Amicus Curiae Brief — National Association for Gun Rights, Inc., Petitioner v. Jeff Mangan, in His Official Capacity as the Commissioner of Political Practices for the State of Montana, et al.

Supreme Court briefDec 31, 2019

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No. 19-767

In The

Supreme Court of the United States

––––––––♦––––––––

NATIONAL ASSOCIATION FOR GUN RIGHTS, INC.,

Petitioner,

JEFF MANGAN, in His Official Capacity as the

Commissioner of Political Practices for the

State of Montana, et al.,

Respondents.1

––––––––♦––––––––

On Petition For A

Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

––––––––♦––––––––

AMICUS CURIAE BRIEF OF RANDY ELF

IN SUPPORT OF PETITIONER NATIONAL

ASSOCIATION FOR GUN RIGHTS, INC.

––––––––♦––––––––

RANDY ELF

Counsel of Record

Post Office Box 525

Lakewood, N. Y. 14750

Telephone (202) 423-2122

ForEFilingOnly@gmail.com

December 31, 2019

Counsel for Amicus

QUESTIONS PRESENTED

● Not all political-speech-“disclosure” laws are

alike: Some require Track 2, non-political-committee

disclosure; others trigger Track 1, politicalcommittee or political-committee-like burdens. Do

the tracks have different First Amendment

analyses?

● Does this action involve only Track 1 law, not

Track 2 law?

● Under the First Amendment, may

government trigger Track 1 burdens only for

“organizations” that are “under the control of a

candidate” or candidates in their capacities as

candidates, or for “organizations” having “the major

purpose” under the case law and engaging in more

than small-scale speech? Do these go to the tailoring,

rather than the government-interest, part of

constitutional scrutiny? How do these apply here?

● Does the appeal-to-vote test—once known as

the “functional equivalent of express advocacy”—no

longer affect whether government may ban,

otherwise limit, or regulate political speech? Does

the test no longer have any place in law?

● Does strict scrutiny, rather than substantialrelation exacting scrutiny, apply to law triggering

Track 1 burdens?

● Is the proper challenge to such law to the

political-committee(-like) definitions, rather than to

the political-committee(-like) burdens themselves?

TABLE OF CONTENTS 1

QUESTIONS PRESENTED ....................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ...................................... v

1 This copyrighted brief is based on copyrighted drafts of

briefs at https://ssrn.com/abstract=2926067 (U.S.) (Track 2),

and https://ssrn.com/abstract=3329448 (U.S.) (Track 1), and

the copyrighted filed briefs at

https://ssrn.com/abstract=3135458 (9th Cir.) (Track 1) and

https://ssrn.com/abstract=3490175 (D.C. Cir.) (Track 1). This

copyrighted brief as filed is at

https://ssrn.com/abstract=3490176 (all Internet sites, except

the one for this copyrighted brief as filed and those in the next

paragraph, visited Nov. 25, 2019).

The caption on the cover is the Court’s caption as of

Amicus’s submitting this brief to the printer. See Mem. to those

Intending to File an Amicus Curiae Br. in the Sup. Ct. of the

U.S. at 3 (Oct. 2019) (“The caption ... should be identical to the

caption ... on the Court’s docket, unless the Clerk’s Office has

provided other instructions.”), available at

https://www.supremecourt.gov/casehand/AmicusGuide2019.pdf.

However, the caption has multiple respondents while the

certiorari petition has only one. Compare Nat’l Ass’n for Gun

Rights, Inc., Pet’r, v. Jeff Mangan, in His Official Capacity as

the Comm’r of Political Practices for the State of Mont., et al.

(docket) (indicating multiple respondents), available at

https://www.supremecourt.gov/Search.aspx?FileName=/docket/

docketfiles/html/public\19-767.html, with (CERT. PET. at cover,

ii (indicating one respondent)).

iii

GLOSSARY ................................................................ x

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

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

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

The Court has applied constitutional

scrutiny and established the two-track

system under which government may

regulate—i.e., require disclosure of—

political speech..................................................... 3

II. The Court distinguishes Track 1 and

Track 2 law. This action involves only

Track 1 law, so only Track 1 analysis—not

Track 2 analysis—applies. .................................. 7

III. The Ninth Circuit should have conformed

its law to Supreme Court case law.................... 11

IV. Government may trigger Track 1,

political-committee or political-committeelike burdens only for organizations that

are under the control of candidates in

their capacities as candidates, or for

organizations having “the major purpose”

under Buckley and engaging in more than

small-scale speech.............................................. 17

V. An organization has the Buckley major

purpose if it says so in its organizational

documents or public statements, or

devotes the majority of its spending to

contributions

to,

independent

expenditures properly understood for,

candidates or ballot measures, or perhaps

if the organization makes a massive

amount—objectively

and

precisely

defined—of contributions or independent

expenditures properly understood. ................... 19

VI. Four Additional Points. ..................................... 27

CONCLUSION ......................................................... 30

TABLE OF AUTHORITIES 2

CASES

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

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

Am. Tradition P’ship v. Bullock, 567 U.S. 516 (2012)

(per curiam) .......................................................... 16

Ariz. Free Enter. Club’s Freedom Club PAC v.

Bennett, 564 U.S. 721 (2011) ................................ 27

Buckley v. Am. Constitutional Law Found., Inc., 525

U.S. 182 (1999) ..................................................... 26

*Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)2, 3,

4, 5, 6, 7, 8, 9, 10, 13, 16, 17, 18, 23, 28

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

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

*Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d

1088 (9th Cir. 2003) .............................................. 18

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

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

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.

