Amicus Curiae Brief — Americans for Prosperity Foundation, Petitioner v. Rob Bonta, Attorney General of California

Supreme Court briefFeb 26, 2021

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Nos. 19-251, 19-255

In The

Supreme Court of the United States

––––––––♦––––––––

AMERICANS FOR

PROSPERITY

FOUNDATION,

THOMAS MORE

LAW

CENTER,

Petitioner,

XAVIER BECERRA,

Attorney General of

California,

XAVIER BECERRA,

Attorney General of

California,

Respondent.

––––––––♦––––––––

Respondent.

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

––––––––♦––––––––

AMICUS CURIAE BRIEF OF RANDY ELF

IN SUPPORT OF PETITIONERS

AMERICANS FOR PROSPERITY FOUNDATION

AND THOMAS MORE LAW CENTER

––––––––♦––––––––

RANDY ELF

Counsel of Record

Post Office Box 525

Lakewood, N. Y. 14750

Telephone (202) 423-2122

ForEFilingOnly@gmail.com

February 26, 2021

Counsel for Amicus

TABLE OF CONTENTS 1

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 3

In seeking to distinguish political-speechdisclosure law, Petitioners and the Ninth

Circuit rehearing-en-banc-denial dissent

understate how the First Amendment

protects political speech and do so in ways

that can undermine First Amendment

rights to political speech...................................... 3

1 This copyrighted brief is based on copyrighted drafts of

briefs at https://works.bepress.com/elf/23 (U.S.) (Track 2), and

https://works.bepress.com/elf/30 (U.S.) (Track 1), and the

copyrighted filed briefs at

https://works.bepress.com/elf/28 (D.C. Cir.) (Track 1) and

https://works.bepress.com/elf/29 (U.S.) (Track 1). This

copyrighted brief as filed is at

https://works.bepress.com/elf/84 (all Internet sites, except the

one for this copyrighted brief as filed visited Feb. 20, 2021).

II. Regarding regulation, i.e., disclosure, of

political speech, Buckley does way more

than protect against threats, harassment,

or reprisals. .......................................................... 4

III. The Court distinguishes Track 1 burdens

from Track 2 requirements. ................................ 9

IV. Petitioners and the Ninth Circuit

rehearing-en-banc-denial

dissent

understate tailoring for political-speechdisclosure law..................................................... 10

V. Citizens

United

pages

366-71

address/support only Track 2 law, not

Track 1 law. ....................................................... 14

VI. Strict scrutiny, not substantial-relation

exacting scrutiny, applies to some

political-speech-disclosure law. ......................... 15

CONCLUSION ......................................................... 17

iii

TABLE OF AUTHORITIES 2

CASES

Alaska Right to Life Comm. v. Miles, 441 F.3d 773

(9th Cir. 2006) ....................................................... 12

*Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)2, 4,

5, 6, 7, 9, 10, 11, 12, 13, 15, 16

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en

banc) ...................................................................... 12

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

v. Unsworth, 556 F.3d 1021 (9th Cir. 2009) ........ 12

Citizens United v. FEC, 558 U.S. 310 (2010)6, 7, 8, 9,

13, 14, 15, 16

Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d

1137 (10th Cir. 2007) ............................................ 16

Ctr. for Individual Freedom, Inc. v. Tennant, 706

F.3d 270 (4th Cir. 2013) ....................................... 12

Davis v. FEC, 554 U.S. 724 (2008) .......................... 16

2 “Authorities upon which [this filing] chiefly rel[ies] are

marked with asterisks.” D.C.CIR.R. 28(a)(2), available at

https://www.cadc.uscourts.gov/internet/home.nsf/Content/Court

+Rules+and+Operating+Procedures; accord 11TH CIR.R. 281(e), available at

http://www.ca11.uscourts.gov/rules-procedures.

This filing cites slip- or manuscript-opinion/order pages,

rather than Westlaw star pages, where bound-volume

pagination will later be available, because Westlaw removes

star pagination when West issues bound-volume pagination.

