Amicus Curiae Brief — Alaska Policy Forum, Petitioner v. Alaska Public Offices Commission, et al.

No. 26-88

IN THE

Supreme Court of the United States

————

ALASKA POLICY FORUM,

Petitioner,

v.

ALASKA PUBLIC OFFICES COMMISSION, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for Writ of Certiorari

to the Supreme Court of Alaska

____________________________________________________________________________________________________

BRIEF FOR AMICI CURIAE UPPER MIDWEST LAW CENTER, AND

AMERICANS FOR PROSPERITY FOUNDATION IN SUPPORT OF

PETITIONER

————

DOUGLAS P. SEATON

UPPER MIDWEST LAW CENTER

12600 WHITEWATER DRIVE,

SUITE 140

MINNETONKA, MN 55343

(612) 428-7001

DOUG.SEATON@UMWLC.ORG

CYNTHIA FLEMING CRAWFORD

COUNSEL OF RECORD

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 WILSON BLVD., SUITE 1000

ARLINGTON, VA 22203

(571) 329-2227

CCRAWFORD@AFPHQ.ORG

COUNSEL FOR AMICI CURIAE

August 20, 2026

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

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

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

ARGUMENT.................................................................... 4

I.

SURPRISE! YOU’RE RESPONSIBLE FOR THIS AD. ....4

A.

No on E v. Chui and the San Francisco

Sunlight on Dark Money Initiative (petition

denied). ..............................................................5

B.

Rio Grande Foundation v. Oliver (petition

pending). ...........................................................6

C.

Students for Life Action v. Jackley. ..................7

II. SNEAKING UP ON BILLS OF ATTAINDER AS A PROXY

FOR NARROW TAILORING. .......................................8

A.

The First Circuit’s Gaspee opinion misapplied

AFPF. .............................................................. 10

B.

Dinner Table Action v. Schneider came to the

correct conclusion but applied the wrong

rubric. .............................................................. 12

C.

Wyoming Gun Owners v. Gray presents

another use of narrow application rather than

requiring narrow tailoring. ............................ 13

D.

The Colorado Supreme Court got it right in No

on EE – A Bad Deal for Colorado, Issue

Committee v. Beall. ......................................... 14

E.

The First Circuit Court of Appeals makes a

comeback in Central Maine Power Company v.

ii

Maine Commission on Governmental Ethics &

Election Practices. ........................................... 16

III. THE COURT SHOULD GRANT CERTIORARI TO STOP

THE INCREASING MISAPPLICATION OF AFPF V.

BONTA. ................................................................. 18

CONCLUSION ............................................................... 18

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Americans for Prosperity Foundation v. Bonta,

594 U.S. 595 (2021) ............................ 1, 2, 15, 17

Brown v. Ent. Merchants Ass’n,

564 U.S. 786 (2011) ............................................ 8

Buckley v. Valeo,

424 U.S. 1 (1976) ............................................... 11

Cent. Maine Power Co. v. Maine Comm'n on

Governmental Ethics & Election Pracs.

144 F.4th 9 (1st Cir. 2025) ......................... 16, 17

Citizens United v. Federal Election Com’n,

558 U.S. 310 (2010) .................................... 10, 11

Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah,

508 U.S. 520 (1993))........................................... 9

Dinner Table Action v. Schneider,

2025 WL 1939946 (D. Me. July 15, 2025) .. 12, 13

First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ........................................... 11

