Petition for Writ of Certiorari — Montanans for Community Development, Petitioner v. Jeffrey A. Mangan, et al.

Supreme Court briefSep 20, 2018

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Text

No.

In The

Supreme Court of the United States

____________

Montanans for Community Development,

Petitioner

Jeffrey A. Mangan et al., Respondents

____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

____________

Petition for a Writ of Certiorari

____________

September 2018

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Anita Y. Milanovich

Courtney Turner Milbank

THE BOPP LAW FIRM, PC

1 South 6th Street

Terre Haute, IN 47807

812/232-2434

812/235-3685 (facsimile)

jboppjr@aol.com

Counsel for Petitioner

Questions Presented

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court

held that the First Amendment allows government to

impose political-committee (“PAC”) status, with its

entity-based burdens, only on “organizations ... under

the control of a candidate or the major purpose of which

is the nomination or election of a candidate,” id. at 79

(emphasis added), to prevent “burdens ... certain to deter ... independent political speech,” id. at 75 (citation

omitted). This speech-chilling problem arose because

“‘political committee’ [wa]s defined only in terms of the

amount of annual ‘contributions’ and ‘expenditures’” by

the entity as Montana does, id. at 79, imposing entitybased burdens, not just activity-based reports.

This Court has repeatedly reaffirmed that test and

recently declared entity-based burdens triggered by

PAC-status “expensive,” “extensive,” and “onerous.”

Citizens United v. FEC, 558 U.S. 310, 335-39 (2010).

Montana imposes PAC-status without the majorpurpose test, based only on a group’s expenditure of

just $251 or more on political speech. In a nonprecedential opinion, the Ninth Circuit rejected the majorpurpose test in state elections, creating a 5-4 Circuit

split on the constitutional requirement for the test.

And the court below denied a motion for publication,

which would have made its opinion precedential, creating private law for Petitioner but not others.

Petitioner presents two issues for review:

1. Whether states are barred by the First Amendment of the U.S. Constitution from imposing PAC-status, with its resulting entity-based burdens, on groups

lacking Buckley’s “major purpose.”

2. Whether declaring an opinion “not precedent”

(i)

violates Article III of the U.S. Constitution by giving

courts power beyond “judicial,” or undermines judicial

integrity warranting the exercise of this Court’s supervisory power.

(ii)

Parties to the Proceeding Below

Plaintiff-appellant below was Montanans for Community Development (“MCD”).

Defendants-appellees below were: (1) Jeffrey A.

Mangan, in his official capacity as the Montana Commissioner of Political Practices (“COPP”); (2) Timothy

Fox, in his official capacity as Montana Attorney General, and (3) Leo Gallagher, in his official capacity as

Lewis and Clark County Attorney (collectively “Montana”).

Corporate Disclosure

MCD is not incorporated.

(iii)

Table of Contents

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . i

Parties to the Proceeding Below.. . . . . . . . . . . . . . . . ii

Corporate Disclosure.. . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . vii

Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutions, Statutes & Regulations. . . . . . . . . . . 1

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . 1

Reasons to Grant the Petition. . . . . . . . . . . . . . . . . . 4

This Case Presents the Important Question of Whether PAC-Status and Onerous, Entity-Based Burdens May Be Imposed Absent Buckley’s “Major Purpose

in State Elections.”. . . . . . . . . . . . . . . . . . . . . . 6

A. PAC-Status and Resulting Entity-Based

Burdens Require Buckley’s “Major Purpose.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. The Decision Below Upholding Montana’s Rejection of the Major-Purpose Test

Conflicts with Decisions of this Court... . 13

C. Circuits Are Split 5-4 on this Issue.. . . . . 19

II.

This Case Presents the Important Question of Whether Nonprecedential Decisions Violate Article III or Undermine

Judicial Integrity Requiring this Court

to Exercise Its Supervisory Responsibility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

(iv)

A. Circuits Are Split on Whether They Can

Constitutionally Choose Precedent.. . . . . 24

B. Choosing Precedent Undermines Appellate

Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . 26

C. Nonprecedential Decisions Deny Equal

Justice Under the Law... . . . . . . . . . . . . . 30

D. Nonprecedential Decisions Undermine Judicial Integrity, Requiring this Court to

Exercise Its Supervisory Responsibility.. 32

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Appendix Table of Contents

MCD v. Mangan, No. 16-35997, 2018 U.S. App.

LEXIS 13310 (9th Cir. May 22, 2018) (opinion

below). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

MCD v. Motl, 216 F. Supp. 3d 1128 (D. Mont.

2016) (summary-judgment opinion). . . . . . . . . . 9a

MCD v. Motl, 54 F. Supp. 3d 1153 (D. Mont. 2014)

(preliminary-injunction opinion).. . . . . . . . . . . 56a

MCD v. Mangan, No. 16-35997, 2018 U.S. App.

LEXIS 17959 (9th Cir. June 29, 2018) (order

denying en-banc rehearing and publication). . 74a

U.S. Const., amend. I. . . . . . . . . . . . . . . . . . . . . . . 76a

U.S. Const., art. III, § 1, cl. 1. . . . . . . . . . . . . . . . . 76a

52 U.S.C. 30104(c).. . . . . . . . . . . . . . . . . . . . . . . . . 76a

52 U.S.C. 30104(f). . . . . . . . . . . . . . . . . . . . . . . . . . 77a

52 U.S.C. 30104(g). . . . . . . . . . . . . . . . . . . . . . . . . 82a

52 U.S.C. 30116(a). . . . . . . . . . . . . . . . . . . . . . . . . 84a

52 U.S.C. 30118(a). . . . . . . . . . . . . . . . . . . . . . . . . 91a

(v)

52 U.S.C. 30118(b)(4)(C). . . . . . . . . . . . . . . . . . . . . 92a

Mont. Code Ann. 13-1-101(16)(a). . . . . . . . . . . . . . 92a

Mont. Code Ann. 13-1-101(18)(a). . . . . . . . . . . . . . 93a

Mont. Code Ann. 13-1-101(23)(a). . . . . . . . . . . . . . 93a

Mont. Code Ann. 13-1-101(25). . . . . . . . . . . . . . . . 93a

Mont. Code Ann. 13-1-101(31)(b). . . . . . . . . . . . . . 94a

Mont. Code Ann. 13-37-226(1). . . . . . . . . . . . . . . . 94a

Mont. Code Ann. 13-37-226(5). . . . . . . . . . . . . . . . 95a

Mont. Code Ann. 13-37-228. . . . . . . . . . . . . . . . . . 95a

Mont. Code Ann. 13-37-232. . . . . . . . . . . . . . . . . . 97a

Mont. Admin. R. 44.11.306. . . . . . . . . . . . . . . . . . 100a

Ninth Circuit Rule 36-3. . . . . . . . . . . . . . . . . . . . 101a

2014 MCD Ads.. . . . . . . . . . . . . . . . . . . . . . . . . . . 103a

(vi)

Table of Authorities

Cases

American Tradition Partnership v. Bullock, 567

U.S. 516 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . 13

Anastasoff v. U.S., 223 F.3d 898 (8th Cir. 2000)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25, 31

Anastasoff v. U.S., 235 F.3d 1054 (8th Cir. 2000)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . (i), 3, 7

Butz v. Economou, 438 U.S. 478 (1978). . . . . . . . . . 31

Canyon Ferry Road Baptist Church of East Helena v. Unsworth, 556 F.3d 1021 (9th Cir. 2009)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30

Center for Individual Freedom v. Madigan, 697

F.3d 464 (7th Cir. 2012).. . . . . . . . . . . . . 12, 20, 22

Citizens United v. FEC, 558 U.S. 310 (2010)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 10, 18

County of Los Angeles v. Kling, 474 U.S. 936

(1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27

Elkins v. United States, 364 U.S. 206 (1960). . . . . . 32

Federal Election Commission v. Massachusetts

Citizens for Life, 479 U.S. 238 (1986)

. . . . . . . . . . . . . . . . . . . . . . . 3, 8, 11-12, 18, 21, 22

(vii)

Federal Election Commission v. Wisconsin Right

to Life, 551 U.S. 449 (2007). . . . . . . . . . . . . . . . . 11

Florida. Right to Life v. Lamar, 238 F.3d 1288

(11th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . 20

Florida Right to Life v. Mortham, No. 98770CIVORL19A, 1999 U.S. Dist. LEXIS 16694

(M.D. Fla. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 20

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).. . 31

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 30

Human Life of Washington v. Brumsickle, 624

F.3d 990 (9th Cir. 2010).. . . . . . . . . . 12, 18, 28, 29

Iowa Right to Life Committee v. Tooker, 717 F.3d

576 (8th Cir. 2013). . . . . . . . . . . . . . . . . . . . . 19, 20

James B. Beam Distilling Co. v. Georgia, 501 U.S.