Del. Strong Families v. Att’y Gen. of Del., 793 F.3d

304 (3d Cir. 2015) ................................................. 15

Del. Strong Families v. Denn, 136 S.Ct. 2376 (2016)

............................................................................... 14

Doe v. Reed, 561 U.S. 186, 197-98 (2010) .......... 13, 17

*FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238

(1986) ............................................................ 6, 9, 15

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) . 8

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998)........... 6

Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir.

2016) ............................................................ 5, 12, 15

*Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d

576 (8th Cir. 2013) ................................................ 17

McConnell v. FEC, 540 U.S. 93 (2003) ........ 6, 7, 8, 13

McCutcheon v. FEC, 572 U.S. 185 (2014) ......... 12, 13

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334

(1995) ...................................................................... 8

*Minn. Citizens Concerned for Life, Inc. v. Swanson,

692 F.3d 864 (8th Cir. 2012) (en banc) .......... 15, 16

NAACP v. Button, 371 U.S. 415 (1963) ..................... 5

*Sampson v. Buescher, 625 F.3d 1247 (10th Cir.

2010) ........................................................................ 6

Wallace v. Jaffree, 472 U.S. 38 (1985) ....................... 1

*Wis. Right to Life, Inc. v. Barland, 751 F.3d 804

(7th Cir. 2014) ......................................5, 6, 9, 12, 15

Yamada v. Kuramoto, 744 F.Supp.2d 1075 (D. Haw.

2010) ........................................................................ 5

RULES

11TH CIR.R. 28-1 ........................................................ iii

D.C.CIR.R. 28 ............................................................. iii

S.CT.R. 37 ................................................................... 1

LAW REVIEWS

Randy Elf, The Constitutionality of State Law

Triggering Burdens on Political Speech and the

Current Circuit Splits, 29 REGENT U.L. REV. 35

(2016) (“Triggering”)1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12,

14, 15, 16, 17

FILINGS

Citizens for Responsibility & Ethics in Wash. v. FEC,

No. 19-5161, AMICUS CURIAE BR. OF RANDY ELF IN

SUPPORT OF AFFIRMANCE OF THE J. & IN SUPPORT

OF APPELLEE FEC (D.C. Cir. Dec. 2, 2019) ............ 9

PRESS

Randy Elf, Speech law benefits politicians, rich,

OBSERVER, July 3, 2016 .......................................... 8

OTHER AUTHORITIES

Randy Elf, How Political Speech Law Benefits

Politicians and the Rich (Aug. 20, 2020) (one-hour

video) ....................................................................... 3

INTEREST OF AMICUS CURIAE 3

Amicus has practiced political-speech law,

presented many briefs and oral arguments on the

constitutionality of such law, and written a lawreview article addressing much of what Amicus

addresses here. Randy Elf, The Constitutionality of

State Law Triggering Burdens on Political Speech

and the Current Circuit Splits, 29 REGENT U.L. REV.

(2016)

(“Triggering”),

available

https://works.bepress.com/elf/18.

Although Triggering particularly addresses

state law, the same First Amendment principles

apply to federal law. Wallace v. Jaffree, 472 U.S. 38,

48-49 (1985); Triggering at 55 & n.114, 63 n.154.

Since Triggering has analysis that applies here,

Amicus summarizes and presents it in this brief.

Where Triggering most efficiently makes points that

apply here, this brief quotes Triggering. When this

brief quotes Triggering text, some cites from

corresponding Triggering footnotes are inserted into

the text, and some cites remain in footnotes.

Triggering cites are converted from law-review style

3 Counsel of record for all parties received timely notice of

Amicus’s intent to file this brief and consent to this filing. No

party’s counsel wholly or partly authored this brief. No such

counsel, party, or other person—other than Amicus or Amicus’s

counsel—contributed monetarily to preparing or submitting

this brief. Amicus has no members. Cf. S.CT.R. 37.2(a), 37.6.

to brief style, and many are condensed. Emphases

are as they are in Triggering.

For all readers’ convenience, a Triggering draft,

with string cites not published in the law review,

remains at https://works.bepress.com/elf/19.

