Center for Individual Freedom v. Madigan

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3693

C ENTER FOR INDIVIDUAL F REEDOM ,

Plaintiff-Appellant,

v.

L ISA M ADIGAN, Attorney General

of the State of Illinois et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:10-cv-04383—William T. Hart, Judge.

A RGUED A PRIL 10, 2012—D ECIDED S EPTEMBER 10, 2012

Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. The Supreme Court’s decision

in Citizens United v. FEC, 130 S. Ct. 876 (2010), is best

known for striking down as an unconstitutional restric-

tion of free speech the federal law that bans corporations

and labor unions from running campaign-related adver-

tisements in the lead-up to an election. That holding

largely overshadowed another part of the decision up-

2 No. 11-3693

holding the same law’s campaign finance disclosure

provisions. Those provisions require any outside entity

or individual spending significant sums in a federal

election to file reports with the Federal Election Com-

mission (FEC) identifying the person or group making

the expenditure, its amount, and the names of certain

contributors. Describing disclosure requirements as a

“less restrictive alternative to more comprehensive reg-

ulations of speech,” the Citizens United Court wrote

that “prompt disclosure of expenditures can provide

shareholders and citizens with the information needed

to hold corporations and elected officials accountable

for their positions and supporters. . . . The First Amend-

ment protects political speech; and disclosure permits

citizens and shareholders to react to the speech of corpo-

rate entities in a proper way.” Id. at 916. Despite this

holding, in the aftermath of Citizens United a number

of suits have been filed challenging federal and state

disclosure regulations as facially unconstitutional. Of

the federal courts of appeals that have decided these

cases, every one has upheld the disclosure regulations

against the facial attacks.1

1

See National Org. for Marriage, Inc. v. Sec’y, No. 11-14193, 2012

WL 1758607, at *1 (11th Cir. May 17, 2012) (unpublished

opinion) (rejecting facial and as-applied challenge to Florida

disclosure laws); The Real Truth About Abortion, Inc. v. FEC, 681

F.3d 544, 546 (4th Cir. 2012) (rejecting facial and as-applied

challenge to FEC disclosure regulations pursuant to Federal

Election Campaign Act); Family PAC v. McKenna, 685 F.3d 800,

(continued...)

No. 11-3693 3

This case involves another such challenge. Plaintiff-

appellant Center for Individual Freedom (the Center)

seeks to invalidate Illinois disclosure requirements on

the grounds that they are facially vague and overbroad

restrictions of speech in violation of the First and Four-

teenth Amendments. Illinois’s disclosure law is modeled

on the federal one. It requires groups and individuals that

accept “contributions,” make “expenditures,” or sponsor

“electioneering communications” in excess of $3,000 to

make regular financial disclosures to the State Board of

Elections. See 10 ILCS 5/9-1.8. The Illinois Election Code

drew the key definitions of “contribution,” “expenditure,”

1

(...continued)

811 (9th Cir. 2012) (rejecting facial challenge to Washington

disclosure laws); National Org. for Marriage v. McKee, 649 F.3d 34,

41 (1st Cir. 2011) (rejecting facial challenge to Maine disclosure

laws); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 994-95

(9th Cir. 2010) (rejecting facial challenge to Washington disclo-

sure laws); see also Speechnow.org v. FEC, 599 F.3d 686, 696-98

(D.C. Cir. 2010) (upholding federal disclosure requirements

as applied to unincorporated nonprofit association that was

required by the FEC to register as a political committee). But cf.

Sampson v. Buescher, 625 F.3d 1247, 1249 (10th Cir. 2010) (invali-

dating Colorado campaign finance disclosure requirements

as applied to neighborhood group that had raised less than

$1,000 to oppose annexation); New Mexico Youth Organized v.

Herrera, 611 F.3d 669, 671 (10th Cir. 2010) (invalidating New

Mexico disclosure requirements as applied to two nonprofit

organizations “formed for the purpose of educating young

New Mexicans about issues such as healthcare, clean elections,

the economy and the environment”).

4 No. 11-3693

and “electioneering communication” from federal law.

The only substantive differences are that the Illinois

disclosure requirements (1) cover election activity relating

to ballot initiatives, which have no federal analog; (2) do

not exempt from regulation those groups that lack the

“major purpose” of influencing electoral campaigns; and

(3) cover campaign-related advertisements that appear

on the Internet. The Center argues that these differences,

and a few other terms in the Illinois statute, render

its disclosure regime unconstitutionally vague and

overbroad on its face.

To prevail in such a facial challenge, a plaintiff must

cross a high bar. A statute is facially overbroad only

when “it prohibits a substantial amount of protected

speech,” United States v. Williams, 553 U.S. 285, 292 (2008),

and unconstitutionally vague only when its “deterrent

effect on legitimate expression is . . . both real and sub-

stantial.” Young v. American Mini Theatres, Inc., 427 U.S.

50, 60 (1976) (internal quotation marks omitted).

The district court granted the state’s motion to dismiss,

finding that the Center could not meet these standards.

We affirm.

I. Factual and Procedural Background

The Center is a Virginia-based § 501(c)(4) nonprofit

organization whose stated mission is “to protect and

defend individual freedoms and individual rights guaran-

teed by the U.S. Constitution.” To that end, it broad-

casts advertisements, maintains a website, publishes a

weekly e-mail newsletter, produces a bi-weekly radio

No. 11-3693 5

show, and engages in other forms of mass media com-

munications. Its tax exempt status under § 501(c)(4) is

incompatible with partisan political activity, so the

Center cannot endorse candidates or urge the public to

“vote for so-and-so.” But apart from a need to avoid

such “express advocacy,” in the lingo of campaign

finance law, the Center and other § 501(c)(4) groups

enjoy fairly wide latitude from the IRS. During election

seasons, the Center runs advertisements that refer to

the positions of candidates or to ballot issues and call

on the audience to take actions such as contacting candi-

dates.2

The Center wished to engage in similar advocacy

during the 2010 elections in Illinois and made plans to

address “legal reform and other justice-related issues” in

2

In one TV spot, for instance, the Center criticized West

Virginia Attorney General Darrell McGraw during his 2008

reelection campaign:

Announcer: They say you can’t teach an old dog new tricks.

Twenty-eight years of controversy and Darrell McGraw

is at it again, spending $10 million from a settlement meant

to help workers and the elderly — instead, divvying it up

between his trial lawyer buddies and a fund only

controlled by McGraw. The Wheeling Intelligencer said,

“Legislators should have put a leash on McGraw long ago.”

But they say you can’t teach an old dog new tricks. Call

Darrell McGraw. Tell him to return the people’s money.

Dkt. No. 73; CFIF Launches Public Education Effort in W. Va.,

Youtube, http://www.youtube.com/watch?v=vPMwR2gMNTE

(last visited Aug. 29, 2012).

6 No. 11-3693

advertisements referring to incumbent officeholders

who were candidates. But the Center feared that Illinois’s

newly-amended campaign finance laws would require it

to register as a “political committee” and to disclose

its election-related expenditures and its significant con-

tributors. According to the Center, its donors require

assurances that their identities will not be disclosed, and

this anonymity is a condition of their support. The

Center says it had no choice but to forbear from its

Illinois “issue advocacy” in 2010, so its political speech

was chilled by Illinois’s disclosure laws.

These laws are codified in Article 9 of the Illinois Elec-

tion Code. Article 9 is long and filled with the jargon

of contemporary U.S. campaign finance law — “election-

eering communications,” “independent expenditures,”

etc. — which we detail in Part IV of this opinion. But

Article 9’s basic provisions are fairly easy to summarize.

Each political committee in Illinois must register with

the Board of Elections, maintain records of every con-

tribution received and expenditure made “in connec-

tion with” an election, 10 ILCS 5/9-7, and file a report of

all such transactions each quarter, 10 ILCS 5/9-10(b).

This quarterly report must include the total sums

of contributions received and expenditures made in

the covered period; accountings of the committee’s funds

on-hand and investment assets held; and the name

and address of each contributor who gave more than

$150 that quarter. 10 ILCS 5/9-11(a). In addition to the

quarterly report, a political committee must disclose

any contribution of $1,000 or more (along with the

name and address of the contributor) within five days of

No. 11-3693 7

its receipt, or within two days if received 30 or fewer days

before an election. 10 ILCS 5/9-10(c). For reporting viola-

tions, the Board may issue civil fines of no more than

$5,000 for any one group (except in the case of “willful

and wanton” violations), or seek to enjoin violators’

campaign activities in state court. 10 ILCS 5/9-10.3

Candidates’ campaign organizations and political

parties of course must register as political committees.

10 ILCS 5/9-1.8(b), (c). But so too must outside groups

and private individuals if, within any 12-month period,

they accept contributions or make expenditures in

excess of $3,000 “on behalf of or in opposition to” any

candidate or ballot question. 10 ILCS 5/9-1.8(d), (e). Any

entity other than a natural person must also register as

a political committee if it makes “independent expendi-

tures” of more than $3,000 within one year. 10 ILCS 5/9-

8.6(b). Illinois has largely borrowed from federal law

its definition of “electioneering communication,” which

means a radio, television, or Internet broadcast that

(1) refers to a “clearly identified” candidate, political

party, or ballot issue; (2) is made within two months of

a general election or one month of a primary election,

(3) is “targeted to the relevant electorate,” and (4) is

3

The Board or any political committee may also seek injunc-

tive relief in state court to compel compliance with Board

orders or to enjoin an offending committee’s operations. 10 ILCS

5/9-23, 5/9-24. Filing false or incomplete information in a

campaign finance report may also constitute a “business

offense” under the Criminal Code punishable by criminal fine

of up to $5,000. See 10 ILCS 5/9-26.

8 No. 11-3693

unambiguously an “appeal to vote” for or against a

candidate, party, or ballot issue. 10 ILCS 5/9-1.14.4

Funds spent on electioneering communications that are

coordinated with a political committee are treated as

contributions to that committee, while uncoordinated

electioneering communications are considered independ-

ent expenditures. See 10 ILCS 5/9-1.15.

The Center argues that five of Article 9’s definitions —

“electioneering communications,” “political committee,”

“contribution,” “expenditure,” and “independent expendi-

ture” — are facially vague and overbroad. In July 2010,

the Center brought suit against the Illinois Attorney

General and members of the Illinois State Board of Elec-

tions in their official capacities, see Ex parte Young, 209

U.S. 123 (1908), seeking to invalidate and enjoin Article 9’s

disclosure requirements as unconstitutional restrictions

of free speech. After the district court denied the

Center’s motion for a preliminary injunction, 735

F. Supp. 2d 994 (N.D. Ill. 2010), and this court denied

its request for an injunction pending appeal, the Center’s

appeal was dismissed by agreement without prejudice.

In January 2011, the Center filed an amended complaint

containing the same allegations but taking into account

changes to Article 9 that took effect on January 1, 2011.

The state moved to dismiss, and the Center moved for

4

Article 9 expressly excludes from this definition any “news

story, commentary, or editorial distributed through the

facilities of any legitimate news organization.” 10 ILCS 5/9-

1.14(b)(1). The Center does not challenge the reach or applicabil-

ity of this exemption.

No. 11-3693 9

summary judgment. The parties did not dispute any

material facts. The district court denied the Center’s

motion for summary judgment and granted the state’s

motion to dismiss. This appeal followed.

II. Standing

We begin, as we must, with the state’s argument that

the Center lacks standing to bring a constitutional chal-

lenge against Article 9. Although the state did not raise

this issue in the district court, standing is a jurisdictional

requirement that is not subject to waiver. United States

v. Hays, 515 U.S. 737, 742 (1995); National Org. for Women,

Inc. v. Scheidler, 510 U.S. 249, 255 (1994).

The standing requirement of Article III is part of the

restriction of the federal judicial power to “Cases” and

“Controversies.” U.S. Const. art. III, § 2; Arizona Christian

School Tuition Org. v. Winn, 131 S. Ct. 1436, 1441-42 (2011).

Constitutional standing imposes three core requirements:

First, the plaintiff must have suffered an “injury in

fact “— an invasion of a legally protected interest

which is (a) concrete and particularized, and

(b) “actual or imminent, not ‘conjectural’ or ‘hypotheti-

cal.’ ” Second, there must be a causal connection

between the injury and the conduct complained of —

the injury has to be “fairly . . . trace[able] to the chal-

lenged action of the defendant, and not . . . th[e] result

[of] the independent action of some third party not

before the court.” Third, it must be “likely,” as op-

posed to merely “speculative,” that the injury will

be “redressed by a favorable decision.”

10 No. 11-3693

Id. at 1442, quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992).

On appeal, the state contends that the Center lacks

standing because it has neither been subject to any past

regulation — it has not been ordered to register as a

political committee, threatened with sanctions, or named

in a Board complaint — nor “demonstrate[d] any proba-

bility that its speech will trigger Article 9’s registration

and reporting requirements” in the future. We construe

this argument as a challenge to the Center’s injury-in-

fact showing. (The state does not question whether the

traceability and redressability prongs are satisfied here.)

It is well settled that pre-enforcement challenges to

government regulations can be Article III cases or contro-

versies. Bandt v. Village of Winnetka, 612 F.3d 647, 649

(7th Cir. 2010). A plaintiff “does not have to await the

consummation of threatened injury to obtain preventive

relief.” Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298 (1979), quoting Pennsylvania v. West

Virginia, 262 U.S. 553, 593 (1923). To satisfy the in-

jury-in-fact requirement in a pre-enforcement challenge,

the plaintiff must show only that she faces “a realistic

danger of sustaining a direct injury as a result of the

statute’s operation or enforcement.” Id.5

5

See also ACLU of Illinois v. Alvarez, 679 F.3d 583, 590-91 (7th

Cir. 2012) (“To satisfy the injury-in-fact requirement in a

preenforcement action, the plaintiff must show ‘an intention

to engage in a course of conduct arguably affected with a

(continued...)

