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.

No. 19-767

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

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., Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

Brief Amicus Curiae of Free Speech Coalition,

Free Speech Defense and Education Fund, Gun

Owners Foundation, Gun Owners of America,

The National Right to Work Committee, U.S.

Constitutional Rights Legal Defense Fund,

Patriotic Veterans, Public Advocate of the

United States, Downsize DC Foundation,

DownsizeDC.org, Conservative Legal Defense

and Education Fund, American Target

Advertising, and Restoring Liberty Action

Committee in Support of Petitioner

____________________

MARK J. FITZGIBBONS

Manassas, VA 20110

Attorney for Amicus Curiae

ATA

JOSEPH W. MILLER

Fairbanks, AK 99708

Attorney for Amicus Curiae

RLAC

*Counsel of Record

WILLIAM J. OLSON*

HERBERT W. TITUS

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

January 15, 2020

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

THE STATE STATUTE UNDER REVIEW IS

MONTANA’S SECOND ATTEMPT TO

CIRCUMVENT THIS COURT’S DECISION IN

CITIZENS UNITED . . . . . . . . . . . . . . . . . . . . . . . 5

A. Montana’s First Effort to Ban Corporate

Expenditures with MCA § 13-35-227

(1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Montana’s Second Effort to Ban

Corporate Expenditures with MCA § 131-101 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Montana Law Even Regulates

Distribution of Books Mentioning

Candidates . . . . . . . . . . . . . . . . . . . . . . . . 11

D. Montana Law Imposes Burdensome

Political Committee Status on

Individuals and Corporations . . . . . . . . . 12

E. Montana Law Compels Many

Nonprofits to Make Public Disclosure of

Donor Lists . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

II.

MONTANA LAW SUBVERTS THE PEOPLE’S

RIGHT OF ASSEMBLY AND TO PETITION

GOVERNMENT . . . . . . . . . . . . . . . . . . . . . . . . . 15

III. THE FREEDOM OF THE PRESS PROTECTS THE

PREROGATIVES OF THE PEOPLE FROM

INTRUSION BY POLITICIANS CONTROLLING

POLITICAL DISCOURSE . . . . . . . . . . . . . . . . . . 22

IV. MONTANA IMPOSES SIGNIFICANT BURDENS

ON FIRST AMENDMENT RIGHTS OF CHARITIES

24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iii

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Amendment I . . . . . . . . . . . . . . . . . . . . . . . . 5, passim

STATUTES

26 U.S.C. § 501 . . . . . . . . . . . . . . . . . . . . . . 4, 25, 26

52 U.S.C. § 30101 . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bipartisan Campaign Reform Act of 2002,

116 Stat. 89 . . . . . . . . . . . . . . . . . . . . . 3, 8, 9, 10

MCA § 13-1-101 . . . . . . . . . . . . . . . . . . . . . . 7, passim

MCA § 13-35-227 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

MCA § 13-37-101 . . . . . . . . . . . . . . . . . . . . . . . . . . 22

MCA § 13-37-102 . . . . . . . . . . . . . . . . . . . . . . . 20, 22

MCA § 13-37-103 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

MCA § 13-37-111 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

MCA § 13-37-114 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

MCA § 13-37-117 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

MCA § 13-37-229 . . . . . . . . . . . . . . . . . . . . . . . . . . 14

REGULATIONS

11 C.F.R. § 100.29a . . . . . . . . . . . . . . . . . . . . . . . . 10

11 C.F.R. § 109.21 . . . . . . . . . . . . . . . . . . . . . . . . . . 8

26 C.F.R. § 1.501(c)(4)-1 . . . . . . . . . . . . . . . . . . . . 15

CASES

American Tradition Partnership, Inc. v. Bullock,

567 U.S. 516 (2012) . . . . . . . . . . . . . . . . . . . . . . 5

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . 6, 24

Citizens United v. Federal Election

Commission, 558 U.S. 310 (2010) . . . . . . . . 3, 5

DeJonge v. Oregon, 299 U.S. 353 (1937) . . . . . . . 21

iv

Independence Institute v. FEC,

216 F. Supp. 3d 176 (D.D.C. 2016) . . . . . . . . . 26

Independence Institute v. FEC,

137 S. Ct. 1204 (2017) . . . . . . . . . . . . . . . . . . . 26

McConnell v. Federal Election Commission,

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . 10, 15, 24

Miami Herald Publishing Co., Inc. v. Tornillo,

418 U.S. 241 (1974) . . . . . . . . . . . . . . . . . . . . . 23

United States v. Cruikshank,

92 U.S. 542 (1876) . . . . . . . . . . . . . . . . . . . . . . 21

Western Tradition Partnership v. Attorney

General, 271 P.3d 1 (Mont. 2011) . . . . . . . . . . 7

Western Tradition Part. v. Montana Attorney

General, 2010 Mont. Dist. LEXIS 412 (1st

Judicial District Court of Montana, Lewis

and Clark County, 2010) . . . . . . . . . . . . . . . 6, 7

MISCELLANEOUS

J. Miller, Monopoly Politics (Hoover Institute

Press: 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

J. Story, II Commentaries on the Constitution

(5th ed. 1891) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Sources of our Liberties at 331 (R. Perry &