––––––––♦––––––––

SUMMARY OF ARGUMENT

Amicus emphasizes that he admires and

appreciates the good and courageous work that

Plaintiff-Petitioner

Americans

for

Prosperity

Foundation, Plaintiff-Petitioner Thomas More Law

Center, and the Ninth Circuit rehearing-en-bancdenial dissent have undertaken in this action.

Although this action involves speech-disclosure

law, it involves no political-speech-disclosure law.

However, in seeking to distinguish politicalspeech-disclosure law, Petitioners and the Ninth

Circuit rehearing-en-banc-denial dissent understate

how the First Amendment protects political speech

and do so in ways that can undermine First

Amendment rights to political speech.

Amicus neither asserts nor implies this is

anyone’s intent, yet this can be an effect of their

assertions.

Political speech is at the “core” of what the First

Amendment protects. E.g., Buckley v. Valeo, 424

U.S. 1, 44-45 (1976) (per curiam); Triggering at 35 &

n.1; Randy Elf, How Political Speech Law Benefits

Politicians and the Rich (Aug. 20, 2020) (one-hour

video), available at https://works.bepress.com/elf/21.

To fend off mistaken political-speech-law

holdings or dicta, Amicus files this brief.

Petitioners are due to prevail. However, no one

should undermine how the First Amendment

protects political speech.

––––––––♦––––––––

ARGUMENT

In seeking to distinguish political-speechdisclosure law, Petitioners and the Ninth

Circuit rehearing-en-banc-denial dissent

understate how the First Amendment

protects political speech and do so in ways

that can undermine First Amendment

rights to political speech.

The law at issue here does not ban or otherwise

limit speech. Instead, it regulates, i.e., requires

disclosure of, speech. E.g., AMS. FOR PROSPERITY

FOUND. CERT. PET. at 1; THOMAS MORE LAW CTR.

CERT. PET. at i; Ams. for Prosperity Found. v.

Becerra, 919 F.3d 1177, 1178 (9th Cir. 2019) (Ikuta,

J., dissenting) (rehearing-en-banc denial).

One common mistake, even by First

Amendment proponents, is to understate how it

protects political speech from regulation, i.e.,

disclosure. See, e.g., Triggering at 64 n.156

(addressing law triggering Track 1, political-

committee(-like) burdens); see also id. at 45-46

nn.71-72, 55 n.106, 63 n.154 (same).

In seeking to distinguish political-speechdisclosure law, Petitioner Americans for Prosperity

Foundation, Petitioner Thomas More Law Center,

and the Ninth Circuit rehearing-en-banc-denial

dissent understate how the First Amendment

protects political speech from regulation, i.e.,

disclosure, and do so in ways that, if they become

holdings or even dicta, can undermine First

Amendment rights to political speech. Infra at 4-17.

II.

Regarding regulation, i.e., disclosure, of

political speech, Buckley does way more

than protect against threats, harassment,

or reprisals.

Regarding regulation, i.e., disclosure, of

political speech, Petitioner Thomas More Law

Center asserts:

All Buckley allows in the electoral context

is an as-applied exemption once a party

demonstrates the “reasonable probability

that the compelled disclosure of [its]

contributors’ names will subject them to

threats, harassment, or reprisals from

either Government officials or private

parties.” Id. at 74.

THOMAS MORE LAW CTR. CERT. PET. at 24 (brackets

in original); accord THOMAS MORE LAW CTR. BR. at

39, 44.

This is incorrect. Buckley does way more—way,

way, way more—than this.

Beginning with First Principles, Triggering at

38-42, which include

[r]ecognizing that political speech is at the

“core” of what the First Amendment

protects, e.g., Buckley, 424 U.S. at 44-45,

the ... Court has applied constitutional

scrutiny and established the two-track

system under which government may

regulate political speech. 4

In other words, require disclosure of, which differs

from “ban” or otherwise “limit.” See Yamada v.

Kuramoto, 744 F.Supp.2d 1075, 1082 & n.9 (D. Haw.