No. 11-3693 11

The injury-in-fact standard is often satisfied in pre-

enforcement challenges to limitations on speech. The

Supreme Court has recognized “self-censorship” as a

distinct “harm that can be realized even without an

actual prosecution.” Virginia v. American Booksellers Ass’n,

484 U.S. 383, 393 (1988).6 The chilling of protected speech

may thus alone qualify as a cognizable Article III

injury, provided the plaintiffs “have alleged an actual

and well-founded fear that the law will be enforced

against them.” Id.

The Center has made this showing. It has a history

of broadcasting messages concerning public policy and

political candidates across the United States. It has alleged

that while it wishes to engage in similar advocacy in

Illinois, it has curtailed its speech because it fears being

(...continued)

constitutional interest, but proscribed by a statute, and

[that] there exists a credible threat of prosecution thereunder.’ ”),

quoting Babbitt, 442 U.S. at 298.

6

See also Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965)

(“Because of the sensitive nature of constitutionally protected

expression, we have not required that all of those subject to

overbroad regulations risk prosecution to test their rights. For

free expression of transcendent value to all society, and not

merely to those exercising their rights — might be the loser. . . .

We have fashioned . . . exception[s] to the usual rules gov-

erning standing . . . because of the danger of tolerating, in the

area of First Amendment freedoms, the existence of a penal

statute susceptible of sweeping and improper application.”)

(internal citations and quotation marks omitted).

12 No. 11-3693

regulated as a political committee. The Center’s President

submitted an affidavit stating that but for Article 9,

his organization would have spoken out during the

2010 Illinois elections using “the typical form of issue

ad,” that “[f]unding was available,” and that its “wish

to speak in Illinois remained live.” The Center’s

standard issue advertisements are run during election

season, identify an issue of public policy, give concrete

examples to “illustrate the policy” using candidates

with whom the public is familiar, and call on the

audience to take some “action other than voting, e.g.

contacting named candidates and encouraging them

to continue or embrace the policy.” The Center’s typical

issue ads meet enough of the statutory elements to

qualify, at least arguably, as electioneering communica-

tions under Illinois law, and the Center would easily

pass the $3,000 registration threshold. The Center’s self-

censorship was based on an objectively reasonable,

“actual[,] and well-founded fear that the law will be

enforced against” it. American Booksellers, 484 U.S. at 393.

The state asserts that Wisconsin Right to Life, Inc. v.

Paradise, 138 F.3d 1183 (7th Cir. 1998), shows that the

Center lacks a sufficiently well-founded fear of being

subject to regulation. In that case, we held that the

plaintiff did not have standing to challenge Wisconsin’s

political committee registration requirements because

successive advisory opinions of the Wisconsin Attorney

General and regulations promulgated by the state

election board already established that the definition of

political committee did not apply to groups like the

plaintiff. Id. at 1185. These formal determinations by

No. 11-3693 13

the state authorities meant that the plaintiff’s fear of

prosecution under the law was not “objectively ‘well-

founded,’ ” id., quoting American Booksellers, 484 U.S. at 393,

that the lawsuit was an attempt “to resolve a con-

troversy that has not yet arisen and may never arise,”id.

at 1187-88, and that the plaintiff therefore lacked standing.7

This case is quite different for there has been no

determination by any Illinois official that the Center and

other such groups do not qualify as political committees

under Article 9. The named defendants are the Illinois

Attorney General and members of the Board of Elections.

They have not denied that the Center’s past out-of-state

“issue ads” could qualify as electioneering communica-

tions under the Illinois disclosure laws. Unlike Paradise,

there is a sufficiently realistic possibility that the Center

would be subject to Article 9’s registration and reporting

requirements if it engages in the type of political

advocacy it often does and wishes to in Illinois. That is

7

Technically, the Paradise holding was on the redressability

prong rather than the injury-in-fact prong of the standing rule.

The only real potential threat of injury to the plaintiff came

from private actors, whom the Wisconsin statute empowered

to bring enforcement suits in state court against unregistered

organizations that ran illegal campaign advertising. A

potential injury from a decision by a state court in private

litigation was not redressable by a federal court order

because a state court is not required to accept an inferior

federal court’s determination that a statute is unconstitu-

tionally overbroad. We therefore held that the third prong

of Article III standing (redressability) was not met. Id. at 1187.

14 No. 11-3693

enough to establish that the Center has an objectively

reasonable fear of being subject to Illinois’s registration

and reporting requirements if it engages in its intended

speech, and that the Center chose to avoid those

alleged burdens. “Such self-censorship in the face of

possible legal repercussions suffices to show Article III

injury.” National Org. for Marriage v. McKee, 649 F.3d 34, 48-

49 (1st Cir. 2011) (finding that nonprofit group had stand-

ing to challenge state disclosure laws in pre-enforce-

ment action); accord, Human Life of Wash. Inc. v. Brumsickle,

624 F.3d 990, 1001 (9th Cir. 2010) (same). We find that

the Center has Article III standing to challenge the con-

stitutionality of Illinois’s disclosure law.

III. Scope of Review: Facial Challenge

Next we must clarify the scope of the legal challenge

before us. The Center describes its suit as both a facial and

an as-applied challenge, arguing that Article 9 is uncon-

stitutionally vague and overbroad “both facially and as

applied to independent issue advocacy groups such

as CFIF.” It is true that facial challenges and as-applied

challenges can overlap conceptually. See Doe v. Reed, 130

S. Ct. 2811, 2817 (2010) (acknowledging that plaintiffs’

claim “has characteristics of both” as-applied and facial

challenge); Richard Fallon, As-Applied and Facial Challenges

and Third-Party Standing, 113 Harv. L. Rev. 1321, 1341

(2000) (“[F]acial challenges are less categorically distinct

from as-applied challenges than is often thought.”). But

there is a difference: Where the “claim and the relief that

would follow . . . reach beyond the particular circum-

No. 11-3693 15

stances of the[] plaintiffs,” “[t]hey must . . . satisfy [the]

standards for a facial challenge to the extent of that reach.”

Doe v. Reed, 130 S. Ct. at 2817 (2010).

This is not a case where a group has actually engaged

in a particular form of speech that is subject to regulation

and seeks to challenge the applicability of the law to

itself and other groups who have engaged in similar

expressive activity. Cf. FEC v. Wisconsin Right to Life,

551 U.S. 449 (2007) (as-applied challenge to federal statute

banning electioneering communications brought by

advocacy group that had run TV advertisements it

believed would be covered by the statute if group con-

tinued to run them during 60-day pre-election blackout

period). Here, the Center has not broadcast any communi-

cations in Illinois, so it would be impossible for this

court to fashion a remedy tailored to its own particular

speech activities and those of similar groups, for we

have only a general idea of what its hypothetical broad-

casts would say. The Center has not laid the foundation

for an as-applied challenge here. We analyze its claims

under the standards governing facial challenges.

Those standards set a high bar. In reversing a decision

striking down a state election law in a facial challenge,

the Supreme Court explained:

Facial challenges are disfavored for several reasons.

Claims of facial invalidity often rest on speculation.

As a consequence, they raise the risk of premature

interpretation of statutes on the basis of factually

barebones records. Facial challenges also run contrary

to the fundamental principle of judicial restraint

16 No. 11-3693

that courts should neither “’anticipate a question of

constitutional law in advance of the necessity of

deciding it’ ” nor “formulate a rule of constitutional

law broader than is required by the precise facts to

which it is to be applied.” Ashwander v. TVA, 297 U.S.

288, 347 (1936) (Brandeis, J., concurring). Finally,

facial challenges threaten to short circuit the demo-

cratic process by preventing laws embodying the

will of the people from being implemented in a

manner consistent with the Constitution.

Washington State Grange v. Wash. State Republican Party,

552 U.S. 442, 450-51 (2008) (some citations, brackets, and

internal quotation marks omitted). In determining whether

a law is unconstitutional on its face, then, “we must

be careful not to go beyond the statute’s facial require-

ments and speculate about ‘hypothetical’ or ‘imaginary’

cases.” Id. at 450, citing United States v. Raines, 362 U.S. 17,

22 (1960). With these principles in view, we turn to the

merits of the Center’s facial challenge to Article 9. We

review de novo the district court’s treatment of the con-

stitutional questions presented. E.g., Anderson v. Milwaukee

County, 433 F.3d 975, 978 (7th Cir. 2006).

IV. Overbreadth and Void-for-Vagueness Claims

The Supreme Court has recognized a particular type

of facial challenge in the First Amendment context

under which a law may be struck down entirely as

impermissibly overbroad. Under this overbreadth

doctrine, “a statute is facially invalid if it prohibits a

No. 11-3693 17

substantial amount of protected speech.” United States v.

Williams, 553 U.S. 285, 292 (2008). The overbreadth doctrine

is “’strong medicine’ ” that should be “employed . . . with

hesitation, and then ‘only as a last resort.’ ” New York v.

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

Oklahoma, 413 U.S. 601, 613 (1973). Accordingly, courts

“vigorously enforce[ ] the requirement that a statute’s

overbreadth be substantial, not only in an absolute

sense, but also relative to the statute’s plainly legitimate

sweep.” Williams, 553 U.S. at 292.

Since its seminal modern campaign finance decision

in Buckley v. Valeo, 424 U.S. 1, 19 (1976), the Supreme

Court has consistently distinguished between laws that

restrict the amount of money a person or group can

spend on political communication and laws that simply

require disclosure of information by those who spend

substantial sums on political speech affecting elections.8

8

See, e.g., Citizens United, 130 S. Ct. 876 (striking down federal

ban on electioneering communications by corporations and

labor unions but upholding disclosure requirements as applied

to such entities); McConnell v. FEC, 540 U.S. 93 (2003) (striking

down federal ban on political donations by minors but up-

holding law’s disclosure provisions), overruled in part on

other grounds, Citizens United, 130 S. Ct. at 913; FEC v. Massachu-

setts Citizens for Life, 479 U.S. 238, 262 (1986) (striking down

requirement that corporations set up segregated fund for

independent expenditures in connection with any federal

election as applied to nonprofit advocacy group while

pointing approvingly to “disclosure provisions” that will

(continued...)

18 No. 11-3693

Unlike contribution and expenditure limits, disclosure

laws “impose no ceiling on campaign-related activities,”

id. at 64, and “do not prevent anyone from speaking.”

Citizens United, 130 S. Ct. at 914, quoting McConnell v.

FEC, 540 U.S. 93, 124 (2003), overruled in part on other

grounds, Citizens United, 130 S. Ct. at 913. Disclosure

laws are thus a “less restrictive alternative to more com-

prehensive regulations of speech.” Citizens United,

130 S. Ct. at 915. For that reason, the Court does not

subject disclosure requirements to the same standard of

(...continued)

“provide precisely the information necessary to monitor

MCFL’s independent spending activity and its receipt of

contributions”); Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290, 298 (1981) (striking down ordinance capping

contributions to ballot initiative committees while noting

that the ordinance’s disclosure requirements were alone

adequate to fulfill the city’s informational interest in knowing

“whose money supports or opposes a given ballot measure”);

First National Bank of Boston v. Bellotti, 435 U.S. 765, 790 n.29

(1978) (striking down Massachusetts law prohibiting corpora-

tions from making contributions or expenditures to influence

the outcome of initiatives and referenda but noting: “Identifica-

tion of the source of advertising may be required as a means

of disclosure, so that the people will be able to evaluate

the arguments to which they are being subjected.”); Buckley,

424 U.S. at 68 (invalidating federal expenditure limits

but upholding disclosure requirements, which “certainly in

most applications appear to be the least restrictive means of

curbing the evils of campaign ignorance and corruption

that Congress found to exist”).

No. 11-3693 19

strict scrutiny that applies to contribution and expendi-

ture limits but rather to “exacting scrutiny,” which

requires only “a ‘substantial relation’ between the dis-

closure requirement and a ‘sufficiently important’ gov-

ernmental interest.” Citizens United, 130 S. Ct. at 914,

quoting Buckley, 424 U.S. at 64, 66.9 We apply exacting

scrutiny to the Center’s facial challenges to Article 9,

examining whether the disclosure requirements are

substantially related to a sufficiently important govern-

mental interest.

In this case, the state interest at stake is that of

“provid[ing] the electorate with information as to

where political campaign money comes from and how it

is spent.” Buckley, 424 U.S. at 66 (internal quotation

marks omitted). This “informational interest” is suf-

ficiently important to support disclosure requirements.

See, e.g., id. at 66-67. In Buckley, the Court recognized

that campaign finance disclosure was a critical tool for

maintaining transparency in the political marketplace:

“In a republic where the people are sovereign, the

ability of the citizenry to make informed choices among

candidates for office is essential, for the identities of those

9

See also Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) (“We have a

series of precedents considering First Amendment challenges

to disclosure requirements in the electoral context. These

precedents have reviewed such challenges under what has

been termed ‘exacting scrutiny.’ ”); Buckley v. American Con-

stitutional Law Foundation, Inc., 525 U.S. 182, 202 (1999) (“’exact-

ing scrutiny’ is necessary when compelled disclosure of cam-

paign-related payments is at issue”).

20 No. 11-3693

who are elected will inevitably shape the course that

we follow as a nation.” Id. at 14-15.1 0 Disclosure require-

ments advance the public’s interest in information

by “allow[ing] voters to place each candidate in the

political spectrum more precisely than is often possible

solely on the basis of party labels and campaign

speeches.” Id. at 67. By revealing “the sources of a candi-

date’s financial support,” disclosure laws “alert the

voter to the interests to which a candidate is most likely

to be responsive and thus facilitate predictions of future

performance in office.” Id.

The Supreme Court has repeatedly recognized this

informational interest and the unique role that disclosure

plays in furthering it.1 1 Our court, too, has acknowledged

the importance of disclosure regulations in providing

“additional information useful to the consumer” of politi-

cal messaging. Majors v. Abell, 361 F.3d 349, 352 (7th Cir.