J. Cooper, eds., ABA Foundation: 1973) . . . . 21

INTEREST OF THE AMICI CURIAE1

Free Speech Coalition, Gun Owners of America,

Inc., The National Right to Work Committee, Patriotic

Veterans, Public Advocate of the United States, and

DownsizeDC.org are nonprofit social welfare

organizations, exempt from federal income tax under

Internal Revenue Code (“IRC”) section 501(c)(4). Free

Speech Defense and Education Fund, Gun Owners

Foundation, U.S. Constitutional Rights Legal Defense

Fund, Downsize DC Foundation, and Conservative

Legal Defense and Education Fund are nonprofit

educational and legal organizations, exempt from

federal income tax under IRC section 501(c)(3).

American Target Advertising is a for-profit corporation

headquartered in Manassas, Virginia. Restoring

Liberty Action Committee is an educational

organization.

Amici organizations were established, inter alia,

for the purpose of participating in the public policy

process, including conducting research, and informing

and educating the public on the proper construction of

state and federal constitutions, as well as statutes

related to the rights of citizens, and questions related

to human and civil rights secured by law.

1

It is hereby certified that counsel for the parties have consented

to the filing of this brief; that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to its filing; that no counsel for a party authored this brief in

whole or in part; and that no person other than these amici curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2

Some of these amici were plaintiffs in McConnell

v. Federal Election Commission, 540 U.S. 93 (2003),

and many have filed amicus briefs in other cases in

this Court involving election law, including:

• Nixon v. Shrink PAC, Brief Amicus Curiae of

Gun Owners of America, et al. (U.S. Supreme

Court) (June 7, 1999);

• Federal Election Commission v. Beaumont,

Brief Amicus Curiae of Real Campaign

Reform.org, et al. (U.S. Supreme Court) (Feb.

10, 2003);

• Federal Election Commission v. Wisconsin

Right to Life, Brief Amicus Curiae of Citizens

United, et al. (U.S. Supreme Court) (Mar. 23,

2007);

• Citizens United v. Federal Election

Commission, Brief Amicus Curiae of Free

Speech Defense and Education fund, et al. (U.S.

Supreme Court) (June 31, 2009);

• McCutcheon v. Federal Election Commission,

Brief Amicus Curiae of Downsize DC

Foundation, et al. (U.S. Supreme Court) (May

13, 2013); and

• Independence Institute v. Federal Election

Commission, Brief Amicus Curiae of Free

Speech Defense and Education Fund, et al. (U.S.

Supreme Court) (Jan. 9, 2017).

SUMMARY OF ARGUMENT

In 2015, the Montana legislature enacted a law

governing “electioneering communications” —

borrowing a term which Congress had employed in the

3

Bipartisan Campaign Reform Act of 2002 to require

reporting of a narrow category of broadcast

advertisements mentioning a candidate, which are

made shortly before an election. However, Montana

legislators chose to infuse that term with such

extraordinary breadth that it applies to virtually any

type of communication whatsoever to more than 100

persons, which even mentions a Montana elected

official seeking re-election, and which are made during

six months of every election year. Under the Montana

definition, virtually any criticism of state officeholders

seeking re-election is at least heavily regulated, if not

suppressed.

Moreover, Montana treats as “electioneering

communications” those communications traditionally

understood to be pure “issue advocacy.” While the

purpose of the law was said to increase public

knowledge about election-related communications, the

Chapter title of the Montana Code encompassing these

restrictions reveals the legislature’s incumbentprotection goal — to exercise state “Control of

Campaign Practices.” Montana Code Annotated, Title

11, Chapter 37 (emphasis added).

In 2012, the Montana Supreme Court refused to

apply this Court’s Citizens United decision to its state

law banning corporations from making “expenditures”

with respect to elections, requiring this Court to act

summarily to restore order. Now, with the challenged

law, the Montana legislature has developed a more

devious way to suppress such expenditures, and the

Ninth Circuit has approved that restriction, requiring

further action by this Court. The burdens imposed on

4

nonprofit corporations by this 2015 law will cause

many, if not most, to withdraw from the public square

not just to avoid the need to report the expenditure

once as required under federal law, but also to

reconstitute themselves as a “political committee,”

designating a treasurer, using an in-state bank,

complying with recordkeeping requirements, making

multiple filings, and disclosing the names, addresses,

and occupations of donors of over $35 to the nonprofit

organization with respect to such activities.

