted suicide shortly before a state ballot

initiative vote to legalize such conduct in Washington. Id. at

995, 1014. Applying exacting scrutiny, we determined that

Washington’s interest in “[p]roviding information to the

electorate” is a sufficiently important interest to justify

Washington’s disclosure requirements, because the

NAGR V. MANGAN 21

requirements “help[ed] ensure that voters have the facts they

need to evaluate the various messages competing for their

attention” and make informed electoral choices. Id. at 1005.

HLW went on to hold that the State’s disclosure

requirements are substantially related to that important

interest. Id. at 1012, 1018. With respect to the political

committee requirements, we reasoned that Washington’s

disclosure requirements are appropriately scaled to the level

of political advocacy in which an organization engages. The

scaling “ensures that the electorate has information about

groups that make political advocacy a priority, without

sweeping into its purview groups that only incidentally

engage in such advocacy.” Id. at 1011. HLW also determined

that Washington’s political committee disclosure

requirements are not overly burdensome relative to the

government’s interests. Id. at 1013. Such requirements are

triggered only if a committee spends above a certain annual

threshold and involve only a two-page registration form,

along with three additional reports pegged to the election in

which the organization is engaging. Id. And, with respect to

the independent expenditures and political advertising

requirements, HLW concluded that those requirements are

substantially related to the interest in informing the

electorate, because they (1) “target only those expenditures

and advertisements made in conjunction with an ongoing

election or vote,” and (2) “once the initial two-page

registration form is filed, the filing of additional special

reports is pegged to the dates of the upcoming election.” Id.

at 1018.

Yamada addressed issues closely similar to those in

HLW, this time rejecting an as-applied challenge to election

disclosure laws in Hawaii. While doing so, Yamada

22 NAGR V. MANGAN

reaffirmed the First Amendment principles established in

HLW. 786 F.3d 1182.

Under Hawaii law, an organization with “‘the purpose’

of making or receiving contributions, or making

expenditures, for communications or activities that

constitute express advocacy or its functional equivalent” that

receives contributions or makes certain expenditures in

excess of $1000 over a two-year election period must

register as a “noncandidate committee.” Id. at 1194–95. A

noncandidate committee must provide identifying

information about its organization, maintain records for five

years, and keep a segregated bank account for the

committee’s contributions. Id. at 1195. In addition, a

noncandidate committee is required to disclose its

contributions and expenditures at intervals tied to each

election cycle and to file annual reports. Id. Organizations

that do not qualify as noncandidate committees in Hawaii

need only include disclosures in certain “electioneering

communications,” such as advertising that identifies a

candidate and advocates or opposes the election of that

candidate. Id. at 1202.

Yamada upheld both Hawaii’s noncandidate committee

disclosure requirements and its electioneering

communication disclosure requirements. With respect to the

noncandidate committee requirements, Yamada held that the

requirements are “materially indistinguishable” from the

disclosure requirements at issue in HLW. In so holding,

Yamada reasoned that, because the requirements do not

apply to organizations engaged in incidental advocacy and

trigger reporting requirements only at a $1,000 threshold,

they are adequately tailored to the governmental interests

underlying them. Id. at 1195, 1198–99. With respect to

electioneering communications, Yamada noted that

NAGR V. MANGAN 23

Hawaii’s disclaimer requirements track the federal

disclaimer requirements upheld in Citizens United. Id. at

1201–03.

Taken together, HLW and Yamada indicate that

electioneering disclosure laws that survive exacting scrutiny

under the First Amendment exhibit certain broad features.

These features are apparent in all but one component of

Montana’s disclosure requirements.

First, such laws further the “important” interests of

“providing the electorate with information, deterring actual

corruption and avoiding any appearance thereof, and

gathering the data necessary to enforce more substantive

electioneering restrictions.” Yamada, 786 F.3d at 1197

(quoting Canyon Ferry Rd. Baptist Church of E. Helena, Inc.

v. Unsworth, 556 F.3d 1021, 1031 (9th Cir. 2009)); see also

Citizens United, 558 U.S. at 369; McConnell, 540 U.S. at

196; HLW, 624 F.3d at 1008. Knowing shortly before an

election who is speaking and how much they are spending

“enables the electorate to make informed decisions and give

proper weight to different speakers and messages.” Citizens

United, 558 U.S. at 371.