2004). In Majors, we upheld an Indiana law requiring

political ads to identify the persons who paid for them:

The avidity with which candidates for public office

seek endorsements is evidence (as if any were needed)

10

See also Letter from James Madison to W.T. Barry (Aug. 4,

1822), in 9 Writings of James Madison 103 (Gaillard Hunt, ed.

1910) (“A popular Government, without popular information, or

the means of acquiring it, is but a prologue to a Farce or a

Tragedy; or perhaps, both. Knowledge will forever govern

ignorance: And a people who means to be their own Governors,

must arm themselves with the power which knowledge gives.”).

11

See, e.g., cases cited above in note 8.

No. 11-3693 21

that the identity of a candidate’s supporters — and

opponents — is information that the voting public

values highly. In areas of inquiry where logic or

exact observation is unavailing, a speaker’s credibility

often depends crucially on who he is. As Aristotle

said, “persuasion is achieved by the speaker’s

personal character when the speech is so spoken as

to make us think him credible. We believe good men

more fully and more readily than others: this is true

generally whatever the question is, and absolutely

true where exact certainty is impossible and

opinions are divided.”

Id., quoting Aristotle, Rhetoric, in 2 The Complete Works

of Aristotle 2152, 2155 (Jonathan Barnes ed. 1984); see also

Abrams v. United States, 250 U.S. 616, 630 (Holmes, J.,

dissenting) (“Of course, the identity of the source is

helpful to evaluating ideas.”). We agree that this is a

sufficiently important governmental interest to support

Illinois’s disclosure requirements, and we proceed

below under the exacting-scrutiny framework to examine

whether there is a substantial relation between

Illinois’s informational interest and the features of

Article 9 that the Center contends are overbroad.1 2

12

The state also invokes two other interests in support of Article

9, stating that disclosure laws both prevent corruption and its

appearance and enable enforcement of other campaign

finance laws, such as those imposing dollar limits on direct

contributions to campaigns. Buckley recognized that disclosure

requirements can advance these substantial interests, as

(continued...)

22 No. 11-3693

Before doing so, however, we briefly describe the Cen-

ter’s alternative theory, that certain provisions of Article 9

are unconstitutionally vague. Like the overbreadth doc-

trine, the void-for-vagueness doctrine protects against

the ills of a law that “fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously

discriminatory enforcement.” FCC v. Fox Television

Stations, Inc., 132 S. Ct. 2307, 2317 (2012), quoting

Williams, 553 U.S. at 304. The “vagueness doctrine ad-

dresses at least two connected but discrete due process

concerns: first, that regulated parties should know what

is required of them so they may act accordingly;

second, precision and guidance are necessary so that

those enforcing the law do not act in an arbitrary or

discriminatory way.” Id., citing Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972). In cases where the

“statute abuts upon sensitive areas of basic First Amend-

ment freedoms,” Grayned, 408 U.S. at 108-09 (brackets

omitted), “rigorous adherence to those requirements is

(...continued)

well. See 424 U.S. at 67-68 (concluding that “disclosure require-

ments deter actual corruption and avoid the appearance of

corruption by exposing large contributions and expenditures

to the light of publicity” and that “recordkeeping, reporting, and

disclosure requirements are an essential means of gathering

the data necessary to detect violations of the contribution

limitations described above”). Because the informational

interest is sufficient to support Illinois’s laws, we do not

reach whether these other interests also support Article 9.

No. 11-3693 23

necessary to ensure that ambiguity does not chill pro-

tected speech.” Fox Television Stations, 132 S. Ct. at 2317.

Even under the heightened standard for the First Amend-

ment, though, the potential chilling effect on protected

expression must be both “real and substantial” to invali-

date a statute as void for vagueness in a facial challenge.

Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975).

In addition, a “plaintiff who engages in some conduct

that is clearly proscribed cannot complain of the vague-

ness of the law as applied to the conduct of others.” Village

of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S.

489, 495 (1982).

In sum, both the vagueness and overbreadth questions

involve the same preliminary inquiry into whether the

statute will have a substantial effect on constitutionally

protected activity: “In a facial challenge to the over-

breadth and vagueness of a law, a court’s first task is

to determine whether the enactment reaches a sub-

stantial amount of constitutionally protected conduct.”

Flipside, 455 U.S. at 494 (footnote omitted). If it does not,

then under either theory the facial challenge must fail.

In the First Amendment context, vagueness and over-

breadth are two sides of the same coin, and the two sorts

of challenges are often conceived of as “alternative and

often overlapping” theories for relief on the same claim.

Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005)

(McConnell, J.).13

13

See also Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983) (“[W]e

have traditionally viewed vagueness and overbreadth as

(continued...)

24 No. 11-3693

The Center has presented its overbreadth and

vagueness claims as one undifferentiated argument,

asserting that Article 9’s provisions are both “vague and

overbroad.” This is not unusual, see Human Life, 624 F.3d

at 1020, and does not call for criticism. This case does not

require us to parse fine distinctions between the two

theories. Whether the argument is styled as overbreadth

or vagueness, the central question in this facial challenge

is whether the provisions at issue potentially reach a

“substantial” amount of protected speech.

Campaign finance disclosure requirements have

existed at the federal level since 1910. See Campaign

Expenses Publicity Act of 1910, Pub. L. No. 274, 36 Stat.

822. The modern federal disclosure regime was part of the

(...continued)

logically related and similar doctrines.”); Entertainment Produc-

tions, Inc. v. Shelby Cnty., 588 F.3d 372, 379 (6th Cir. 2009) (“When

a law implicates First Amendment freedoms, vagueness poses

the same risk as overbreadth, as vague laws may chill citizens

from exercising their protected rights.”); Richard H. Fallon, Jr.,

Making Sense of Overbreadth, 100 Yale L.J. 853, 904 (1991) (“First

Amendment vagueness doctrine — as distinct from ordinary

or non-First Amendment vagueness doctrine — is best conceptu-

alized as a subpart of First Amendment overbreadth doctrine.”);

Note, The First Amendment Overbreadth Doctrine, 83 Harv. L.

Rev. 844, 873 (1970) (“when the Supreme Court has spoken

of the facial vagueness of statutes touching first amendment

rights, it has seldom if ever been referring to a constitu-

tional vice different from the latent vagueness of an over-

broad law”).

No. 11-3693 25

Federal Election Campaign Act of 1971 (FECA), Pub. L.

No. 92-225, 86 Stat. 3, as amended by the Bipartisan

Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155,

116 Stat. 81 (2002) (codified as amended at 2 U.S.C. §§ 431-

34). Because the Supreme Court has upheld FECA’s

disclosure requirements, we need not invent the wheel

in this case. Instead, we identify the ways in which Illi-

nois’s disclosure law is broader or more vague than

FECA and then consider whether each difference is

constitutionally permissible. Article 9 differs from fed-

eral disclosure provisions in two significant respects.

First, Article 9 extends the disclosure of expenditures

and contributions to ballot initiative campaigns. Second,

Article 9 regulates as a political committee any organiza-

tion that exceeds the dollar-limit spending thresholds,

while under federal law only those groups with the

“major purpose” of influencing elections must register as

political committees. In addition to these substan-

tive differences, Article 9’s definitions of several key

terms — “electioneering communication,” “expenditure,”

“contribution,” and “independent expenditure” — differ

slightly from their federal law analogs. We first

analyze the two broader questions on ballot initiatives

and the major-purpose test before turning to the

statutory details.

A. Disclosures for Ballot Issue Campaigns

1. Contributions and Expenditures

In Illinois, individuals and groups must register as

“ballot initiative committees” when they accept contribu-

26 No. 11-3693

tions or make expenditures in support of or in opposition

to any question of public policy in amounts exceeding

$3,000 in a 12-month period. 10 ILCS 5/9-1.8(e). Federal

law does not provide for ballot initiatives and referenda,

so FECA contains no corresponding requirements. The

issue here is whether this additional feature of Article 9’s

disclosure regime is substantially related to Illinois’s

interest in maintaining an informed electorate.

Educating voters is at least as important, if not more

so, in the context of initiatives and referenda as in candi-

date elections. In direct democracy, where citizens are

“responsible for taking positions on some of the day’s

most contentious and technical issues, ‘[v]oters act as

legislators,’ while ‘interest groups and individuals ad-

vocating a measure’s defeat or passage act as lobbyists.’ ”

Human Life, 624 F.3d at 1006, quoting California Pro-Life

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

see also Doe v. Reed, 130 S. Ct. at 2833 (Scalia, J., concurring)

(“When a . . . voter signs a referendum petition . . ., he

is acting as a legislator.”). In an initiative campaign,

“average citizens are subjected to advertising blitzes of

distortion and half-truths and are left to figure out for

themselves which interest groups pose the greatest

threats to their self-interest.” Human Life, 624 F.3d at 1006,

quoting David S. Broder, Democracy Derailed: Initiative

Campaigns and the Power of Money 18 (2000). Because

the issues can be complex and the public debate con-

fusing, voters’ interest in knowing the source of messages

promoting or opposing ballot measures is especially

salient in such campaigns.

No. 11-3693 27

Disclosure laws are substantially related to the public’s

interest in information during ballot initiative cam-

paigns. Research shows that one of the most useful heuris-

tic cues influencing voter behavior in initiatives

and referenda is knowing who favors or opposes a mea-

sure. See Elizabeth Garret & Daniel A. Smith, Veiled

Political Actors and Campaign Disclosure Laws in Direct

Democracy, 4 Election L.J. 295, 296-98 (2005); Michael S.

Kang, Democratizing Direct Democracy: Restoring Voter

Competence Through Heuristic Cues and “Disclosure Plus”, 50

UCLA L. Rev. 1141,1157 (2003). 1 4 Because nominally

independent political operations can hide behind “mis-

leading names to conceal their identity,” McConnell, 540

U.S. at 128, often only disclosure of the sources of their

14

A classic study of voting on insurance-related ballot

initiatives compared three groups of voters: (1) voters who

knew nothing about the initiatives’ details but knew the

insurance industry’s preference, (2) highly informed voters

who consistently gave correct answers to detailed questions

about the subject matter, and (3) voters who knew nothing

about the ballot question or about the insurance industry’s

preferences. The first two groups of voters demonstrated

similar voting patterns, while the third group that was com-

pletely in the dark had very different voting patterns. The

study author concluded that the position of an economic group

with known preferences on an issue can serve as an effective

shortcut for ordinary voters, substituting for encyclopedic

information about the electoral choice. See Arthur Lupia,

Shortcuts Versus Encyclopedias: Information and Voting Behavior

in California Insurance Reform Elections, 88 Am. Pol. Sci. Rev.

63, 71-72 (1994).

28 No. 11-3693

funding may enable the electorate to ascertain the identi-

ties of the real speakers. See Citizens Against Rent Control

v. City of Berkeley, 454 U.S. 290, 298 (1981) (in ballot mea-

sure campaigns, “when individuals or corporations

speak through committees, they often adopt seductive

names that tend to conceal the true identity of the

source”).15

The Supreme Court long ago approved Congress’s

authority to require federal lobbyists to make financial

disclosures because “full realization of the American

ideal of government by elected representatives depends

to no small extent on [Congress’s] ability to properly

evaluate [the] pressures” to which it is regularly sub-

jected. See United States v. Harriss, 347 U.S. 612, 625 (1954).

15

The McConnell Court gave examples of a few such stealthily-

named groups, including “Citizens for Better Medicare,” which

“was not a grassroots organization of citizens, as its name

might suggest, but was instead a platform for an association of

drug manufacturers.” 540 U.S. at 128. Since the rise of the

super PAC in the wake of Citizens United, the use of nondescript

names by PACs acting as proxies for specific candidates has

become commonplace. From their names alone, who could

guess that “Priorities USA Action” and “Restore Our Future”

were each formed to support one of the major candidates for

president this year? Or that “Americans for a Better Tomorrow,

Tomorrow” is a super PAC formed by political satirist

Stephen Colbert to mock the current state of American

campaign finance law? See Colbert Super PAC SHH! — 501c4

Disclosure, The Colbert Report (Apr. 3, 2012), available at

http://www.colbertnation.com/the-colbert-report-videos/4116

73/april-03-2012/colbert-super-pac-shh----501c4-disclosure.

No. 11-3693 29

For the same reasons, when Illinois citizens “act[ ] as

legislators” during initiative campaigns, see Doe v.

Reed, 130 S. Ct. at 2833 (Scalia, J., concurring in the judg-

ment), the State requires those who “attempt to influence

legislation” being considered on the ballot to disclose

a “modicum of information from those who for hire

attempt to influence legislation or who collect or spend

funds for that purpose” — namely, “who is putting up

the money, and how much.” See Harriss, 347 U.S. at 625.

This “enables the electorate to make informed decisions

and give proper weight to different speakers and mes-

sages.” Citizens United, 130 S. Ct. at 916. Such regulation

is substantially related to Illinois’s interest in preserving

an informed electorate. Accord, Family PAC v. McKenna,

685 F.3d at 811; Human Life, 624 F.3d at 1008.

Although the Supreme Court has not directly passed

on state disclosure requirements for ballot initiatives, it

has discussed such laws approvingly. See Citizens

Against Rent Control v. City of Berkeley, 454 U.S. at 298

(striking down cap on contributions but noting that law’s

disclosure requirements adequately fulfilled need for

information in ballot measure contests); First Nat’l Bank

of Boston v. Bellotti, 435 U.S. 765, 792 n.32 (1978) (striking

down state law prohibiting corporate contributions or

expenditures to influence referenda: “Identification of the

source of advertising may be required as a means of

disclosure, so that the people will be able to evaluate the

arguments to which they are being subjected.”); Buckley v.

American Constitutional Law Foundation, Inc., 525 U.S. 182,

202-03 (1999) (striking down state law requiring propo-

nents of initiatives to report the names, addresses, and

30 No. 11-3693

earnings of all paid circulators, who had to wear name

badges while gathering signatures; disclosure require-

ments remained in effect to aid voters in evaluating

messages). These three cases strongly suggest that disclo-

sure laws are substantially related to the state’s infor-

mational interest in the context of ballot initiative cam-

paigns.