Through the challenged law, Montana seeks to

suppress the exercise by Montanans and others of the

rights of assembly and petition. The Ninth Circuit

viewed the numerous restrictions and requirements

imposed on those wanting to communicate with

Montanans as a “minimal burden,” but nothing could

be farther from the truth. Any “electioneering

communication” may be challenged by the

“Commissioner of Political Practices,” acting on behalf

of the legislators, who is empowered with vast powers

of investigation and enforcement — and even the

power to declare some communications completely

exempt from the act. By suppressing communications,

the Montana legislature also has abridged Freedom of

the Press by usurping the inalienable right of the

people to be their own editors in America’s free

marketplace of ideas. The challenged statute even

regulates the distribution of books which have any

reference to any person seeking office in Montana.

Lastly, the challenged statute would compel charities

exempt from federal income taxation under IRC

§ 501(c)(3) to declare themselves to be “political

committees,” opening them to unjust criticism for

5

engaging in electioneering activities, even when they

were pursuing their permissible, non-electoral,

charitable, and educational activities.

ARGUMENT

I.

THE STATE STATUTE UNDER REVIEW IS

MONTANA’S SECOND ATTEMPT TO

CIRCUMVENT THIS COURT’S DECISION IN

CITIZENS UNITED.

On June 25, 2012, in a one-paragraph opinion, this

Court summarily struck down a century-old Montana

state law which banned all corporations from making

“expenditures” with respect to elections. See American

Tradition Partnership, Inc. v. Bullock, 567 U.S. 516

(2012). In doing so, this Court gave notice that its

decision in Citizens United v. Federal Election

Commission, 558 U.S. 310 (2010) was not to be trifled

with — the First Amendment secures the freedom of

all American citizens, including those who employ the

corporate form, to exercise their rights.

Undeterred by that judicial setback, the Montana

state legislature enacted a second law to achieve much

the same purpose, but through an indirect and much

more subtle approach. Under the guise of controlling

“electioneering communications,” the Montana

legislature enacted a law designed to severely control,

if not eliminate, corporate expenditures in the state’s

political marketplace. Certiorari should be granted to

bring to an end this second attempt to end run

Citizens United. Indeed, insofar as the Montana

legislature enacted this 2015 law in the aftermath of,

6

and in defiance of, this Court’s decision in Citizens

United, these amici suggest that this case is a

candidate for this Court to summarily grant, vacate,

and remand the Ninth Circuit’s decision which upheld

the Montana law.

A.

Montana’s First Effort to Ban Corporate

Expenditures with MCA § 13-35-227

(1912).

Challenged in the earlier litigation was a 1912

Montana law which prohibited corporations from

making an expenditure2 in connection with a candidate

or a political committee that supports or opposes a

candidate or a political party. See § 13-35-227,

Montana Code Annotated (“MCA”). Montana law

allowed such expenditures to be made only by political

committees.

The state district court which heard the challenge

readily understood that Citizens United governed it,

finding that the statute was “unconstitutional and

unenforceable due to the operation of the First

Amendment” and that “‘Citizens United is unequivocal;

the government may not prohibit independent and

indirect corporate expenditures on political speech.’”

2

The 1912 statute equally prohibited corporate “expenditures”

and “contributions,” which is at fundamental odds with this

Court’s principled distinction developed in Buckley v. Valeo, 424

U.S. 1 (1976), where greater regulation over contributions

(including coordinated expenditures) was allowed, due to the

danger of “corruption and the appearance of corruption,” than was

allowed over expenditures, where there was no such risk. See id.

at 25.

7

Western Tradition Part. v. Montana Attorney General,

2010 Mont. Dist. LEXIS 412, *17 (1st Judicial District

Court of Montana, Lewis and Clark County, 2010)

(citation omitted).

However, on appeal, the Montana Supreme Court

reversed, with two strong dissenting opinions. See

Western Tradition Partnership v. Attorney General,

271 P.3d 1 (Mont. 2011). The Court took the position

that the history of political corruption in Montana and

aspects of the electorate and campaigns in Montana

created a political culture which was unique, resulting

in the State legislature being deemed to have a much

more compelling state interest to enact and defend its

state prohibition than the federal interest deemed

insufficient in Citizens United. The two dissenting

justices objected to this attempt to distinguish Citizens

United, with Justice Nelson rejecting the call by some

for Montana “to thumb its nose at the federal

government....” Id. at 71 (Nelson, J., dissenting). It

was this decision of the Montana Supreme Court

which was summarily reversed by this Court in 2012.

B.

Montana’s Second Effort to Ban

Corporate Expenditures with MCA § 131-101 (2015).

Montana legislators would not relent in their effort

to protect themselves from public criticism (see Section

III, infra), going back to their drawing boards to

develop another means to achieve their objective. They

did so with a vengeance with a new statute in 2015.

The method chosen was to define the term

“electioneering communication” in the broadest

8

possible manner and to impose the extraordinary

burden of “political committee” status on any

corporation daring to make independent expenditures.

