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 REPUBLICAN

GOVERNORS ASSOCIATION AND

REPUBLICAN GOVERNORS PUBLIC POLICY

COMMITTEE IN SUPPORT OF PETITIONER

________________________

ERIN MORROW HAWLEY

Counsel of Record

ANNE MARIE MACKIN

LEX POLITICA PLLC

611 Pennsylvania Ave., SE #353

Washington, DC 20003

512.354.1785

ehawley@lexpolitica.com

amackin@lexpolitica.com

August 20, 2026

Counsel for Amici Curiae

TABLE OF CONTENTS

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

STATEMENT OF INTEREST ................................... 1

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

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

I. WRTL II Requires a Text-Bound, SpeakerBlind Test—Not The Alaska Supreme Court’s

Constitutionally Infirm Intent-and-Context

Inquiry. .................................................................... 4

II.

The Alaska Supreme Court Badly Erred In

Departing From WRTL II, Looking To Audience

Understanding, And Finding Identical Speech To

Be “Advocacy” Or “Not Advocacy” Depending On

The Speaker. ............................................................ 8

III. This Case Is a Clean Vehicle for Resolving

Deep Circuit Conflict............................................. 14

CONCLUSION.......................................................... 21

i

TABLE OF AUTHORITIES

Page(s)

Cases

Alaska Pol’y F. v. Alaska Pub. Offs. Comm’n,

583 P.3d 701 (Alaska 2026) ........ 8, 9, 11, 12,18

Americans for Prosperity Foundation v. Bonta,

594 U.S. 595 (2021) .................................. 13, 20

Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004) .......................... 19

Buckley v. Valeo,

424 U.S. 1 (1976) ..................... 2, 4, 5, 10-14, 21

Center for Individual Freedom v. Carmouche,

449 F.3d 655 (5th Cir. 2006) .......................... 19

Chamber of Commerce v. Moore,

288 F.3d 187 (5th Cir. 2002) ........ 11, 12, 14, 18

Citizens for Responsible Gov’t State Political Action

Comm. v. Davidson,

236 F.3d 1174 (10th Cir. 2000) ...................... 15

Citizens United v. FEC,

558 U.S. 310 (2010) .................................... 7, 17

Elections Bd. v. Wisconsin Mfrs. & Com.,

597 N.W.2d 721 (Wis. 1999) .......................... 16

Faucher v. FEC,

928 F.2d 468 (1st Cir. 1991) .......................... 14

ii

FEC v. Cent. Long Island Tax Reform Immediately

Comm.,

616 F.2d 45 (2d Cir. 1980) (en banc) ............. 15

FEC v. Christian Action Network, Inc.,

110 F.3d 1049 (4th Cir. 1997) ........................ 15

FEC v. Furgatch,

807 F.2d 857 (9th Cir. 1987) .......................... 16

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) .......................................... 5

FEC v. Nat’l Org. for Women,

713 F. Supp. 428 (D.D.C. 1989) ..................... 16

FEC v. Wisconsin Right to Life, Inc.,

551 U.S. 449 (2007) ......................... 2-12, 14, 21

First Choice Women’s Resource Centers v. Davenport,

608 U.S. ___, 146 S. Ct. 1114 (2026).............. 20

Free Speech v. FEC,

720 F.3d 788 (10th Cir. 2013) ........................ 18

Governor Gray Davis Comm. v. Am. Taxpayers All.,

125 Cal. Rptr. 2d 534 (Ct. App. 2002) ........... 15

Human Life of Wash., Inc. v. Brumsickle,

624 F.3d 990 (9th Cir. 2010) ............................ 8

Indep. Inst. v. FEC,

216 F. Supp. 3d 137 (D.D.C. 2016) ................ 17

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

187 F.3d 963 (8th Cir. 1999) .......................... 15

iii

McConnell v. FEC,

540 U.S. 93 (2003) ............................................ 4

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) .................................. 12, 20