2010) (distinguishing restrictions, i.e., bans or other

limits, from regulation, i.e., disclosure). The

umbrella term “disclosure” can cover registration,

recordkeeping,

reporting,

attributions,

and

disclaimers in all their forms. Wis. Right to Life, Inc.

v. Barland, 751 F.3d 804, 812-16, 836 (7th Cir.

2014). Barland understands the difference between

attributions and disclaimers. Id. at 815-16. By

definition, an “attribution” attributes and says who

is speaking, while a “disclaimer” disclaims and says

who is not speaking. Id.

Triggering at 35 n.2. Independence Institute v. Williams, 812

F.3d 787, 795 & n.9 (10th Cir. 2016), frames this differently by

applying the label “disclosure” only to Track 2 law, not Track 1

law. Either way, constitutional principles—not “mere labels”—

are what matters. NAACP v. Button, 371 U.S. 415, 429 (1963);

Triggering at 51 n.91, 52-53 n.103.

Under “Track 1,” government may under

some circumstances—and subject to further

inquiry, see, e.g., id. at 74 (addressing

“threats, harassment, or reprisals”) 5—

trigger political-committee or politicalcommittee-like burdens, see, e.g., id. at 63,

79 (addressing “organizations” that are

“under the control of a candidate” or

candidates in their capacities as candidates

or have “the major purpose” under Buckley),

followed in FEC v. Mass. Citizens for Life,

Inc., 479 U.S. 238, 252 n.6, 262 (1986), and

quoted in McConnell v. FEC, 540 U.S. 93,

170 n.64 (2003) (overruled on other grounds

by Citizens United v. FEC, 558 U.S. 310,

365-66 (2010)); Sampson v. Buescher, 625

F.3d 1247, 1249, 1251, 1261 (10th Cir. 2010)

(addressing organizations with the Buckley

major purpose but only small-scale speech).

...

And either way, the Court should please dispense with

the phrase “disclaimer and disclosure requirements.” E.g.,

Citizens United v. FEC, 558 U.S. 310, 319, 321-22, 366-67, 371

(2010). It is like saying “apples and fruit,” because the latter

includes the former. The Court should also please dispense

with using the label “disclaimer” for both attributions and

disclaimers, e.g., id., because they are different.

5 Compare Barland, 751 F.3d at 816, 832 (striking down

an attribution and disclaimer requirement), with Gable v.

Patton, 142 F.3d 940, 944-45 (6th Cir. 1998) (upholding an

attribution requirement for a political committee). Triggering

at 35 n.3.

Under “Track 2,” 6 apart from whether

government may trigger Track 1, politicalcommittee(-like)

burdens,

government

may—subject to further inquiry, see, e.g.,

Citizens United, 558 U.S. at 370 (addressing

“threats, harassment, or reprisals” (quoting

McConnell, 540 U.S. at 198))—require

attributions, disclaimers, and non-politicalcommittee reporting for:

•

independent

expenditures

properly

understood, Buckley, 424 U.S. at 63-64,

79-82; 7 cf. McIntyre v. Ohio Elections

The terms “Track 1” and “Track 2” are [Amicus’s], yet

the concepts have been in the case law since the ...

Court first distinguished what [Amicus] calls Track 1

law and Track 2 law in Buckley, 424 U.S. at 63-64.

Triggering at 36 n.7. Although “campaign-finance law” is

another term for political-speech law, such law reaches beyond

candidate or ballot-measure campaigns. Id. at 38 n.17.

Under the Constitution, “independent expenditure”

means Buckley express advocacy, Buckley, 424 U.S.

at 44 & n.52, 80, that is not coordinated with a

candidate, id. at 46-47, 78. Thus, non-coordinated

spending for political speech that is not Buckley

express advocacy is independent spending but not an

independent expenditure. See id. at 44 & n.52, 80

(addressing

express

advocacy

and

thereby

independent expenditures).

Triggering at 36 n.9. The Court should please dispense with

using the word “expenditure,” e.g., Citizens United, 558 U.S. at

366, 368, where only “spending” is correct.