The term “electioneering communication” came

into the lexicon of election law in Section 201 of the

Bipartisan Campaign Reform Act of 2002 (“BCRA”),

116 Stat. 89, which created a discrete subset of

independent expenditures:

(i) The term ‘electioneering communication’

means any broadcast, cable, or satellite

communication which —

(I) refers to a clearly identified candidate for

Federal office;

(II) is made within — (aa) 60 days before a

general, special, or runoff election for the office

sought by the candidate; or (bb) 30 days before a

primary or preference election, or a convention or

caucus of a political party that has authority to

nominate a candidate, for the office sought by the

candidate; and

(III) in the case of a communication which refers

to a candidate for an office other than President or

Vice President, is targeted to the relevant

electorate. [Id., § 201(a) (emphasis added).]

Significantly, the BCRA definition of

“electioneering communication” does not require the

speaker to engage in “express advocacy” (e.g., “vote for”

or “vote against” under Buckley at 44, n.52) or even

“the functional equivalent of express advocacy” (11

C.F.R. § 109.21(c)(5)). The definition is triggered by a

single reference to a candidate — most often an

9

incumbent officeholder seeking re-election. And there

is not even a requirement that the communication

refer to an election. Rather, even a pure “issue ad”

addressing a public policy matter, that is

communicated in the month(s) before an election

(when the American people are often paying the most

attention to how they have been represented) which

deigns to criticize an incumbent by name (such as for

a vote taken on an important issue), became heavily

regulated. In these two respects, the definition of

“electioneering communication” in the Montana statute

is the same as the BCRA definition.3

In most other respects, however, the Montana

statute dramatically expands each of the four criteria

under BCRA. While the BCRA definition applies only

to “broadcast, cable, or satellite communication[s]”

Montana applies its law to almost every type of

communication imaginable — “radio, television, cable,

satellite, internet website, newspaper, periodical,

billboard, mail, or any other distribution of printed

materials...” MCA § 13-1-101. While the BCRA

definition applies only to a communication which

references a “candidate,” Montana adds any reference

to a “political party, ballot issue, or other question

submitted to the voters....” While the BCRA definition

applies only to communications within 30 days of a

primary election or 60 days of a general election,

Montana extends the period to 85 days before either a

3

Additionally, both BCRA and the Montana statutes regulating

“electioneering communications” include an exception for the

institutional press.

10

primary or a general election.4 And while the BCRA

definition requires targeting to the relevant electorate,

which Federal Election Commission (“FEC”)

regulations define to mean reaching 50,000 voters (11

C.F.R. § 100.29a(b)(3)), Montana reduces the number

of people reached to any number “more than 100.” See

Petition for Certiorari Appendix (“App.”) at 61.

This Court approved BCRA’s special regulations

imposed on “electioneering communications” in

McConnell v. Federal Election Commission, 540 U.S.

93 (2003), because the BCRA rules were directed at a

specifically defined form of communication — targeted

broadcast ads aired in a short window before an

election. Because the Montana law is far more

expansive, this Court’s analysis in McConnell cannot

be presumed to sanction Montana’s statute simply

because the Montana legislators employed the same

term — “electioneering communications” — as was

used in BCRA. See id. at 189-94.

4

The 2020 Montana primary date is June 2, 2020, and 85 days

before then is March 9, 2020. The 2020 Montana general election

is November 2, 2020, and 85 days prior is August 9, 2020. Thus,

the period during which Montana’s “electioneering

communication” rules apply is March 9, 2020 through June 2,

2020, and August 9, 2020 through November 2, 2020 — about half

of the year.

11

C.

Montana

Law

Distribution of

Candidates.

Even

Books

Regulates

Mentioning

The Petition for Certiorari (“Pet. Cert.”) provides

an illustration of how Petitioner National Association

for Gun Rights (“NAGR”) would be constrained if it

sought to mail a book to just 100 persons in the months

before an election. See Pet. Cert at 24. This scenario

is entirely plausible. Indeed, the Montana definition

of “electioneering communication” includes “any other

distribution of printed materials,” which would

certainly include books. MCA § 13-1-101(16)(a).

This is very similar to the type of campaign finance

restriction which caused this Court to express great

concern during the first argument before this Court in

Citizens United. Deputy Solicitor General Malcolm L.

Stewart adopted the position that the FEC “could

prohibit the publication of [a] book using the corporate

treasury funds,” on a service such as Kindle employing

satellites before an election. See Citizens United oral

argument (Mar. 24, 2009) at 27-30. During reargument after supplemental briefing, then-Solicitor

General Kagan, for the United States, withdrew that

extremely controversial position. See Citizens United

oral argument (Sept. 9, 2009) at 64-68. Now, with its

2015 law, Montana has reverted to a position similar

to that repudiated by General Kagan, i.e., that a state

may regulate the distribution of a book before an

election.

12

D.

Montana Law Imposes Burdensome

Political Committee Status on

Individuals and Corporations.

Not content to expand the term “electioneering

communications” to include virtually all forms of

communication, the Montana scheme increases the

burden on entities conducting electioneering

communications in order to discourage their use.