Gaspee Project v. Mederos,

13 F.4th 79 (1st Cir. 2021) .......................... 10, 11

iv

No on E v. Chui,

85 F.4th 493 (9th Cir. 2023) ............................... 5

No on EE - A Bad Deal for Colorado, Issue

Comm. v. Beall,

558 P.3d 671 (Colo. Aug. 4, 2025) ............... 14, 15

Reed v. Town of Gilbert,

576 U.S. 155, 171 (2015) .................................... 9

Rio Grande Foundation v. Oliver,

154 F.4th 1213 (10th Cir. 2023) (Rio

Grande II) .......................................................... 6

Rio Grande Foundation v. Oliver,

727 F. Supp.3d 988 (D.N.M. Mar. 29th

2023) (Rio Grande I) .......................................... 6

Students for Life Action v. Jackley,

746 F. Supp. 3d 668 (D.S.D. 2024) ................ 7, 8

Wyoming Gun Owners v. Gray,

83 F.4th 1224 (10th Cir. 2023) ........................ 13

Constitutions

U.S. Const. Amend. I

............................................. 1, 2, 3, 11, 12, 15, 17

Statutes

1 Me. Rev. Stat. Ann. tit. 21-A, § 1064 .................. 16

1 Me. Rev. Stat. Ann. tit. 21-A, § 1064(2).............. 17

v

N.M. Stat. Ann. § 1-19-26(Q)(3)(c) ....................... 6, 7

N.M. Stat. Ann. §§ 1-19-27.3(A)(1), (B) ................... 6

South Dakota Codified Law § 12-27-16 ................... 8

Other Authorities

Cynthia Fleming Crawford, Narrow

Applicability Is Not the Same As Narrow

Tailoring: Applying the First

Amendment in First Choice Women’s

Resource Centers v. Platkin, FedSoc Blog

(Feb 21, 2025). ..................................................... 3

Ryle, Gilbert. The Concept of Mind. London:

Hutchinson (1949) ............................................... 4

1

INTEREST OF AMICI CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because protection of the

freedoms of expression and association, guaranteed by

the First Amendment, is essential for an open and

pluralistic society.

In particular, AFPF has an interest in this case

because laws like the Alaska disclosure mandate

threaten the rights of speakers to speak anonymously

and the rights of individuals to associate freely. In

AFPF v. Bonta, 594 U.S. 595 (2021), this Court was

clear that exacting scrutiny applies to blanket donor

disclosure laws, requiring the government to explain

why it needs this information from these people. But,

since AFPF was decided, caselaw has developed in

some troubling ways, putting exacting scrutiny and

the associational freedom it protects at risk.

The Upper Midwest Law Center (“UMLC”) is a

nonpartisan public-interest law firm headquartered

in Minnetonka, Minnesota which litigates for

individual liberty, separation of powers, and religious

freedom. UMLC also fights against governmental and

special interest overreach. UMLC regularly

1 All parties have received timely notice of amici’s intent to file

this brief. No counsel for a party authored this brief in whole or

in part and no person other than amici or its counsel made any

monetary contributions to fund its preparation or submission.

2

represents litigants in cases challenging the

constitutionality of government action such as in this

case.

SUMMARY OF ARGUMENT

AFPF challenged a California regulation that

required charities to register with the Attorney

General’s office and disclose major donors by filing

Schedule B of their IRS Form 990. See 594 U.S. at

601–04. AFPF, which was subject to the regulation,

challenged the donor disclosure requirement because

it burdened its First Amendment associational rights

with its donors. Id. at 601–03. This Court held that

exacting scrutiny applied and therefore the

government was required to demonstrate narrow

tailoring, or a “means-end fit” that “demonstrate[s] its

need for universal production in light of any less

intrusive alternatives.” Id. at 613.

Since AFPF was decided, lower courts have

developed two types of errors when applying exacting

scrutiny. The first is a category error in which the

names of donors to an entity are deemed

interchangeable with the funders of specific

advertisements and thus assumed to be relevant to

readers. This assumption is applied even when donors

are unaware of the advertisement or if the donor was

not a direct donor to the speaker but a donor to a donor

to a donor of the speaker. Listing names and personal

information, such as home addresses, of people with

no relationship to an ad campaign enlightens no one,

while creating stochastic risk of exposure of donors

especially to large, multi-topic charities or

organizations that support unpopular causes.

Catching donors by surprise through attaching their

3

names to unfamiliar speech or implying affiliation

with unknown others is both unjust and chilling.

Without a compelling causative link between a funder

and the speech, the disclaimer may as well list the

graphic designer, the printer, or the mail carrier—

people who contributed in some way to delivering the

message but are not relevant to the reader.

The second type of error is the persistent confusion

between narrow application and narrow tailoring. In

some cases, the closer a law comes to resembling a bill

of attainder, the more “narrow” it is deemed to be

tailored. But like the category error, without requiring

clear causation between who is burdened and why,

narrow application simply misleads the public to infer

a relationship while improperly burdening a subset of

people who cannot logically be distinguished from

those left unburdened.2 Fortunately, a small number

of cases have correctly required causation to be

demonstrated thus providing a roadmap for

application of exacting scrutiny.