NAACP v. Button,

371 U.S. 415 (1963) .......................................... 8

Nat’l Org. for Marriage v. McKee,

649 F.3d 34 (1st Cir. 2011) ............................ 17

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .................................... 7, 11

N.C. Right to Life, Inc. v. Leake,

344 F.3d 418 (4th Cir. 2003) .......................... 19

N.C. Right to Life, Inc. v. Leake,

525 F.3d 274 (4th Cir. 2008) .......................... 20

Osterberg v. Peca,

12 S.W.3d 31 (Tex. 2000) ............................... 16

Real Truth About Abortion, Inc. v. FEC,

681 F.3d 544 (4th Cir. 2012) .............. 17, 19, 20

Thomas v. Collins,

323 U.S. 516 (1945) .......................................... 2

Statutes

26 U.S.C. § 501(c)(4) ................................................... 2

26 U.S.C. § 527 ............................................................ 1

Alaska Stat. § 15.13.050(a) ......................................... 9

iv

Regulations

11 C.F.R. § 100.22(b)................................................. 18

v

STATEMENT OF INTEREST1

The Republican Governors Association (RGA) is a

Washington, D.C.-based § 527 organization founded

in 1961. Members of the RGA include U.S. state and

territorial Republican governors. For the past six

decades, the RGA has helped elect Republican

governors and provided them the resources to govern

effectively.

The RGA has both an acute interest in and

firsthand knowledge of the impact that speech

restrictions can have on the ability of political

organizations to speak on the issues of the day. RGA

members and their campaigns regularly engage in

public communication—op-eds, policy statements,

coalition efforts—on subjects that may later become

the focus of a ballot initiative. The RGA is therefore

uniquely situated to explain how a contextual,

audience-perception-based test for regulable speech—

of the kind the decision below adopts—threatens to

sweep ordinary political and policy communication

into onerous registration and disclosure regimes,

based not on anything a speaker said, but on the

contextual events outside the speaker’s control.

The Republican Governors Public Policy

Committee (RGPPC) is a Washington, D.C.-based §

1 Pursuant to Supreme Court Rule 37.6, amici curiae state that

no counsel for any party authored this brief in whole or in part

and that no entity or person, aside from amici curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.2, amici curiae certify that counsel of

record for all parties received timely notice of the intent to file

this brief.

1

501(c)(4) organization that serves to connect

Republican Governors to discuss and promote public

policies and best practices. RGPPC’s mission is to

monitor and communicate about state and federal

public policy affecting Republican governors and the

states they lead, including through issue-based

communications on subjects such as energy,

healthcare, education, and public safety. RGPPC

therefore has a direct and substantial interest in

ensuring that the test turns on the words a speaker

actually uses, not on a regulator’s after-the-fact

assessment of context and audience perception.

SUMMARY OF THE ARGUMENT

In Alaska, the line between issue advocacy and

campaign speech has become vanishingly small. In

the decision below, the Alaska Supreme Court held

that mere reference to an issue close in time to an

election suffices to show that an “average listener”

would view an organization’s advocacy as an

exhortation to vote. No mention of a ballot measure

necessary. No requirement that the speech urge its

passage or defeat. No requirement even that the

speech reference Alaska at all. Such a malleable

standard “offers no security for free discussion.”

Buckley v. Valeo, 424 U.S. 1, 43 (1976) (per curiam)

(quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)).

It violates this Court’s repeated admonition that

“[w]here the First Amendment is implicated, the tie

goes to the speaker, not the censor.” FEC v. Wis. Right

to Life, Inc., 551 U.S. 449, 474 (2007) (opinion of

Roberts, C.J.) (WRTL II).

2

Alaska Policy Forum (APF) did the sorts of things

advocacy organizations do. It joined Protect My Ballot,

a national coalition opposed to ranked-choice voting.

It shared the coalition’s press release and its video

regarding ranked-choice voting. And it posted an oped, a white paper, and a short article—all critical of

ranked-choice voting—on its website. After these

educational efforts began, a ballot measure which

included a ranked-choice voting provision qualified for

the election.