To be sure, requiring disclosure in the ballot initiative

context may burden First Amendment rights in two

ways. First, disclosure requirements may deter contribu-

tions or expenditures by some individuals and groups

who would prefer to remain anonymous. See Buckley v.

Valeo, 424 U.S. at 68. Second, “disclosure requirements

can chill donations to an organization by exposing donors

to retaliation.” Citizens United, 130 S. Ct. at 916; see, e.g.,

Brown v. Socialist Workers ‘74 Campaign Comm. (Ohio), 459

U.S. 87, 100 (1982) (First Amendment prohibits states

from compelling disclosures of campaign finance infor-

mation from minor political party where there is a “rea-

sonable probability” that identified persons would be

subject to “threats, harassment, and reprisals”).

On the record in this facial challenge, however, we

must treat these burdens as modest. “[D]isclosure re-

quirements may burden the ability to speak, but they

impose no ceiling on campaign-related activities, and do

not prevent anyone from speaking.” Citizens United,

130 S. Ct. at 914 (citations and internal quotation marks

omitted). The burden of public identification may

foreclose application of disclosure laws to individual

pamphleteers, see McIntyre v. Ohio Elections Comm’n, 514

No. 11-3693 31

U.S. 334 (1995), or small neighborhood groups that raise

less than $1000, see Sampson v. Buescher, 625 F.3d 1247 (10th

Cir. 2010), for in these cases the state’s interest in dis-

seminating such information to voters is at a low ebb. See

McIntyre, 514 U.S. at 348-49. Here, however, the Center

is a far cry from the lone pamphleteer in McIntyre,

and its broad “interest in anonymity” does not justify

invalidating disclosure laws in a facial challenge

brought by a national political advocacy organization

that seeks to use the mass media in Illinois to spread its

political messages on a broad scale. That is exactly the

sort of campaign-related advertising about which

Illinois has a substantial interest in providing informa-

tion to its public.

Similarly, the record in this facial challenge does

not support any prospect of retaliation that could bar

application of Article 9. In Doe v. Reed, the Supreme

Court upheld the constitutionality of a state law that

allowed for public disclosure of petition signers’ names

and addresses. The Court held that disclosure of the

names and addresses of petition signers would not ordi-

narily create a “reasonable probability” that they would

be harassed. 130 S. Ct. at 2820-21, quoting Buckley, 424

U.S. at 74. The same result applies here. The Center has

“provided us scant evidence or argument,” id. at 2821,

beyond bare speculation, that Article 9 would be at all

likely to precipitate “threats, harassment, or reprisals”

against it or other similarly situated advocacy groups.

See Buckley, 424 U.S. at 74.

Article 9’s application to contributions and expenditures

related to ballot initiatives is substantially related to

32 No. 11-3693

Illinois’s strong interest in maintaining an informed

electorate, and this interest strongly outweighs any bur-

dens on protected speech, at least in the absence of

facts that might be offered in support of a much

narrower as-applied challenge.1 6

2. Electioneering Communications on Ballot Issues

Article 9 also requires groups to register as ballot initia-

tive committees when they spend more than $3,000

on electioneering communications that advocate for or

against ballot issues. 10 ILCS 5/9-1.8(e). This provision

likewise advances the state’s interest in ensuring voters

are informed about ballot initiatives. The Center argues

that the requirement imposes significant burdens on

speakers because the definition of electioneering com-

munication does not adequately distinguish ballot initia-

tive campaign advocacy from pure issue discussion.

The Center’s argument relies principally on two

Supreme Court cases — Buckley v. Valeo and FEC v. Wis-

consin Right to Life, Inc., 551 U.S. 449 (2007). The Buckley

Court upheld all of the disclosure and reporting require-

ments in FECA. To avoid the regulation of pure “issue

discussion,” though, the Court placed a narrowing con-

struction on the term “expenditure” “to reach only

funds used for communications that expressly advocate

the election or defeat of a clearly identified candidate.”

16

The failure of the Center’s “broad based challenge does not

foreclose success” on a future as-applied challenge to Article 9.

See Doe, 130 S. Ct. at 2821.

No. 11-3693 33

Buckley, 424 U.S. at 80 (footnote omitted) (emphasis

added). This was the genesis of a distinction Buckley

had earlier drawn in the context of independent ex-

penditures between issue discussion and express advo-

cacy. The latter, the Court said, would typically involve the

use of unequivocal words and phrases “such as ‘vote

for,’ ‘elect,’ ‘support,’ ‘cast your ballot for, ‘Smith for

Congress,’ . . . ‘defeat,’ ‘reject’ ”— a list that has come to be

known as Buckley’s “magic words.” Id. at 44 n.52. For many

years the Court adhered to the distinction, but it repeatedly

emphasized that “the express advocacy limitation . . . was

the product of statutory interpretation rather than a con-

stitutional command.” McConnell, 540 U.S. at 191-92; see

also Wisconsin Right to Life, 551 U.S. at 475 n.71 (principal

opinion of Roberts, C.J.) (reiterating that Buckley’s

“magic words” definition “does not dictate a constitu-

tional test” and the “express advocacy restriction was

an endpoint of statutory interpretation, not a first

principle of constitutional law”).

In Wisconsin Right to Life, the Supreme Court’s lead

opinion held that the federal ban on corporate and labor

disbursements for campaign-related broadcasts could

be applied only to advertisements that were “express

advocacy” or its “functional equivalent.” 551 U.S. at 465,

citing McConnell, 540 U.S. at 206. A broadcast is the

“functional equivalent of express advocacy only if the

ad is susceptible of no reasonable interpretation other

than as an appeal to vote for or against a specific candi-

date.” Id. at 469-70. While “[c]ourts need not ignore

basic background information that may be necessary to

put an ad in context,” id. at 474 , “there generally should

34 No. 11-3693

be no discovery or inquiry into the sort of contextual

factors” that would go to either the speaker’s “subjective”

intent or the likely “effect” of the ad on the electorate,

id. at 474 n.7. The Center contends that Article 9’s defini-

tion of electioneering communication is inconsistent

with Buckley and Wisconsin Right to Life because it

considers whether a broadcast refers to a “clearly

identified question of public policy that will appear on

the ballot.” 10 ILCS 5/9-1.14. The Center calls this “an

intent-or-effect standard that requires a judgment as

to how a listener will understand speech,” since the

public discussion of certain policy issues could be con-

sidered discussion of a ballot question.

For two reasons, we disagree. First, Citizens United

made clear that the wooden distinction between express

advocacy and issue discussion does not apply in the

disclosure context.

In Citizens United, which came after Wisconsin Right to

Life, the Court explicitly rejected the plaintiff’s attempt to

graft the express advocacy/issue discussion dichotomy

onto the constitutional law of campaign finance disclo-

sure. 130 S. Ct. at 915. The Court reaffirmed that

disclosure is a less restrictive alternative to more compre-

hensive regulations of speech. In Buckley, the Court

upheld a disclosure requirement for independent expen-

ditures even though it invalidated a provision that

imposed a ceiling on those expenditures. In McConnell,

three Justices who would have found § 441b to be

unconstitutional nonetheless voted to uphold BCRA’s

disclosure and disclaimer requirements. And the Court

No. 11-3693 35

has upheld registration and disclosure requirements

on lobbyists, even though Congress has no power to

ban lobbying itself. For these reasons, we reject Citizens

United’s contention that the disclosure requirements

must be limited to speech that is the functional equiva-

lent of express advocacy.

Id. at 915 (citations omitted). Accordingly, mandatory

disclosure requirements are constitutionally permissible

even if ads contain no direct candidate advocacy and

“only pertain to a commercial transaction.” Id. at 915.

Whatever the status of the express advocacy/issue dis-

cussion distinction may be in other areas of campaign

finance law, Citizens United left no doubt that disclosure

requirements need not hew to it to survive First Amend-

ment scrutiny. With just one exception, every circuit

that has reviewed First Amendment challenges to dis-

closure requirements since Citizens United has concluded

that such laws may constitutionally cover more than

just express advocacy and its functional equivalents, and

in each case the court upheld the law.1 7

17

See National Org. for Marriage, Inc. v. Sec’y, No. 11-14193, 2012

WL 1758607, at *1 (11th Cir. May 17, 2012) (unpublished

opinion); The Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544,

551-52 (4th Cir. 2012); National Org. for Marriage v. McKee, 649

F.3d 34, 54-55 (1st Cir. 2011); Human Life of Wash. Inc. v.

Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010). The exception is

the Tenth Circuit. In Sampson v. Buescher, 625 F.3d 1247 (10th

Cir. 2010), the court struck down disclosure requirements as

applied to a neighborhood group that had raised less than

(continued...)

36 No. 11-3693

Second, even if disclosure requirements were constitu-

tionally applicable only to express advocacy and its

functional equivalent, Illinois’s definition of “electioneer-

ing communication” is limited by language nearly

identical to that used in Wisconsin Right to Life to define

the functional equivalent of express advocacy. Compare

10 ILCS 5/9-1.14 (the broadcast must be “susceptible to

no reasonable interpretation other than as an appeal to

vote for or against a clearly identified candidate, . . . a

political party, or a question of public policy that will

appear on the ballot”), with Wisconsin Right to Life, 551

U.S. at 669-70 (principal opinion) (“a court should find

that an ad is the functional equivalent of express

advocacy only if the ad is susceptible of no reasonable

interpretation other than as an appeal to vote for or

against a specific candidate”). Moreover, Article 9’s

(...continued)

$1,000 to oppose annexation. In New Mexico Youth Organized

v. Herrera, 611 F.3d 669, 677 n.4 (10th Cir. 2010), the court

invalidated state disclosure requirements as applied to a

nonprofit because it believed “that for a regulation of

campaign related speech to be constitutional it must be unam-

biguously campaign related.” Herrera was decided and argued

after Citizens United, but briefing had been completed prior

to the Supreme Court’s decision. The only reference to Citizens

United was a brief statement in a footnote that “[a]lthough that

opinion left many issues unresolved, we believe that require-

ment — that for a regulation of campaign related speech to be

constitutional it must be unambiguously campaign related

standard [sic] — as it pertains to this case has not been

changed.” Id. at 677 n.4.

No. 11-3693 37

definition tracks BCRA’s in every respect, as each is

limited by the same five factors: (1) by medium,1 8 (2) by

total amount spent,1 9 (3) temporally,2 0 (4) geographically,2 1

and (5) by content.2 2 Although there are some dif-

ferences with the federal statute’s definition, which we

consider below in Section IV.C, the point is that Article 9

is carefully drawn to track a definition already approved

by the Supreme Court in Wisconsin Right to Life. Even

if disclosure requirements could reach only so far as

express advocacy or its functional equivalent, on its

face, Article 9 regulates no more than that and so is not

facially overbroad.

18

Compare 2 U.S.C. § 434(f)(3)(A) (“any broadcast, cable or

satellite communication”), with 10 ILCS 5/9-1.14(a) (“any

broadcast, cable, or satellite communication, including radio,

television, or Internet communication”).

19

Compare 2 U.S.C. § 434(f) ($10,000 triggers reporting require-

ments), with 10 ILCS 5/9-8.6 ($3,000 triggers reporting require-

ments).

20

Compare 2 U.S.C. § 434(f)(3)(A)(i)(II) (appears within 60 days

of a general election or 30 days of a primary), with 10 ILCS 5/9-

1.14(a)(2) (same).

21

Compare 2 U.S.C. § 434(f)(3)(A)(i)(III) ( “is targeted to the

relevant electorate” ), with 10 ILCS 5/9-1.14(a)(3) (same).

22

Compare 2 U.S.C. § 434(f)(3)(A)(i)(I) (“refers to a clearly

identified candidate”), with 10 ILCS 5/9-1.14(a)(1) (“refers to a

clearly identified candidate,” “political party,” or “question

of public policy that will appear on the ballot”) (numbering

omitted).

38 No. 11-3693

3. Vagueness

The Center’s final concern about Article 9’s regulation

of ballot initiative activity is that it is triggered by con-

tributions or expenditures received or made “with

the purpose of securing a place on the ballot for, [or]

advocating the defeat or passage of” any ballot initiative,

“regardless of whether petitions have been circulated

or filed with the appropriate office or whether the

question has been adopted and certified by the

governing body.” 10 ILCS 5/9-1.8(e). The Center first

argues that the “in support of or in opposition to”

language is vague. In McConnell, however, the Court

found that very similar language was not unconstitu-

tionally vague. See 540 U.S. at 170 n.64 (“The words ‘pro-

mote,’ ‘oppose,’ ‘attack,’ and ‘support’ clearly set forth

the confines within which potential party speakers

must act in order to avoid triggering the provision. These

words ‘provide explicit standards for those who apply

them’ and ‘give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited.’ ”),

quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972). This part of McConnell remains valid after Citizens

United, and it forecloses the Center’s argument that

subsection 1.8(e)’s support/opposition language is uncon-

stitutionally vague. Accord, National Org. for Marriage,

649 F.3d at 62-64 (rejecting vagueness challenge to

terms “promoting,” “support,” and “opposition”).

The Center also contends that the definition is vague

because it could apply to advocacy on any issue that

might one day become the subject of a ballot initiative,

No. 11-3693 39

and the statute “provides no guidance . . . for determining

when such a policy issue becomes a regulated ‘question

of public policy.’ ” For example, a group might spend

$3,000 producing an ad that denounces high sales taxes,

only to find six months later that a sales tax cut will be

on the ballot as an initiative. The Center argues that

under Article 9, that group might be found to have

violated the statute if it failed to register as a ballot initia-

tive committee and make required disclosures.