Comm’n, 514 U.S. 334, 354-56 (1995)

(rejecting a Track 2, non-politicalcommittee disclosure requirement for

other 8 speech), and

•

Federal

Election

Campaign

Act

electioneering communications, Citizens

United, 558 U.S. at 366-71. 9

Triggering at 35-36 & nn.1-4, 6-10. 10

Furthermore,

“the appeal-to-vote test”—once known as the

“functional equivalent of express advocacy,” id. at

335 (quoting FEC v. Wis. Right to Life, Inc., 551 U.S.

449, 470 (2007) (opinion of Roberts, C.J.))—cannot be

a form of express advocacy.

Triggering at 68 (explaining why). Indeed, the test

no longer affects whether government may ban,

otherwise limit, or regulate speech, and the appealto-vote test is vague. It has no place in law. Id. at 68

& nn.180-81, 72 & nn.190-92 [(explaining why)].

Id. at 77.

I.e., small-scale. 514 U.S. at 358 (Ginsburg, J.,

concurring).

9 Defined in McConnell, 540 U.S. at 189-94.

See also Randy Elf, Speech law benefits politicians,

rich, OBSERVER, July 3, 2016, at A7 (previewing Triggering),

cited in Triggering at 85 n.278 (with now-outdated hyperlink),

available at https://www.observertoday.com/

opinion/commentary/2016/07/speech-law-benefits-politiciansrich, and reprinted in, e.g., Citizens for Responsibility & Ethics

in Wash. v. FEC, No. 19-5161, AMICUS CURIAE BR. OF RANDY

ELF IN SUPPORT OF AFFIRMANCE OF THE J. & IN SUPPORT OF

III. The Court distinguishes Track 1 burdens

from Track 2 requirements.

Unlike Petitioner Americans for Prosperity

Foundation, Petitioner Thomas More Law Center,

and the Ninth Circuit rehearing-en-banc-denial

dissent, the Court distinguishes Tracks 1 and 2.

Track 1, political-committee(-like) burdens include

registration

(including,

turn,

treasurer

designation,

bank-account

designation,

and

termination, i.e., deregistration), recordkeeping,

extensive reporting, and ongoing reporting. See, e.g.,

Citizens United, 558 U.S. at 338 (describing such

law); Mass. Citizens, 479 U.S. at 253-56 & nn.7-9

(opinion of Brennan, J.) (same); Buckley, 424 U.S. at

63 (same); Triggering at 44 & nn.63-65. By contrast,

Track 2, non-political-committee reporting

occurs only for reporting periods when the

particular speech occurs, 11 and the reports

are less burdensome than extensive or

ongoing reporting. See, e.g., Mass. Citizens,

479 U.S. at 262 (“less than the full panoply

of” Track 1 burdens); Buckley, 424 U.S. at

63-64 (describing Track 2, non-politicalcommittee reporting).

Triggering at 57 & nn.126-28 (ellipses omitted).

APPELLEE FEC at Addendum.1 (D.C. Cir. Dec. 2, 2019)

(available at https://works.bepress.com/elf/28).

11 The labels “one-time” and “event-driven” for Track 2

requirements, e.g., Barland, 751 F.3d at 824, 836, 841, are

confusing. Triggering at 57 n.127 (explaining why).

IV. Petitioners

and

the

Ninth

Circuit

rehearing-en-banc-denial

dissent

understate tailoring for political-speechdisclosure law.

In addressing constitutional scrutiny for

political-speech-disclosure law, Petitioner Americans

for Prosperity Foundation, Petitioner Thomas More

Law Center, and the Ninth Circuit rehearing-enbanc-denial dissent understate tailoring. See AMS.

FOR PROSPERITY FOUND. CERT. PET. at 23 (“tailoring

... is satisfied ... when a government invokes its ...

interest in ... disclosure ... of donors who give

money”); AMS. FOR PROSPERITY FOUND. BR. at 28

(“the Court ‘already held’ in Buckley that campaignrelated public disclosure requirements categorically

satisfy narrow tailoring” (quoting Ninth Circuit

rehearing-en-banc-denial dissent)); THOMAS MORE

LAW CTR. CERT. PET. at 24 (“No separate tailoring

analysis applies”); THOMAS MORE LAW CTR. BR. at 32

(“Because Buckley held that the disclosures in that

case were per se the least restrictive means of

addressing the government’s concern, the Court had

no need to evaluate the narrow-tailoring

requirement in later cases involving election-related

disclosures”); Ams. for Prosperity Found., 919 F.3d at

1180 (Ikuta, J., dissenting) (watering down tailoring

for political-speech-disclosure law to almost

nothing).