Montana’s disclosure regime furthers identical interests.

Montana’s interests in “increasing transparency, informing

Montanans about who is behind the messages vying for their

attention, and decreasing circumvention” of campaign

finance laws are sufficiently important to justify election

disclosure requirements. See Citizens United, 558 U.S.

at 369; McConnell, 540 U.S. at 196; Yamada, 786 F.3d at

1197; HLW, 624 F.3d at 1008.

Second, the substantive information organizations must

disclose under valid electioneering laws usually varies with

the type and level of an organization’s political advocacy.

24 NAGR V. MANGAN

Organizations that frequently engage in political speech can

be required to disclose more information than organizations

that do so only occasionally. When measuring an

organization’s level of political advocacy, these statutes

often use purpose as a proxy. For example, the Washington

disclosure laws upheld in HLW require organizations with “a

primary purpose of political advocacy” to disclose the source

and amount of both contributions and expenditures;

organizations without such a purpose must disclose only the

source and amount of expenditures. 624 F.3d at 998–99.

Similarly, the Hawaii laws upheld in Yamada require

organizations with “‘the purpose’ of . . . [engaging in]

express advocacy or its functional equivalent” to disclose

information about both contributions and expenditures,

786 F.3d at 1194–95; organizations having no such purpose

but engaging in occasional political advertising are required

to include only a disclaimer within the advertisement itself,

concerning whether a candidate endorsed the particular

advertisement, id. at 1202. Variance in substantive reporting

requirements for different levels of political advocacy

activity “ensures that the electorate has information about

groups that make political advocacy a priority, without

sweeping into its purview groups that only incidentally

engage in such advocacy.” HLW, 624 F.3d at 1011.

Montana’s disclosure regime similarly imposes

reporting burdens commensurate with an organization’s

level of political advocacy. Montana has a two-tiered

reporting structure, like the Washington regime affirmed in

HLW. Id. Independent committees, which have the “primary

purpose of receiving contributions and making

expenditures” to support a candidate or ballot initiative, or

make electioneering communications, Mont. Code Ann.

§ 13-1-101(24), are subject to more substantial requirements

than incidental committees, which do not have such a

NAGR V. MANGAN 25

primary purpose, § 13-1-101(23)(a). Independent

committees must report both contributions received and

expenditures made, § 13-37-229; incidental committees

need only report expenditures, unless their contributions

were solicited or earmarked for a particular candidate, ballot

issue, or petition for nomination, § 13-37-232. 13

Third, in valid electioneering disclosure laws, the

frequency of required reporting does not extend indefinitely

to all advocacy conducted at any time but is tied to election

periods or to continued political spending. During an

election period, reporting is for the most part limited to

reasonable intervals in the days leading up to an election and

shortly thereafter. Yamada upheld a requirement to file

reports ten days before any election, twenty days after a

primary election, and thirty days after a general election.

786 F.3d at 1195. Similarly, HLW upheld a requirement to

file reports on the twenty-first day before an election, the

seventh day before an election, and the tenth day of the first

month after an election. 624 F.3d at 998, 1013.

Less extensive reporting requirements are imposed on

organizations that receive contributions or make

expenditures outside an election period, see Yamada,

786 F.4d at 1195; HLW, 624 F.3d at 1013, or on

13

In this respect, Montana’s disclosure regime is distinguishable

from the Wisconsin regime invalidated in Barland, the Seventh Circuit

case that NAGR cites to support its position. 751 F.3d 804. The

disclosure requirements there did not vary with an organization’s level

of political advocacy. Groups engaged in express advocacy and those

engaged in issue advocacy were subject to the same reporting

requirements. Id. at 837. So were organizations with a major purpose of

political advocacy and those that incidentally engaged in such advocacy.

Id. at 841–42.

26 NAGR V. MANGAN

organizations that stop making expenditures in the middle of

an election period, see Yamada, 786 F.3d at 1195; HLW,

624 F.3d at 1018–19. 14 These requirements reflect “the

unique importance of the temporal window immediately

preceding a vote,” when speech is more likely to be

perceived as related to an election and the public is more

likely to pay attention to and be affected by such speech.

HLW, 624 F.3d at 1019.