This brief provides an overview of the risks to the

freedom of association from the misapplication of

AFPF’s exacting-scrutiny requirement and where

courts have course corrected when voters or

legislatures have enacted disclosure requirements

that fail exacting scrutiny. The Alaska law at issue

here includes both types of error. The Court should

take this case to correct these two errors that have run

2 See Cynthia Fleming Crawford, Narrow Applicability Is Not the

Same As Narrow Tailoring: Applying the First Amendment in

First Choice Women’s Resource Centers v. Platkin, FedSoc Blog

(Feb 21, 2025) (discussing the difference between narrow

applicability and narrow tailoring), https://tinyurl.com/3c8retu8.

4

rampant in exacting scrutiny cases in lower courts

since AFPF.

ARGUMENT

I.

SURPRISE! YOU’RE RESPONSIBLE FOR THIS AD.

In The Concept of Mind,3 Gilbert Ryle provides an

example of a visitor to Oxford, who, after seeing the

individual colleges, playing fields, museums, and

libraries, asks, “But where is the University?”4 The

visitor’s error, Ryle explains, “was mistakenly

allocating the University to the same category as that

to which the other institutions belong.”5

Many donor disclosure laws make a similar error

by presuming that producing the name of any donor—

regardless how remote—is equivalent to informing

the public about the power behind a message the

named donor may have never seen. The Alaska law

embeds this error by requiring donors to be disclosed

if they have contributed to an educational charity in

the event the educational topic later becomes the

subject of a ballot initiative, thus implying that donors

to the educational entity are political advocates. This

error is especially stark for national donors to

charities that may educate on issues relevant across

the country without reference to a state election or

any particular state law or that educate on a variety

of topics that appeal to diverse donors.

3 Ryle, Gilbert. The Concept of Mind. London: Hutchinson, 1949.

4 Id. at 16.

5 Id.

5

A. No on E v. Chui and the San Francisco

Sunlight on Dark Money Initiative

(petition denied).

No on E v. Chui demonstrated how attenuated the

source of funding for an ad can be from the

information the law requires to be disclosed and how

multi-level disclosure schemes can result in

accumulation of nonsense disclosures that displace

political speech. 85 F.4th 493 (9th Cir. 2023).

The San Francisco Sunlight on Dark Money

Initiative, changed the “disclaimer requirements for

advertisements paid for by independent political

committees” to include “a disclaimer listing their top

three contributors of $5,000 or more” and if “any of the

top three major contributors is a committee,”

requiring “the disclaimer [to] also disclose both the

name of and the dollar amount contributed by each of

the top two major contributors of $5,000 or more to

that committee.” No on E, 85 F.4th at 498–99.

Advertisements regarding a ballot initiative were

thus required to include disclaimers with up to nine

“contributors” listed.

There was no exclusion for donors who were not

aware of the message and no assurance that donors

had any intent to support it. Id. at 506. Moreover, the

City database of financial disclosures was also

required to be announced within the ad. No on E, 85

F.4th at 498–99. These mandates came in addition to

existing California law requiring disclosure of

donations to “committees” and on-ad disclaimers of

the committee paying for an ad and the top-three

contributors of $50,000 or more. No on E, 85 F.4th at

497–98.

6

Thus, donors who contributed to a committee could

find their names publicly disclosed on an ad, creating

an inference they support the message even if they

knew nothing about it and implying a relationship

among the names listed even if no such relationship

exists. Such misinformation clarifies nothing and thus

fails to satisfy exacting scrutiny.

B. Rio Grande Foundation

(petition pending).

v.

Oliver

Rio Grande Foundation v. Oliver presents another

example of multi-level donor disclosure but with the

added twist that it offers a roadmap for avoiding

judicial review by making the sweep of the law broad,

i.e., the opposite of narrowly tailored. Rio Grande

Found. v. Oliver, 154 F.4th 1213 (10th Cir. 2025) (Rio

Grande II). The New Mexico law compels an issue

advocacy organization to disclose its donors if it

mentions a candidate’s name within 60 days of an

election. Rio Grande II, 154 F.4th at 1219; N.M. Stat.

Ann. § 1-19-26(Q)(3)(c); N.M. Stat. Ann. §§ 1-1927.3(A)(1), (B). This is so even if the speech does not

advocate for or against a candidate but confines itself

to discussing issues. Id. As core political speech, at

least exacting scrutiny should apply.