Citizens United v. FEC, 558 U.S. 310 (2010)5, 6, 7, 8,

10, 13, 14, 15, 23, 24

Coal. for Secular Gov’t v. Williams, 815 F.3d 1267

(10th Cir. 2016) ............................................... 10, 18

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

1137 (10th Cir. 2007) ............................................ 20

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

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

Davis v. FEC, 554 U.S. 724 (2008) .......................... 26

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

304 (3d Cir. 2015) ............................................. 8, 16

Doe v. Reed, 561 U.S. 186 (2010) ............................. 26

*FEC v. GOPAC, Inc., 917 F.Supp. 851 (D.D.C. 1996)

............................................................................... 19

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

(1986) ....................... 5, 7, 8, 9, 10, 15, 17, 18, 19, 20

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

Gable v. Patton, 142 F.3d 940 (6th Cir. 1998)........... 4

Human Life of Wash., Inc. v. Brumsickle, 624 F.3d

990 (9th Cir. 2010) .....................8, 11, 14, 15, 17, 18

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

2016) .......................................................4, 11, 12, 16

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

576 (8th Cir. 2013) .................................8, 20, 21, 26

Justice v. Hosemann, 771 F.3d 285 (5th Cir. 2014) . 8,

Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374

(1995) .................................................................... 14

vii

McConnell v. FEC, 540 U.S. 93 (2003) ............ 5, 6, 13

McCutcheon v. FEC, 134 S.Ct. 1434 (2014) ............ 13

McDonald v. City of Chicago, 561 U.S. 742 (2010) . 16

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

(1995) ...................................................................... 6

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

692 F.3d 864 (8th Cir. 2012) (en banc)15, 16, 21,

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th

Cir. 2008) .................................................. 19, 20, 21

*N.M. Youth Organized v. Herrera, 611 F.3d 669

(10th Cir. 2010) ......................................8, 20, 21, 22

NAACP v. Button, 371 U.S. 415 (1963) ..................... 4

Republican Party of N.M. v. King, 741 F.3d 1089

(10th Cir. 2013) ..................................................... 27

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

2010) ...................................................2, 5, 10, 12, 18

Schuette v. Coal. to Defend Affirmative Action, 134

S.Ct. 1623 (2014) .................................................. 28

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ..... 27

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010)

(en banc) ............................................................ 9, 22

Wallace v. Jaffree, 472 U.S. 38 (1985) ..................... 16

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

(7th Cir. 2014) .................. 4, 9, 10, 12, 15, 16, 17, 25

Worley v. Fla. Sec’y of State, 717 F.3d 1238 (11th Cir.

2013) ...................................................................... 18

viii

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

2010) ........................................................................ 3

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

11, 15, 17, 27

STATUTES

52 U.S.C. 30104, formerly 2 U.S.C. 434 .................... 9

RULES

10TH CIR.R. 28.2 ......................................................... x

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

D.C.CIR.R. 28 ...........................................................v, x

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, 10, 11,

12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,

26, 27, 28, 30

FILINGS

O’Keefe v. Chisholm, 769 F.3d 936, Nos. 14-1822, 141888, 14-1899, 14-2006, 14-2012, 14-2023, AMICI

BR. OF CAMPAIGN LEGAL CTR. & DEMOCRACY 21,

2014 WL 4402300 (7th Cir. Aug. 8, 2014) ............ 25

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (10th ed. 2014) ............... 19

JOHN GRISHAM, THE APPEAL (2008) ......................... 21

Mem. to those Intending to File an Amicus Curiae

Br. in the Sup. Ct. of the U.S. (Oct. 2019) ............. ii

Nat’l Ass’n for Gun Rights, Inc., Pet’r, v. Jeff

Mangan, in His Official Capacity as the Comm’r of

Political Practices for the State of Mont., et al.

(docket) .................................................................... ii

Randy Elf, Track 2 Law (May 25, 2017) ..... 21, 24, 25

GLOSSARY 3

Montana

Defendant-Respondent Jeff

Mangan, Defendant Tim Fox, and

Defendant Leo Gallagher

NAGR

Plaintiff-Petitioner National

Association for Gun Rights, Inc.

OP.

9TH CIR. DOC. 51-1 (Ninth Circuit

opinion)

ORDER

D.CT. DOC. 44 (summaryjudgment order)

Triggering

Randy Elf, The Constitutionality

of State Law Triggering Burdens

on Political Speech and the

Current Circuit Splits, 29 REGENT

U.L. REV. 35 (2016)

3 D.C.CIR.R. 28(a)(3); 10TH CIR.R. 28.2(C)(6), available at

https://www.ca10.uscourts.gov/clerk/rules.

INTEREST OF AMICUS CURIAE 4

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 is at issue

here. 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”),

available

http://www.regent.edu/acad/schlaw/student_life/stud

entorgs/lawreview/docs/issues/v29n1/10_Elf_vol_29_

1.pdf.

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

to brief style, and many are condensed. Emphases

are as they are in Triggering.

4 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.

For all readers’ convenience, a Triggering draft,

with string cites not published in the law review,

remains at https://ssrn.com/abstract=2713496.

––––––––♦––––––––

SUMMARY OF ARGUMENT

The Court has applied constitutional scrutiny

and established the two-track system under which

government may regulate—i.e., require disclosure

of—political speech. E.g., Buckley v. Valeo, 424 U.S.