529 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

McConnell v. Federal Election Commission, 540

U.S. 93 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Montanans for Community Development v.

Mangan, No. 16-35997, 2018 U.S. App. LEXIS

13310 (9th Cir. May 22, 2018).. . . . . . . . . . . . . . . 1

Montanans for Community Development v.

Mangan, No. 16-35997, 2018 U.S. App. LEXIS

17959 (9th Cir. June 29, 2018). . . . . . . . . . . . . . . 1

(viii)

Minnesota Citizens Concerned for Life v.

Swanson, 692 F.3d 864 (8th Cir. 2012).. . . . 19, 20

Minor v. Bostwick Labs., 669 F.3d 428 (4th Cir.

2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Montanans for Community Development v. Motl,

54 F. Supp. 3d 1153 (D. Mont. 2014). . . . . . . . . . 1

Montanans for Community Development v. Motl,

216 F. Supp. 3d 1128 (D. Mont. 2016). . . . . . . . . 1

National Organization for Marriage v. McKee, 649

F.3d 34 (1st Cir. 2011). . . . . . . . . . . . . . . . . . 12, 20

New Mexico Youth Organized v. Herrera, 611 F.3d

669 (10th Cir. 2010). . . . . . . . . . . . . . . . . . . . 19-20

North Carolina Right to Life v. Leake, 525 F.3d

274,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Plumley v. Austin, 135 S. Ct. 828 (2015). . . . . . . . . 24

Tapper v. Hearn, 833 F.3d 166 (2d Cir. 2016). . . . . 30

Thomas v. Collins, 323 U.S. 516 (1945). . . . . (i), 8, 10

United States v. Hasting, 461 U.S. 499 (1983).. . . . 32

United States v. Payner, 447 U.S. 727 (1980). . . . . 32

Vermont Right to Life Committee v. Sorrell, 758

F.3d 118 (2d Cir. 2014). . . . . . . . . . . . . . . . . 12, 20

Wallace v. Jaffree, 472 U.S. 38 (1985). . . . . . . . . . . 31

(ix)

Wisconsin Right to Life v. Barland, 751 F.3d 804

(7th Cir. 2014). . . . . . . . . . . . . . . . . . . 9, 17, 19, 20

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18, 28, 29

Constitutions, Statutes, Regulations & Rules

28 U.S.C. 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. 1331.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. 1343(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

52 U.S.C. 30101.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

52 U.S.C. 30104(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . 3

52 U.S.C. 30104(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

52 U.S.C. 30104(g). . . . . . . . . . . . . . . . . . . . . . . . . . . 3

52 U.S.C. 30116(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

52 U.S.C. 30118 (b)(4)(C). . . . . . . . . . . . . . . . . . . . . . 8

52 U.S.C. 30118(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

District of Columbia Cir. R. 36(e)(2).. . . . . . . . . . . . 23

Eighth Cir. R. 32.1(A). . . . . . . . . . . . . . . . . . . . . . . . 23

Eleventh Cir. R. 36-2.. . . . . . . . . . . . . . . . . . . . . . . . 23

(x)

Fed. R. Civ. P. 60.. . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Federal Cir. R. 32.1(b).. . . . . . . . . . . . . . . . . . . . . . . 23

Federal Election Campaign Act of 1971.. . . . . . . . . . 6

Fifth Cir. R. 47.5.4. . . . . . . . . . . . . . . . . . . . . . . . . . 23

First Cir. R. 32.1.0(a). . . . . . . . . . . . . . . . . . . . . . . . 23

Fourth Cir. R. 32.1. . . . . . . . . . . . . . . . . . . . . . . . . . 23

Internal Revenue Code. . . . . . . . . . . . . . . . . . . . . . . . 6

Mont. Admin. R. 44.11.202(6).. . . . . . . . . . . . . . . . . 13

Mont. Admin. R. 44.11.306. . . . . . . . . . . . . . . . . . . . 17

Mont. Admin. R. 44.11.408. . . . . . . . . . . . . . . . . . . . 14

Mont. Code. Ann. 13-1-101(16)(a).. . . . . . . . . . . . . . . 2

Mont. Code Ann. 13-1-101(31)(b). . . . . . . . . . . . . . . . 2

Mont. Code Ann. 131-1-101(23)(a). . . . . . . . . . . . . . 13

Mont. Code Ann. 13-37-201. . . . . . . . . . . . . . . . 14, 15

Mont. Code Ann. 13-37-203. . . . . . . . . . . . . . . . . . . 14

Mont. Code Ann. 13-37-207(2). . . . . . . . . . . . . . . . . 14

Mont. Code Ann. 13-37-208(1). . . . . . . . . . . . . . . . . 14

Mont. Code Ann. 13-37-208(3). . . . . . . . . . . . . . . . . 15

(xi)

Mont. Code Ann. 13-37-210. . . . . . . . . . . . . . . . . . . 14

Mont. Code Ann. 13-37-226(5). . . . . . . . . . . . . . . . . 15

Mont. Code Ann. 13-37-228. . . . . . . . . . . . . . . . . . . 15

Mont. Code Ann. 13-37-231(2). . . . . . . . . . . . . . . . . 15

Ninth Circuit Rule 36-3(a). . . . . . . . . . . . . . . . . . . . 23

Second Cir. R. 32.1.1(a).. . . . . . . . . . . . . . . . . . . . . . 23

Seventh Cir. R. 32.1(b). . . . . . . . . . . . . . . . . . . . . . . 23

Sixth Cir. R. 32.1(b). . . . . . . . . . . . . . . . . . . . . . . . . 23

Sup. Ct. R. 10(a). . . . . . . . . . . . . . . . . . . . 5, 19, 22, 32

Sup. Ct. R. 10(c).. . . . . . . . . . . . . . . . . . . . . . . 4, 13, 19

Tenth Cir. R. 32.1(A).. . . . . . . . . . . . . . . . . . . . . . . . 23

Third Cir. I.O.P. R. 5.3. . . . . . . . . . . . . . . . . . . . . . . 23

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV, § 1. . . . . . . . . . . . . . . . . . . 31

U.S. Const. art. III, § 1, cl. 1. . . . . . . . . . . . . . . passim

Other Authorities

Richard S. Arnold, Essay: Unpublished Opinions:

A Comment, 1 J. App. Prac. & Process 219

(1999) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27

(xii)

William Blackstone, 1 Commentaries. . . . . . . . . . . . 25

Federal Election Commission, Instructions for

Preparing FEC Form 5. . . . . . . . . . . . . . . . . . . . . 7

Federal Election Commission, Instructions for

Preparing FEC Form 9. . . . . . . . . . . . . . . . . . . . . 7

Federal Election Commission, FEC Campaign

Guide: Nonconnected Committees (2008). . . . . . . 2

Montana Commissioner of Political Practices, Accounting and Reporting Manual for Political

Committees. . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16

Montana Commissioner of Political Practices,

Calendars, https://politicalpractices.mt.gov/

calendars.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

William J. Miller, Note, Chipping Away at the

Dam: Anastasoff v. United States and the Future of Unpublished Opinions in the United

States Courts of Appeals and Beyond, 50 Drake

L. Rev. 181 (2001)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26

(xiii)

Petition for Certiorari

MCD requests review of

• MCD v. Mangan, No. 16-35997, 2018 U.S. App.