Even though APF’s speech never mentioned the

ballot measure, and even though some of its speech

did not even mention Alaska, the Alaska Public

Offices Commission (APOC) concluded that APF had

violated Alaska election law. Paradoxically, APOC

concluded that Protect My Ballot had not engaged in

election communications and was not subject to the

state’s registration and reporting requirements. This

is precisely the “bizarre result” this Court has found

impermissible: “identical ads aired at the same time

could be protected speech for one speaker, while

leading to . . . penalties for another.” WRTL II, 551

U.S. at 468 (opinion of Roberts, C.J.). This was so even

though some of APF’s speech did not merely resemble

Protect My Ballot’s speech—it reproduced it verbatim.

To arrive at this “bizarre result,” the Alaska

Supreme Court adopted an audience-effect test long

discredited by this Court. In Alaska, speakers may

keep their right to associational privacy only by

forfeiting their right to speak about the most

important issues of the day. The decision below

eviscerates foundational protections for core First

3

Amendment issue advocacy, conflicts with this Court’s

precedents, and deepens circuit confusion regarding

when a government may constitutionally subject a

speaker to regulation. It merits this Court’s review.

ARGUMENT

I.

WRTL II Requires a Text-Bound, SpeakerBlind Test—Not The Alaska Supreme

Court’s Constitutionally Infirm Intent-andContext Inquiry.

The First Amendment demands that government

regulation of political speech apply an objective

standard that is substance-based and speaker-blind.

This fundamental principle dates from the Court’s

holding that limiting independent expenditures for or

against federal candidates “is unconstitutional under

the First Amendment.” Buckley, 424 U.S. at 51. “After

noting the difficulty of distinguishing between

discussion of issues on the one hand and advocacy of

election or defeat of candidates on the other, the

Buckley Court explained that analyzing the question

in terms of intent and of effect would afford no security

for free discussion.” WRTL II, 551 U.S. at 467 (opinion

of Roberts, C.J.) (citation modified).

This Court’s rejection of elusive standards for

regulable speech has only crystallized in the decades

since Buckley. In 2003, the Court upheld the Federal

Election Campaign Act’s “definition of ‘electioneering

communication’” precisely because that definition

“raises none of the vagueness concerns that drove our

analysis in Buckley.” McConnell v. FEC, 540 U.S. 93,

194

(2003).

Specifically,

the

electioneering

4

communication definition “applies only (1) to a

broadcast (2) clearly identifying a candidate for

federal office, (3) aired within a specific time period,

and (4) targeted to an identified audience of at least

50,000 viewers or listeners.” Id. Since “[t]hese

components are both easily understood and

objectively determinable,” this Court found that the

definition was not vague or overbroad in violation of

the First Amendment. Id.

FEC v. Massachusetts Citizens for Life, Inc.,

continued this Court’s effort to protect and distinguish

issue discussion from electoral advocacy. 479 U.S. 238,

243 (1986) (“MCFL”). In MCFL, the Court explained

that Buckley “adopted the ‘express advocacy’

requirement to distinguish discussion of issues and

candidates from more pointed exhortations to vote for

particular persons.” Id. at 249. This Court went on to

note that express advocacy generally “depend[s] upon

the use of language such as ‘vote for,’ ‘elect,’ [or]

‘support.’” Id. (quoting Buckley, 424 U.S. at 44 n. 52).

There, an exhortation to vote “pro-life” along with the

names and photographs of specific pro-life candidates

satisfied that standard. Id. The mailer at issue

“provide[d] in effect an explicit directive: vote for these

(named) candidates.” Id.

In his controlling opinion in WRTL II, the Chief

Justice further explained the standard for regulable

speech in the candidate context: “a court should find

that an ad is the functional equivalent of express

advocacy only if the ad is susceptible of no reasonable

interpretation other than as an appeal to vote for or

against a specific candidate.” 551 U.S. at 469–70

5

(opinion of Roberts, C.J.). The line between what is

regulated and what is not “must be objective, focusing

on the substance of the communication rather than

amorphous considerations of intent and effect.” Id. at

469. Any contrary test would “unquestionably chill a

substantial amount of political speech.” Id.