But the New Mexico Law survived review for an

unexpected reason: the court required two levels of

injury to establish chill. First the speaking entity was

required to show injury to itself, and then, it was also

required to show injury to its underlying donors. Rio

Grande Found. v. Oliver, 727 F. Supp.3d 988, 994

(D.N.M. 2024) (Rio Grande I) (“admitting for purposes

of this motion that RGF alleges a fear of lost donations

if its donors’ identities are disclosed”); Rio Grande II,

154 F.4th at 1230 (‘insufficient to establish a

7

reasonable probability that the compelled disclosures

will subject RGF's donors to threats, harassment, or

reprisals”).

Because the New Mexico law applies to ads that

refer to “a clearly identified candidate or ballot

question” and are “published and disseminated . . .

within thirty days before the primary election or sixty

days before the general election,” N.M. Stat. Ann. § 119-26(Q)(3)(c), a donor who had supported issue

advocacy earlier in the year could be surprised by

being inaccurately disclosed as for or against a

particular candidate, without even agreeing that the

candidate should win or lose.

The result of Rio Grande is thus rather ironic. By

writing the law so broadly that it sweeps up not just

the speaking organization but also its donors and then

requiring injury at both levels before the rights of

either can be protected, the incentive is clear: exacting

scrutiny can be bypassed by employing the inverse of

narrow tailoring. Instead, sweep as broadly as

possible and require multiple levels of injury. The

broader the sweep, and the more the levels of donors

that must be threatened, the harder it becomes to

establish injury across all participants.

That is the opposite of narrow tailoring.

C. Students for Life Action v. Jackley.

Students for Life Action v. Jackley, presents a

similar law to the disclaimer law at issue in No on E,

requiring “[a]ny person or entity that makes a

payment or promise of payment totaling more than

one hundred dollars,” . . . “for an independent

communication expenditure that concerns a

candidate, public office holder, ballot question, or

8

political party” to include with the communication

that donor’s name, address, website address (if

applicable), and if the speaker is not an individual, its

‘Top Five Contributors’ during the twelve months

preceding that communication.” 746 F. Supp. 3d 668,

681 (D.S.D. 2024) (citing South Dakota Codified Law

§ 12-27-16). Thus, donors to Students for Life Action,

which does not advocate for or against candidates, and

who may have contributed up to a year in advance of

an election, must be disclosed as if they are campaign

donors. Like the San Francisco and New Mexico laws,

the South Dakota law not only lacks tailoring to any

purported government interest in disclosing

campaign supporters, but actually risks misinforming

the public and surprising donors who contributed to

issue advocacy wholly unrelated to an election.

The Alaska law presented here imposes the same

type of category error, to the detriment of Petitioner’s

associational rights, by treating issue education as

political advocacy if an initiative pertaining to a

similar topic is placed on the ballot.

II.

SNEAKING UP ON BILLS OF ATTAINDER AS A

PROXY FOR NARROW TAILORING.

The second type of error conflates narrow

application with narrow tailoring by presuming that

constraining the number of donors to whom a law

applies is sufficient to satisfy narrow tailoring. But

limiting a law based on characteristics that do not

satisfy the means-ends requirement raises concerns

that the law may be unconstitutionally underinclusive

and simply target a disfavored group. Brown v. Ent.

Merchants Ass’n, 564 U.S. 786, 802 (2011)

(“Underinclusiveness raises serious doubts about

whether the government is in fact pursuing the

9

interest it invokes, rather than disfavoring a

particular speaker or viewpoint.”); Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543

(1993) (“The ordinances are underinclusive for those

ends. . . . The underinclusion is substantial, not

inconsequential.”). Taken to its logical limit, such an

approach would reward the crafting of laws that are

tailored to apply only to the disfavored few.

With some notable exceptions, this type of error is

spreading and is present here, where the disclaimer

requirement falls on advocates for issues that are

more likely to eventually appear on a ballot than on

advocates for issues more likely to be addressed in a

nonelectoral fashion or simply ignored. This is an

unconstitutional content-based distinction even

though it turns on who is speaking. That type of

distinction does not resolve the constitutional

dilemma because “the fact that a distinction is

speaker based does not, . . . automatically render the

distinction content neutral,” Reed v. Town of Gilbert,

576 U.S. 155, 171 (2015). And “[s]peech restrictions

based on the identity of the speaker are all too often

simply a means to control content,” Id. (quoting

Citizens United v. Federal Election Comm’n, 558 U.S.

310, 340 (2010)).