Although federal law only requires that the entity

making the electioneering communication file a report

with the FEC (see 52 U.S.C. § 30101(f)(2)(E) & (F)),

Montana law requires the entity to reconstitute itself

as a political committee, complete with organizational,

recordkeeping, reporting, and other requirements.

MCA § 13-1-101(a)(31) defines “political committee” to

be “a combination of two or more individuals or a

person other than an individual who receives a

contribution or makes an expenditure: ... (iii) to

prepare or disseminate an ... electioneering

communication....” Federal law does not convert one

corporation or two individuals into a political

committee — but Montana law does. By virtue of

declaring either one corporation or two persons acting

together to be a “political committee,” Montana then

imposes the continuing burdens of appointing a

campaign treasurer,5 maintaining money in a bank

5

The only statutory burden on organizations making

electioneering communications that was lifted by the Montana

Supreme Court was the requirement that the committee have a

treasurer who was a “registered voter” in Montana. See NAGR v.

Mangan, 933 F.3d 1102, 1120 (9th Cir. 2019) (“NAGR-2”).

13

with branches in Montana, recordkeeping, reporting,

etc.

Consider how the Montana definition of a political

committee would apply to two neighbors in any town in

Montana. Suppose that a member of the legislature

had introduced and supported a bill to require grocery

stores to collect a non-refundable $1.00 fee on each can

of food sold in a grocery store in Montana, ostensibly to

pay the cost of disposing of that can. Suppose further

that these two neighbors collaborated to create and

distribute a pamphlet to more than 100 people costing

over $250 containing the name and photo of the

legislator sponsoring the bill, and explaining how

foolish they believed that bill to be. By operation of

Montana law, those two neighbors would have just

formed a political committee, and all of the

requirements of a political committee status are visited

upon them. Any number of other examples can be

formulated to show that imposing political committee

status on those engaged in “electioneering

communications” is a remarkable burden which would

discourage most citizens from any involvement in such

matters. Of course, that is the precise purpose of

enacting such burdensome laws. See Section III, infra.

E.

Montana Law Compels Many Nonprofits

to Make Public Disclosure of Donor

Lists.

Among the most troublesome of those additional

requirements imposed by Montana is that a nonprofit

would be compelled to disclose components of its donor

list to both the public and the government. Each

14

nonprofit corporation expending any funds for an

electioneering communication would be required to

disclose the name, address, and occupation of all

donors who contribute $35 or more. MCA § 13-37229(1). For “incidental committees,” such as NAGR,

public reports must identify (i) all donors who

designated the gift to support a specified electioneering

communication, and (ii) all persons contributing in

response to a general appeal by such committee to

support, inter alia, electioneering communications.

See Pet. Cert. at 9-10.

Since it is a common practice for nonprofit

organizations to identify multiple programs in

fundraising solicitations, any donor who responds to a

solicitation which even mentions such communications

in passing, and made a donation of $35 or more, would

need to be disclosed. Moreover, Montana law does not

distinguish between donors from Montana and donors

from some other state, so the nonprofit would be

required to disclose the identity of donors nationwide.

Once the name, address, and occupation of the donor

is put on the public record, that individual could

become subject to harassment by those who object to

the expenditure. In Citizens United, dissenting from

the Court’s approval of disclosure of donors, Justice

Thomas explained the risk:

I cannot endorse a view of the First

Amendment that subjects citizens of this

Nation to death threats, ruined careers,

damaged or defaced property, or pre-emptive

and threatening warning letters as the price

for engaging in “core political speech....”

15

[Citizens United

dissenting).]

at

485

(Thomas,

J.,

Thus, Montana’s law, having crushed the

distinction been contributions and expenditures

established in Buckley, and expanded the meaning of

“electioneering communications” in McConnell, goes

well beyond anything previously sanctioned by this

Court.

Its effort to regulate and discourage

expenditures which present no risk of corruption or

appearance of corruption should be rejected.

II. MONTANA LAW SUBVERTS THE PEOPLE’S

RIGHT OF ASSEMBLY AND TO PETITION

GOVERNMENT.

Petitioner NAGR is a “‘grassroots organization

whose mission is to defend the right to keep and bear

arms, and advance that God-given Constitutional right

by educating the public and urging them to take action

in the public policy process.’” Nat’l Ass’n for Gun

Rights, Inc. v. Motl, 279 F. Supp. 3d 1100, 1102 (D. Mt.

2017) (“NAGR-1”). By virtue of its exemption from

federal income tax under IRC section 501(c)(4), NAGR

must have the “primary” purpose of promoting “social

welfare,” and IRS regulations expressly exclude from

the definition of social welfare any “participation or

intervention in political campaigns.” See 26 C.F.R.

§ 1.501(c)(4)-1(a)(2).6 Thus, so long as it is not its

primary purpose, NAGR may engage in independent

6

The Ninth Circuit’s complete mischaracterization of the rules

governing the nonprofit tax status applicable to Petitioner NAGR

is discussed in Section IV, infra.