1, 63-64, 79-82 (1976) (per curiam); Triggering at 3537 & nn.1-12.

This action does not address Track 2, nonpolitical-committee

disclosure

requirements.

Instead, this action addresses law triggering Track

1, political-committee(-like) burdens.

The Ninth Circuit has a different two-track

system for state law. Triggering at 54 & n.109.

However, the Ninth Circuit should have

conformed its law to Supreme Court case law, under

which government may trigger Track 1 burdens only

for “organizations” that are “under the control of”

candidates in their capacities as candidates, or for

“organizations” having “the major purpose” under

Buckley, 424 U.S. at 79; Triggering at 48 & n.84, and

engaging in more than small-scale speech, Sampson

v. Buescher, 625 F.3d 1247, 1249, 1251, 1261 (10th

Cir. 2010); Triggering at 62-64 & nn.153-54.

Moreover, “the appeal-to-vote test—once known

as the ‘functional equivalent of express advocacy’—

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.”

Triggering at 77.

––––––––♦––––––––

ARGUMENT

The Court has applied constitutional

scrutiny and established the two-track

system under which government may

regulate—i.e., require disclosure of—

political speech.

Beginning with First Principles, id. 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. 5

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,

Under “Track 1,” government may under

some circumstances—and subject to further

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

“threats, harassment, or reprisals”) 6—

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

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.

And either way, the Court should please dispense with

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

Citizens United, 558 U.S. at 319, 321-22, 366-67, 371. 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.

6 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.

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, 625 F.3d at 1249,

1251, 1261 (addressing organizations with

the Buckley major purpose but only smallscale speech). ...

Under “Track 2,” 7 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; 8 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.

Under the Constitution, “independent expenditure”

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

Comm’n, 514 U.S. 334, 354-56 (1995)

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

other 9 speech), and

•

Federal

Election

Campaign

Act

electioneering communications, Citizens

United, 558 U.S. at 366-71. 10

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.

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

concurring).

Federal Election Campaign Act electioneering

communications (1) are broadcast, (2) run in the 30

days before a primary or 60 days before a general

election, (3) have a clearly identified candidate in the

jurisdiction, (4) are targeted to the relevant

electorate, and (5) do not expressly advocate.

McConnell, 540 U.S. at 189-94. To be a Federal

Election

Campaign

Act

electioneering

communication, speech about presidential or vicepresidential candidates need not be targeted to the

relevant electorate, id. at 189-90, yet it must meet

the other criteria, id. at 189-94.

Triggering at 36 n.10.

Triggering at 35-36 & nn.1-4, 6-10; (accord 9TH CIR.

DOC.

ADDENDUM.1,

available

https://ssrn.com/abstract=3135458).

II.

The Court distinguishes Track 1 and

Track 2 law. This action involves only

Track 1 law, so only Track 1 analysis—not

Track 2 analysis—applies.

Defendant-Respondent Jeff Mangan, Defendant

Tim Fox, and Defendant Leo Gallagher (“Montana”)

not

assert

Plaintiff-Petitioner

National

Association for Gun Rights, Inc. (“NAGR”) must form

or have a separate political committee and let only

the separate political committee speak. Rather,

Montana asserts NAGR itself must be a political

committee or a political-committee-like organization

and bear Track 1 burdens. (9TH CIR. DOC. 51-1 at 812, CERT. PET. at APP.9-13, 931 F.3d 1102 (9th Cir.

2019) (Ninth Circuit opinion) (“OP.”); D.CT. DOC. 44

at 11-16, CERT. PET. at APP.52-56, 279 F.Supp.3d

1100 (D. Mont. 2017) (summary-judgment order)

(“ORDER”)); cf. Triggering at 43 & nn.56-59

(describing the difference).

The Court evaluates Track 1 and Track 2 law

differently, Mass. Citizens, 479 U.S. at 262; Buckley,

424 U.S. at 79, because they are different. Track 1

law can trigger political-committee(-like) burdens,

Citizens United, 558 U.S. at 338; Buckley, 424 U.S.

at 63; Triggering at 43-44 & nn.60-62, including

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. These are

“onerous” burdens, Citizens United, 558 U.S. at 339;

FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 477 n.9

(2007) (opinion of Roberts, C.J.) (citing Mass.

Citizens, 479 U.S. at 253-55 (opinion of Brennan,

J.)), particularly—yet not only—when law chills

speech, i.e., when speech is “simply not worth it,”

Mass. Citizens, 479 U.S. at 255 (opinion of Brennan,

J.). Triggering at 44-45 & nn.66-70, 52 n.102, 57-58

& nn.129-37. 11 By contrast, Track 2, non-politicalcommittee reporting—which Buckley and Citizens

United uphold for particular speech, supra at 5-6—

includes none of these Track 1 burdens. Instead,

Track 2 reporting occurs only for reporting

periods when the particular speech occurs, 12

Law need not trigger all of these burdens to require

Track 1 analysis. See Justice v. Hosemann, 771 F.3d 285, 28889 (5th Cir. 2014) (addressing law with extensive and ongoing

reporting yet not recordkeeping as Track 1 law); Iowa Right to

Life Comm., Inc. v. Tooker, 717 F.3d 576, 589 (8th Cir. 2013)

(same); N.M. Youth Organized v. Herrera, 611 F.3d 669, 672-73

(10th Cir. 2010) (same); Human Life of Wash., Inc. v.

Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010) (addressing law

with extensive but not ongoing reporting as Track 1 law);

Triggering at 45-46 & nn.71-72; id. at 56 & nn.117-24

(explaining that registration is a Track 1 burden). But cf. Del.

Strong Families v. Att’y Gen. of Del., 793 F.3d 304, 312-13 n.10

(3d Cir. 2015) (addressing law with extensive but not ongoing

reporting as Track 2 law when the parties did so).

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-political-committee reporting); 52

U.S.C. 30104(c), (f)-(g) (same).

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

Thus, it contradicts Buckley, Massachusetts

Citizens, Wisconsin Right to Life, and Citizens

United to downplay Track 1 burdens, as Yamada v.

Snipes, 786 F.3d 1182, 1195-96 (9th Cir. 2015), and

other opinions following SpeechNow.org v. FEC, 599

F.3d 686, 690-92, 697-98 (D.C. Cir. 2010) (en banc),

do. Triggering at 58 n.131 (collecting authorities). It

also contradicts Wisconsin Right to Life and Citizens

United to believe—as Yamada, 786 F.3d at 1196,

1199 nn.8-9, does—that Track 1 burdens may not be

onerous. Triggering at 44 n.66, 84 & nn.269-71. And

notwithstanding Yamada, 786 F.3d at 1196 n.7, the

Track 1 burdens discussion on Citizens United pages

337-40, supra at 7-8, which strike down a speech

ban,

appl[ies] not only to speech bans and other

limits but also to burdens that law triggers

This is what “one-time” and “event-driven” mean.

E.g., Barland, 751 F.3d at 824, 836, 841. It is time to

abandon these confusing labels and simply say what

one means.

Triggering at 57 n.127 (explaining why).

for an organization itself when it must be a

political committee/political-committee-like

organization to speak, or when a

fund/account that is part of the organization

must

political-committee-like

fund/account. Wis. Right to Life, Inc. v.

Barland, 751 F.3d 804, 840 (7th Cir. 2014);

Sampson, 625 F.3d at 1255.

Triggering at 53 n.103 (collecting competing

authorities). Why? Because when law bans or

otherwise limits an organization’s speech, and the

organization forms or has a separate political

committee that speaks, Track 1 law can trigger

Track 1 burdens for the separate political committee.

Citizens United, 558 U.S. at 337-40; Mass. Citizens,

479 U.S. at 253-56 & nn.7-9 (opinion of Brennan, J.).

These are the same “full panoply of” Track 1 burdens

that Track 1 law can trigger for an organization

itself when it speaks. Mass. Citizens, 479 U.S. at

262; Buckley, 424 U.S. at 63; supra at 7-8.

Yet this action turns on none of these parts of

Yamada. Even if any of them were correct—and

none is—this action involves only Track 1 law. (OP.

at 8-12, CERT. PET. at APP.9-13; ORDER at 11-16,

CERT. PET. at APP.52-56.) So only Track 1 analysis—

not Track 2 analysis—applies. 13

See Barland, 751 F.3d at 841-42 (declining to apply

Track 2 analysis to Track 1 law); accord Coal. for

Secular Gov’t v. Williams, 815 F.3d 1267, 1280 n.6

Which brings us to Ninth Circuit Track 1

analysis. Infra at 11-12.

III. The Ninth Circuit should have conformed

its law to Supreme Court case law.

The Ninth Circuit has a different two-track

system for state law. Under Track 1, the Ninth

Circuit—while retaining a Sampson-like-small-scalespeech test, Triggering at 64 n.156—waters down

the Buckley major-purpose test, id. at 54 & n.109.

Under current Ninth Circuit law, a state may trigger

Track 1, political-committee(-like) burdens only for

organizations that:

•

either “make political advocacy a priority,”

as opposed to only “incidentally engag[ing]

in such advocacy,” (OP. at 21, 24, CERT. PET.

at APP.23, 27); Human Life of Wash., Inc. v.

Brumsickle, 624 F.3d 990, 1011 (9th Cir.

2010), followed in Yamada, 786 F.3d at

1198-1200, or are “a significant participant

in [the] electoral process,” Yamada, 786 F.3d

at 1200 (reaching organizations that “may

not make political advocacy a priority”), and

(10th Cir. 2016) (considering Track 1 law and

distinguishing Independence Institute v. Williams,

812 F.3d 787 (10th Cir. 2016), as considering “a

different disclosure framework,” i.e., Track 2 law).

Triggering at 37 n.16.

•

engage in more than small-scale speech,

Canyon Ferry Rd. Baptist Church of E.

Helena, Inc. v. Unsworth, 556 F.3d 1021,

1033-34 (9th Cir. 2009). 14

See generally Triggering at 81-83 n.268 (discussing

disclosure thresholds).

Just as what government may regulate with

Track 2 law, supra at 5-6, goes to the tailoring part

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

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

overbreadth); 15 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 4-5, 11-12, go to tailoring, not the

government interest, e.g., Barland, 751 F.3d at 84142; Canyon Ferry, 556 F.3d at 1032-34; 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

14 This holding was unnecessary in Canyon Ferry; then-

Ninth Circuit law was overlooked. Triggering at 64 n.156.

“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.

court does “not [look to a government interest and]

truncate this tailoring test at the outset.”