This would be like applying a law only to redheads

and thus claiming narrow tailoring because only a

small portion of the population is affected. But such

an approach would be unlikely to satisfy the meansend test necessary for exacting scrutiny. Likewise, a

law that applied to bookstores that sell political fiction

but not to other bookstores, while nominally tailored

to the identity of store, is more likely “simply a means

to control content” and thus not tailored to a

10

constitutionally valid interest. Moreover, the

government could not justify the law by indicating

that there are many bookstores that are unaffected

because they choose not to sell political fiction.

Any similar attempt to claim a donor disclosure

law is narrowly tailored because the population to

whom it applies has been artificially constrained

should trigger skepticism and a close look at causation

to see whether the law is narrowly tailored to the ends

it purports to pursue or whether it just targets a

smaller group of people.

A. The First Circuit’s

misapplied AFPF.

Gaspee

opinion

Gaspee Project v. Mederos has been responsible for

much of this wayward interpretation. 13 F.4th 79 (1st

Cir. 2021). Gaspee, which was decided shortly after

the Court decided AFPF, dealt with disclosure of

funding sources for independent expenditures and

electioneering communications. 13 F.4th at 82–83 (1st

Cir. 2021). Gaspee nominally embraced AFPF but

misapplied the narrow tailoring element. See id. at 85.

Like the annual blanket demand for disclosure in

AFPF, the act in Gaspee required filing a report with

the State Board of Elections disclosing all

organization donors over $1,000. It also imposed an

on-communication disclaimer identifying the five

largest donors from the preceding year.6 Id. at 83. But

as the not-for-profit plaintiffs in Gaspee made clear,

6 Donors could opt out of the disclosure requirement by electing

that donations not be used for funding of independent

expenditures or electioneering communications. Id. at 82.

11

their interest was in issue advocacy, not candidate

support. See id. at 82, 85.

Gaspee allowed First Amendment protection of

core political speech to be circumvented for messages

delivered during the time period the speech was likely

to be most salient, distinguishing it from speech that

takes place outside an election context, 13 F.4th at 89.

But neither the First Amendment nor AFPF includes

such a distinction.

Gaspee also found no relevant distinction between

issue advocacy versus candidate-specific advocacy,

despite relying on Buckley v. Valeo and Citizens

United, which acknowledge a government anticorruption interest in who pays for messaging

supporting or opposing a specific candidate but make

no such argument regarding issue advocacy. 13 F.4th

at 85–86.7 Buckley explained the rationale for

disclosure of donor information for specific candidates

to avoid corruption or the appearance thereof. Buckley

v. Valeo, 424 U.S. 1, 26 (1976). This rationale does not

apply to contributions to support an idea or to discuss

an issue because an idea cannot be corrupted. See

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 790

(1978) (“The risk of corruption perceived in cases

involving candidate elections, simply is not present in

a popular vote on a public issue.” (cleaned up)).

AFPF did not address disclaimers—nor any other form of

compelled speech. Buckley, likewise, involved disclosure but not

disclaimers. Citizens United, which addressed mandatory

disclaimers, was decided under the pre-AFPF annunciation of

exacting scrutiny and thus required only “a substantial relation

between the disclosure requirement and a sufficiently important

governmental interest.” 558 U.S. 310 at 366–67 (2010) (cleaned

up).

7

12

Instead of relying on a purpose-based rationale,

Gaspee resorted to a plethora of characteristics

unrelated to the only relevant criterion: whether there

is a means-end relationship

between the

government’s goal and the First Amendment burden

imposed. Like a disclosure law that applies only to

retirees or people who are left-handed without any

explanation of how that narrow application creates

the desired end, this type of analysis substitutes

narrow application for narrow tailoring.

B. Dinner Table Action v. Schneider came to

the correct conclusion but applied the

wrong rubric.

Dinner Table Action v. Schneider presented a

similar disclosure scheme that reached even smaller

donors. No. 24-430, 2025 WL 1939946, at *5 (D. Me.

July 15, 2025). In Dinner Table Action v. Schneider,

the issue was a Maine law that required any person,

party committee, or PAC making any “independent

expenditure” in excess of $250 during any one

candidate’s election, to disclose the total contributions

from each contributor regardless of the amount of the

contribution. No. 24-430, 2025 WL 1939946, at *5 (D.