Courts do not decide facial challenges on the basis

of such speculative hypotheticals. As the district court

observed, campaign-related broadcasts are considered

electioneering communications only when they are made

within 60 days of a general election or 30 days of a pri-

mary, “at which point it would already be known if an

initiative is on the ballot.” As for expenditures that are

not for electioneering communications (for example,

glossy mailers, bumper stickers, buttons, and other cam-

paign paraphernalia), Article 9’s definition of “ballot

initiative committee” is quite plainly aimed at regulating

groups that are either campaigning in favor of or

against actual ballot measures or actively advocating or

opposing placing a specific question on the ballot. We

have no reason to suppose the Board would construe or

enforce the provision more expansively, so we cannot

say that the definition of ballot initiative committee is

substantially overbroad in relation to its plainly legitimate

sweep, see United States v. Stevens, 130 S. Ct. 1577, 1587

(2010), or that its “deterrent effect on legitimate expres-

sion is . . . both real and substantial.” Young v. American

Mini Theatres, Inc., 427 U.S. 50, 60 (1976). Illinois’s regula-

40 No. 11-3693

tion of expenditures for, contributions to, and electioneer-

ing communications about ballot initiative campaigns

is not facially overbroad or vague.

B. Definition of Political Committee: The “Major Purpose”

Test

The Center argues that Illinois’s disclosure requirements

are vague and overbroad because they regulate as

political committees groups that do not have as their

“major purpose” the election of a candidate. Recall that

outside groups are required to register as political com-

mittees if within a 12-month period they make or receive

more than $3,000 worth of contributions, expenditures,

or independent expenditures for electioneering com-

munications. See 10 ILCS 5/9-1.8, 5/9-8.6(b). The Center

contends that Supreme Court precedent strictly cabins

regulation of political committees to organizations that

are “under the control of a candidate” or whose

“major purpose” is “the nomination or election of a

candidate.” Article 9’s political committee provision

covers additional entities, and thus, the Center contends,

the provision is fatally overbroad. We disagree.

Like the express advocacy/issue discussion distinction,

the Center’s proposed major purpose test also has its

origins in Buckley. The Buckley Court reviewed FECA’s

reporting requirements on political committees, which

the statute defined as “any committee, club, association,

or other group of persons which receives contributions

or makes expenditures during a calendar year in an

aggregate amount exceeding $1,000.” Buckley, 424 U.S. at

No. 11-3693 41

79 n.105, quoting 2 U.S.C. § 431(d) (current version at

§ 431(4)(A)). A parallel provision of FECA defined “contri-

bution” and “expenditure” as the “use of money or other

valuable assets ‘for the purpose of . . . influencing’ the

nomination or election of candidates for federal office.” Id.

at 77, quoting 2 U.S.C. § 431(e), (f) (current version at

§ 431(8), (9)). In the context of this definition, the Court

concluded that the disclosure requirements could

present “vagueness problems, for ‘political committee’ is

defined only in terms of amount of annual ‘contributions’

and ‘expenditures,’ and could be interpreted to reach

groups engaged purely in issue discussion.” Id. at 79. To

avoid these line-drawing problems, the Court construed

the term political committee more narrowly:

To fulfill the purposes of the Act, [political committees]

need only encompass organizations that are under

the control of a candidate or the major purpose of which

is the nomination or election of a candidate. Expendi-

tures of candidates and of “political committees” so

construed can be assumed to fall within the core

area sought to be addressed by Congress. They are,

by definition, campaign related.

Id. (emphasis added). The Court has referred to this

narrowing construction in subsequent opinions. See, e.g.,

McConnell, 540 U.S. at 170 n.64; FEC v. Massachusetts

Citizens for Life, 479 U.S. 238, 252 n.6 (1986) (plurality

opinion). The Center draws from this the conclusion

that the First Amendment imposes a bright-line prohibi-

tion against applying disclosure requirements to a

group whose “major purpose” is other than the nomina-

tion or election of candidates.

42 No. 11-3693

The argument reads Buckley too broadly. First, as is

clear from the quoted portion, the “major purpose”

limitation, like the express advocacy/issue discussion

distinction, was a creature of statutory interpretation,

not constitutional command. See National Org. for

Marriage, 649 F.3d at 59 (“We find no reason to believe

that this so-called ‘major purpose’ test, like the other

narrowing constructions adopted in Buckley, is anything

more than an artifact of the Court’s construction of a

federal statute.”); Human Life, 624 F.3d at 1009-10

(“Buckley’s statement . . . does not indicate that an entity

must have that major purpose to be deemed constitution-

ally a political committee.”).2 3 Buckley’s limiting construc-

tion was drawn for the statute before it, and the

Supreme Court has never applied a “major purpose” test

to a state’s regulation of political committees. See National

Org. for Marriage, 649 F.3d at 59.

23

See also Vermont Right to Life Committee, Inc. v.

Sorrell, ___ F. Supp. 2d ___, 2012 WL 2370445, at *15 (D. Vt. 2012)

(upholding Vermont campaign finance disclosure laws and

concluding that the “major purpose limiting construction was

the product of a vague statute, not of the First Amendment”).

But see New Mexico Youth Organized v. Herrera, 611 F.3d 669, 677-

78 (10th Cir. 2010) (invalidating state disclosure law as

applied to organization because it did not “satisfy the ‘major

purpose’ test,” which “sets the lower bounds for when regula-

tion as a political committee is constitutionally permissible”);

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir.

2008) (concluding before Citizens United that state disclosure

law violated the First Amendment because “an entity must

have ‘the major purpose’ of supporting or opposing a can-

didate to be designated a political committee”).

No. 11-3693 43

For four reasons, we do not think this limitation

extends to Illinois’s disclosure requirements. First, when

Buckley was decided, political committees faced much

greater burdens under FECA’s 1974 amendments than

Illinois’s disclosure requirements impose. For instance,

FECA then included hard limits on the size of contribu-

tions to political committees, and on how much they

could contribute to other political committees. See

Buckley, 424 U.S. at 35.2 4 When regulation as a political

committee entails adherence to these and other more

burdensome requirements, there is more room to argue

that the major purpose test might be needed under the

First Amendment than when the law imposes only dis-

closure obligations. For instance, the Supreme Court

in Massachusetts Citizens for Life held that a federal law

prohibiting corporations from making independent

expenditures except through segregated funds was uncon-

stitutional as applied to a nonprofit political advocacy

organization, but the Court expressly acknowledged

that the organization could be required to comply with

FECA’s disclosure regime. See 479 U.S. at 262 (“These

24

In Illinois’s 2009 amendments to its campaign finance law,

the legislature imposed hard limits on the amount political

committees could accept from any one individual, entity, or

other political committee. 10 ILCS 5/9-8.5(d). These limits

went into effect in January 2011 but were invalidated as uncon-

stitutional as applied to non-candidate, non-political party

“political action committees.” See Personal PAC v. McGuffage, ___

F. Supp. 2d __, 2012 WL 850744 (N.D. Ill. March 13, 2012).

The state did not appeal.

44 No. 11-3693

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 regula-

tions that accompany status as a political committee

under the Act.”). Massachusetts Citizens for Life shows

that there is nothing constitutionally magical about being

labeled as a political committee; what matters are the

burdens that attend the classification.

Second, Article 9 defines political committee more

narrowly than FECA by covering only groups that accept

contributions or make expenditures “on behalf of or in

opposition to” a candidate or ballot initiative. This defini-

tion is more targeted to campaign-related speech than

FECA’s definition of contribution and expenditure,

which applies to anything of value given or received

“for the purpose of . . . influencing” an election. 2 U.S.C.

§ 431(8), (9). Again, in McConnell, the Court held that

similar language (words such as “’promote,’ ‘oppose,’

‘attack,’ and ‘support’ ”) “provide[d] explicit standards”

and was not vague. See 540 U.S. at 170 n.64. The Illinois

limit of “on behalf of or in opposition to” confines

the realm of regulated activity to expenditures and con-

tributions within the core area of genuinely campaign-

related transactions.

Third, as the First Circuit noted in upholding Maine’s

campaign finance disclosure law, application of the major

purpose test would “yield perverse results.” “[A] small

group with the major purpose of electing a . . . state

No. 11-3693 45

representative that spends [$3,000] for ads could be

required to register” as a political committee, while a

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

candidate,” but spends far more on non-campaign-

related activities, “would not have to register because

the defeat of that candidate could not be considered the

[mega-group’s] major purpose.” National Org. for Marriage,

649 F.3d at 59, quoting National Org. for Marriage v. McKee,

723 F. Supp. 2d at 264; see also Vermont Right to Life Com-

mittee, ___ F. Supp. 2d at __, 2012 WL 2370445, at *16

(noting the “peculiar results” the major purpose test

would produce inasmuch as “a group that spends $1.5 MM

of a total of $6 MM on promoting candidates probably

would not qualify, but one that spends $1500 of a total

budget of $2000 probably would”).

Fourth, limiting disclosure requirements to groups

with the major purpose of influencing elections would

allow even those very groups to circumvent the law with

ease. Any organization dedicated primarily to electing

candidates or promoting ballot measures could easily

dilute that major purpose by just increasing its non-

electioneering activities or better yet by merging

with a sympathetic organization that engaged in

activities unrelated to campaigning.2 5 It is easy to imagine

25

See Human Life, 624 F.3d at 1012; North Carolina Right to Life,

525 F.3d at 332 (Michael, J., dissenting) (warning that major-

purpose standard “effectively encourages advocacy groups

to circumvent the law by not creating political action

committees and instead to hide their electoral advocacy from

(continued...)

46 No. 11-3693

how implementing the kind of major-purpose test the

Center advances could devolve into an administrative

nightmare. The First Amendment does not require a

state to build such an escape hatch into reasonable disclo-

sure laws.26 The Supreme Court has frequently warned

of the “hard lesson of circumvention” in campaign

finance regulation. McConnell, 540 U.S. at 165; see also

Citizens United, 130 S. Ct. at 912; Buckley, 424 U.S. at 62. In

political campaigns, it seems, “[m]oney, like water, will

always find an outlet.” McConnell, 540 U.S. at 224; see

generally Samuel Issacharoff & Pamela S. Karlan, The

Hydraulics of Campaign Finance Reform, 77 Tex. L. Rev. 1705

(1999).27 Illinois’s disclosure provisions attempt to reduce

(...continued)

view by pulling it into the fold of their larger organizational

structure”). Contra id., 525 F.3d at 296 (majority opinion)

(rejecting dissent’s warning as “hyperbolic” and stating that

“the dissent fails to set forth any meaningful limit on the

consignment of our most basic political speech to layer

upon layer of intense regulation”).

26

The FEC applies the “major purpose” test on a “case-by-case”

basis, see The Real Truth About Abortion, __ F.3d at __, 2012 WL

2108217, at *1, and in practice the test appears to be quite

complex, see Shays v. Federal Election Comm’n, 511 F. Supp. 2d 19,

31 (D.D.C. 2007).

27

At the federal level, increasingly the outlets found by cam-

paign money are blind alleys; the hydraulics of campaign

finance have propelled funds to pseudonymous super PACs and

§ 501(c)(4) groups. See Dan Eggen, Behind the Ads, Faceless

(continued...)

No. 11-3693 47

27

(...continued)

Donors, W ASH . P OST , Apr. 26, 2012, at A1. By one account, in the

2010 elections less than 10% of the $75 million outside groups

spent on electioneering communications came from entities

that disclosed their donors. See 2010 Outside Spending,

by Groups, Center for Responsive Politics, http://www.

opensecrets.org/outsidespending/summ.php?disp=O (last vis-

ited Aug. 29, 2012). And already this year, groups that do not

disclose their donors have spent $172 million on television,

radio, and Internet advertising. See Paul Blumenthal, ‘Dark

Money’ Hits $172 Million in 2012 Election, Half of Independent

Group Spending, H UFFINGTON P OST (July 29, 2012, 6:17pm),

http://www.huffingtonpost.com/2012/07/29/dark-money-2012-

election_n_1708127.html. The reason for this blind spot is that

FEC regulations require corporations and labor organizations

making electioneering communications to report the identities

of donors giving at least $1,000 only when the donation “was

made for the purpose of furthering electioneering communica-

tions.” 11 C.F.R. § 104.20(c)(9) (emphasis added). While any

person or entity spending at least $10,000 on electioneering

communications must disclose their spending, unions and

corporations need not disclose who has contributed to pay for

these ads, “unless the donor is dumb enough specifically to

direct the organization to use the money for a particular ad.”

Richard L. Hasen, Show Me the Donors: What’s the Point of

Campaign Finance Disclosure? Let’s Review, S LATE (Oct. 14, 2010),

http://www.slate.com/articles/news_and_politics/politics/2010

/10/show_me_the_donors.html.

A district court recently invalidated the FEC-created loophole

as an unreasonable construction of the FECA statute. See Van

Hollen v. FEC, __ F. Supp. 2d __, 2012 WL 1066717 (D.D.C. 2012),

(continued...)

48 No. 11-3693

this risk of circumvention by defining political committee

to include groups that either coordinate expenditures

with campaigns and parties or that run ads that are

unambiguous appeals to vote a particular way.

In light of these considerations, the line-drawing con-

cerns that led the Court to adopt the major purpose

limitation for contribution and expenditure limits in

Buckley do not control our overbreadth analysis of

the disclosure requirements of Article 9. Instead, as the

Supreme Court has instructed in applying exacting scru-

tiny, our inquiry depends on whether there is a sub-

stantial relation between Illinois’s interest in informing

its electorate about who is speaking before an election

and Article 9’s regulation of campaign-related spending

by groups whose major purpose is not electoral politics.

We find that there is.