16

expenditures supporting or opposing candidates;

however only issue advocacy is involved in this case.

Organizations like NAGR, exempt under IRC

§ 501(c)(4), have become the primary vehicle that the

American people use to exercise their right to assemble

with other like minded citizens, and to monitor and

seek to influence the policies of their state and federal

governments.

Joseph Story believed that the

constitution’s assembly and petition guarantees

would seem unnecessary to be expressly

provided for in a republican government, since

it results from the very nature of its structure

and institutions. It is impossible, that it could

be practically denied, until the spirit of liberty

had wholly disappeared, and the people had

become so servile and debased, as to be unfit to

exercise any of the privileges of freemen. [J.

Story, II Commentaries on the Constitution

§ 93-94 (5th ed. 1891).]

However, it is fortunate that this constitutional

protection was made express, to be drawn upon when

government seeks to use “campaign finance laws” to

suppress pesky citizens from assembling together to

petition government to advance their views through

organizations like NAGR, dissenting from policies

preferred by incumbent state legislators.

The current litigation arose out of NAGR’s effort to

educate the public about a threat to Montana residents

posed by legislation introduced into the state

legislature, and thereby carry out its mission to

17

promote social welfare. In response, Montana used its

“political practice” regulations to suppress NAGR’s

educational and assembly activities.

In March 2012, NAGR sent several mailers to the

residents of Flathead County, Montana, discussing the

actions of a named state senator to kill a bill that, if

enacted into law, would have ensured “‘the availability

of Montana ammunition [and] the manufacture of

ammunition components.’” NAGR-1 at 1102. Instead,

this same named senator was responsible for the

defeat of the bill which, in turn, caused 11 percent

unemployment in Flathead County, for which the

mailer urged the people to contact the senator “‘right

away and DEMAND he apologize for killing new

manufacturing in Flathead County.’” Id. This mailing

constituted pure issue advocacy.

Nonetheless, as a result of this mailer, Montana’s

Commissioner of Political Practices (“COPP”) sprang

into action, sending letters to NAGR and six other

corporate entities advising that they “‘failed to meet

Montana campaign practice law and standards by

failing to register, report and disclose ... illegal

corporate contributions for or against a ... primary

election candidate.’” NAGR-1 at 1103. Thus, the

COPP letter advised that “there was sufficient

evidence to show that NAGR ‘violated Montana’s

campaign practices laws ... and that civil adjudication

of the violation is warranted.’” Id.

In March 2014, NAGR filed suit in federal court,

seeking to enjoin COPP “from pursuing civil penalties

against the organization based on the [March] 2012

18

mailer.” NAGR-1 at 1103. Additionally, NAGR sought

a ruling on whether informing the public “where

legislators and governmental officials stand on issues

related to the Second Amendment ... [by] mail[ing]

educational literature to Montanans [would] subject[]

the organization to disclosure requirements under

Montana law” governing “electioneering

communications.” NAGR-2 at 1108.7

In justification of its limitation on a discrete

“category of speech,” the State claimed that its purpose

was “increasing transparency, informing Montanans

about who is behind the messages vying for their

attention, and decreasing circumvention’ of campaign

finance laws.” NAGR-2 at 1108.

In order to implement these policies, the State

legislature enacted a series of statutory provisions

that, if enforced, would virtually transform NAGR

from an IRC § 501(c)(4) non-political educational

organization into a State-defined “political committee”

— the same type of entity which is exclusively

designed to raise and spend money in support of or

opposition to a candidate for election or nomination to

a political office. See id. at 1108-1109. Indeed,

Montana Code § 13-1-101(31)(a), if applied to NAGR,

would require it to register with COPP as a “political

committee” if it “makes an expenditure of more than

7

Members of the establishment press appear to cause less trouble

for legislators than advocacy groups like Petitioner and thus are

exempted from compliance electioneering communication rules.

See MCA § 13-1-101(16)(b).

19

$250 on a single electioneering communication.”

NAGR-2 at 1109.

Montana law “distinguishes among several types

of political committees” (NAGR-2 at 1109), including,

in particular, “‘incidental committees’” and

“‘independent committees.’” Id. at 1109-10. An

incidental committee is one “‘not specifically

organized or operating for the primary purpose of

supporting or opposing candidates or ballot issues....’”

Id. at 1110.

An independent committee is

“organized for the primary purpose of receiving

contributions and making expenditures that is not

controlled either directly or indirectly by a candidate

and that does not coordinate with a candidate....” Id.

at 1110. The courts below concluded that NAGR was

an incidental committee and thus subject to

somewhat less intrusive disclosure requirements. Id.

at 1110-11. The district court ruled that Montana’s

laws satisfied “constitutional scrutiny because they are

tailored to the degree of an organization’s political

activity and the timing of its communications.” NAGR1 at 1107. The district court found that:

registering as an incidental committee

imposes a minimal burden on an

organization. Indeed, a political committee

registers by completing a Form C-2,

“Statement of Organization,” which can be

completed in less than ten minutes.... This

form, like all COPP forms, is available online.