To be sure, under the Chief Justice’s opinion,

reviewing courts “need not ignore basic background

information”—like the fact an election is occurring—

but he warned that acknowledging basic background

information “should not become an excuse for

discovery or a broader inquiry of the sort [that would]

raise[] First Amendment concerns.” Id. at 473–74.

Rather, to avoid “impermissible vagueness,” id. at 474

n.7, Chief Justice Roberts’ controlling opinion in

WRTL II expressly foreclosed consideration of intent

and effect—providing that a speaker’s “intent is

irrelevant” and that “a test based on the actual effect

speech will have on an election or on a particular

segment of the target audience . . . puts the speaker

wholly at the mercy of the varied understanding of his

hearers.” 551 U.S. at 472 (opinion of Roberts, C.J.)

(citation modified).

Three members of the WRTL II majority would

have gone further. In his concurrence, Justice Scalia,

joined by Justices Kennedy and Thomas, agreed that

a text-based speaker-blind rule was necessary, but

argued that the Chief Justice’s test was still too vague.

551 U.S. at 492 (Scalia, J. concurring in part and

concurring in judgment). The concurrence would have

held only a bright-line “magic words” test sufficient to

protect the important First Amendment rights at

6

stake from the inevitable chill of an ambiguous

regulation. Id.

In 2010, the Court confirmed that WRTL II

requires—at minimum—an “objective” test. In

Citizens United v. FEC, this Court described WRTL II

as “adopt[ing] an objective ‘appeal to vote’ test for

determining whether a communication [i]s the

functional equivalent of express advocacy,” and thus

subject to regulation. 558 U.S. 310, 335 (2010) (citing

WRTL II, 551 U.S. at 470). Citizens United

emphasized that this objective inquiry is necessary

because First Amendment standards “must eschew

the open-ended rough-and-tumble of factors, which

invites complex argument in a trial court and a

virtually inevitable appeal.” Citizens United, 558 U.S.

at 336 (citation modified). This follows from the

bedrock principle that “First Amendment standards .

. . ‘must give the benefit of any doubt to protecting

rather than stifling speech.’” Citizens United, 558 U.S.

at 327 (quoting WRTL II, 551 U.S. at 469; citing New

York Times Co. v. Sullivan, 376 U.S. 254, 269–270

(1964)). In short, to distinguish between issue and

election advocacy, this Court’s precedents prohibit

any sort of intent or audience-effect test, limit “inquiry

into” contextual factors, and hold that close cases

must always be “resolved in favor of protecting

speech.” WRTL II, 551 U.S. at 474 n.7 (opinion of

Roberts, C.J.).

7

II. The Alaska Supreme Court Badly Erred In

Departing From WRTL II, Looking To

Audience Understanding, And Finding

Identical Speech To Be “Advocacy” Or “Not

Advocacy” Depending On The Speaker.

The Alaska Supreme Court embraced—rather

than eschewed—an open-ended rough-and-tumble set

of contextual factors, inviting discovery and inevitable

appeal in every case, and failing to give First

Amendment freedoms the “breathing space [they

need] to survive.” NAACP v. Button, 371 U.S. 415, 433

(1963). In the lower court’s view, “express and issue

advocacy are arguably one and the same when it

comes to ballot initiatives.” Alaska Pol’y F. v. Alaska

Pub. Offs. Comm’n, 583 P.3d 701, 722 (Alaska 2026)

(citing Human Life of Wash., Inc. v. Brumsickle, 624

F.3d 990, 1018 (9th Cir. 2010)). This perspective—

that there is no such thing as protected issue advocacy

in the ballot initiative space—infected the rest of the

lower court’s analysis, leading it to make fundamental

errors and give the benefit of the doubt to state

regulators rather than speakers. In doing this, the

lower court ran afoul of this Court’s precedent in four

dangerous ways.