In Illinois, the voting “public has an interest in

knowing who is speaking about a candidate shortly

before an election,” Citizens United, 130 S. Ct. at 915,

whether that speaker is a political party, a nonprofit

27

(...continued)

stay pending appeal denied, No. 12-5117, 12-5118, 2012 WL 1758569

(D.C. Cir. May 14, 2012) (“On the merits, intervenors fail to

demonstrate a strong likelihood that the district court erred in

interpreting . . . the plain text of section 201 of the Bipartisan

Campaign Reform Act (’BCRA’), which requires that dis-

closures ‘shall contain . . . the names . . . of all contributors who

contributed an aggregate amount of $1,000 or more to the

person” purchasing “electioneering communications.’ ”),

quoting 2 U.S.C. § 434(f)(2)(F).

No. 11-3693 49

advocacy group, a for-profit corporation, a labor union,

or an individual citizen. The need for an effective and

comprehensive disclosure system is especially valuable

after Citizens United, since individuals and outside

business entities may engage in unlimited political ad-

vertising so long as they do not coordinate tactics with

a political campaign or political party. See Citizens

United, 130 S. Ct. at 916 (“A campaign finance system

that pairs corporate independent expenditures with

effective disclosure has not existed before today. . . . With

the advent of the Internet, prompt disclosure of expendi-

tures can provide shareholders and citizens with the

information needed to hold corporations and elected

officials accountable for their positions and supporters.”).

Already in the 2012 federal elections, outside spending

has approached $300 million nationwide.2 8

Amidst this cacophony of political voices — super

PACs, corporations, unions, advocacy groups, and in-

dividuals, not to mention the parties and candidates

themselves — campaign finance data can help busy

voters sift through the information and make informed

political judgments. Transparency in campaign finance

allows the public to weigh the “credib[ility]” of the

speaker and thus the “persuas[iveness]” of the message,

and that is so “generally whatever the question is,” Aris-

totle, Rhetoric, in 2 The Complete Works of Aristotle 2152,

28

See Outside Spending, Center for Responsive Politics,

http://www.opensecrets.org/outsidespending/index.php (last

visited Aug. 29, 2012).

50 No. 11-3693

2155 (Jonathan Barnes ed. 1984)., quoted in Majors v.

Abell, 361 F.3d 349, 352 (7th Cir. 2004) (upholding state

statute requiring political ads to identify sponsors).

Such transparency helps the public hold political

speakers accountable for making false, manipulative, or

otherwise unseemly ads that they might otherwise run

with impunity. As Justice Brandeis observed, “Sunlight

is said to be the best of disinfectants; electric light the

most efficient policeman.” Louis Brandeis, Other People’s

Money 62 (1933), quoted in Buckley, 424 U.S. at 67.

We conclude that Article 9’s regulation as political

committees of groups that lack the major purpose of

influencing elections does not condemn the disclosure

law as unconstitutionally overbroad.

C. “Electioneering Communication”

In addition to its two major substantive challenges to

Article 9, the Center asserts that several other provi-

sions are facially vague and overbroad. The first is the

definition of “electioneering communication,” which

applies to expenditures and contributions to determine

whether an entity is a regulated political committee

that must disclose its finances and donors. Illinois defines

“electioneering communication” as:

any broadcast, cable, or satellite communication,

including radio, television, or Internet communication,

that (1) refers to a clearly identified candidate . . .,

clearly identified political party, or a clearly identified

question of public policy that will appear on the

No. 11-3693 51

ballot, (2) is made within 60 days before a general

election . . . or 30 days before a primary election, (3) is

targeted to the relevant electorate, and (4) is suscepti-

ble to no reasonable interpretation other than as an

appeal to vote for or against a clearly identified candi-

date . . ., a political party, or a question of public

policy.

10 ILCS 5/9-1.14 (some internal numbering omitted). This

definition is taken almost verbatim from the federal

definition that was upheld (to the extent it triggered

disclosure requirements) in Citizens United. Federal law

defines “electioneering communication” as:

any broadcast, cable, or satellite communication

which —

(I) refers to a clearly identified candidate for Fed-

eral office;

(II) is made within —

(aa) 60 days before a general . . . election candi-

date; or

(bb) 30 days before a primary . . . election . . .;

and

(III) . . . is targeted to the relevant electorate.

...

. . . [A] communication which refers to a clearly

identified candidate for Federal office is “targeted

to the relevant electorate” if the communication

can be received by 50,000 or more persons —

52 No. 11-3693

. . . in the district [or state] the candidate seeks to

represent . . . .

2 U.S.C.A. § 434(f)(3)(A)-(C).

The Center maintains that Article 9’s definition of

“electioneering communication” is vague and overbroad.

The Supreme Court has already found the federal defini-

tion to be neither overbroad nor vague in the context of

disclosure requirements, see, e.g., Citizens United, 130

S. Ct. at 916, so in assessing Article 9 we focus on the

ways in which the Illinois statute is broader or less

precise than the federal one and then inquire whether

each difference is constitutionally permissible.

There are three differences between the federal and

Article 9 definitions of “electioneering communications.”

First, the Illinois statute covers communications related

to ballot measure campaigns. We determined above

that this element of Article 9 does not render the

statute vague or overbroad, see parts IV.A.2 & .3, and do

not repeat our analysis here. Second, Article 9 covers

“Internet speech,” which is not regulated by the

federal statute. Third, Illinois does not limit the phrase

“targeted to the relevant electorate” by reference to

minimum audience size. We now address these last

two differences.

1. Internet Communications

The Center contends that Article 9’s regulation of

certain Internet speech as electioneering communica-

tions renders it unconstitutionally broad because

No. 11-3693 53

Internet speech, in contrast to radio and television broad-

casts, is not confined to particular audience markets or

moments in time. Without firm temporal or geographic

limitations, the Center argues, Article 9 potentially

sweeps in an untold amount of online speech that has

nothing to do with Illinois elections. The Center notes

that “many Internet communications” — for example,

postings on the Center’s website, emails to the Center’s

membership distribution lists, or messages through

social networking sites — “are equally accessible from

almost anywhere in the world” and may even persist

forever in cyber-space through the use of a so-called “Way-

Back Machine” that stores web sites even after they

have been removed by their creators or sponsors. The

consequence, it suggests, is that “politically-oriented

websites around the world must review their content

before each Illinois election to identify and remove any

prior posting referring to someone who now is an Illinois

candidate or something that now is an Illinois ballot

question.” Keeping in mind that this is a facial chal-

lenge, we are not persuaded that this prospect

invalidates the entire law.

First, requiring disclosure of genuinely campaign-

related Internet communications undoubtedly advances

Illinois’s important interest in informing its voters

about who is speaking before an election. In recent years,

a large and growing proportion of electioneering has

been occurring online. In 2008, for the first time, “more

than half the voting-age population used the internet

to connect to the political process during an election

54 No. 11-3693

cycle.” 2 9 That portion is almost certainly higher today. By

one estimate, the two major parties’ presidential cam-

paigns will spend $159 million more on web ads in

2012 than in 2008 — a sevenfold increase. 3 0 Thanks to

advanced Internet marketing strategies, campaigns and

other political actors have now “acquired the technical

capacity to target Web ads with the precision of mail or

a door-to-door canvass.” 3 1 Campaigns, parties, and advo-

cacy groups have increasingly turned to the Internet to

reach the electorate with campaign messages, and

Illinois voters have just as much a stake in knowing who

is behind such messages as when they are broadcast

in traditional media.

On the other hand, we agree with the Center that

the potential reach of Illinois’s disclosure law could be

problematic if distant speakers were actually subject to

regulation because their Internet postings inadvertently

29

Aaron Smith, The Internet’s Role in Campaign 2008 3 (Pew

Internet & Amer. Life Project, Apr. 2009), available at

http://pewresearch.org/pubs/1192/internet-politics-campaign-

2008.

30

See Obama Outspends Romney on Online Ads, CNN

(June 3, 2012), http://www.cnn.com/2012/06/

03/politics/online-campaign-spending/index.html.

31

Sasha Issenberg, The Creepiness Factor, S LATE (Apr. 26, 2012),

http://www.slate.com/articles/news_and_politics/victory_lab/

2012/04/web_based_political_ads_why_they_scare_the_obama_

and_romney_campaigns.html.

No. 11-3693 55

or obliquely coincided with the subjects of Illinois ballot

measures. The state’s interest in informing its voters of

the identities, financial outlays, and funding sources of

such marginal political messengers does not rise to

the importance the First Amendment demands. Yet the

Center has identified no case in which the State

Election Board has asked out-of-state speakers to

register as political committees for disseminating emails,

tweets, zombie web pages, or any other Internet com-

munications that merely mentioned Illinois candidates

or discussed issues related to Illinois ballot measures.

Nor could the Board legally do so, for under Article 9

Internet ads count as electioneering communications

only when they are both “targeted to the relevant

[Illinois] electorate” and “susceptible to no reasonable

interpretation other than as an appeal to vote for or

against a clearly identified candidate . . ., a political party,

or a question of public policy.” 10 ILCS 5/9-1.14. The

Center’s notion that the Board might consider an out-of-

state advocacy group’s web ad generally endorsing

low taxes to be an unambiguous appeal to vote for a

“ballot question to balance the Illinois budget” sounds far-

fetched.

With no evidence that the Board would actually

construe Article 9 in this surprising way, such remote,

hypothetical applications do not justify invalidating

Illinois’s disclosure provisions for facial overbreadth.

See Washington State Grange v. Wash. State Republican

Party, 552 U.S. 442, 450 (2008) (“[W]e must be careful not

to go beyond the statute’s facial requirements and specu-

late about ‘hypothetical’ or ‘imaginary’ cases.”), quoting

56 No. 11-3693

United States v. Raines, 362 U.S. 17, 22 (1960); see also

Robert Bork, The Tempting of America 169 (1990) (“Judges

and lawyers live on the slippery slope of analogies;

they are not supposed to ski it to the bottom.”). For a facial

challenge to prevail, a statute’s overbreadth must be

“substantial, not only in an absolute sense, but also

relative to the statute’s plainly legitimate sweep.” United

States v. Williams, 553 U.S. 285, 292 (2008). Cf. Yazoo &

Mississippi Valley R.R. Co. v. Jackson Vinegar Co., 226

U.S. 217, 220 (1912) (“How the state court may apply

[a statute] to other cases, whether its general words may

be treated as more or less restrained, and how far parts

of it may be sustained if others fail are matters upon

which we need not speculate now.”). Neither the Board

nor Illinois courts have had “occasion to construe the

law in the context of actual disputes arising from the

electoral context, or to accord the law a limiting construc-

tion to avoid constitutional questions.” Washington State

Grange, 552 U.S. at 450. It would be premature for this

court to presume that the Board would disregard the

obvious limits of the statutory text and seek to

apply Article 9 in such a sweeping fashion.

The Center complains that it is too difficult to know

when an “electioneering communication” is “made” on the

Internet. Timing is important because of the duties that

apply during the 30-day and 60-day windows before

elections. See 10 ILCS 5/9-1.14(a). The district court and

the defendants assert that a communication is “made”

on a website both when it is first posted and while

it remains available on the website. That is a sensible

reading, just as a physical billboard is considered a com-

No. 11-3693 57

munication made by the advertiser as long as it is dis-

played. The Center wonders if it would still be

responsible for later communications (within the 30-

day and 60-day windows) if others copy its ads and

post them on other websites. If that happens, the Center

would not be “making” those later communications

and would not be responsible for them.

We do not anticipate that Article 9 will restrict or chill

a substantial amount of protected speech because

it treats certain Internet speech as electioneering com-

munications. On its face, this element of the statute

is neither vague nor overbroad.

2. Targeted to the Relevant Electorate

Article 9 does not numerically define “target[ing]

the relevant electorate” as does FECA, which requires

that the communication be capable of being “received by

50,000 or more persons.” 2 U.S.C. § 434(f)(3)(C). Illinois

has good reasons for omitting a number. Its elections

involve much smaller electorates, and it does not have

an agency like the Federal Communications Commission

that would let it monitor how large an audience a

given broadcast reaches. This difference does not

defeat Illinois’s substantial interest in informing its elec-

torate for the purposes of this facial challenge. In ad-

judicating facial challenges, federal courts do not

assume that state officials will construe state law in the

most expansive way imaginable. On the contrary, it “is

reasonable to assume . . . that a state court presented with

a state statute . . . will attempt to construe the statute

58 No. 11-3693

consistently with constitutional requirements.” City of

Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S.

416, 441 (1983), overruled in part on other grounds by

Planned Parenthood v. Casey, 505 U.S. 833, 881-83 (1992)

(as stated in plurality opinion). We agree with the state

that a “reasonable, and constitutional construction of

‘targeted to the relevant electorate’ means a broadcast

communication receivable within the geographical area

where potential voters on that candidate or issue live.” The

absence of a numeric baseline does not condemn

the phrase “targeted to the relevant” as facially invalid.

Article 9’s definition of “electioneering communications”

is not facially vague or overbroad.

D. Contribution and Expenditure

Article 9 defines “contribution” as a “gift . . . or anything

of value, knowingly received in connection with the

nomination for election, election, or retention of any

candidate or person to or in public office or in connec-

tion with any question of public policy.” 10 ILCS 5/9-

1.4(A)(1). “Expenditure” means “gift of money, or

anything of value, [made] in connection with the nomina-

tion for election, election, or retention of any person to

or in public office or in connection with any question

of public policy.” 10 ILCS 5/9-1.5(A)(1). The “transfer

of funds by a political committee to another political

committee” automatically qualifies as a contribution (for

the transferee) and an expenditure (for the transferor).

10 ILCS 5/9-1.5(A)(3), 5/9-1.4(A)(3). An expenditure “made

in cooperation, consultation, or concert with another

No. 11-3693 59

political committee” is considered a contribution to that

committee. 10 ILCS 5/9-1.4(A)(5). The Center challenges

three aspects of these definitions as unconstitutionally

vague.