McCutcheon v. FEC, 134 S.Ct. 1434, 1450 (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

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. 16

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, 134 S.Ct. at 1441,

1450-51 (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, 134 S.Ct. at

1452 (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).

NAGR

claims

Montana’s

electioneeringcommunication definition is unconstitutional. (OP. at

12, CERT. PET. at APP.13.) NAGR asserts this law

unconstitutionally triggers Track 1 burdens. (D.CT.

DOC. 28 at 13-16.)

And NAGR may claim Montana’s politicalcommittee(-like) burdens are unconstitutional,

because the Ninth Circuit (OP. at 19-31, CERT. PET.

at APP.21-34) “addressed”/“passed upon” this.

Citizens United, 558 U.S. at 323, 330 (quoting

Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374,

379 (1995)).

The same arguments apply to the electioneeringcommunication-definition and political-committee(like)-burdens claims: Ninth Circuit law errs. E.g.,

Triggering at 44 n.66, 49-50 nn.86-87, 50 n.90, 51-52

& n.98, 52 & nn.100-01, 52-53 & n.103, 53 & n.105,

54 & nn.108-09, 55 & n.115, 56 n.120, 58 n.131, 60

n.148, 66 n.161, 71 n.189, 72 n.190, 73 nn.193-94, 75

& nn.210-16, 75-76 nn.218-20, 78 n.243, 79 nn.24647, 79-80 n.250, 80 n.255, 80-81 n.257, 82 n.268, 84

& n.269, 84 n.271. Among the errors are these four.

First, notwithstanding Human Life, 624 F.3d at

1009-10,

[e]ven if the Buckley major-purpose test

were a narrowing gloss for federal law ... the

Nothing in the record—including NAGR’s speech, which

includes only independent spending (e.g., CERT. PET. at 4)—

implicates Interest 2 or 3.

purpose of the test would be to avoid asapplied and facial overbreadth, infra at 17

& n.18, so the test would still apply as a

constitutional principle, not as a narrowing

gloss, to state law. E.g., Barland, 751 F.3d

at 811, 842; Minn. Citizens Concerned for

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

Cir. 2012) (en banc) (collecting authorities).

Triggering at 51 & nn.93-96.

Second, notwithstanding (OP. at 15-17, CERT.

PET. at APP.16-19), Human Life, 624 F.3d at 994,

1005-13 (discussing disclosure/transparency under

Citizens United pages 366-71), and Yamada, 786

F.3d

1197-98,

1200-01

(discussing

disclosure/transparency/information under Citizens

United pages 366-71); Triggering at 51-52 & nn.97102 (collecting competing authorities), Citizens

United pages 366-71 do not apply here, because they

address/support only Track 2 law, not Track 1 law. 17

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

Third, watering down the Buckley majorpurpose test for state law, supra at 11-12, cannot be

right. It gives state governments

more power than the federal government to

trigger Track 1 burdens. But political

speech needs protection from both federal

and state governments, see Am. Tradition

P’ship v. Bullock, 567 U.S. 516, 516-17

(2012) (per curiam) (addressing state law),

and McDonald v. City of Chicago rejects

“watered-down”

standards

for

state

governments under the Bill of Rights. 561

U.S. 742, 765, 785-86 (2010) (opinion of

Alito, J.). “States have no greater power”

than the federal government to “restrain

First Amendment freedoms.” Wallace v.

Jaffree, 472 U.S. 38, 48-49 (1985).

Triggering at 54-55 & nn.112-14 (brackets and

ellipsis omitted).

Fourth, even if watering down the First

Amendment were proper, Human Life’s

“a

priority”-“incidentally”

test

unconstitutionally vague for two reasons: It

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, 793 F.3d at 312-13 n.10; Minn. Citizens,

692 F.3d at 875 n.9.

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

is based on “political advocacy,” 624 F.3d at

1011, so it is vague under Buckley, 424 U.S.

at 42-43, and the boundary between “a

priority” and “incidentally” is unclear. ...

Yamada’s “a significant participant in [the]

electoral process” test ... is also vague. 786

F.3d at 1200.

Triggering at 54 n.109 (brackets in original).

Therefore, the Ninth Circuit should have

conformed its law to Supreme Court case law, under

which NAGR prevails. Infra at 17-22.

IV. Government may trigger Track 1, politicalcommittee

political-committee-like

burdens only for organizations that are

under the control of candidates in their

capacities

candidates,

for

organizations having “the major purpose”

under Buckley and engaging in more than

small-scale speech.

Case law guarding against overbreadth,

Barland, 751 F.3d at 839; Triggering at 48 & n.81;

see Mass. Citizens, 479 U.S. at 252 n.6, 262, 18

18 Not vagueness. Buckley, 424 U.S. at 63, 79 & n.105,

does not hold that the challenged political-committee

definition itself is vague. Instead, it holds that the

included terms “contributions” and “expenditures”

are vague and limits these two federal-law terms

accordingly.

Triggering at 48 n.81.

permits government to trigger Track 1, politicalcommittee(-like) burdens only for “organizations”

that are “under the control of a candidate” or

candidates in their capacities as candidates, or for

“organizations” having “the major purpose” of

“nominat[ing] or elect[ing]” a candidate or

candidates or passing or defeating a ballot measure

or ballot measures, Buckley, 424 U.S. at 79; Cal. ProLife Council, Inc. v. Getman, 328 F.3d 1088, 1101

n.16 (9th Cir. 2003) (applying the test pre-Human

Life, 624 F.3d at 1005-13, to an organization

engaging in ballot-measure speech (quoting Mass.