[Id. at 1107 (emphasis added).]

20

However, completing and filing the required COPP

forms is not just a minimal paper transaction. It is an

act of submission to the State’s Commissioner of

Political Practices. It only begins with filing the initial

form, the Statement of Organization, including a

statement of names and addresses of all officers,

appointment of a treasurer, local banking, and

recordkeeping of contributions and expenditures. Id.

at 1109. See also Pet. Cert. at 8-10. Indeed, there is

an entire chapter of the Montana Code entitled

“Control of Campaign Practices,” MCA §§ 13-37-101 13-37-131, evidencing Montana’s desire to “control” the

behavior of those involved in Montana politics.

Appointed to a six-year term (MCA § 13-37-103) by

the Governor with the consent of the Senate, the

Commissioner may be removed only for incompetence,

malfeasance, or neglect of duty. MCA § 13-37-102.

Among his duties are administrative rule-making

(MCA § 13-37-114), inspection , investigation of alleged

violations (13-37-111(1)). He is vested with subpoena

power and with authority to work with county

attorneys to enforce state campaign finance rules. He

is authorized to create and to update Forms and edit

manuals governing the implementation of policies and

practices. See MCA § 13-37-117; see also NAGR -2 at

1107-08.

In short, Montana gives vast power to the

Commissioner to reign as the State’s political practices

czar, displacing the People of Montana in whom alone

is the State’s political sovereignty. As this Court

proclaimed in 1876, the right of a self-governing people

to assemble has “always ... been[] one of the attributes

21

of citizenship under a free government [and] is found

wherever civilization exists.

United States v.

Cruikshank, 92 U.S. 542, 551 (1876). As the People of

Pennsylvania declared in their 1776 constitution, it is

the People’s “right to assemble” together, to consult for

their common good, to instruct their

representatives....” Sources of our Liberties at 331 (R.

Perry & J. Cooper, eds., ABA Foundation: 1973).

Indeed, at the heart of the right of the people to

assemble peaceably is the right to choose the subject

matter of the assembly and the viewpoints to be

presented. As this Court stated in DeJonge v. Oregon,

299 U.S. 353 (1937):

to maintain the opportunity for free political

discussion, to the end that government may be

responsive to the will of the people and that

changes, if desired, may be obtained by

peaceful means. Therein lies the security of

the Republic, the very foundation of

constitutional government. [Id. at 365.]

Rather than allowing a political czar to intervene to

protect incumbent elected officials from criticism (here,

one of the Senators vested with power to approve the

Commissioner’s appointment), the People of Montana

should have access to information from all sources

without the state imposing burdens on that speech.

22

III.

THE FREEDOM OF THE PRESS

PROTECTS THE PREROGATIVES OF THE

PEOPLE FROM INTRUSION BY

POLITICIANS

CONTROLLING

POLITICAL DISCOURSE.

The Montana legislature has created in MCA

sections 13-37-101(1) and 13-37-102 a Commissioner of

Political Practices, vesting him with powers that

transcend campaign activities, that extend to nonelection political activities.

Indeed, the state

legislature has vested the Commissioner with

authority to enforce laws against communications that

refer to or depict incumbents who are candidates, even

though the communications at issue have no express

advocacy or the functional equivalent thereof. Not only

that, the Commissioner is empowered by law to

investigate whether an “electioneering communication”

which is otherwise subject to control by the State is

exempt from this law because it appears in a “bona fide

news story or commentary” so long as it is distributed

by an exempt medium. In short, Montana law vests

“editorial control” in the Commissioner. Yet it

sanctions the same message published by the

“establishment press” that it regulates when published

by all others.8

Such delegation is flatly

8

During the first Citizens United oral argument (Mar. 24, 2009),

Justice Scalia gave a memorable illustration of who owns the

press freedom, explaining: “But does ‘the press’ mean the media

in [Freedom of the Press]? You think that in 1791 there were —

... people running around with fedoras that had press — little

press tickets in it, ‘Press’? Is that what ‘press’ means in the

Constitution? Doesn’t it cover the Xerox machine? Doesn’t it

cover the — the right of any individual to — to write, to publish?...

23

unconstitutional because it “intru[des] into the

function of editors” in violation of the freedom of the

press. Miami Herald Publishing Co., Inc. v. Tornillo,

418 U.S. 241, 258 (1974). As the Tornillo Court

explained, “the choice of material to go into a

newspaper ... and treatment of public issues and public

officials — whether fair or unfair — constitute the

exercise of editorial control and judgment.” Id. By so

ruling, this Court rejected the argument that the

Florida right-of-reply statute “furthered the ‘broad

societal interest in the free flow of information to the

public.’” Id. at 245. In like manner, and for the same

reason, the Ninth Circuit erred when it ruled that

NAGR’s First Amendment right could be overridden by

Montanans’ interests in “‘increasing transparency,

informing Montanans about who is behind the

messages vying for their attention.’” See NAGR-2 at

1116.