LEXIS 13310 (9th Cir. May 22, 2018) (granting

summary judgment to Respondents) (App. 1a), and

• MCD v. Mangan, No. 16-35997, 2018 U.S. App.

LEXIS 17959 (9th Cir. June 29, 2018) (denying request to publish opinion, making it nonprecedential) (App. 74a).

Opinions Below

The district-court’s preliminary-injunction opinion

is at 54 F. Supp. 3d 1153. (App. 56a.) Its summaryjudgment opinion is at 216 F. Supp. 3d 1128. (App. 9a.)

The opinion below is at 2018 U.S. App. LEXIS 13310.

(App. 1a.) The order denying en-banc rehearing and

publication of the opinion below is at 2018 U.S. App.

LEXIS 17959. (App. 74a.)

Jurisdiction

The opinion and judgment below were filed May 22,

2018. En-banc rehearing and publication were denied

June 29, 2018. Jurisdiction is invoked under 28 U.S.C.

1254(1).

Constitutions, Statutes & Regulations

Appended are the U.S. Constitution’s First Amendment and Article III, § 1, cl. 1 (App. 76a), along with

relevant statutes and regulations (App. 76-102a).

Statement of the Case

MCD is an association of three Montana individuals. Consistent with its name—Montanans for Community Development—MCD’s core issue is “promot[ing]

and encourag[ing] policies that create jobs and grow

local economies throughout Montana,” which it does by

“grassroots advocacy and issue-oriented education campaigns” and political speech regarding Montana state

candidates.

MCD wants to engage in political speech1 without

Montana-imposed PAC-status2 and resulting entitybased burdens,3 since its major purpose is not the nomination or election of candidates,4 as required by

For purposes of this Petition, MCD waives its challenges to the Montana statutes defining political speech,

made below, and acknowledges that MCD intended to engage in regulable political speech as defined by Montana by

making “expenditures” for “electioneering communications.”

“Electioneering communications” are public communications within 60 days of a state election mentioning a state

candidate without expressly advocating the election or defeat of a candidate. Mont. Code Ann. (“MCA”) 13-1-101

(16)(a). (App. 92a.) If a communication expressly advocates

the election or defeat of a state candidate, it is considered

an “independent expenditure.” MCA 13-1-101(25). (App.

93a.) Both are considered “expenditures,” which trigger

PAC-status if more than $250 is spent for them. MCA 13-1101(18)(a)(ii). (App. 93a.)

“PAC” (“political action committee”) is widely used for

“political committee.” See FEC Campaign Guide: Nonconnected Committees 1 (2008), https://www.fec.gov/help-candidates-and-committees/guides/?tab=political-action-committees; COPP, Calendars, https://politicalpractices.mt.gov/

calendars.

Montana PACs “include ballot issue ..., incidental ...,

independent ..., and political party committees.” MCA 13-1101(31)(b). (App. 94a.) MCD’s political ads would make it an

“incidental committee.”

The major-purpose test looks to an entity’s central

organizational purpose and its spending, whether expendi-

Buckley, 424 U.S. at 79.5 MCD, however, is an incidental committee under Montana law (App. 93a), since

incidental-committee PAC-status does not require an

entity to meet the major-purpose test.

In September 2014, MCD wanted to send two mailers promoting Montana energy development and highlighting environmentalists’ efforts to restrict development. (App. 103a (mailers).) Each mailer mentioned a

state candidate and qualified as a Montana “expenditure,”6 thereby triggering incidental-committee PACstatus and resulting entity-based burdens. MCD intures on political speech constitute a majority of its annual

spending, to determine an organization’s major purpose.

FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 252

n.6, 262 (1986) (“MCFL”).

Of course, MCD, as a non-PAC group, could constitutionally be required to make activity-based, one-time, eventdriven reports of its political speech, as required by federal

campaign-finance law. See 52 U.S.C. 30104(c), (f), and (g).

See Buckley, 424 U.S. at 74-84 (upholding independent-expenditure reports); Citizens United, 558 U.S. at 366-71 (upholding electioneering-communication reports). But Montana doesn’t require these activity-based reports, instead

imposing PAC-status and entity-based burdens on groups

paying over $250 for political speech.

In its 2014 order denying a preliminary injunction, the

district court held that the mailers met Montana’s “expenditure” definition because they were the functional equivalent

of express advocacy. (App 63a, 68a.) In its 2016 summaryjudgment order, the court held that the mailers were “expenditures” because they “at least” met the definition of an

“electioneering communication” adopted in 2015. (App. 31a.)

Either way, MCD acknowledges for present purposes that

the mailers were political speech regulable as “expenditures” under Montana law and triggered PAC-status.

tends to spend over $250 for substantially similar future mailers but is chilled by Montana’s statute imposing PAC-status and entity-based burdens and fear of

enforcement for noncompliance.

On September 3, 2014, MCD raised the major-purpose test in the initial complaint. On October 22, 2014,

the district court denied MCD’s preliminary-injunction

motion. (App. 56a.) On October 31, 2016, it denied

MCD’s summary-judgment motion, granting summary

judgment to Montana. (App. 9a.) On May 22, 2018, the

Ninth Circuit affirmed the district court in an unpublished, nonprecedential opinion. (App. 1a.) On June 29,

2018, the Ninth Circuit denied motions for rehearing

en banc and to publish the opinion below, which would

have made the opinion precedential if granted. (App.

74a.)

The district court had jurisdiction. 28 U.S.C. 1331

and 1343(a). The appellate court had jurisdiction. 28

U.S.C. 1291.

Reasons to Grant the Petition

The First Amendment protects political speech from

being chilled by the imposition of PAC-status and

entity-based (administrative and organizational) burdens by limiting these to only “organizations ... under

the control of a candidate or the major purpose of

which is the nomination or election of a candidate.”

Buckley, 424 U.S. at 79. Otherwise PAC “‘burdens ...

deter ... speech,’” id. at 75 (quoting appellants), including by issue-advocacy groups such as MCD, id. at 79.

But the court below upheld Montana’s imposition of

PAC-status and associated entity-based burdens on

organizations without the required major purpose,

which conflicts with decisions of this Court and creates

a 5-4 Circuit split on whether the major-purpose test is

constitutionally required for state campaign-finance

law, as it is for federal law.

This issue is of exceptional importance. This Court

in Citizens United held that corporations cannot constitutionally be prohibited from engaging in political

speech, condemned requiring that speech to be made

by a PAC, and upheld an activity-based, one-time,

event-driven report for political speech in federal elections. Citizens United, 558 U.S. at 366-71. This Court

viewed promoting political speech by “every group” as

“vitally important”:

“The people determine through their votes the

destiny of the nation. It is therefore important—

vitally important—that all channels of communications be open to them during every election,

that no point of view be restrained or barred,

and that the people have access to the views of

every group in the community.”

Id. at 344 (citation omitted) (emphasis added). But four

Circuits refuse to apply these constitutional requirements in state elections, thereby approving onerous,

entity-based burdens on groups spending as little as

$251 on political speech, seriously chilling their speech.

Furthermore, the court below declared its opinion

as “not precedent,” creating private law for MCD,

rather than public law applicable to all, and also creating a Circuit split. These are important questions not

settled by this Court that merit review.

This Case Presents the Important Question of

Whether PAC-Status and Onerous, EntityBased Burdens May Be Imposed Absent

Buckley’s “Major Purpose” in State Elections.

This case presents the important question of whether this Court’s major-purpose test, which controls federal PAC-status, controls imposition of PAC-status in

state elections, on which Circuits split 5-4.

A. PAC-Status and Resulting Entity-Based Burdens Require Buckley’s “Major Purpose.”

Imposing PAC-status and associated entity-based

administrative and organizational burdens requires

Buckley’s “major purpose.” 424 U.S. at 79.