1. In Connection With, Supporting, or Opposing

First, the Center argues that the requirement that a

contribution or expenditure be “in connection with” an

election or ballot initiative is “so vague and broad as to

provide no meaningful guidance.” By itself, the “in con-

nection with” language would be of little help. But as

the district court correctly observed, the scope of the

“contribution” and “expenditure” definitions is further

limited by the narrower definition of “political commit-

tee,” which applies only to contributions or expendi-

tures that are made “on behalf of or in opposition to a

candidate” (for political action committees) or made “with

the purpose of securing a place on the ballot for [or]

advocating the defeat or passage of . . . the question of

public policy” (for ballot initiative committees). 10 ILCS

5/9-1.8(d), (e). The only regulatory consequence of a

transaction qualifying as a contribution or expenditure

is when it triggers registration requirements for political

committees, so the more circumscribed language in

that latter provision is what matters for the vagueness

analysis. Following McConnell, we concluded above that

the “in support of or opposition” language in the

definition of “ballot initiative committee” is clear enough.

See part IV.A.3. The same goes for the “on behalf of or

in opposition to a candidate” language in the definition

60 No. 11-3693

of “political action committee.” All of these definitions

“give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited.” Grayned, 408

U.S. at 108.

2. Transfer of Funds from One Political Committee

to Another

Next, the Center attacks Article 9’s treatment of any

“transfer of funds by a political committee to another

political committee” as a contribution or expenditure.

The Center claims this provision may apply to transfers

with groups that qualify as political committees under

the statute but have not yet registered, so it requires

people “to judge whether a source or recipient of funds

may later be judged to have made a $3,000 contribution,

expenditure, or otherwise became a political committee.”

Thus, the Center fears, it “could find itself classified as

an Illinois political committee depending on how regula-

tors later assess some other group’s speech or other

activities that [the Center] could not have known

about.” This result seems highly unlikely because it over-

looks an important aspect of the transfer of funds provi-

sions. A transfer counts as a contribution and expendi-

ture only if it is already between two entities that each

qualify as political committees. See 10 ILCS 5/9-1.4(A)3

and -1.5(A)(3). That makes sense only if they each

already qualify as political committees independent of the

particular transfer. The transfer to or from some other

entity that is a political committee would not make the

other entity a political committee. (Otherwise, for

No. 11-3693 61

example, a contractor who produced an ad attacking a

candidate for a political committee would itself be trans-

formed into a political committee.) The mere possibility

that the Board might enforce the statute in such an

unfair way as the Center says it fears is a good example

of the sort of “hypothetical or imaginary” situation with

which courts do not concern themselves in facial chal-

lenges. Washington State Grange, 552 U.S. at 450. If the

Board sought to enforce Article 9 as the Center says it

fears, that might well provide a strong basis for an as-

applied challenge.

3. Coordinated Expenditures

Finally, the statute treats as a contribution any “election-

eering communication made in concert or cooperation with

or at the request, suggestion, or knowledge of a candidate,

a political committee, or any of their agents.” 10 ILCS 5/9-

1.4(A)(1.5) (emphases added). The Center contends that

the italicized words are vague because they do not

specify the “degree of actual agreement required.” Since

before Buckley, however, FECA has provided that “ex-

penditures made by any person in cooperation, consulta-

tion, or concert, with, or at the request or suggestion of,

a candidate, his authorized political committees, or

their agents, shall be considered to be a contribution to

such candidate.” 2 U.S.C. § 441a(a)(7)(B)(i); see Buckley,

424 U.S. at 46. With the exception of the word, “knowl-

edge,” Article 9’s definition of coordination is no less

clear than the federal definition, which has long passed

muster in the Supreme Court. See, e.g., McConnell, 540

62 No. 11-3693

U.S. at 219-23. We therefore reject the Center’s argu-

ment that the terms, “in concert or cooperation with,”

“request,” and “suggestion,” are unconstitutionally vague.

As for the word “knowledge,” we agree with the Center

that standing alone, it would sweep in a wide range

of expenditures as coordinated expenditures (and thus

as indirect contributions to campaign committees). For

instance, if a candidate learned that an outside group

had produced a favorable TV ad, would the candidate

have “knowledge” that the electioneering communica-

tion was made? This would not be enough to say that

the ad was coordinated with the campaign. Recognizing

this problem, the district court adopted the limiting

construction that “affirmative acquiescence is required,

not mere after the fact knowledge that the advocacy

has occurred.” Although we are somewhat puzzled by

the phrase “affirmative acquiescence,” we think the

main thrust of this limiting construction is sound. Under

the canon of noscitur a sociis, the fact that “several items

in a list share an attribute counsels in favor of inter-

preting the other items as possessing that attribute as

well.” Beecham v. United States, 511 U.S. 368, 371 (1994).

Thus, the Illinois legislature’s placement of “knowledge”

in a series after “request” and “suggestion” indicates

that we should interpret the last, more general word, to

be similar to its more specific neighbors. 3 2 Both “request”

32

This construction is especially appropriate given that the

“knowledge” requirement is omitted from an otherwise

(continued...)

No. 11-3693 63

and “suggest” necessarily imply actual prior communica-

tion between the purchaser of the electioneering com-

munication and the candidate, committee, or an agent

thereof. The use of the term “knowledge” is clearly in-

tended to ensure that coordination cannot be achieved

by a proverbial “wink and nod,” such as where the sup-

posedly independent group gives a candidate’s cam-

paign advance, secret notice of its planned advertising

campaign to attack the opponent in a particular way,

but without actually drawing an explicit response from

the candidate’s campaign.3 3

In the context of “request” and “suggest,” the word

“knowledge” may fairly be construed as requiring

advance and non-public communication with the candi-

(...continued)

parallel provision of Article 9 defining “independent expendi-

ture.” See 10 ILCS 5/9-1.15 (defining “independent expendi-

ture” as an expenditure for electioneering communication

“that is not made in connection, consultation, or concert with

or at the request or suggestion of the public official or

candidate, . . ., political committee, . . . campaign, . . . or [any]

agent [thereof]”).

33

For example, the FEC’s regulations on coordinated expendi-

tures state that the definition “is not satisfied if the infor-

mation material to the creation, production, or distribu-

tion of the communication was obtained from a publicly

available source,” but that “[a]greement or formal col-

laboration between the person paying for the communica-

tion and the candidate . . . is not required.” 11 C.F.R.

§ 109.21(d)(2), (e).

64 No. 11-3693

date or entity on whose behalf the electioneering com-

munication is supposedly made. Where an otherwise

ambiguous provision is readily susceptible to a limiting

construction that cures the vagueness concerns, we

should adopt it. See Buckley, 424 U.S. at 77-78 (“Where

the constitutional requirement of definiteness is at

stake, we have the further obligation to construe

the statute, if that can be done consistent with the legisla-

ture’s purpose, to avoid the shoals of vagueness.”). Ac-

cordingly, we interpret “knowledge” in light of its

adjacent terms and conclude that the coordination lan-

guage of Article 9 is clear enough to provide a rea-

sonably intelligent person “fair warning” of what sort

of conduct is covered. See Grayned, 408 U.S. at 108.

E. Independent Expenditures

An “independent expenditure” is an expenditure for

an electioneering communication or any form of express

advocacy that is not coordinated with a candidate

or a campaign.34 Unlike coordinated expenditures, an

34

Article 9 defines “independent expenditure” as “any payment,

gift, donation, or expenditure of funds (i) by a natural person

or political committee for the purpose of making elec-

tioneering communications or of expressly advocating for or

against the nomination for election, election, retention, or

defeat of a clearly identifiable public official or candidate or

for or against any question of public policy to be submitted to

the voters and (ii) that is not made in connection, consultation,

(continued...)

No. 11-3693 65

“independent expenditure is not considered a contribu-

tion to a political committee.” 10 ILCS 5/9-8.6(a). When,

however, in a 12-month period a person or organization

makes more than $3,000 worth of independent expendi-

tures “supporting or opposing a public official or candi-

date,” 10 ILCS 5/9-8.6, this triggers Article 9’s disclosure

requirements.35 The Center contends that the phrase

“supporting or opposing a public official or candidate” is

impermissibly vague because the “supporting or op-

posing” language is unclear, and because the provision

appears to apply to advocacy for or against public

officials who are not candidates.

(...continued)

or concert with or at the request or suggestion of the public

official or candidate, the public official’s or candidate’s desig-

nated political committee or campaign, or the agent or agents

of the public official, candidate, or political committee or

campaign.” 10 ILCS 5/9-1.15.

35

After exceeding the threshold, any natural person making

such independent expenditures “must file a written disclosure

with the State Board of Elections within 2 business days . . .

identify[ing] the natural person, the public official or candidate

supported or opposed, the date, amount, and nature of each

independent expenditure, and the natural person’s occupa-

tion and employer.” 10 ILCS 5/9-8.6(a). “Any entity other than

a natural person that makes expenditures of any kind in an

aggregate amount exceeding $3,000 during any 12-month

period supporting or opposing a public official or candidate

must organize as a political committee” and “report all

such independent expenditures as required under” Article 9.

10 ILCS 5/9-8.6(b), (c).

66 No. 11-3693

First, the “supporting or opposing” language has no

effect on the scope or substance of these independent

expenditure reporting requirements. Not just any unco-

ordinated campaign-related expenditure is an “independ-

ent expenditure” — only those made either (1) for “elec-

tioneering communications” or (2) for “expressly ad-

vocating for or against the . . . election . . . or defeat of a

clearly identifiable public official or candidate.” 10 ILCS

5/9-1.15. Recall that a broadcast counts as an elec-

tioneering communication only if it “refers to a clearly

identified candidate” and is “susceptible to no reasonable

interpretation other than as an appeal to vote for or

against” that candidate. 10 ILCS 5/9-1.14(a). This

standard — as well as the standard for express advocacy —

is much more demanding than the requirement that ex-

penditures merely be “supporting or opposing a public

official or candidate.” When the multiple statutory terms

and definitions are assembled, then, the “supporting or

opposing” language is redundant and does not render

the definition of “independent expenditure” unconstitu-

tionally vague or overbroad. See Human Life, 624 F.3d at

1021 (“otherwise imprecise terms may avoid vagueness

problems when used in combination with terms that

provide sufficient clarity”), quoting Gammoh v. City of

La Habra, 395 F.3d 1114, 1120 (9th Cir. 2005).

As for the phrase “public official,” we agree with the

Center that a strictly literal interpretation of the provi-

sion would include independent expenditures made for

“expressly advocating for or against the . . . election

or defeat of a clearly identifiable public official” who is

not currently a candidate, but who may run for re-election

No. 11-3693 67

in some future year.3 6 It is clear, however, from both

the text of this section and Article 9 as a whole, which

repeatedly refers to incumbent candidates as “public

officials,” that the legislature intended the phrase “public

official” in section 9-8.6 to mean a public official who

is also a candidate. That is the limiting construction

the district court adopted, and it is a sound one. So nar-

rowed, the provision of Article 9 imposing disclosure

requirements for “independent expenditures” is not

vague or overly broad.

Conclusion

“Whatever differences may exist about interpretations

of the First Amendment, there is practically universal

agreement that a major purpose of that Amendment was

to protect the free discussion of governmental affairs.

This of course includes discussions of candidates, . . . and

all such matters relating to political processes.” Mills v.

Alabama, 384 U.S. 214, 218-19 (1966). The First Amend-

ment helps to ensure that our “constitutionally protected

‘discussion of governmental affairs’ is an informed one.”

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605

(1982), quoting Mills, 384 U.S. at 218. Campaign finance

disclosure requirements can advance the democratic

36

It could not apply to expenditures made for “electioneering

communications,” of course, because these require reference

to a “clearly identified candidate” and an unambiguous

“appeal to vote” for or against that candidate. 10 ILCS 5/9-

1.14(a) (emphasis added).

68 No. 11-3693

virtues in informed and transparent public discourse

without impairing other First Amendment values.

Although “disclosure is a less restrictive alternative

to more comprehensive regulations of speech,” Citizens

United, 130 S. Ct. at 915, we are not unmindful of the

costs it may generate in foregone speech from those

who wish to remain anonymous, in the loss of privacy,

and from social friction. See, e.g., McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334 (1995) (striking down

state law requiring identification of authorship on all

campaign-related publications as applied to distribution

of unsigned leaflets by individual pamphleteer); see

generally Symposium, Privacy, Democracy, and Elections,

19 Wm. & Mary Bill Rights J. 857 (2011). We also take

the Center at its word that its donors are so adamant

about remaining anonymous that subjecting it to the

Illinois reporting requirements will deter it from

engaging in its preferred form of public advocacy. That

is regrettable, but it is the Center’s and its donors’ choice

to make. As Justice Scalia has written, participation in

the political process takes “civic courage, without which

democracy is doomed.” Doe v. Reed, 130 S. Ct. at 2837

(Scalia, J., concurring in the judgment). While there is

also a “respected tradition of anonymity in the advocacy

of political causes” in this country, see McIntyre, 514

U.S. at 343, that tradition does not mean voters must

remain in the dark about “who is speaking about a candi-

date shortly before an election.” Citizens United, 130 S. Ct.

at 915. Campaign finance disclosure laws must strike a

balance between protecting individual speakers from

invasions of privacy and harassment on the one hand,

No. 11-3693 69

and enabling transparency and accountability in political

campaigns on the other. Illinois’s laws do so sufficiently

to survive this facial challenge.

The judgment of the district court is A FFIRMED.

P OSNER, Circuit Judge, concurring in part and dissenting

in part. I agree with much in the majority opinion,

but several provisions of the Illinois statute seem to me

to burden the plaintiff’s freedom of speech unduly;

we should invalidate them.