Montana’s reporting requirements are similarly tied with

precision to specific election periods. For organizations that

make electioneering communications, such as NAGR, only

a communication made “within 60 days of the initiation of

voting in an election” triggers the requirement to register as

a political committee. § 13-1-101(16). Once an organization

registers as a political committee, it usually must file

disclosure reports at intervals preceding and shortly after an

election, as well as at the end of the calendar year. § 13-37-

226(4), (5). Committees that receive contributions or make

expenditures “supporting or opposing a candidate . . . or

ballot issue” must file more frequent reports. § 13-37-

226(1)-(3). If a committee terminates qualifying

contributions and expenditure activity for an election cycle,

it may file a “closing report” at any time, relieving it of

subsequent reporting obligations. § 13-37-226(9). A

committee making a single expenditure in an election cycle

14

Other circuits have struck down reporting requirements that

mandate reporting after an organization stops making expenditures in the

middle of an election period. See Minn. Citizens Concerned for Life, Inc.

v. Swanson, 692 F.3d 864, 873–74 (8th Cir. 2012) (en banc) (enjoining

Minnesota’s reporting requirements, which continued to apply after an

organization ceased further expenditures); Iowa Right to Life Comm.,

Inc. v. Tooker, 717 F.3d 576, 596–98 (8th Cir. 2013) (striking down

Iowa’s ongoing reporting requirements, which were not tethered to any

future political spending).

NAGR V. MANGAN 27

can thus fulfill all registration, reporting, and closing

requirements in one filing of two forms. Montana’s reporting

requirements are therefore carefully tailored to pertinent

circumstances, distinguishing them from one-size-fits-all

disclosure regimes that other circuits have invalidated. See

Swanson, 692 F.3d at 873–74; Tooker, 717 F.3d at 596–98.

Fourth, disclosure laws specifying a monetary threshold

at which contributions or expenditures trigger reporting

requirements ensure that the government does not burden

minimal political advocacy. The acceptable threshold for

triggering reporting requirements need not be high. In

Hawaii, the threshold was raising or spending more than

$1,000 during a two-year election cycle. Yamada, 786 F.3d

at 1195. In Washington, the threshold was raising or

spending more than $5,000, or raising more than $500 from

a single donor. HLW, 624 F.3d at 1013.

Once reporting requirements are triggered, states may

constitutionally mandate disclosure of even small

contributions. Family PAC v. McKenna, 685 F.3d 800, 809

(9th Cir. 2012), for example, upheld requirements that

organizations disclose the names and addresses of

contributors donating more than $25 and reveal the employer

and occupation of contributors giving more than $100.

“[K]nowing the source of even small donations is

informative in the aggregate and prevents evasion of

disclosure.” Worley v. Fla. Sec’y of State, 717 F.3d 1238,

1251 (11th Cir. 2013); see also Buckley, 424 U.S. at 82–84

(upholding a requirement that organizations keep records of

all contributions in excess of $10 and report contributions in

excess of $100).

Montana’s disclosure regime imposes requirements only

on organizations that make an expenditure of more than

$250 to disseminate a single electioneering communication,

28 NAGR V. MANGAN

§ 13-1-101(31)(d), ensuring that disclosure requirements do

not burden minimal political activity. This threshold is

within the range of constitutionally acceptable reporting

thresholds. See. e.g., McKee, 649 F.3d at 59–60 (upholding

a $100 contribution threshold); Yamada, 786 F.3d at 1195

(upholding a threshold of $1,000 during a two-year election

cycle); HLW, 624 F.3d at 1013 (upholding a threshold of

$5,000 during an election cycle or $500 from a single donor).

Finally, disclosure laws may impose certain adjunct

requirements on political speakers, to enable “gathering the

data necessary to enforce more substantive electioneering

restrictions.” Yamada, 786 F.3d at 1197 (quoting Canyon,

556 F.3d at 1031). An organization may be required to

“designate officers, disclose its bank account information,

and designate a treasurer responsible for recording

contributions and expenditures and maintaining records for

five years,” id. at 1195, as well as to file a short registration

form containing “the organization’s name, relationship with

other organizations, and persons with authority over the

organization’s finances,” HLW, 624 F.3d at 1013.