Me. July 15, 2025) (cleaned up). Dinner Table Action

claimed that its smaller dollar contributors would not

continue to contribute if their identities were subject

to disclosure. Id. The court relied on Gaspee to guide

its application of narrow tailoring on two points. First,

it compared the $1,000 expenditure limit from Gaspee

to the $250 expenditure limit in the Maine law. Id. at

5. Second, it compared the Gaspee opt-out provision to

the absence of such an opt-out provision under the

Maine law. Id. at 6. The court found that the Maine

disclosure requirement swept so broadly that it

13

provided “no meaningful opportunity for anonymous

contributions,” thus could not be “described as

narrowly tailored to Maine’s informational interest.”

Id. at 6.

While this holding represented a win for Dinner

Table Action and its donors, the narrow tailoring

analysis replicated the Gaspee errors by relying on the

number of people to whom the law applied rather than

on whether there was a causal relationship between

those people and the government’s alleged interest,

i.e. narrow application, not narrow tailoring.

C. Wyoming Gun Owners v. Gray presents

another use of narrow application rather

than requiring narrow tailoring.

In Wyoming Gun Owners v. Gray, Wyoming had a

campaign finance scheme that required organizations

that spend over $1,000 on an “electioneering

communication” to disclose contributions and

expenditures related to that communication. 83 F.4th

1224, 1229 (10th Cir. 2023). Wyoming Gun Owners, a

non-profit gun rights advocacy group, challenged the

constitutionality of the disclosure scheme. Id.

The court considered “whether Wyoming narrowly

tailored the law” to the state’s anticorruption and

informational interests and held that it did not, in

part because the vague language regarding to whom

the statute applied required over-disclosing

contributions to avoid missing anyone. Id. at 1244,

1247.

Wyoming Gun Owners is thus another case that

could be considered a win for narrow tailoring. But

like Gaspee, much of the analysis turned on whether

donors could opt-in or opt-out of disclosure, placing

14

the burden on the donor, rather than on the state to

justify why donors with certain characteristics or

behaviors could be compelled to disclose their

identities. The opt-out/opt-in test, to the extent it has

gained traction in the narrow tailoring analysis, must

be justified by a link to the purpose of the disclosure

and not simply provide a way to ratchet up or down

the number of people to whom the disclosure applies

or to shift the burden to the donor.

D.

The Colorado Supreme Court got it

right in No on EE – A Bad Deal for

Colorado, Issue Committee v. Beall.

A Colorado case, by contrast, showed the correct

approach to the means-end test when it reviewed a

state law that required an “issue committee” to

disclose the name of the “natural person who is the

registered agent” of the entity paying for the

communication supporting or opposing a ballot issue.

No on EE - A Bad Deal for Colorado, Issue Comm. v.

Beall, 558 P.3d 671, 673 (Colo. Aug. 4, 2025). No on

EE, which was an issue committee, challenged the

registered-agent provision of the law. Id. at 675–76.

Applying exacting scrutiny, the court explained

that it was required to “consider whether the

government has demonstrated its need for the

disclosure requirement in light of any less intrusive

alternatives.” Id. at 676–77 (cleaned up). It thus

examined whether the links that were claimed to exist

between the disclosure and the state’s informational

interest made sense, holding,

There can be no serious argument that

requiring an issue committee to disclose

the name of its registered agent serves

the governmental interest in informing

15

the public about an issue committee’s

sources of funding. There is no

requirement in Colorado law that the

registered agent be a donor to an issue

committee, much less a significant

donor. Thus, to the extent the state

would assert such an interest in this

context, there would be a “dramatic

mismatch . . . between the interest [the

state] seeks to promote and the

disclosure

regime

that

[it]

has

implemented in service of that end.

Id. at 678 (citing AFPF, 594 U.S. at 612).

Accordingly, because “the defendants don’t even

try to explain how knowing the name of the registered

agent—as opposed to some other person with a closer

connection to the issue committee—will actually

assist voters” and “the mere possibility that disclosure

of the registered agent’s name might, in some cases,

provide relevant information to someone can’t be

sufficient if ‘exacting scrutiny’ is to mean anything.”

Id. at 679. The court held the requisite link between

the informational interest of the state and the name

of the registered agent was lacking—even though, had

the court simply employed the erroneous narrow

application test, disclosure of a single name would

certainly qualify as “narrow”. It thus followed “that

the registered agent disclosure requirement . . .

violates issue committees’ free speech rights under

the First Amendment.” Id. at 680.