Buckley involved “constitutional challenges to ...

provisions of the Federal Election Campaign Act of

1971 [“FECA”],” 424 U.S. at 6,7 including the definition

of “political committee,” which triggered entity-based

burdens, and other provisions that required the filing

of certain activity-based, one-time, event-driven reports on political speech. These provisions were challenged for both vagueness and overbreadth.

FECA, reviewed in Buckley, regulated political

speech in two ways relevant here by:

• PAC-status, which triggered entity-based (administrative and organizational) burdens, and

• activity-based, one-time, event-driven reports.

The FECA statutory provisions reviewed in Buckley

have now been reclassified at 52 U.S.C. 30101 et seq. See

http://uscode.house.gov/editorialreclassification/t52/

Reclassifications_Title_52.html (reclassification table).

PAC-status imposes entity-based administrative

and organizational requirements (selecting a government-approved name, appointing a treasurer with

many required duties and personal liability, establishing a PAC account, and PAC registration with the Federal Election Commission (“FEC”)); periodic reporting

even when there is no political activity; enhanced reporting by requiring all spending by and all donations

to the entity to be reported on the periodic reports, not

just those associated with political speech; and termination requirements.

Activity-based reports are one-time, event-driven

reports of the expenditures made and contributions

received for a specific political communication, such as

for an “independent expenditure,” upheld in Buckley,

424 U.S. at 74-84, and for an “electioneering communication,” upheld in Citizens United, 558 U.S. at 366-71.8

PAC-status and associated entity-based requirements—as opposed to activity-based, one-time, eventdriven reports—pose a substantially increased potential for chilling a group’s speech:

These additional regulations may create a disincentive for such organizations to engage in political speech. Detailed recordkeeping and disclosure obligations, along with the duty to appoint a treasurer and custodian of the records,

impose administrative costs that many small entities may be unable to bear. Furthermore, such

duties require a far more complex and formal8

See also FEC, Instructions for Preparing FEC Form 5

(independent-expenditure report); FEC, Instructions for

Preparing FEC Form 9 (electioneering-communication report); both available at https://www.fec.gov/help-candidatesand-committees/forms/.

ized organization than many small groups could

manage.

MCFL, 479 U.S. at 254-55 (four-Justice plurality) (footnote omitted).9 Notably, the burdens described as chilling speech are the administrative, organizational and

reporting burdens, not the restrictions on fundraising.10

And of these same burdens, the plurality said:

“Faced with the need to assume a more sophisticated

organizational form, to adopt specific accounting procedures, to file periodic detailed reports, ... it would not

be surprising if at least some groups decided that the

contemplated political activity was simply not worth

it.” Id. at 255 (footnote omitted).11 Thus, entity-based

administrative and organizational burdens chill political speech to a much greater extent than activitybased, one-time, event-driven reports.

The major-purpose test for PAC-status was this

Court’s solutions for two problems the Court had earlier identified in Thomas v. Collins, 323 U.S. 516

Justice O’Connor agreed with the plurality that “the

significant burden on MCFL ... comes ... from the additional

organizational restraints imposed upon it” because “engaging in campaign speech requires MCFL to assume a more

formalized organizational form.” Id. at 266 (O’Connor, J.,

concurring in part and concurring in the judgment).

FECA restricts PAC fundraising by imposing contribution limits, 52 U.S.C. 30116(a), and source limits, 52

U.S.C. 30118(a), and in some cases, restricting PAC fundraising to “members,” 52 U.S.C. 30118 (b)(4)(C).

“The state interest in disclosure ... can be met in a

manner less restrictive than imposing the full panoply of

regulations that accompany status as a political committee,” by requiring activity-based, one-time, event-driven,

political-speech reports. Id. at 262 (court) (emphasis added).

(1945). Buckley, 424 U.S. at 42-43, 75.

The first Thomas problem was that burdens on

speech can chill speech. As Buckley noted, appellants

raised the “very real, practical burdens ... certain to

deter individuals from making expenditures for their

independent political speech analogous to those held to

be impermissible in Thomas ....” Buckley, 424 U.S. at

75 (citation omitted).12 In the present case, MCD is

chilled from doing political speech because it does not

want to bear the entity-based burdens Montana imposes by PAC-status. By restricting PAC-status and its

associated entity-based burdens to groups with Buckley’s “major purpose,” Buckley protected the free speech

and associational rights of groups from being chilled.

Id. at 79-81.

The second Thomas problem was speech chilled by

vague, overbroad speech definitions that sweep in issue

advocacy and “‘blanket[] with uncertainty whatever

may be said.... [C]ompel[ling] the speaker to hedge and

trim.’” 424 U.S. at 42-43 (citation omitted). A brightline definition was required by the First Amendment

to prevent vagueness and chill, id. at 41 n.48,13 and

protect issue advocacy:

Cf. Wisconsin Right to Life v. Barland, 751 F.3d 804,

836-37 (7th Cir. 2014) (It’s a “serious chill on public debate”

and “a mistake to read Citizens United as giving the government a green light to impose political-committee status on

every ... group that makes a communication about a political issue that also refers to a candidate.”).

Both due process and the First Amendment bar

vagueness, but the latter requires greater precision to prevent chill: “‘Because First Amendment freedoms need

breathing space ..., government may regulate in this area

only with narrow specificity.’” Id. (citation omitted).

[T]he distinction between discussion of issues

and candidates and advocacy of election or defeat of candidates may often dissolve in practical

application. Candidates, especially incumbents,

are intimately tied to public issues involving

legislative proposals and governmental actions.

Not only do candidates campaign on the basis of

their positions on various public issues, but campaigns themselves generate issues of public interest.

Id. at 42. In its major-purpose analysis, Buckley avoided this Thomas problem by removing issue-advocacy

groups lacking Buckley’s “major purpose” from the possibility of PAC-status:

The general requirement that “political committees” and candidates disclose their expenditures

could raise similar 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.... To fulfill

the purposes of the Act they 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.... They

are, by definition, campaign related.

Id. at 79 (footnotes omitted). Since Buckley, federal

PAC-status and associated entity-based burdens may

only be imposed on groups that both meet a contribution or expenditure trigger, as Montana requires, and

have Buckley’s “major purpose,” which Montana does

not recognize.

Citizens United reaffirmed that PAC-status-triggered, entity-based burdens are “onerous,” 558 U.S. at

335, 339, even apart from any restrictions on fundraising, based on entity-based administrative and organizational requirements, such as PAC registration, appointing a treasurer, keeping detailed records:

PACs are burdensome alternatives; they are expensive to administer and subject to extensive

regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the

identities of the persons making donations, preserve receipts for three years, and file an organization statement and report changes to this information within 10 days....

And that is just the beginning. PACs must

file detailed monthly reports with the FEC,

which are due at different times depending on

the type of election that is about to occur: [quoting at length from MCFL as to detail of reporting requirements].

Id. at 897 (citations omitted); see also FEC v. Wisconsin

Right to Life, 551 U.S. 449, 477 n.9 (2007) (Roberts,

C.J., joined by Alito, J.) (“PACs impose well-documented and onerous burdens, particularly on small

nonprofits.”(citing MCFL, 479 U.S. at 253-55)).

Furthermore, because a group has Buckley’s “major

purpose,” i.e., it is “under the control of a candidate or

[its] major purpose ... is the nomination or election of a

candidate,” 424 U.S. at 79, PAC-status burdens survive

scrutiny:

[S]hould MCFL’s independent spending become

so extensive that the organization’s major purpose may be regarded as campaign activity, the

corporation would be classified as a political

committee. See Buckley, 424 U.S., at 79. As

such, it would automatically be subject to the

obligations and restrictions applicable to those

groups whose primary objective is to influence

political campaigns. In sum, there is no need for

the sake of disclosure to treat MCFL any differently than other organizations that only occasionally engage in independent spending on behalf of candidates.

MCFL, 479 U.S. at 262 (court).