First, the lower court violated WRTL II’s repeated

pronouncement that context “should seldom play a

significant role in the inquiry.” 551 U.S. at 474.

Instead, the lower court made context the whole of the

inquiry—and then punished one speaker but not

another for identical speech based on just such

context. Alaska Pol’y F., 583 P.3d at 728.

8

Second, as part of its context-centric approach, the

lower court considered timing. Id. But as Chief Justice

Roberts explained in WRTL II, “[t]hat the ads were

run close to an election is unremarkable in a challenge

like this.” 551 U.S. at 472. Indeed, “[i]f this were

enough to prove that an ad is the functional

equivalent of express advocacy,” then the Supreme

Court would have found BCRA to be “constitutional in

all of its applications.” Id. Yet “[t]his Court

unanimously rejected this contention in WRTL I.” Id.

So too here. “Every ad covered” by Alaska’s

disclosure and reporting laws for ballot initiatives

“will by definition air just before [the] election.” Id.

That is because the law only applies once an initiative

is the subject of an application filed with the State.

Alaska Stat. § 15.13.050(a). Were the test close-intime, regulators could disallow issue advocacy related

to ballot initiatives entirely. That cannot be right.

Indeed, this Court’s cases establish that a speaker has

the right “to run an issue ad to coincide with public

interest.” WRTL II, 551 U.S. at 473 (opinion of

Roberts, C.J.).

Third, and perhaps most troubling, the lower

court based its contextual analysis around a

“reasonable listener.” Alaska Pol’y F., 583 P.3d at 719.

Whether speech is protected or not, in the lower

court’s view, depends upon what a hypothetical

listener is “aware of” or “not aware of.” Id. That is a

recipe for the fact-intensive discovery this Court

barred in WRTL II. Worse, instead of according to free

speech the tie, the lower court assumed a politically

engaged and educated listenership. Id. By the Alaska

9

Supreme Court’s lights, burdens on the associational

rights of advocacy organizations were permissible

because “[a]n upcoming election is the kind of

information that most reasonable listeners will be

aware of, and that knowledge will shape their

understanding of the message.” Id. That sort of

reasoning would swallow WRTL II whole. It would

prohibit any issue advocacy—in the ballot initiative or

candidate context—close in time to an election

because regulators could always assume that a

listener should be aware of elections and ballot

measures.

That is not the law. WRTL II required that there

be no reasonable interpretation of a communication

other than as an appeal to vote—not that a reasonable

listener would understand the message as such.

Indeed, in WRTL II, Chief Justice Roberts reiterated

“the flaws of a test based on the actual effect speech

will have on an election or on a particular segment of

the target audience.” 551 U.S. at 469 (opinion of

Roberts, C.J.). “Such a test ‘puts the speaker . . .

wholly at the mercy of the varied understanding of his

hearers.’” Id. (quoting Buckley, 424 U.S. at 43). And

“[i]t would also typically lead to a burdensome, expertdriven inquiry, with an indeterminate result.” Id.

Under this Court’s precedent, “[l]itigation on such a

standard may or may not accurately predict electoral

effects, but it will unquestionably chill a substantial

amount of political speech.” Id.

Just so here. As the Alaska Supreme Court’s

opinion acknowledges, listener effect depends upon

many contextual factors, including the person’s

10

knowledge and memory of current events, ballot

initiatives, and past speaker statements. Such an

approach is particularly susceptible to vague

interpretations

and

to

regulators’

post-hoc

reasonableness determinations. It “shifts the

determination of what is express advocacy away from

the words in and of themselves to the unpredictability

of audience interpretation.” Chamber of Commerce v.