They treat Buckley’s statement that disclosure

is the “least restrictive means of curbing the evils of

campaign ignorance and corruption” almost as

vitiating tailoring for political-speech-disclosure law.

424 U.S. at 68, quoted in AMS. FOR PROSPERITY

FOUND. CERT. PET. at 23, AMS. FOR PROSPERITY

FOUND. BR. at 28, THOMAS MORE LAW CTR. CERT.

PET. at 24, THOMAS MORE LAW CTR. BR. at 32, and

Ams. for Prosperity Found., 919 F.3d at 1180 (Ikuta,

J., dissenting).

This is incorrect. Buckley’s “least restrictive

means” statement, supra at 10, “generally”

addresses political-speech disclosure, 424 U.S. at 68,

as opposed to bans or other limits, cf. supra at 3, 5

n.4 (making this distinction). Elsewhere, including

in Buckley, the Court distinguishes types of politicalspeech disclosure. E.g., supra at 9.

Buckley, rather than holding “the disclosure

requirements at issue” survive tailoring, THOMAS

MORE LAW CTR. BR. at 32; accord AMS. FOR

PROSPERITY FOUND. BR. at 28 (“Buckley found that

strict test satisfied by the close relationship between

requiring disclosure of who contributes to an election

and the electorate’s overriding interests in electoral

transparency and informed voting.”), establishes,

e.g., Tracks 1 and 2, supra at 6-8, by applying

tailoring. 12

Just as what government may regulate with

Track 2 law, supra at 7-8, goes to the tailoring part

of constitutional scrutiny, not the governmentinterest part, see, e.g., Indep. Inst. v. Williams, 812

12 Notwithstanding AMS. FOR PROSPERITY FOUND. BR. at

28, Buckley creates no “unambiguously-campaign-related” test.

Triggering at 49 n.84 (addressing Track 1), 69 n.181

(addressing Track 2).

F.3d 787, 791 (10th Cir. 2016) (addressing

overbreadth); 13 Ctr. for Individual Freedom, Inc. v.

Tennant, 706 F.3d 270, 282-85 (4th Cir. 2013)

(addressing underinclusiveness); Triggering at 50

n.87 (collecting competing authorities), the tests for

the constitutionality of law triggering Track 1

burdens, supra at 6, go to tailoring, not the

government interest, e.g., Wis. Right to Life, Inc. v.

Barland, 751 F.3d 804, 841-12 (7th Cir. 2014);

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

v. Unsworth, 556 F.3d 1021, 1032-34 (9th Cir. 2009);

Buckley v. Valeo, 519 F.2d 821, 869 (D.C. Cir. 1975)

(en banc), aff’d in part and rev’d on other grounds,

424 U.S. 1 (1976) (per curiam); Triggering at 49-50 &

nn.87-89, 64 & nn.155-56 (collecting competing

authorities). A court does “not [look to a government

interest and] truncate this tailoring test at the

outset.” McCutcheon v. FEC, 572 U.S. 185, 206

(2014) (opinion of Roberts, C.J.) (addressing another

tailoring test). “Thus, pounding the table about the

government interest in regulating political speech is

no answer to the tailoring part of constitutional

scrutiny.” Triggering at 50 & n.89, 64.