The Ninth Circuit, however, summarily rejected

MCD’s argument that Montana’s PAC definition was

unconstitutional for failure to incorporate the majorpurpose test because it had been “rejected multiple

times in this circuit.” (App. 6a (citing Human Life of

Washington v. Brumsickle, 624 F.3d 990, 1009-10 (9th

Cir. 2010) (“HLW”), and Yamada v. Snipes, 786 F.3d

1182, 1198-99 (9th Cir. 2015)).) In HLW, the Ninth

Circuit held that Buckley “does not indicate that an

entity must have that major purpose to be deemed constitutionally a political committee.” 624 F.3d at 1010.

And some Circuits agreeing with the Ninth Circuit

have gone so far as to hold that Buckley’s major-purpose test was simply a statutory construction of a federal law, not binding on the states. See Vt. Right to Life

Comm. v. Sorrell, 758 F.3d 118, 136 (2d Cir. 2014)

(“When ... Buckley ... construed the relevant federal

statute to reach only groups having ‘the major purpose’

of electing a candidate, it drew a statutory line. It was

not holding that the Constitution forbade any regulations from going further.” (citation omitted)); National

Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir.

2011) (“so called ‘major purpose’ test ... is ... artifact of

the Court’s construction of a federal statute”); Center

for Individual Freedom v. Madigan, 697 F.3d 464, 487

(7th Cir. 2012) (major-purpose test was “creature of

statutory interpretation, not constitutional command”).

But those arguing that states may impose PAC-status and associated entity-based burdens without the

major-purpose test must explain why the same constitutional problems that required a saving construction

of the federal definition don’t occur with the same

state-law language. And the argument that the First

Amendment doesn’t apply in Montana, like it does everywhere else, has already been summarily rejected by

this Court. American Tradition Partnership v. Bullock,

567 U.S. 516 (2012) (First Amendment applies in Montana). So the major-purpose test is required here.

B. The Decision Below Upholding Montana’s Rejection of the Major-Purpose Test Conflicts

with Decisions of this Court.

The decision below conflicts with this Court’s requirement of the major-purpose test for PAC-status

and associated entity-based burdens. Rule 10(c).

Montana imposes “incidental committee” PAC-status for spending $251 on political speech:

(23) (a) “Incidental committee” means a political committee that is not specifically organized

or operating for the primary purpose of supporting or opposing candidates or ballot issues but

that may incidentally become a political committee by receiving a contribution or making an

expenditure.

MCA 131-1-101(23)(a) (emphasis added). So incidental

committees, by definition, do not have Buckley’s majorpurpose test. Yet they have PAC-status and associated

entity-based burdens.

Though less is required of incidental committees

than independent committees, both have substantial,

entity-based, requirements. Incidental-committee disclosure is not activity-based, one-time, event-driven

reporting, but rather is entity-based disclosure14 as

demonstrated by the following requirements.

First, “[p]olitical committees must name and identify themselves in a way that specifically identifies

their economic, or special interest, or employer.” Manual 5. Whether “Montanans for Community Development” suffices is unknown and subject to COPP rejection. For example, COPP says “Democratic Committee,

Great Falls” and “Cascade County Democratic Committee” wouldn’t suffice. Manual 23. “A statement of organization will be rejected if the name of the committee

does not conform to the law. Until another statement

is filed with a name that is acceptable, a committee is

enjoined from making any expenditures ....” Id.

Second, “[e]ach political committee must appoint a

committee treasurer,” Manual 8-10, who:

• “must be registered to vote in Montana”;

• may do nothing until certified through PAC registration;

• “must keep detailed accounts that must be current”;

• must make deposits within specified time limits;

• must “prepare a statement of amounts received

from each contributor”;

• must “keep a detailed accounting of all contributors”; and

• must “preserve committee accounts and reports for

See COPP, Accounting and Reporting Manual for Political Committees, available at https://politicalpractices.mt.

gov/education (“Manual”) (collecting statutory and regulatory requirements).

a minimum of four years.”

Third, “[e]ach political committee must designate

one primary depository,” “completely separate from

any personal accounts.” Manual 8-9. Banks will want

an employer identification number to open an account,

which must first be obtained from the IRS.

Fourth, “[i]mmediately after designating ... a ... depository and ... appointing a treasurer, a political committee must ... file a Statement of Organization (Form

C-215) ....” Manual 9.

Fifth, incidental committees must file detailed periodic reports (Form C-416), “even though no contributions or expenditures may have been received or made

during the period.” MCA 13-37-228. (App. 95a.)17

Available at https://politicalpractices.mt.gov/forms.

All incidental committees at least report “(a) on the

90th, 35th, and 12th days preceding the date of an election

...,” “(b) within 2 business days of receiving a contribution

... of $500 or more if received between the 17th day before

an election and the day of the election[,]” “(c) within 2 business days of making an expenditure of $500 or more for an

electioneering communication if the expenditure is made

between the 17th day before the election and the day of the

election[,]” (d) not more than 20 days after the date of the

election in which it participated,” and “(e) on a date to be

prescribed by the commissioner for a closing report at the

close of each calendar year.” MCA 13-37-226(5). (App. 95a.)

But for political committees “that receive a contribution

or make an expenditure supporting or opposing a candidate

for a statewide office” even more onerous reporting is triggered, with reports required quarterly, then monthly in an

election year, then the 15th day before an election and

within 2 days of a $200 contribution made within 20 days

Sixth, incidental committees must report entitybased information, not just information directly related

to electioneering-communication or independent-expenditure activity. The full “[d]isclosure requirements for

incidental committees” are set out at MCA 13-37-232.

(App. 97a.)18 Incidental committees must report: (a)

details about each “expenditure”19 and recipient; (b)

details about “each person to whom an expenditure for

personal services, salaries, and reimbursed expenses

has been made during the reporting period” and about

the “expenditure” and “the total amount of expenditures made to each person”; (c) total expenditures for

the period; (d) details of any “transfers” to a “political

of an election, and then twice a year the following year until

the PAC is closed. MCA 13-37-226(1) (emphasis added).

(App. 94a.)

“[I]ncidental committees must disclose ... information

concerning contributions to the committee that are designated ... for a specified candidate ... or ... in response to an

appeal ... to support incidental committee election activity

....” MCA 13-37-232(1). If an incidental committee doesn’t

receive such contributions, it “report[s] only its expenditures.” MCA 13-37-232(4).

“[E]xpenditure” includes independent expenditures

and electioneering communications, but for political committees it includes “anything of value ... made by a candidate or political committee to support or oppose a candidate

or a ballot issue,” MCA 13-1-101(18)(a), i.e., “just about anything a political committee expends in support of or in opposition to a candidate,” Manual 17. Cf. McConnell v. FEC,

540 U.S. 93, 170 n.64 (2003) (“actions taken by political

parties are presumed to be in connection with election campaigns” because Buckley restricted political-committee status by the major-purpose test (citing Buckley, 424 U.S. at

79)).

committee or candidate”; (e) details of any loan made

and recipient; (f) details of debts or obligations; and (g)

“other information ... required by the commissioner.”

MCA 13-37-232(2). But federal law requires only disclosure of “direct costs” of producing or airing one or

more electioneering communications,” with direct costs

defined to reach only charges by the vendor for preparing the communication and actual costs to air it. 11

C.F.R. 104.20(a)(1)-(2). Montana’s requirements are

not so limited and are entity-based, e.g., requiring reporting of all broadly defined “expenditures”—not just

“direct costs”—including reporting expenditures for

“personal services, salaries, and reimbursed expenses”

for entity personnel. Incidental committees also must

report details of “expenditures to a consultant, advertising agency, polling firm, or other person that performs services for or on behalf of an incidental committee.” MCA 13-37-232(3). This reporting is not limited to

services related to an electioneering communication or

an independent expenditure, let alone “direct costs,” so

this is also entity-based, not activity-based, disclosure.