Moore, 288 F.3d 187, 194 (5th Cir. 2002) (internal

quotation marks omitted). Further, as Buckley

acknowledged, anything that a speaker might say

upon “the general subject” might “be understood by

some as an invitation” to vote in a certain way. 424

U.S. at 43. Allowing a regulator to speculate about

speech’s effect on a listener chills core political speech

and deprives speakers of a “safe harbor for . . . First

Amendment rights.” WRTL II, 551 U.S. at 467

(opinion of Roberts, C.J.). And the Alaska Supreme

Court did not even stop there: it injected further

ambiguity for would-be issue speakers, stating, “We

do not rule out the possibility that prior speech may

be a permissible contextual factor in some cases.”

Alaska Pol’y F., 583 P.3d at 719.

All of this violates this Court’s mandate that any

test to distinguish issue advocacy from election

advocacy must “reflec[t] our ‘profound national

commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open.’”

Buckley, 424 U.S. at 14 (quoting Sullivan, 376 U.S. at

270). A standard turning on what a listener should be

aware of “does not remotely fit the bill.” WRTL II, 551

U.S. at 467–68 (opinion of Roberts, C.J.). It “blankets

11

with uncertainty whatever may be said.” Id. at 468

(citation modified).

To be sure, “the distinction between discussion of

issues and candidates and advocacy of election or

defeat of candidates may often dissolve in practical

application.” Buckley, 424 U.S. at 42. But that reality

counsels an approach opposite the one taken by the

Alaska Supreme Court. That is because “[d]iscussion

of issues cannot be suppressed simply because the

issues may also be pertinent in an election.” WRTL II,

551 U.S. at 474 (opinion of Roberts, C.J.). The tie goes

to the speaker.

Fourth, the lower court erred by distinguishing

WRTL II on its facts and suggesting its test does not

apply to disclosure mandates at all. Alaska Pol’y F.,

583 P.3d at 721. Not so fast. This Court’s concerns

with vague speech regulations do not disappear

simply because Alaska’s regime operates through

registration, reporting, and compelled disclosure

rather than an expenditure limit. To the contrary,

“[t]he First Amendment constrains the government’s

power to compel the disclosure of independent

contributions and expenditures, just as it constrains

the government’s power to regulate the amount of

money that a person or group can contribute to . . .

election campaigns.” Moore, 288 F.3d at 191–92.

For decades, this Court has recognized that

disclosure burdens “can seriously infringe on privacy

of association and belief,” exposing supporters to

potential harassment and chilling associational

freedoms. Buckley, 424 U.S. at 64; see NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

12

And Buckley applied the same narrowing construction

to expenditure limits (on the one hand) and to

disclosure and reporting requirements (on the other).

See Buckley, 424 U.S. at 79–80 (holding that

“expenditure” must be limited to express words of

advocacy to avoid unconstitutional vagueness). That’s

because indeterminate standards chill protected

speech regardless of whether the consequence for

miscalculating is a penalty for an excessive

contribution or the burden of compelled disclosure and

reporting. And since a vague standard means a

speaker cannot know in advance whether his speech

is regulable, some speakers will choose not to speak at

all. See Buckley, 424 U.S. at 43.

Indeed, given the serious First Amendment

burdens imposed by a disclosure mandate, Americans

for Prosperity Foundation v. Bonta, 594 U.S. 595, 608

(2021) (AFP), held that exacting scrutiny demands a

disclosure regime be narrowly tailored to an

important governmental interest. A malleable,

reasonable-listener-in-the-eyes-of-the-regulator test

like the one adopted below is the antithesis of narrow

tailoring: it cannot tell a speaker, in advance, whether

posting a white paper or sharing a national coalition’s

video will trigger disclosure or reporting obligations.

That answer will depend on facts entirely outside the

speaker’s control—an election’s proximity, a

regulator’s

assumptions

about

audience

sophistication and education, and current events. A

standard that leaves speakers “wholly at the mercy of

the varied understanding of [their] hearers,” causes

speakers to “hedge and trim” their speech, regardless

13

of whether a speaker faces liability for failing to

register and disclose donors or for running afoul of an

expenditure limit. See WRTL II, 551 U.S. at 469

(opinion of Roberts, C.J.) (citation modified). This will

not do.