In other words, the government interest—e.g., in

particular information, Buckley, 424 U.S. at 66-67

(addressing Interest 1); Triggering at 50 n.88—is not

“Overbreadth” applies to both as-applied and facial

claims. E.g., Alaska Right to Life Comm. v. Miles,

441 F.3d 773, 785 (9th Cir. 2006).

Triggering at 41-42 n.53.

the point here. Tailoring is. While Citizens United

considers “the informational interest alone,” 558

U.S. at 369, this—rather than demoting tailoring—

considers only Interest 1, not 2 or 3, from Buckley,

424 U.S. at 66-68. 14

As for, e.g., “promoting transparency and

accountability,” Ams. for Prosperity Found., 919 F.3d

at 1180 (Ikuta, J., dissenting) (quoting Doe v. Reed,

561 U.S. 186, 197-98 (2010)), 15 it goes to the

government interest, not tailoring. Id.; see Buckley,

424 U.S. at 66-67 (addressing Interest 1).

“First Amendment rights are all too often

sacrificed for the sake of transparency in

federal and state elections.” Del. Strong

Families v. Denn, 136 S.Ct. 2376, 2376

Besides, Interest 2—government’s interest in

preventing quid-pro-quo corruption or the appearance of quidpro-quo corruption, compare Buckley, 424 U.S. at 67

(addressing Interest 2), with McCutcheon, 572 U.S. at 192, 20708 (opinion of Roberts, C.J.) (defining these terms)—cannot

apply to independent spending for political speech, e.g., Citizens

United, 558 U.S. at 357-61, or contributions not directed to

candidates/officeholders, McCutcheon, 572 U.S. at 211 (opinion

of Roberts, C.J.) (quoting McConnell, 540 U.S. at 310 (Kennedy,

J., concurring/dissenting)).

Interest 3 applies only to facilitating enforcement of

constitutional “restrictions,” McConnell, 540 U.S. at 196

(discussing Buckley), i.e., constitutional bans or other

constitutional limits on contributions received, Buckley, 424

U.S. at 67-68 (addressing Interest 3).

15 Reed addresses ballot-access law, not political-speech

law. Infra at 17.

(2016) (Thomas, J., dissenting) (denial of

certiorari). Government’s “interest in

transparency does not always trump First

Amendment rights.” Id.

Triggering at 52 n.102, 64 n.154. Yet these can

happen when parties or courts understate tailoring.

E.g., supra at 4, 10, 11, 13.

Citizens

United

pages

366-71

address/support only Track 2 law, not

Track 1 law.

Petitioner

Americans

for

Prosperity

Foundation, Petitioner Thomas More Law Center,

and the Ninth Circuit rehearing-en-banc-denial

dissent cite Citizens United pages 366-71, 558 U.S.

at 366-71, as supporting political-speech-disclosure

law. AMS. FOR PROSPERITY FOUND. CERT. PET. at 22;

THOMAS MORE LAW CTR. CERT. PET. at 25; THOMAS

MORE LAW CTR. BR. at 31, 39; Ams. for Prosperity

Found., 919 F.3d at 1180 (Ikuta, J., dissenting).

This is partly incorrect. Notwithstanding

erroneous

appellate-court

discussions

disclosure/transparency/information under Citizens

United pages 366-71, e.g., Triggering at 51-52 &

nn.97-102 (collecting competing authorities), Citizens

United pages 366-71 address/support only Track 2

law, not Track 1 law. 16

VI. Strict scrutiny, not substantial-relation

exacting scrutiny, applies to some

political-speech-disclosure law.

Petitioner

Americans

for

Prosperity

Foundation, Petitioner Thomas More Law Center,

and the Ninth Circuit rehearing-en-banc-denial

E.g., Citizens United, 558 U.S. at 369 (recalling that

such Track 2 “disclosure is a less restrictive

alternative to more comprehensive [Track 1]

regulations of speech” (citing Mass. Citizens, 479

U.S. at 262 (holding that the “state interest in

disclosure can be met in a manner less restrictive

than imposing the full panoply of [Track 1]

regulations that accompany status as a political

committee” and that if an organization’s

“independent spending bec[a]me so extensive that

the organization[] [had the Buckley] major purpose,

the [organization] would be classified as a political

committee” (citing Buckley, 424 U.S. at 79)))); Indep.

Inst., 812 F.3d at 795 & n.9; Barland, 751 F.3d at

824, 836-37, 839, 841, followed in Del. Strong

Families v. Att’y Gen. of Del., 793 F.3d 304, 312-13

n.10 (3d Cir. 2015); Minn. Citizens Concerned for

Life, Inc. v. Swanson, 692 F.3d 864, 875 n.9 (8th Cir.