Seventh, after election-year activity, incidental committees must file a “closing report,” ARM 44.11.306

(App. 100a), precluding further such speech until PACstatus is renewed. This is an entity-based burden not

involved in activity-based, one-time, event-driven reporting.

Because Montana imposes entity-based requirements on incidental committees, as illustrated by the

foregoing administrative and organizational requirements, this Court requires the application of Buckley’s

major-purpose test.20

Cf. Barland, 751F.3d at 839-40 (similar list of entitybased burdens means “Wisconsin law suffers from the same

As a result, the decision below conflicts in two ways.

First, the Ninth Circuit dismisses this Court’s majorpurpose test by moving to a higher level of generality—

mere “disclosure”:

[T]he argument that disclosure laws are overbroad unless they apply only to groups whose

major or primary purpose is political advocacy

has been rejected multiple times in this circuit.

(App. 6a (citing HLW, 624 F.3d at 1009-10; Yamada,

786 F.3d at 1198-99).) Of course, activity-based, onetime, event-driven reports may be imposed for making

a political communication, which provides “disclosure”

of the speech. See Buckley, 424 U.S. at 74-84; Citizens

United, 558 U.S. at 366-71. But the issue here is PACstatus and resulting entity-based administrative and

organizational burdens going far beyond the disclosure

of the political speech involved. So the decision below

erred by saying that mere “disclosure” is at issue.

Second, the court below ignored this Court’s holdings in MCFL and Citizens United that PAC-status and

associated entity-based burdens are onerous and especially difficult for small groups, thereby chilling their

issue advocacy. The Ninth Circuit’s decision reduced

the onerous, entity-based burdens to merely “filling out

a short form and designating a treasurer and bank account” and declared this reductionist summary “not

overly burdensome.” (App. 6a (citing HLW, 624 F.3d at

1012-14).) But the First Amendment requires careful

interest-tailoring scrutiny, not an undue-burden test,

and—though the court below cited an informational

kind of overbreadth as the federal statute at the time of

Buckley, so the major-purpose limitation has the same significance here as it did there”).

interest (App. 6a)—this Court already expressly held

that PAC-status and resulting entity-based burdens

are not necessary to serve the government’s informational interest because activity-based, one-time, eventdriven reports of political speech suffice. MCFL, 479

U.S. at 262 (court).

In sum, the decision below conflicts with this

Court’s decisions establishing the major-purpose test

as a constitutional requirement for imposing PAC-status and associated entity-based burdens.

C. Circuits Are Split 5-4 on this Issue.

The Circuit Courts of Appeal are split 5-4 on

whether this Court’s major-purpose test applies to

state imposition of PAC-status and associated entitybased burdens. This Court should grant review to resolve this circuit split. Rule 10(a).

The holding of the Ninth Circuit that “reject[s]” the

constitutional requirement of the major-purpose test

(App. 6a) exacerbates a clear and substantial circuit

split over whether this Court’s major-purpose test,

which controls imposing federal PAC-status and associated entity-based burdens, also controls similar state

laws. On one side, five Circuits recognize the majorpurpose test as constitutionally required for state PACstatus laws—the Fourth, Seventh (2014 case), Eighth,

Tenth, and Eleventh Circuits.21 On the other side are

See Leake, 525 F.3d at 287 (4th Cir.); Barland, 751

F.3d at 839 (7th Cir.) (major-purpose test “continues in

force and effect as an important check against regulatory

overreach”) (distinguishing Madigan, 697 F.3d 464, based

on “political committee” definition); Iowa Right to Life

Comm. v. Tooker, 717 F.3d 576, 584 (8th Cir. 2013); Minn.

Citizens Concerned for Life v. Swanson, 692 F.3d 864, 87277 (8th Cir. 2012) (en banc) (“MCCL”); N.M. Youth Orga-

four Circuits—the First, Second, Seventh (2012 case),

and Ninth (present case)—holding that the test is not

constitutionally required for state PAC-status laws.22

Circuit courts have noted this split.23

The facts here and the Tenth Circuit’s NMYO case

are similar and illustrate the circuit-split in analysis.

The Ninth Circuit upheld imposing PAC-status and

associated entity-based burdens on MCD for doing a

few incidental political communications. In NMYO, a

nonprofit advocacy group (to educate youth on “healthcare, clean elections, the economy, and the environment”) made five mailings regarding elected public officials’ votes on NMYO’s issues. 611 F.3d at 671-72.

NMYO spent $6,000 of a million-dollar annual budget

on the mailings, which triggered PAC-status under

New Mexico law. The Tenth Circuit held that these

mailings, while political communications under New

Mexico law, could not trigger PAC-status, given the

major-purpose test. Id. at 676-79. NMYO protected the

nized v. Herrera, 611 F.3d 669, 677-78 (10th Cir. 2010)

(“NMYO”); Fla. Right to Life v. Lamar, 238 F.3d 1288, 1289

(11th Cir. 2001) (aff’g Fla. Right to Life v. Mortham, No. 98770CIVORL19A, 1999 U.S. Dist. LEXIS 16694 (M.D. Fla.

1999)).

See McKee, 649 F.3d at 58-59 (1st Cir.); Sorrell, 758

F.3d at 135-36 (2d Cir.); Madigan, 697 F.3d at 487 (7th Cir.)

(“not constitutional command”).

See Tooker, 717 F.3d at 591 (“The Courts of Appeals

that have addressed the issue are split on whether state

campaign-finance disclosure laws can impose PAC status or

burdens on groups lacking Buckley’s major purpose.”). See

also Sorrell, 758 F.3d at 135-36 (noting split); MCCL, 692

F.3d at 872 (same); Madigan, 697 F.3d at 487 & n.230

(same); Barland, 751 F.3d at 839 n.23 (same).

issue-advocacy group from onerous entity-based requirements and penalties for failing to register as a

PAC. Id. at 673.

But under the Ninth Circuit decision below, the

NMYO story would have ended differently because of

the court’s rejection of the major-purpose test. NMYO

would have been forced to register as a PAC and to

suffer substantial, onerous, entity-based burdens for

engaging in incidental political speech.

Though the major-purpose test is required by the

First Amendment to protect small groups from having

their speech chilled by entity-based burdens, see, e.g.,

MCFL, 479 U.S. at 254-55 (plurality), the First Amendment also requires the test to prevent large entities

from entity-based burdens for incidental speech. This

is because the major-purpose test looks at the nature of

the entity to see whether it is the type of entity for

which entity-based burdens are properly tailored to a

governmental interest in disclosure. Buckley, 424 U.S.

at 79. If a multi-million-dollar entity spends substantial amounts on Montana political speech, but that is

not its major purpose, then it is not the sort of entity

that should be subject to entity-based burdens and,

consequently, independent-expenditure and electioneering-communication reports satisfy the government’s

disclosure interest until such a time as the entity has

Buckley’s “major purpose”:

[S]hould [the entity’s] independent spending become so extensive that the organization’s major

purpose may be regarded as campaign activity,

the corporation would be classified as a political

committee. See Buckley, 424 U.S., at 79. As

such, it would automatically be subject to the

obligations and restrictions applicable to those

groups whose primary objective is to influence

political campaigns. In sum, there is no need for

the sake of disclosure to treat [the entity] any

differently than other organizations that only

occasionally engage in independent spending on

behalf of candidates.

MCFL, 479 U.S. at 262 (court) (emphasis added). This

is especially appropriate after Citizens United, 558

U.S. 310, which held that the First Amendment requires that corporations (and unions) be able to make

independent expenditures and electioneering communications themselves, without a PAC purportedly speaking for them (which notion this Court rejected, id. at

337). What Citizens United allowed should not be effectively reversed by state-imposed PAC-status and

entity-based burdens forcing corporations (and unions)

to either have the PAC that Citizens United rejected or

become a PAC themselves.