Most of Montana’s disclosure-related registration

requirements are similar to, and no more onerous than, those

we upheld in HLW, 624 F.3d at 1013, and in Yamada,

786 F.3d at 1195. Qualifying political committees need to

file a two-page registration form with the State containing

basic identification information, § 13-37-201(3), appoint a

treasurer, § 13-37-201(1), abide by certain bank depository

requirements, §§ 13-37-205, -207, and keep current records

of contributions and expenditures, § 13-37-208. See, e.g.,

HLW, 624 F.3d at 997 (noting bank and treasurer

requirements). Like the obligations in HLW and Yamada,

these obligations “require little more if anything than a

prudent person or group would do in these circumstances

NAGR V. MANGAN 29

anyway.” Worley, 717 F.3d at 1250; see also SpeechNow.org

v. FEC, 599 F.3d 686, 697 (D.C. Cir. 2010) (en banc)

(upholding “organizational requirements . . . such as

designating a treasurer and retaining records”).

In short, almost all of Montana’s disclosure requirements

share the features that HLW and Yamada have highlighted as

markers of valid disclosure laws and so withstand exacting

scrutiny. Yamada, 786 F.3d at 1195. 15

D

NAGR suggests that, even if HLW and Yamada

otherwise support upholding Montana’s electioneering

disclosure requirements, Montana’s requirements governing

the disclosure of issue advocacy during candidate elections

are inconsistent with HLW.

HLW did note that “there is less of a danger of a

regulation sweeping too broadly in the context of a ballot

measure than in a candidate election,” because “the only

issue advocacy that could potentially be regulated is

15

We do not suggest that disclosure laws with different features than

those described above would not survive exacting scrutiny. Rather, these

are features of statutes that do survive such scrutiny. Election disclosure

schemes are often varied and complex, imposing different requirements

on different categories of speakers.

For example, an election disclosure regime could embody these

broad principles but, in its details, impose overly onerous requirements.

Conversely, legislatures have some discretion to define the precise

details of each scheme—for example the specific dollar threshold that

triggers disclosure requirements. “[D]isclosure thresholds . . . are

inherently inexact; courts therefore owe substantial deference to

legislative judgments fixing these amounts.” Family PAC, 685 F.3d

at 811.

30 NAGR V. MANGAN

advocacy regarding the single issue put before the public.”

HLW, 624 F.3d at 1018 (emphasis omitted) (internal

quotation marks omitted). In making that distinction, HLW

reasoned that, “[i]n the ballot initiative context, . . . where

express and issue advocacy are arguably ‘one and the same,’

any incidental regulation of issue advocacy imposes more

limited burdens that are more likely to be substantially

related to the government’s interests.” Id.

HLW’s discussion was of relevant differences between

ballot initiatives and candidate elections that could matter in

some—but not all—circumstances. In the end, though, HLW

rejected both a facial and an as-applied challenge to

Washington’s disclosure requirements generally. Id. at 994–

95. Those requirements covered both candidate and ballot

initiative elections. Id. at 997–99. We observed in HLW that

the “disclosure obligations do not apply absent a pending

election or ballot initiative campaign,” id. at 1018 (emphasis

added), and thus concluded that Washington’s tailored

disclosure regulations were not overbroad as applied to

candidate elections.

Yamada, decided after HLW, upheld Hawaii’s election

disclosure regime as applied to a corporation that contributed

money to candidate campaigns and bought advertisements

criticizing a candidate. Examining Hawaii’s carefully

tailored disclosure requirements for electioneering

communications, Yamada suggested no distinction between

candidate and ballot initiative elections for First Amendment

purposes. See 786 F.3d at 1185–86.

Similarly, Montana’s tailored disclosure regime for

electioneering communications does not violate the First

Amendment simply because it covers candidate elections.

As explained, the components of Montana’s disclosure

regime are—with the exception we next discuss—closely

NAGR V. MANGAN 31

parallel to those upheld in HLW and Yamada. And, like the

disclosure regulations in those cases, Montana’s

requirements are substantially related to important

governmental interests as applied both to candidate and to

ballot initiative elections.