III. This Case Is a Clean Vehicle for Resolving

Deep Circuit Conflict.

The Alaska Supreme Court’s decision highlights

pervasive confusion and division as lower courts

struggle to apply WRTL II. Specifically, lower courts

have split three ways on the same First Amendment

question: does WRTL II’s vagueness test have

anything to say about disclosure mandates, and if so,

how clear must a speech regulation be? Whether

disclosure mandates may be based on broad notions of

context and audience understanding depends entirely

on an accident of geography. That is precisely the kind

of conflict this Court exists to resolve.

Before WRTL II, a majority of the federal courts of

appeal had read Buckley to mandate “a bright-line

test” allowing the government to regulate so-called

“magic words,” i.e., “only those communications

containing explicit words advocating the election or

defeat of a particular candidate.” See, e.g., Moore, 288

F.3d at 191–96; Faucher v. FEC, 928 F.2d 468, 470–

71 (1st Cir. 1991) (“Express advocacy is language

which ‘in express terms advocate[s] the election or

defeat of a clearly identified candidate’ through the

use of such phrases as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast

your ballot for,’ ‘Smith for Congress,’ ‘vote against,’

‘defeat,’ and ‘reject.’”) (quoting Buckley, 424 U.S. at 44

14

& n. 52); FEC v. Cent. Long Island Tax Reform

Immediately Comm., 616 F.2d 45, 53 (2d Cir. 1980) (en

banc) (rejecting interpretation of federal election

statute allowing FEC to regulate statements made

“for the purpose, express or implied, of encouraging

election or defeat”); FEC v. Christian Action Network,

Inc., 110 F.3d 1049, 1051 (4th Cir. 1997) (holding that

regulation may “be applied consistently with the First

Amendment only if it [is] limited to expenditures for

communications that literally include words which in

and of themselves advocate the election or defeat of a

candidate . . . so that citizen participants . . . [do] not

have their core First Amendment rights to political

speech burdened by apprehensions that their

advocacy of issues might later be interpreted by the

government as, instead, advocacy of election result”);

Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d

963, 969 (8th Cir. 1999) (“The Supreme Court’s focus

was on whether the communication contains ‘express’

or ‘explicit’ words of advocacy for the election or defeat

of a candidate.”); Citizens for Responsible Gov’t State

Political Action Comm. v. Davidson, 236 F.3d 1174,

1187 (10th Cir. 2000) (“[C]ommunications that do not

contain express words advocating the election or

defeat of a particular candidate are deemed issue

advocacy, which the First Amendment shields from

regulation.”); see also Governor Gray Davis Comm. v.

Am. Taxpayers All., 125 Cal. Rptr. 2d 534, 551 (Ct.

App. 2002) (declining to follow Furgatch’s standard

because it “is too vague and reaches too broad an array

of speech to be consistent with the First

Amendment”).

15

Meanwhile, other courts departed from Buckley’s

bright-line test and broadly evaluated context,

including audience perception. In FEC v. Furgatch,

the Ninth Circuit “conclude[d] that speech need not

include any of the words listed in Buckley to be

express advocacy under the Act,” and allowed

regulators to broadly rely on context. 807 F.2d 857,

864 (9th Cir. 1987). A smattering of state courts, along

with the District Court for the District of Columbia,

followed Furgatch to varying degrees. See, e.g.,

Elections Bd. v. Wisconsin Mfrs. & Com., 597 N.W.2d

721, 733–34 (Wis. 1999) (“It may well be appropriate

to consider context in determining whether a

communication constitutes express advocacy”);

Osterberg v. Peca, 12 S.W.3d 31, 53–54 (Tex. 2000)

(citing Furgatch and declining to limit express

advocacy to communications containing Buckley’s

magic words); FEC v. Nat’l Org. for Women, 713 F.

Supp. 428, 433 (D.D.C. 1989) (expressly adopting

Furgatch and finding express advocacy based on

timing and context).