Citizens, 479 U.S. at 252-53)); Triggering at 48 &

nn.83-84, and engaging in more than small-scale

speech, Sampson, 625 F.3d at 1249, 1251, 1261;

Triggering at 62-64 & nn.153-54. 19

19 See also Coal. for Secular Gov’t, 815 F.3d at 1269,

1276-81 (addressing an organization engaging in

small-scale speech but mistakenly not indicating

whether the organization has the Buckley major

purpose); Justice, 771 F.3d at 295 (addressing

organizations that have the Buckley major purpose

and understandably do not press the point); Worley v.

Fla. Sec’y of State, 717 F.3d 1238, 1249 (11th Cir.

2013) (same).

Triggering at 62 n.154 (collecting competing authorities on

small-scale speech).

This assumes government may trigger Track 1 burdens

based on ballot-measure speech. E.g., Cal. Pro-Life Council, 328

F.3d at 1102-04. Triggering at 61 n.150 (collecting competing

authorities).

An organization has the Buckley major

purpose if it says so in its organizational

documents or public statements, or

devotes the majority of its spending to

contributions

to,

independent

expenditures properly understood for,

candidates or ballot measures, or perhaps

if the organization makes a massive

amount—objectively

and

precisely

defined—of contributions or independent

expenditures properly understood.

The Buckley major-purpose test

asks what the major purpose of the

organization is, not whether something is a

major purpose. E.g., N.C. Right to Life, Inc.

v. Leake, 525 F.3d 274, 287-89, 302-04 (4th

Cir. 2008). And major is the root of

majority, which means more than half.

Majority, BLACK’S LAW DICTIONARY (10th ed.

2014). Thus, an organization can have only

one major purpose. See Mass. Citizens, 479

U.S. at 252 n.6 (opinion of Brennan, J.)

(referring to “the major purpose” of an

organization and “its central organizational

purpose,” not purposes).

Triggering at 59 & nn.141-43 (brackets omitted).

The test asks whether an organization (1) says

in its organizational documents, Mass. Citizens, 479

U.S. at 252 n.6, 262, or “public statements,” FEC v.

GOPAC, Inc., 917 F.Supp. 851, 859 (D.D.C. 1996),

that it has the Buckley major purpose, Triggering at

59-60 & n.146, or (2)

devot[es] the majority of its spending to

contributions

to,

independent

expenditures properly understood for, 20

candidates, Iowa Right to Life Comm., Inc.

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

(quoting Colo. Right to Life Comm., Inc. v.

Coffman, 498 F.3d 1137, 1152 (10th Cir.

2007)); N.M. Youth Organized v. Herrera,

611 F.3d 669, 678 (10th Cir. 2010) (same);

see N.C. Right to Life, 525 F.3d at 289 & n.6

(equating primary with major, which is

incorrect, because what is primary can be

the plurality rather than the majority), 21 or

ballot measures,

20 Supra at 5-6 n.8.

Massachusetts Citizens states that “should an

organization’s independent spending become so

extensive that the organization’s major purpose may

be regarded as campaign activity, the organization

would be classified as a political committee.” 479

U.S. at 262. This statement—including the nebulous

“campaign activity” phrase—does not contemplate

looking beyond (1) the organization’s central

organizational purpose, or (2) whether the

organization devotes the majority of its spending to

contributions or independent expenditures properly

understood, to determine whether the organization

has the Buckley major purpose. Colo. Right to Life,

498 F.3d at 1152 (quoting Mass. Citizens, 479 U.S. at

252 n.6, 262), followed in Iowa Right to Life, 717

Triggering at 60-61 & nn.147-50, 22 or perhaps, with

sufficient notice not present here, whether the

organization (3) “mak[es] a massive amount—

objectively and precisely defined—of contributions or

independent expenditures properly understood,”

with courts not “setting the ‘massive’ threshold so

low that it in effect even begins to encroach on the

just results to which the Buckley major-purpose test

leads,” id. at 65-66 & nn.159-62 (explaining this

proposal); cf. JOHN GRISHAM, THE APPEAL 163-302

(2008) (giving a fictional example in Part II).

These go to tailoring, not the government

interest. Supra at 12-13.

Just as “political speech is at the ‘core’ of what

the First Amendment protects,” supra at 3, the only

political speech that counts toward permitting

government to trigger Track 1 burdens for an

organization is what is at the core of political speech:

Contributions to candidates or ballot measures, and

F.3d at 584, and N.M. Youth Organized, 611 F.3d at

678.

Triggering at 60 n.149 (brackets omitted).

22 Thus, Buckley protects not only non-candidatecontrolled/non-major-purpose organizations engaging in

independent spending for political speech—including issue

advocacy and Buckley express advocacy—but also those making

contributions. E.g., Iowa Right to Life, 717 F.3d at 581; Minn.

Citizens, 692 F.3d at 867; N.C. Right to Life, 525 F.3d at 27778; Triggering at 49 n.84. See generally Randy Elf, Track 2 Law

at 1-2 (May 25, 2017) (illustrating issue advocacy as a perfect

complement of Buckley express advocacy), available at

https://ssrn.com/abstract=2925328.

independent expenditures

supra at 19-21.

properly

understood,

Since neither contributions to candidates or

ballot measures, nor independent expenditures

properly understood, arise here (see D.CT. DOC. 28 at

4), this action—like New Mexico Youth Organized,

611 F.3d at 678—“present[s] the easiest case under

Method 2,” supra at 19-20, of determining the

Buckley major purpose. Triggering at 61 n.150.