III

One of Montana’s registration requirements does raise

serious First Amendment concerns. In addition to imposing

the registration requirements already mentioned, Montana

mandates that a political committee’s designated treasurer be

a registered Montana voter. § 13-37-203. To register as a

Montana voter, an individual must be at least 18 years of age,

a resident of Montana for at least 30 days, a United States

citizen, not currently incarcerated for a felony, and of sound

mind. § 13-1-111. This registered-Montana-voter

requirement is not, we hold, substantially related to any

important governmental interest.

Montana’s registered-voter requirement is subject to

exacting scrutiny, not strict scrutiny. True, the requirement

does not, on its own, mandate registration or disclosure.

Rather than require that a speaker provide particular

information about itself or its activities, it imposes a

requirement on how an organization engaged in

electioneering communication must be structured. The

requirement is, however, a predicate to enforcement of a

broader disclosure regime.

Our precedents addressing the constitutionality of state

electioneering disclosure regimes have subjected to exacting

rather than strict scrutiny the entire disclosure regime,

including provisions that do not themselves require

registration or disclosure. Yamada, for example, analyzed

under exacting scrutiny, and upheld, laws requiring covered

32 NAGR V. MANGAN

entities to maintain records of their contributions and

expenditures. 786 F.3d at 1195. HLW approved the

requirement that political committees open bank accounts in

the state in which they are speaking. 624 F.3d at 997. Our

sister circuits have similarly so held. See Worley, 717 F.3d

at 1249 (upholding under exacting scrutiny “[o]ther

requirements, such as requiring a treasurer, segregated

funds, and record-keeping” (internal quotation marks

omitted)); Sorrell, 758 F.3d at 137 (characterizing

“registration, recordkeeping necessary for reporting, and

reporting requirements” as a single “disclosure regime”

subject to exacting scrutiny); SpeechNow.org, 599 F.3d

at 697–98 (upholding under exacting scrutiny

“organizational requirements . . . such as designating a

treasurer and retaining records” ). Montana’s registered

voter requirement resembles the types of organizational

requirements that we and other circuits have analyzed under

exacting scrutiny.

Reviewing Montana’s registered voting requirement

under exacting scrutiny is consistent with precedents in

which strict scrutiny was applied. Nader v. Brewer, 531 F.3d

1028 (9th Cir. 2008), for example, reviewed an Arizona

requirement that circulators of candidate nomination

petitions be residents of that state, id. at 1036, concluding

that strict scrutiny was compelled by the Supreme Court’s

decision in Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182, 194–95 (1999). Buckley invalidated a

Colorado law requiring that circulators of ballot initiative

petitions be registered voters. As Nader noted, “[t]he Court

held in Buckley that significantly reducing the number of

potential circulators imposed a severe burden on rights of

political expression.” Nader, 531 F.3d. at 1036. Inferring

from Buckley that laws severely burdening speech rights

must be subject to strict scrutiny, Nader concluded that the

NAGR V. MANGAN 33

Arizona residency requirement was subject to strict scrutiny

because it “exclude[d] from eligibility all persons who

support the candidate but who . . . live outside the state of

Arizona.” Id.

Montana’s registered-voter requirement is significantly

less burdensome than the requirements at issue in Buckley

and Nader. The particular First Amendment harm that

restrictions on petition circulators pose is that they “limit the

number of voices who will convey the initiative proponents’

message and, consequently, cut down the size of the

audience proponents can reach.” Buckley, 525 U.S. at 194–

95 (alterations and citations omitted). No similar limitation

on the audience reached is here at issue: Montana requires

only that a single individual be a registered Montana voter—

a political committee’s treasurer. So long as an organization

can find one such treasurer, the size of the audience it can

reach will not be limited.

So, given the limited burden on a political committee’s

speech imposed by Montana’s registered-voter requirement,

we apply exacting rather than strict scrutiny to determine its

validity. But we conclude anyway that the registered voter

requirement does not significantly forward the interests it is

said to advance and so violates the First Amendment.

Addressing the connection between the registered-voter

requirement and the goals of its disclosure scheme, Montana

asserts that the registered voter requirement is “shorthand”

for the prerequisites that being a registered Montana voter

entails—being at least 18, of sound mind, a Montana

resident, and not an incarcerated felon. Such types of

prerequisites can be substantially related to Montana’s

important interest in identifying representatives of political

committees who can be held accountable for violations of

34 NAGR V. MANGAN

electioneering laws. 16 For example, the State has a strong

interest in assuring that it can subpoena treasurers of political

committees, and only individuals within the state can be

subpoenaed. Mont. Code. Ann. § 46-15-107.