No on EE – A Bad Deal for Colorado, Issue

Committee v. Beall presents an excellent example of

distinguishing between narrow tailoring and narrow

application.

16

E.

The First Circuit Court of Appeals

makes a comeback in Central Maine

Power Company v. Maine Commission on

Governmental Ethics & Election Practices.

Showing that voters as well as legislatures can

misunderstand whether the information they demand

is tailored to the ends they want to achieve, in 2023,

Maine voters passed by ballot initiative “An Act to

Prohibit

Campaign

Spending

by

Foreign

Governments” (“the Act”) with the expressed purpose

of prohibiting foreign governments and foreign

“government-influenced” entities from contributing to

candidate elections and ballot initiatives. Cent. Maine

Power Co. v. Maine Comm’n on Governmental Ethics

& Election Pracs., 144 F.4th 9, 14 (1st Cir. 2025)

(citing 1 Me. Rev. Stat. Ann. tit. 21-A, § 1064 (2024)).

The Act was overwhelmingly popular with voters,

86% of whom approved it as a ballot question. Id., at

14. Passage of the Act was motivated in part by

previous ballot initiatives attempting to block

completion of electrical lines through Maine that

would have connected Canadian electricity to

Massachusetts. Id. at 14. Companies that would have

been negatively affected by the block, including

plaintiffs, opposed those efforts in part by

contributing money to PACs and ballot question

committees. Id., at 15. These companies had varying

degrees of foreign ownership (Canadian governmental

entities, Spain, and Qatar in descending order), a fact

that some Maine voters found improper. Id. at 15.

The language of the Act was broad, banning a

“foreign government-influenced entity” from making a

contribution to influence the nomination or election of

a candidate or the initiation or approval of a

17

referendum”. Id. at 15 (citing 1 Me. Rev. Stat. Ann. tit.

21-A, § 1064(2)). But it also required that “whenever

a foreign government-influenced entity finances a

permissible public communication ... to influence the

public or any ... local official or agency concerning

government policy or government relations with a

foreign country or political party, that communication

must contain the words: ‘Sponsored by [the name of

the entity]’ followed by the label of a ‘foreign

government-influenced

entity’

or

a

‘foreign

government.’” Id. at 16–17 (cleaned up).

Plaintiff companies challenged that law, joined by

electors who argued the Act unconstitutionally

abridged their rights as voters to receive and consider

political speech. Id. at 17. Although the Act largely

related to whether an entity could donate rather than

to disclosure of donations, the court applied exacting

scrutiny and required narrow tailoring. Id. at 24

(“Under exacting scrutiny, the restrictions need not

‘be the least restrictive means of achieving their ends,’

but they must be ‘narrowly tailored to the

government’s asserted interest.’”) (citing AFPF v.

Bonta, 594 U.S. at 608). Thus, it required “a direct

causal link between the restriction imposed and the

injury to be prevented,” because “in the First

Amendment context, fit matters.” Id. at 23–24

(cleaned up).

Applying this framework, the court held that the

Act failed to satisfy exacting scrutiny because it

appeared to be either “aimed at silencing a large

swath of corporations merely because they are

corporations, or an effort to shape the ongoing debate

in Maine about its two primary utility companies by

silencing one side – the companies themselves.” Id. at

18

27. Because neither approach is constitutional, the

Act was tailored, but not to a constitutionally

permissible interest.

Whether this more recent opinion displaces

Gaspee, time will tell. But it is either a step in the

right direction or further proof that this Court should

clarify application of exacting scrutiny.

III.

THE COURT SHOULD GRANT CERTIORARI TO

STOP THE INCREASING MISAPPLICATION OF

AFPF V. BONTA.

The Court should grant certiorari because,

although AFPF is relatively recent, misapplication of

exacting scrutiny has already begun.

The risk is that these permutations will spread,

turning exacting scrutiny into the test applied to

attenuated government interests with application

schemes that are so prolix that they must be

“exacting.” This is not what the means-ends test from

AFPF stands for and such application will end up

undermining associational freedom rather than

protecting it.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

19

Respectfully submitted,

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd. Suite 1000

Arlington, VA 22203

(571) 329-2227

CCRAWFORD@AFPHQ.ORG

DOUGLAS P. SEATON

UPPER MIDWEST LAW CENTER

12600 Whitewater Drive,

Suite 140

Minnetonka, MN 55343

(612) 428-7001

DOUG.SEATON@UMWLC.ORG

August 20, 2026