Some Circuit courts say Buckley’s and MCFL’s

major-purpose line “‘yield[s] perverse results’” because

small groups spending modest amounts might have

Buckley’s “major purpose” while large groups spending

substantial sums would not and so would avoid becoming PACs. See, e.g., Madigan, 697 F.3d at 489 (citations

omitted). But that ignores that disclosure could still be

required by activity-based, one-time, event-driven reporting, so there is no circumvention concern. PAC-status and entity-based burdens are not required to satisfy a state’s informational interest as this Court already decided in MCFL, 479 U.S. at 262 (court), in response to the FEC’s similar argument.

Certiorari review should be granted by this Court to

resolve this clear and substantial circuit split on this

important issue. Rule 10(a).

II.

This Case Presents the Important Question of

Whether Nonprecedential Decisions

Violate Article III or Undermine Judicial

Integrity, Requiring this Court to Exercise

Its Supervisory Responsibility.

Ninth Circuit Rule 36-3(a) allows some of its decisions, including the decision below, to serve no precedential function: “Unpublished dispositions and orders

of this Court are not precedent, except when relevant

under the doctrine of law of the case or rules of claim

preclusion or issue preclusion.” Seven circuits have

similar rules. See 3d Cir. I.O.P. R. 5.3; 5th Cir. R.

47.5.4; 6th Cir. R. 32.1(b); 7th Cir. R. 32.1(b); 8th Cir.

R. 32.1(A); D.C. Cir. R. 36(e)(2); Fed. Cir. R. 32.1(b).

One circuit establishes precedent by ruling type. See 2d

Cir. R. 32.1.1(a) (“Rulings by summary order do not

have precedential effect.”). Three circuits limit the precedential value of unpublished cases to persuasive

only. See 1st Cir. R. 32.1.0(a); 10th Cir. R. 32.1(A); 11th

Cir. R. 36-2. And the Fourth Circuit treats all unpublished decisions as nonprecedential, although citations

to unpublished pre-January 1, 2007, decisions are permitted where a party believes the decision is precedential and no published opinion would serve as well.

4th Cir. R. 32.1; Minor v. Bostwick Labs., Inc., 669 F.3d

428, 433 n.6 (4th Cir. 2012).

A. Circuits Are Split24 on Whether They Can Constitutionally Choose Precedent.

The practice of choosing precedent, which began in

1964, was first questioned in this Court by Justice

Stevens in his dissent in County of Los Angeles v.

Kling, 474 U.S. 936 (1985). Justice Stevens criticized

not only the Ninth Circuit’s decision not to publish a

precedential decision but also the Ninth Circuit’s rule

itself: “the decision not to publish the opinion or permit

it to be cited—like the decision to promulgate a rule

spawning a body of secret law—was plainly wrong.” Id.

at 938.25 Since then, Justice Thomas has also criticized

the practice. See Plumley v. Austin, 135 S. Ct. 828, 831

(2015) (Thomas, J. dissenting) (“It is hard to imagine

a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law

for the Circuit.”). And a circuit split emerged.

In 2000, the Eighth Circuit held the practice of Article III courts issuing nonprecedential decisions unconstitutional in Anastasoff v. U.S., 223 F.3d 898 (8th Cir.

2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000)

(en banc). Judge Arnold, writing for the three-judge

panel, reasoned that every judicial decision declares

and interprets a general principle of law, is authoritative, and is applicable to subsequent cases with similarly-situated parties. Id. at 899-900 (citing James B.

The Ninth Circuit, aware that the Eighth Circuit had

vacated its decision, nonetheless considered it to have persuasive force, Hart v. v. Massanari, 266 F.3d 1155, 1159

(9th Cir. 2001), so a Circuit split resulted from its decision.

MCD objects to the nonprecedential nature of the decision below, not whether it is “published” in some book,

which seems quaint, given recent technological developments.

Beam Distilling Co. v. Georgia, 501 U.S. 529, 544

(1991)). These principles form the doctrine of precedent, a historic method of judicial decision-making and

a bulwark of judicial independence well-understood at

the founding of this Nation. Id. at 900. Precedent derives from the nature of judicial power and serves as a

limitation on the judicial power of Article III courts:

the judge’s duty to follow precedent means that judicial

power is limited by it. Id. at 900-01. This keeps the law

stable and separates judicial power from legislative

power. Id. (citing 1 Blackstone, Commentaries *25859).26 This does not mean that every decision must be

published in a book. Id. at 903. But it does mean that

courts cannot “create an underground body of law good

for one place and time only.” Id. at 904. “In this way,

the law grows and changes, but it does so incrementally, in response to the dictates of reason, and not because judges have simply changed their minds.” Id. at

905.

The Eighth Circuit’s decision drew national attention, was “cited by at least thirty-five courts in any

number of broad contexts” by October 2001,27 and

See also Richard S. Arnold, Essay: Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 226 (1999)

(“When a governmental official, judge or not, acts contrary

to what was done on a previous day, without giving reasons,

and perhaps for no reason other than a change of mind, can

the power that is being exercised properly be called ‘judicial’? Is it not more like legislative power, which can be exercised whenever the legislator thinks best, and without

regard to prior decisions?”).

William J. Miller, Note, Chipping Away at the Dam:

Anastasoff v. United States and the Future of Unpublished

Opinions in the United States Courts of Appeals and Be-

sparked a national debate.28

The Ninth Circuit waded into that debate in Hart,

266 F.3d 1155, when it rejected the Eighth Circuit’s

reasoning because the legal system has “evolved considerably since the early days of common law.” It held

that its rule only

allow[ed] panels of the courts of appeals to determine whether future panels, as well as judges

of the inferior courts of the circuit, will be bound

by particular rulings. This is hardly the same

thing as turning our back on all precedents, or

on the concept of precedent altogether.

Id. at 1160. Article III’s “Judicial Power” clause simply

requires federal courts to “rule on cases or controversies assigned to them by Congress, comply with due

process ... and generally comply with the specific constitutional commands applicable to judicial proceedings.” Id. at 1161.

This circuit split is an important one because the

effect nonprecedential decisions have on appellate review and equal justice under the law raise significant

constitutional questions. This Court should grant review to consider and resolve this.

B. Choosing Precedent Undermines Appellate

Review.

When a precedential decision issues:

the matter is deemed resolved, unless overruled

by the court itself sitting en banc, or by the Su-

yond, 50 Drake L. Rev. 181, 198 (2001) (providing citations

to each of those cases).

Miller, supra note 27, at 202 (discussing the debate

that ensued).

preme Court ... a later three-judge panel considering a case that is controlled by the rule announced in an earlier panel’s opinion has no

choice but to apply the earlier-adopted rule ....

Id. at 1171. But the same cannot be said of nonprecedential decisions. A panel can attempt to avoid en-banc

or Supreme Court review by issuing a summary, nonprecedential decision which does not lend itself to close

scrutiny, see Kling, 474 U.S. at 938 (Stevens, J., dissenting), and minimizes its legal importance, as the

court below attempted to do here.

Precedential opinions require due consideration of

the relevant legal and policy considerations, with careful recitation of all the relevant facts, and explanation

why a court is following a rule or rejecting another—an

exacting and time-consuming task. Id. at 1176.29 While

a case decided without a precedential opinion may “not

mean it is not fully considered, or that the disposition

does not reflect a reasoned analysis of the issues presented,” id. at 1177, there is no way to know that is the

case.30 Nonprecedential decisions are “not written in a

See also Arnold, supra note 26, at 222-223 (“In each

instance, however, it is possible to think of conceivable reasons why the previous case can be distinguished, and when

a court decides that it cannot be, it is necessarily holding

that the proffered distinctions lack merit under the law.

This holding is itself a conclusion of law with precedential

significance.”).

Arnold, supra note 26, at 223 (“If, for example, a precedent is cited, and the other side then offers a distinction,

and the judges on the panel cannot think of a good answer

to the distinction, but nevertheless, for some extraneous

reason, wish to reject it, they can easily do so through the

device of an abbreviated, unpublished opinion, and no one

way that will be fully intelligible to those not familiar

with the case, and the rule of law is not announced in

a way that makes it suitable for governing future

cases.” Id. at 1178. Failures of a panel to properly follow the law may not be readily discernable.