Absent proof that NAGR otherwise falls under

Buckley, supra at 17-18, government may not trigger

Track 1 burdens for NAGR. Absent proof that NAGR

has the Buckley major purpose, Sampson is

unnecessary to consider. Supra at 18; Triggering at

49 n.86, 62-64 & nn.153-56. And SpeechNow, 599

F.3d at 696-98, is distinguishable, because

SpeechNow has the Buckley major purpose,

Triggering at 80 n.253 (citation omitted), and raises

no Sampson-like argument. 23

Notwithstanding (OP. at 19-31, CERT. PET. at

APP.21-34), the only contributions or independent

spending that count toward permitting government

to trigger Track 1 burdens for an organization are its

contributions to candidates or ballot measures, and

It incumbent on those who dislike the major-purpose

test to suggest an improvement, as [Amicus] does.

Supra at 21 (Method (3)). Suggesting that Citizens

United pages 366-71 allow all disclosure in the name

of transparency will not do. Supra at 15 & n.17.

Triggering at 63-64 n.154.

its independent expenditures properly understood.

Supra

19-21.

This

excludes

Montana

electioneering communications, because they are not

Buckley express advocacy. (E.g., ORDER at 4-5, 10-11,

CERT. PET. at APP.45-46, 51-52.) By including such

electioneering communications (OP. at 19-31, CERT.

PET. at APP.21-34), the Ninth Circuit perpetuates the

split with the Fourth, 24 Eighth, and Tenth 25 circuits.

Supra at 19-20.

Does this mean government may never regulate,

with Track 1 law, contributions other than

contributions to candidates or ballot measures, or

independent spending other than independent

expenditures properly understood? No. Instead, it

means such contributions and spending do not count

toward permitting government to trigger Track 1

burdens in the first place. Supra at 19-21. However,

[o]nce it is constitutional to trigger Track 1

burdens for an organization, government

may—subject to further inquiry, supra at

4—require disclosure of all income and

spending by the organization, see Citizens

United, 558 U.S. at 338 (describing Track 1

burdens); Buckley, 424 U.S. at 63 (same),

24 As Triggering at 59 n.144, 73 & n.196, details, North

Carolina Right to Life is the controlling Fourth Circuit opinion.

25 As Triggering at 49 n.86 details, Colorado Right to Life

and New Mexico Youth Organized are the controlling Tenth

Circuit opinions.

Triggering at 61 n.149, including contributions and

independent spending. Whether government may

trigger such burdens for an organization in the first

place is a separate question. Supra at 4-5.

Along that line: Analyzing which types of

independent spending the Court has permitted

regulating (OP. at 16-17, CERT. PET. at APP.17-19

(discussing Buckley express advocacy plus the

appeal-to-vote test)) is incorrect here, because it

overlooks this distinction. More fundamentally, such

analysis is Track 2 analysis, not Track 1 analysis.

Compare supra at 5-6 with Citizens United, 558 U.S.

at 368-69 (discussing Buckley express advocacy plus

the appeal-to-vote test under Track 2, not Track 1)

(discussed in Triggering at 37 n.12), and Randy Elf,

Track 2 Law at 1-2 (May 25, 2017), available at

https://ssrn.com/abstract=2925328. “Applying Track

2 analysis to Track 1 law makes it less difficult for

government to trigger Track 1 burdens; it lowers the

hurdle that government must clear to trigger Track

1 burdens.” Triggering at 46 n.72.

Besides, as Amicus has explained, the appealto-vote test—once known as the “functional

equivalent of express advocacy”—never was a form

of express advocacy (9TH CIR. DOC. 15 at 26-28),

never was part of the major-purpose test (id. at 29),

and no longer has any place in law (id. at 28-31).

Triggering at 68-73 & nn.168-92. 26

O’Keefe v. Chisholm, 769 F.3d 936, Nos. 141822, 14-1888, 14-1899, 14-2006, 14-2012, 14-2023, AMICI BR.

26 Accord

Thus, applying the appeal-to-vote test, e.g.,

Barland, 751 F.3d at 834-38 (misstating some

arguments

and

confounding

vagueness/overbreadth)—even if only in asapplied/facial vagueness challenges, e.g., id. at 83234

(referring

nevertheless

vagueness/overbreadth)—is incorrect. Not applying

it in as-applied/facial overbreadth challenges, e.g., id.

at 838-41 (addressing Track 1), or elsewhere is

correct.

Furthermore, raising the appeal-to-vote test,

e.g., supra at 24, or genuine-issue speech overlooks

Fourth, Eighth, and Tenth circuit holdings. Supra at

19-20.

Besides, on Track 1, whether issue speech, see

generally Triggering at 49 n.84 (addressing “issue

discussion”), is genuine-issue speech is unnecessary

to consider. Why? Because genuine-issue speech is

not a perfect complement of the independent

spending that counts, supra at 19-21, even if one also

counted appeal-to-vote speech, contra supra at 24.

See Randy Elf, Track 2 Law at 2 (illustrating these);

Triggering at 69 n.181 (addressing perfect

complements).