The Center for Individual Freedom is a nonprofit organi-

zation engaged in public advocacy. It makes advertise-

ments and disseminates them in television, print, online,

and other media; it maintains a website; and it produces

a radio show. It conducts some of its activities during

election campaigns, often commending to the electorate

candidates whom it thinks likely if elected to support

the policies it advocates. But it is not affiliated with and

does not coordinate its activities with any candidate,

campaign, or political party and is thus an “independent”

advocacy group within the meaning of Citizens United

v. Federal Election Commission, 130 S. Ct. 876, 910 (2010),

and Buckley v. Valeo, 424 U.S. 1, 45-47 and n. 53 (1976)

(per curiam). It therefore is not subject to all the reg-

70 No. 11-3693

ulations that states are allowed to impose on political

committees that are affiliated with candidates, campaigns,

or parties. A state is permitted, however, to compel

public disclosure of election-related activities of indep-

endent groups, on the theory that such disclosure

helps the electorate evaluate candidates for public office,

id. at 66, 81, though a state may not limit donations to

an independent advocacy organization or the expendi-

tures that such an organization can make, or ban its

speech. See SpeechNow.org v. Federal Election Commission,

599 F.3d 686, 694-96 (D.C. Cir. 2010) (en banc).

Illinois regulates what it calls “political committees,” and

the term includes not only partisan committees but

also any independent organization or individual that

“accepts contributions or makes expenditures during

any 12-month period in an aggregate amount ex-

ceeding $3000 on behalf of or in opposition to a candidate

or candidates for public office” or “in support of or in

opposition to any question of public policy to be

submitted to the electors,” or that “makes electioneering

communications,” exceeding the monetary threshold,

that are “related to” a candidate or to a question of

public policy. 10 ILCS 5/9-1.8(d), (e). A “contribution” is

among other things “anything of value that constitutes

an electioneering communication made in concert or

cooperation with or at the request, suggestion, or knowl-

edge of a candidate, a political committee, or any of their

agents,” or “a transfer of funds received by a political

committee from another political committee.” 10 ILCS 5/9-

1.4(A)(1.5), (3). An “expenditure” is anything of

value given “in connection with the nomination for

No. 11-3693 71

election, election, or retention of any person to or in

public office,” 10 ILCS 5/9-1.5(A)(1), or “that constitutes

an electioneering communication made in concert or

cooperation with or at the request, suggestion, or knowl-

edge of a candidate, a political committee, or any of

their agents.” 10 ILCS 5/9-1.5(A)(2). And finally an “elec-

tioneering communication” is any broadcast, cable,

satellite, or Internet communication that refers to a

“clearly identified candidate,” “clearly identified

political party,” or “clearly identified question of public

policy that will appear on the ballot,” provided that

the communication is made within 60 days before a

general election or 30 days before a primary election,

is “targeted to the relevant electorate,” and “is sus-

ceptible to no reasonable interpretation other than as an

appeal to vote for or against a clearly identified candi-

date…or a question of public policy.” 10 ILCS 5/9-1.14(a).

A political committee must register with the Illinois

Board of Elections, 10 ILCS 5/9-3(a), and file quarterly

reports that open its finances to public scrutiny. For each

report must reveal “all financial activity,” as the state

website puts it (Illinois State Board of Elections, “Political

Committee Report Filing Forms,” http://elections.il.gov/

CampaignDisclosure/PoliticalCommittee.aspx (visited

Aug. 23, 2012)), in the previous quarter—must reveal

the total contributions it received, along with all other

receipts, and the total expenditures it made, including

investments and loans; along with the names, addresses,

and other identifying details of donors, and of recipients

of the committee’s expenditures. 10 ILCS 5/9-10(b), -11(a).

72 No. 11-3693

Having to disclose the names of donors is the most

onerous requirement that the statute imposes on a

political committee because many donors don’t want to

be publicly identified as contributing to an organiza-

tion engaged in public advocacy regarding issues of

public policy, which usually are controversial. Indeed CIF

alleges without contradiction that its donors require

assurances that their identities will not be disclosed, and

that this anonymity is a condition of their support. So CIF

very much does not want to be classified as a political com-

mittee and one way to avoid that fate is to avoid any

activity that might, even if there is no certainty that

it would, require CIF to register.

The vagueness of a number of key provisions of the

Illinois law is therefore worrisome. A vague statute

can deter lawful activity. Cautious persons will want

to avoid even a small probability of being found to

have violated it, and the safest way to do that is to

avoid lawful activity that is just across the line from

the unlawful—to create a buffer zone around the

statutory core, just as cautious men decide not to have

sex with young-looking women who probably are not

below the age of consent but may be. When the lawful

activity likely to be deterred by a vague statute is not

extramarital sex but the exercise of free speech—a right

at the apex of modern constitutional solicitude—a

finding of vagueness is apt to doom the statute. FCC v.

Fox Television Stations, Inc., 132 S. Ct. 2307, 2317-18 (2012).

The vague provisions in the Illinois election statute

may cause CIF to refrain from constitutionally protected

No. 11-3693 73

advocacy that the state has no power to regulate

because the advocacy could not influence an election.

Nor can a federal court make a binding interpretation

of a state statute, endeavoring to trim its vague provi-

sions; if it attempts a narrowing interpretation that devi-

ates widely from the statute’s apparent meaning it is

taking a big risk that the state will reject the interpreta-

tion. Stenberg v. Carhart, 530 U.S. 914, 944-45 (2000). That

risk will in turn operate as a deterrent to the advocacy

group’s relying on the federal court’s interpretation.

With an election looming, advocacy groups can’t

wait for the Supreme Court of Illinois to interpret

all the vague provisions of the election statute in cases

instituted in the state court system that are likely to

take years to reach and be decided by the state’s highest

court.

These are the vague provisions:

1. A transfer of funds from a political committee to

a political committee qualifies as a contribution re-

gardless of amount. A political committee must report

all receipts, not just contributions as defined by the

statute, see 10 ILCS 5/9-11(a)(10), and in addition must

report “the name and address of each political commit-

tee from which the reporting committee received, or to

which that committee made, any transfer of funds.”

10 ILCS 5/9-11(a)(6). So if by virtue of other contributions

or other activities CIF were to be classified as a political

committee, it would have to identify any other political

committees from which it received money. It might not

know a donor was a political committee, and that would

74 No. 11-3693

be no defense, because the statute does not require knowl-

edge or even suspicion that the transferor is a political

committee—there is no state of mind requirement at

all. The transferee would have to investigate the

financial activity of each donor (including an individual,

who as a “natural person” can constitute a political com-

mittee) to determine whether the donor was a political

committee. It might be a committee that had improperly

failed to register; that would be no defense. Yet it would

be afraid to list a donor as a political committee

unless confident that it was one, as otherwise it might

get into trouble with the donor. Damned if it does,

damned if it doesn’t.

An unregistered entity doesn’t have to disclose its

contributions and expenditures, so it would rarely be

clear whether an entity qualified as a political committee.

Very little of the information required to determine

the status of a donor is public. This is an additional

reason why advocacy groups like CIF might forgo dona-

tions from unfamiliar donors. But by reducing the

group’s resources, this cautious response to the

vagueness of the statute would curtail its advocacy.

An alternative reading of the “transfer of funds” provi-

sion is that receipt of money from a political committee

makes the recipient a political committee. Illinois may

have been concerned that interest groups would

transfer money in chains ending with a committee that

didn’t have to register; to target those chains and thus

close a potential loophole in the statute, the Illinois

courts might read the statute to reach all members of the

No. 11-3693 75

chain. This interpretation would have an even greater

tendency to discourage an advocacy group from

accepting donations from unfamiliar individuals or

organizations.

2. Any “electioneering communication” made with the

“knowledge” of a candidate is an expenditure that if

it exceeds the low statutory threshold makes the

advertiser a political committee. The word “knowledge”

can’t be interpreted to require that the advertiser have

communicated with the candidate, because knowledge

can be acquired in other ways. My colleagues think the

Illinois courts would interpret the word “knowledge,”

which appears at the end of the sequence “request, sug-

gestion, and knowledge,” to mean the same thing as

the two preceding words because it is the “more

general word.” But it’s no more general than the other

words; the three words are simply different from one

another. It’s not like a statute that refers to “automobiles,

trucks, tractors, motorcycles, and other motor-powered

vehicles”; in that sequence “motor-powered vehicles” is

indeed more general than the itemized examples, but

presumably not intended to be so encompassing a

catchall as to include airplanes, since all the preceding

terms in the sequence denote different forms of land-

based transportation. Cf. McBoyle v. United States, 283

U.S. 25 (1931) (Holmes, J.).

So an organization that wanted to avoid crossing

the $3000 threshold would if cautious refrain from broad-

casting ads entirely, rather than just avoid coordinating

their ads with the candidate.

76 No. 11-3693

The district judge was troubled by this provision and

to save it interpreted “knowledge” to mean “affirmative

acquiescence.” But what does that mean? That the candi-

date was delighted to learn of an ad that praised him

or a policy he was pushing?

3. If an “electioneering communication” is deemed to be

“made” whenever a user accesses a website, cf. Flava

Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826, at *7

(7th Cir. Aug. 2, 2012), then even an appeal to vote that

is posted more than 30 or 60 days before the election

(depending on whether it is a primary or a general elec-

tion) will constitute an expenditure that, if it exceeds

the modest threshold in the statute, will make the com-

municator a political committee and thus require it to

register. A television advertiser controls the dates on

which his ad is shown; but an Internet ad or web posting

remains online and accessible until removed. The ad-

vertiser may delete the ad from his website, but it may

already have been copied and posted on a hundred other

websites. Should the advertiser be thought to be con-

tinuing to make an electioneering communication by

failing to ensure that his ad posted during the safe

harbor periods is no longer accessible to voters? And

how can he do that? On these critical questions, the

statute is silent. The only sure way to avoid having to

register as a political committee is therefore to avoid

endorsing an Illinois candidate online at any time.

The Illinois courts might interpret “made” to refer only

to the original posting of the ad. But this would open up

a loophole; the advocacy group might have posted the

No. 11-3693 77

ad shortly before the 30- or 60-day cutoff and deleted it

just before the cutoffs, confident that the campaign

favored by the ad would copy it and post it so that it

would be seen right up to election day. Because the

state courts might well decide to close this loophole by

interpreting “made” to include the initial posting, advo-

cacy groups would be running a legal risk by posting

online ads even long before the date of the election, and

might therefore be deterred from doing so.

4. Any payment “in connection with” an election (in-

cluding payment for ads) counts as an expenditure. “In

connection with” could apply to communications not

made for the purpose of influencing the election, such as

speech on issues of policy that happen to be salient

in the campaign. An advocacy group might intend

its message to reach a wider audience. It might even

be advocating a position embraced by neither candidate.

Disclosure of such a group’s finances would not be

closely related to the state’s interest in informing the

electorate about a candidate’s supporters. Yet the

statute may require it.

Speech can have all sorts of connections to an election:

it may mention an election, describe a candidate and his

positions, or simply refer to a policy that is at issue in the

campaign. A dry discussion of economic indicators

might be seen as being “in connection with” an election

in which the main issue was economic policy. Because

disclosure requirements are not constitutionally limited

to express advocacy for a candidate, see Citizens United

v. Federal Election Commission, supra, 130 S. Ct. at 915,

78 No. 11-3693

there is no telling how far Illinois’s definition reaches

into the realm of issue advocacy. Once again, to be sure

of not having to register, an organization like CIF

might decide to avoid speaking about any policy issues

during election campaigns. It might go silent during

campaigns.

5. Expenditures made “in connection with” an elec-

tion count towards the $3000 threshold for registering

only if they are made “on behalf of or in opposition to”

a candidate, and that might seem to take care of the

concerns I just expressed with respect to “in connection

with.” But speech supporting or opposing a policy associ-

ated with a candidate could be seen as being on behalf

of or in opposition to that candidate, especially if the

policy is the candidate’s signature issue. The term thus

does not clearly exclude most issue advocacy, and

groups such as CIF might therefore avoid speaking

on issues that could be associated with a particular candi-

date. Imagine a single-issue candidate: a songbird en-

thusiast, he wants the owners of cats to be forbidden

to allow their pets out of doors, since cats, indifferent

to avian beauty and melody, kill birds for food and

sport. If the humane society buys ads that declare its

passionate support for the songbirds, isn’t there a sense

in which it is advocating for the election of the song-

birds’ candidate and therefore making an expenditure on

his behalf and in opposition to his opponent? Or should

“on behalf of” be interpreted to mean motivated by a

desire to help the candidate rather than the cause the

candidate supports? Who knows?

No. 11-3693 79

McConnell v. Federal Election Commission, 540 U.S. 93,

170 n. 64 (2003), overruled on other grounds in Citizens

United v. Federal Election Commission, supra, held that a

federal law that contained the words “promotes,” “sup-

ports,” “attacks,” and “opposes” was not vague; and the

phrase “on behalf of or in opposition to” is similar. But

the federal law involved speech referring to particular

candidates and made by state political parties the

actions of which are presumed to be coordinated with

candidates. The Illinois law applies to all who want to

speak on public issues but furnishes no clue to how

related to a candidate’s position their speech must be to

trigger the disclosure requirements. The statute is not

limited to groups that coordinate their activity with a

candidate or expressly advocate for him. And it is not, as

in the counterpart federal statute, 2 U.S.C. § 431(8)(A)(i),

limited to speech made “for the purpose of influencing”

an election, since there is no state of mind limitation in

the Illinois statute, so no basis for using purposiveness

to limit relatedness.

The more arbitrary the meaning that must be assigned

to a state statute to avoid constitutional problems, the

less confident we can be that the state courts would adopt

it. If independent advocacy groups share these doubts,

caution may make them steer well clear of the statutory

conditions for having to register as a political committee,

with all the burdens entailed by registration.

When the five vague statutory provisions that I have

been discussing are considered in combination, it be-

comes apparent that their cumulative effect on advocacy

by CIF and similar organizations could be considerable.

80 No. 11-3693

To avoid the burden of registration, such groups may

take measures to curb their advocacy even if those mea-

sures may not in fact (that is, in law) be required in order

to avoid having to register. That is the vice of vague-

ness—that it causes an organization or an individual

to give a law a wide berth, in this instance by forgoing

constitutionally protected speech. We should insist,

in the name of the First Amendment, that the Illinois

legislature speak with greater clarity.

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