And so, treating all decisions as precedent ensures

judicial accountability, transparency, and restraint.

Judges are deterred from ruling based on their own

preferences or biases against parties and from implementing their own public-policy agendas. They are prevented from giving short shrift in their analysis while

avoiding subsequent judicial scrutiny because they are

required to faithfully apply the law.

The adverse effect to judicial review by choosing a

nonprecedential decision is on full display in the decision below. As explained above, the decision below

summarily rejected the major-purpose claim in one

short conclusory paragraph: “the argument that disclosure laws are overbroad unless they apply only to

groups whose major or primary purpose is political

advocacy has been rejected multiple times in this circuit.” (App. 6a (citations omitted).)

will ever be the wiser. (I don’t say that judges are actually

doing this—only that the temptation exists.) Or if, after

hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the

decision is hard to justify under the law, he or she can

achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished

opinion and sweeping the difficulties under the rug. Again,

I’m not saying that this has ever occurred in any particular

case, but a system that encourages this sort of behavior, or

is at least open to it, has to be subject to question in any

world in which judges are human beings.”)

While it is true that the Ninth Circuit has repeatedly rejected the notion that “the major purpose” of a

group must be the nomination or election of candidates, until the summary decision in this case, the

Ninth Circuit had never held that the or a “purpose” of

the group to engage in political speech was categorically irrelevant. The truncated analysis of the court

below failed to consider the actual holdings, tests, and

facts in HLW, Yamada, and Canyon Ferry Road Baptist Church of East Helena v. Unsworth, 556 F.3d 1021

(9th Cir. 2009), that preceded it and, as a result, the

decision conflicted with, rather than followed, them.

In HLW, the Ninth Circuit approved the a-primarypurpose test, upholding a Washington State PAC requirement for “groups with ‘a’ primary purpose of political advocacy, instead of being limited to groups with

‘the’ primary purpose of political advocacy.” 624 F.3d at

1008 (emphasis in original). The Ninth Circuit then

upheld a Hawaii PAC requirement which dropped the

term “primary” and just required that the group have

“the purpose” of political advocacy. Yamada, 786 F.3d

at 1198. But at least in both cases, the group needed a

purpose of political advocacy and were not just “incidentally” engaged in “de minimis” political advocacy as

was struck down in Canyon Ferry, 556 F.3d 1021,

which involved an as-applied challenge to Montana’s

incidental committee definition at issue here.

The court below failed to explain how MCD and

Montana law fit under existing Ninth Circuit precedent of HLW, Yamada, and Canyon Ferry, and, of

course, they don’t fit at all. The court below took existing law a substantial step further by eliminating altogether the purpose of the organization to engage in

political speech, approved in HLW and Yamada, and by

upholding Montana’s onerous PAC-status law, which

applies to incidental political speech at a de-minimis,

$250 threshold, contrary to Canyon Ferry.

This evasion of judicial review is contrary to Article

III’s judicial power.

C. Nonprecedential Decisions Deny Equal Justice Under the Law.

Nonprecedential decisions also allow federal circuit

courts to create “private laws,” applicable only to the

parties at issue, without applying that decision in future cases involving similarly situated litigants. Here,

MCD brought this case because Montana’s law not only

does not comply with Supreme Court precedent and

conflicts with other circuits, but does not even comply

with Ninth Circuit precedent. Yet by designating the

decision below as nonprecedential, these conflicts can

be masked with a summary, private decision that can

only ever apply to MCD. MCD is bound by the decision

below in the future under res judicata, but others similarly situated are not affected. It is forever a political

committee under these facts.31 But others might not be.

So similarly situated persons can be treated differently, especially MCD’s political opponents.

This is an unconstitutional outcome. As even Hart

noted, Article III’s “Judicial Power” includes the obligation of the court to afford constitutional protections,

including due process. 266 F.3d at 1161. The courts

cannot create precedential, “public laws” for most liti31

Federal Rule of Civil Procedure 60 authorizes “Relief

from a Judgment or Order,” but has very specific requirements that are difficult to meet. See, e.g., Tapper v. Hearn,

833 F.3d 166 (2d Cir. 2016) (declining to reverse a prior

ruling upholding New York contribution limits in light of

McCutcheon where plaintiff had previously lost but sought

renewed First Amendment relief under Rule 60).

gants, but establish ad-hoc, “private laws” for others,

without a compelling interest. Equal justice under the

law means impartial governance and “is served by the

Fifth Amendment’s guarantee of due process, as well

as by the Equal Protection Clause of the Fourteenth

Amendment.” Hampton v. Mow Sun Wong, 426 U.S.

88, 100 (1976). Treating federal court decisions as

precedential avoids “anarchy [from] prevail[ing] within

the federal judicial system,” Wallace v. Jaffree, 472

U.S. 38, 47 n.26 (1985), and serves as a check “on malicious action by judges” by “enhanc[ing] the reliability

of information and the impartiality of the decisionmaking process,” Butz v. Economou, 438 U.S. 478, 512

(1978). Circuit rules allowing nonprecedential decisions are not tailored to any cognizable compelling interest and instead undermine the stability of the law

and a fundamental check on the court’s judicial role.

Anastasoff, 223 F.3d at 901. They undermine the Rule

of Law.

The motivation for such rules is likely very practical: judges “do not have time to do a decent enough job

... to justify treating every opinion as precedent ....”

Anastasoff, 223 F.3d at 904. But the solution “is to create enough judgeships to handle the volume, or ... for

each judge to take enough time to do a competent job

with the case,” even “[i]f this means backlogs will

grow.” Id. at 904. Circuit courts could also simply adopt

the reasoning of the district court, if its decision complies with existing precedent, or just explain that there

are no material differences between the current case

and previous cases, requiring the same result. In any

event, due process does not yield to judicial economy.

A circuit split exists on the important question of

the constitutionality of Article III courts issuing nonprecedential decisions. MCD requested that the deci-

sion below be published under Ninth Circuit Local

Rule 36-4, which was denied. (App. 75a.) This Court

should grant MCD’s petition to rectify this unconstitutional error. Rule 10(a).

D. Nonprecedential Decisions Undermine Judicial Integrity, Requiring this Court to Exercise Its Supervisory Responsibility.

Even if nonprecedential decisions do not implicate

Article III, this Court nonetheless should review the

practice under its supervisory role over lower federal

courts because it raises the important question of judicial integrity.

“[G]uided by considerations of justice, and in the

exercise of supervisory powers, federal courts may,

within limits, formulate procedural rules not specifically required by the Constitution or the Congress.”

United States v. Hasting, 461 U.S. 499, 505 (1983) (internal citations omitted). This “supervisory power

serves the ‘twofold’ purpose of deterring illegality and

protecting judicial integrity.” United States v. Payner,

447 U.S. 727, 735 n.8 (1980). See, e.g., Elkins v. United

States, 364 U.S. 206, 216-18 (1960) (observing that the

exclusionary rule was adopted pursuant to “the Court’s

supervisory power over the administration of criminal

justice in the federal courts” with the purpose “to compel respect for the constitutional guaranty” against

lawless searches and seizures).

As described above, supra II(B) and (C), allowing

the federal circuits to choose precedent can permit

judges to rule based on their own policy preferences or

on bias against parties, to give slipshod treatment to

the cases before them, and to avoid judicial scrutiny as

they establish inequitable, private law. This undermines judicial integrity as the transparency, account-

ability, and judicial restraint of judges is called into

serious question.

All federal circuits have adopted rules allowing

them to choose the precedential value of their decisions. The Eighth Circuit has questioned the practice.

This Court should exercise its supervisory role and review this practice to preserve the judicial integrity of

the lower courts.

Conclusion

This Court should grant this petition.

September 2018

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Anita Y. Milanovich

Courtney Turner Milbank

THE BOPP LAW FIRM, PC

1 South 6th Street

Terre Haute, IN 47807

812/232-2434

812/235-3685 (facsimile)

jboppjr@aol.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.