2012) (en banc).

Triggering at 52 n.103 (brackets in original) (ellipses omitted).

Citizens United’s “less restrictive alternative” statement, rather

than shunning any “tailoring requirement,” Ams. for Prosperity

Found., 919 F.3d at 1180 (Ikuta, J., dissenting), distinguishes

Track 1 and 2 “regulations,” i.e., disclosure, supra at 15 n.16.

dissent assert substantial-relation exacting scrutiny

applies to political-speech-disclosure law. AMS. FOR

PROSPERITY FOUND. CERT. PET. at 15, 22-23; AMS.

FOR PROSPERITY FOUND. BR. at 28-29; THOMAS MORE

LAW CTR. CERT. PET. at i, 4, 14-16, 21, 23-25, 32-33,

36; THOMAS MORE LAW CTR. BR. at i, 18, 29-32; Ams.

for Prosperity Found., 919 F.3d at 1180 (Ikuta, J.,

dissenting).

This is partly incorrect. They lump into one

“disclosure” discussion, claims by organizations that

(a) challenge law triggering Track 1 burdens for an

organization itself in the first place, e.g., supra at 6,

(b) accept being political committees and then

challenge particular Track 1 burdens one-by-one,

e.g., Davis v. FEC, 554 U.S. 724, 744 (2008); cf.

Triggering at 43 & nn.56-59 (distinguishing “being”

from “forming/having”), and (c) challenge Track 2

law, e.g., supra at 7-8. Triggering at 45 n.71, 77-78 &

nn.236-38, 79 n.247.

Although substantial-relation exacting scrutiny

applies to (b), Davis, 554 U.S. at 744 (quoting

Buckley, 424 U.S. at 64), and (c), Citizens United,

558 U.S. at 366-67 (quoting Buckley, 424 U.S. at 64,

66), strict scrutiny applies to (a), e.g., Colo. Right to

Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1146

(10th Cir. 2007); Triggering at 77-80 & nn.236-56

(collecting

competing

authorities).

Even

substantial-relation exacting scrutiny applied to (a),

the tailoring analysis, supra at 6, 12, and the result

would be the same. Minn. Citizens Concerned for

Life, Inc. v. Swanson, 692 F.3d 864, 872, 875 (8th

Cir. 2012) (en banc).

Citing Buckley and Reed for a political-speechdisclosure-law scrutiny level, AMS. FOR PROSPERITY

FOUND. CERT. PET. at 15, 22-23; AMS. FOR

PROSPERITY FOUND. BR. at 28-29; THOMAS MORE LAW

CTR. CERT. PET. at 4, 14-16, 23-25; THOMAS MORE

LAW CTR. BR. at 18, 29-32; Ams. for Prosperity

Found., 919 F.3d at 1180, 1184 (Ikuta, J.,

dissenting), overlooks that

since Buckley, the ... Court has separated

strict scrutiny from exacting scrutiny. See

Iowa Right to Life Comm., Inc. v. Tooker,

717 F.3d 576, 590-91 (8th Cir. 2013)

(understanding this point). Meanwhile,

Reed[, 561 U.S. at 196,] addresses ballotaccess law, not political-speech law, much

less political-speech law triggering Track 1,

political-committee(-like) burdens.

Triggering at 79 n.247.

––––––––♦––––––––

CONCLUSION

In seeking to distinguish political-speechdisclosure law, Petitioners and the Ninth Circuit

rehearing-en-banc-denial dissent understate how the

First Amendment protects political speech and do so

in ways that can undermine First Amendment rights

to political speech.

Amicus neither asserts nor implies this is

anyone’s intent, yet this can be an effect of their

assertions.

Petitioners are due to prevail. However, no one

should undermine how the First Amendment

protects political speech.

Respectfully submitted,

RANDY ELF

Counsel of Record

Post Office Box 525

Lakewood, N. Y. 14750

Telephone (202) 423-2122

ForEFilingOnly@gmail.com

February 26, 2021

Counsel for Amicus

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.