In reviewing campaign finance laws, courts must

always remember that incumbents write the laws, not

challengers, and incumbents generally have one

overriding objective — re-election. Therefore, no court

should presume that campaign finance laws are fair

and even-handed to challengers or critics of

incumbents. Montana law certainly is not. Montana

argues that it is the people who want to know who is

supporting the electioneering communications (see

NAGR-1 at 1107-08), but truthfully, it is incumbents

who want to know — sometimes so those contributing

[T]here’s no basis in the text of the Constitution for exempting

press in the sense of, what, the Fifth Estate?”

24

to an effort to criticize an incumbent can be driven

away from the publisher.

At the dawn of modern campaign finance

legislation, in Buckley, the Court found “[t]here is no

such evidence to support the claim that the

contribution limitations in themselves discriminate

against major-party challengers to incumbents.”

Buckley at 32. However, much evidence of such

discrimination now exists. An economic analysis of the

anti-competitive effect of federal campaign finance law

was presented in the McConnell litigation by some of

these amici through the testimony of Dr. James Miller,

former Chairman of the Federal Trade Commission,

based on his book Monopoly Politics (Hoover Inst.

Press: 1999).

The desire of those in office to retain their position

of power is not new. As Edmund Burke explained:

“Those who have been once intoxicated with power,

and have derived any kind of emolument from it, even

though for but one year, can never willingly abandon

it.”9 There is no reason to believe that much has

changed with our modern legislatures.

IV. MONTANA

IMPOSES

SIGNIFICANT

BURDENS ON FIRST AMENDMENT RIGHTS

OF CHARITIES.

The Ninth Circuit opinion badly misconstrued

federal tax law governing the Petitioner, asserting:

9

See https://www.oxfordreference.com/view/10.1093/acref/

9780191826719.001.0001/q-oro-ed4-00002268.

25

“To retain its federal tax status, NAGR cannot engage

in ‘direct or indirect participation or intervention in

political campaigns on behalf of or in opposition to any

candidate for public office.’ 26 C.F.R. § 1.501(c)(4)1(a)(2)(ii).” NAGR-2 at 1108. This is not, in fact, what

that regulation states.

Rather, that regulation

requires that the promotion of social welfare be the

primary purpose of an IRC § 501(c)(4) organization,

but allowing campaign activity if it is a secondary

purpose of the organization.

Instead, the type of nonprofit organizations barred

from any campaign activity are charities exempt under

IRC § 501(c)(3). Since the type of activity undertaken

by NAGR was not truly campaign-related, it could be

and is undertaken even by charities. However,

application of the Montana law to charities creates a

legal conundrum for those organizations as well.

Federal law allows charities to engage in issue

advocacy, but not campaign activity.

Montana

classifies a great swath of issue advocacy as

“electioneering communications” and requires a

charity to register as a political committee. Thus,

Montana law could give rise to the false impression

that any such charity is violating federal tax law by

engaging in campaign activity.

Assume, for example, that the American Lung

Association, which is tax exempt under IRC § 501(c)(3),

opposes vaping and wants to mail its supporters in

Montana during the proscribed period to urge them to

contact named legislators (who are often candidates for

re-election) to regulate vaping. If this mail were sent

during the months before an election, Montana would

26

consider this communication engaging in

“electioneering.” Pro-vaping groups could be expected

to demand that Montana compel this charity to

register and report as a political committee, and even

file complaints against the American Lung Association

with the IRS for electioneering, asking the IRS to

revoke its (c)(3) status and requiring the charity to

defend itself. To avoid that, charities will be forced to

make editorial decisions about their issue advocacy in

Montana, to avoid mentioning the names of incumbent

officeholders, or to avoid issue advocacy in Montana

altogether.

This is not the situation with Petitioner which is

exempt under IRC § 501(c)(4), but application of the

Montana law to IRC § 501(c)(3) organizations is not an

unrealistic hypothetical. A three-judge panel in the

U.S. District Court for the District of Columbia upheld

the application of BCRA’s electioneering

communications reporting requirements to IRC

§ 501(c)(3) charities in Independence Institute v. FEC,

216 F. Supp. 3d 176, 192-93 (D.D.C. 2016), which was

affirmed by this Court summarily. Independence

Institute v. FEC, 137 S. Ct. 1204 (2017).

27

CONCLUSION

For the reasons stated above, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

MARK J. FITZGIBBONS

9625 Surveyor Court

Suite 400

Manassas, VA 20110

Attorney for Amicus Curiae

ATA

WILLIAM J. OLSON*

HERBERT W. TITUS

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

JOSEPH W. MILLER

RESTORING LIBERTY

ACTION COMMITTEE

P.O. Box 83440

Fairbanks, AK 99708

Attorney for Amicus Curiae RLAC

*Counsel of Record

January 15, 2020