But an individual can meet all the prerequisites for

registering to vote yet not register. Montana could have

made appropriate prerequisites for registration the

conditions for serving as treasurer without requiring

registration itself. Montana identifies no interest served by

excluding potential treasurers who are not registered voters

but could be if they chose. We cannot identify any such

interest either. And none of the disclosure regimes we have

upheld have included such a registration requirement.

Yamada, 786 F.3d at 1195 (citing Haw. Rev. Stat. § 11-324);

HLW, 624 F.3d at 997 (citing Wash. Rev. Code

§ 42.17.050(1)).

An out-of-state organization like NAGR, which has its

principal place of business in Colorado, may not have any

members qualified to be designated as a treasurer and

registered to vote in Montana. By imposing the voter

registration qualification that it does, the state burdens the

speech rights of such organizations without any justification

and so violates the First Amendment.

But that single invalid provision certainly does not mean

that the entire disclosure statute falls. The registered-voter

provision is definitely severable from the rest of the Montana

disclosure regime.

16

We do not address whether the details of Montana’s prerequisites

for voter registration—such as the 30-day Montana residency

requirement—are permissible conditions for being a treasurer of a

political committee.

NAGR V. MANGAN 35

“Severability is a matter of state law.” Sam Francis

Found. v. Christies, Inc., 784 F.3d 1320, 1325 (9th Cir.

2015) (en banc) (alterations and quotations omitted). Under

Montana law:

[I]f a statute contains both constitutional and

unconstitutional provisions, we examine the

legislation to determine if there is a

severability clause. The inclusion of a

severability clause in a statute is an indication

that the drafters desired a policy of judicial

severability to apply to the enactment. If a

statute does not contain a severability clause,

we still may sever an unconstitutional

provision. In doing so, we must determine

whether the unconstitutional provisions are

necessary for the integrity of the law or were

an inducement for its enactment. In order to

sever an unconstitutional provision, the

remainder of the statute must be complete in

itself and capable of being executed in

accordance with the apparent legislative

intent. That is, if severing the offending

provisions will not frustrate the purpose or

disrupt the integrity of the law, we will strike

only those provisions of the statute that are

unconstitutional.

State v. Theeler, 385 P.3d 551, 553–54 (Mont. 2016)

(citations and internal quotation marks omitted).

The statute that first enacted the requirement that

committee treasurers must be registered Montana voters

contained a severability provision, see 1975 Mont. Laws

1250, 1265, but a later amendment did not, see 1977 Mont.

36 NAGR V. MANGAN

Laws 108. But “[w]ith or without severability clauses in each

amendment since the statute’s enactment, we conclude that

the unconstitutional provision is unnecessary for the

integrity of the law.” Theeler, 385 Mont. at 474 (quotation

marks omitted). Without the registered voter requirement, a

political committee would still be required to designate a

committee treasurer, fulfill registration requirements, and

keep records of its contributions and expenditures. Mont.

Code Ann. §§ 13-37-201, -208. Montana would still be able

to gather the identifying information necessary to enforce its

substantive campaign finance laws, as evidenced by other

state electioneering disclosure regimes that do not require

treasurers to register in their state. See Yamada, 786 F.3d

at 1195; HLW, 624 F.3d at 997.

In short, the remainder of the electioneering disclosure

regime could still be “executed in accordance with the

apparent legislative intent” of the law. Theeler, 385 P.3d

at 554 (internal quotation marks omitted). We hold that,

despite the invalidity of the registered voter provision, the

rest of Montana’s disclosure scheme remains in force.

IV

In sum, the First Amendment does not limit Montana to

regulating only express advocacy. With the exception of its

designated-treasurer requirement, all of the other

components of Montana’s disclosure regime survive

exacting scrutiny. Like the disclosure regimes upheld in

HLW and Yamada, Montana’s scheme is sufficiently tailored

to Montana’s interest in informing its electorate of who

competes for the electorate’s attention and preventing the

circumvention of Montana’s election laws.

NAGR V. MANGAN 37

We AFFIRM in part and REVERSE and REMAND in

part the district court’s summary judgment order. The parties

shall bear their own costs on appeal.