OF CAMPAIGN LEGAL CTR. & DEMOCRACY 21 at 23, 2014 WL

4402300 (7th Cir. Aug. 8, 2014) (stating that Citizens United

holdings “effectively mooted WRTL and its ‘functional

equivalent’ test”), available at

http://campaignlegal.org/sites/default/files/CLC__D21_OKeefe_

Amici_Curiae_Brief_8-8-14_file_stamped.pdf and

http://prwatch.org/files/8_8_clc_amicus.pdf.

Finally, as Amicus has also explained (9TH CIR.

DOC. 15 at 31-33), strict scrutiny applies 27 and the

proper challenge is to the political-committee(-like)

definitions, 28 yet NAGR would prevail even if

substantial-relation exacting scrutiny applied 29 or

the Court considered the political-committee(-like)

burdens. Triggering at 51-52 & nn.97-103, 56-57 &

nn.123-28, 77-81 & nn.233-68. 30

27 It is incorrect to 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 i, (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), and (c) challenge Track 2 law, e.g.,

McIntyre, supra at 5-6. Triggering at 45 n.71, 77-78 & nn.23638, 79 n.247.

Challenging Montana’s electioneering-communication

definition, supra at 14, works, yet a political-committee(-like)

definition proximately triggers political-committee(-like)

burdens.

[S]ince Buckley, the ... Court has separated strict

scrutiny from exacting scrutiny. See Iowa Right to

Life, 717 F.3d at 590-91 (understanding this point).

Meanwhile, [Doe v.] Reed[, 561 U.S. 186, 196 (2010),]

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

much less political-speech law triggering Track 1,

political-committee(-like) burdens. Accord Buckley v.

Am. Constitutional Law Found., Inc., 525 U.S. 182,

186-87 (1999) (addressing, inter alia, ballot-access

law).

Triggering at 79 n.247.

30 Forgoing challenging such burdens because of Citizens

United (9TH CIR. ORAL ARG. at 0:00.48-0:01.08, 0:02.07-0:02.24,

VI. Four Additional Points.

● As Triggering details,

government’s

interest

preventing

circumvention of law ... can apply only when

the challenged law is valid in the first place,

Yamada, 786 F.3d at 1200, ... because

“there can be no freestanding anticircumvention interest.” Republican Party

of N.M. v. King, 741 F.3d 1089, 1202 (10th

Cir. 2013).

Triggering at 66 & nn.163-66.

● Pre- and post-Citizens United, speech

burdens—not just speech bans and other speech

limits—can violate the First Amendment. Sorrell v.

IMS Health Inc., 564 U.S. 552, 565-66 (2011)

(citations omitted). This includes political-speech

burdens. Ariz. Free Enter. Club’s Freedom Club PAC

v. Bennett, 564 U.S. 721, 732-35 & n.5 (2011)

(striking down law not banning/otherwise limiting

speech); Triggering at 47-48 & nn.74-78, 48-49 &

nn.85-86 (addressing Track 1 law); supra at 4-5, 1112 (same). The Court has “repeatedly found that

compelled disclosure, in itself, can seriously infringe”

0:03.32-0:04.03, 0:04.13-0:04.43, 0:13.33-0:14.11, available at

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00

00015277) is mistaken, because pages 366-71 do not apply here,

supra at 15 & n.17; (CERT. PET. at 22). (Cf. OP. at 19 n.12,

CERT. PET. at APP.21 n.12 (overlooking mistaken CitizensUnited-based reasoning).)

First Amendment rights. Buckley, 424 U.S. at 64;

Triggering at 58 n.131.

● For some, law unconstitutionally triggering

Track 1 burdens chills speech. Supra at 8. Others

engage in their speech and comply with such law.

E.g., Triggering at 57-58 n.130 (citation omitted).

However:

That organizations are “capable” of

complying with law—including “complicated

and burdensome” law—does not make the

law constitutional. Minn. Citizens, 692 F.3d

at 874.

Triggering at 46 & n.73 (collecting competing

authorities).

● Some who comply with law unconstitutionally

triggering Track 1 burdens, and some others, can

even benefit from such law. Triggering at 47 n.73

(listing them); (9TH CIR. DOC. 15 at ADDENDUM.1

(same)).

It is not necessary to question the motives

or “the openness and candor of those on

either side of the debate” to appreciate that

it quite naturally may not occur to those

who can benefit from law unconstitutionally

triggering Track 1 burdens to challenge its

constitutionality. Schuette v. Coal. to Defend

Affirmative Action, 134 S.Ct. 1623, 1639

(2014) (Roberts, C.J., concurring).

Triggering at 46 n.73.

For example, such law

often does not discourage the well-heeled

few from engaging in political speech ... ,

because they can afford to hire professionals

to help them comply with the law.

When others cannot afford such help, such

law often has the effect of shutting them out

of—and leaving the well-heeled few with

less competition in—the marketplace of

ideas. Indeed, the most insidious aspect of

such law is the extent to which it protects

big players at the expense of little players.

Those who advocate or defend such law

beyond First Amendment boundaries are in

effect protecting the well-heeled few. They

are in effect protecting big players at the

expense of little players. While big players

and little players have the same First

Amendment rights, big players have no

right—none—to

political-speech

law

protecting them at the expense of little

players.

Triggering at 58 (citations omitted); (accord 9TH CIR.

DOC. 15 at ADDENDUM.1).

––––––––♦––––––––

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,

RANDY ELF

Counsel of Record

Post Office Box 525

Lakewood, N. Y. 14750

Telephone (202) 423-2122

ForEFilingOnly@gmail.com

December 31, 2019

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.