Post-WRTL II, the lower courts have split three

ways when evaluating disclosure mandates. One line

of cases—the categorical-exemption camp—holds that

the express-advocacy inquiry is irrelevant to

disclosure altogether. A second line of cases—the

loose-application camp—pays lip service to WRTL II’s

functional-equivalent test but tolerates instead a

loose, context-driven, audience-based approach. And a

third line of cases—the narrow-construction camp—

forbids broad reliance on context-based factors like

audience perception.

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The First and Fourth Circuits take the categorical

exemption approach. These courts hold that WRTL

II’s vagueness analysis does not apply to disclosure

mandates because of their (supposed) lesser burden on

First Amendment rights. The First Circuit articulated

this theory most explicitly in National Organization

for Marriage v. McKee, reasoning that “the distinction

between issue discussion and express advocacy has no

place in First Amendment review of” disclosureoriented laws, because disclosure “impose[s] no ceiling

on campaign-related activities” and therefore

warrants no definitional gatekeeping at all. 649 F.3d

34, 54–55 (1st Cir. 2011) (quoting Citizens United, 558

U.S. at 366).

The Fourth Circuit adopted this reasoning

wholesale in The Real Truth About Abortion, Inc. v.

FEC, upholding a contextual, functional-equivalent

test for political-committee disclosure purposes on the

theory that a lesser burden warrants no narrowing

construction whatsoever. 681 F.3d 544, 550–51 (4th

Cir. 2012) (RTAA). See also Indep. Inst. v. FEC, 216 F.

Supp. 3d 137, 188 (D.D.C. 2016) (three-judge court)

(finding WRTL II inapplicable to a disclosure

mandate).

In contrast, the Ninth and Tenth Circuits employ

the loose-construction approach. These courts of

appeal pay homage to WRTL II’s functionalequivalent test but ultimately employ instead a

context-focused, audience-based approach. In Human

Life of Washington, Inc. v. Brumsickle, for instance,

the Ninth Circuit held that ballot-measure

advertisements were the functional equivalent of

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express advocacy—without any need for the measure

to be named—based on their “detailed language” and

“unique timing.” 624 F.3d at 1013–16. The Tenth

Circuit likewise treated the WRTL II inquiry as

nominally applicable, holding that 11 C.F.R. §

100.22(b), which codifies Furgatch’s contextual test,

“closely correlates” to WRTL II’s functional-equivalent

standard and satisfies it for disclosure purposes. Free

Speech v. FEC, 720 F.3d 788, 795 (10th Cir. 2013).

The decision below fails to settle on one side of this

split. It invokes McKee’s categorical exemption to

wave away the relevance of WRTL II entirely, Alaska

Pol’y F., 583 P.3d at 721, yet it resolves the case using

Brumsickle’s reasonable-listener, context-dependent

methodology, id. at 720. This indeterminacy is a

symptom of the underlying confusion that needs this

Court’s resolution.

And there’s more. The Fifth and Sixth Circuits—

joined by the Fourth in an intra-circuit conflict—make

up the narrow-construction camp and have refused to

let broad context or supposed audience perception

supply the grounds for regulators to mandate

disclosure. In Chamber of Commerce v. Moore, the

Fifth Circuit invalidated Mississippi’s PAC

registration and reporting requirements insofar as

they turned on “the understanding of the reasonable

person under the circumstances,” holding that such a

standard could not be reconciled with the First

Amendment’s demand for an objective, speaker-blind

test. 288 F.3d at 191–96. The Fifth Circuit reached the

same result four years later in Center for Individual

Freedom v. Carmouche, limiting Louisiana’s

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disclosure

and

reporting

requirements

to

communications containing express words of advocacy

rather than permitting a contextual, audienceperception-based trigger. 449 F.3d 655, 663–65 (5th

Cir. 2006).

Similarly, the Sixth Circuit in Anderson v. Spear

applied a narrowing construction to Kentucky’s

definition of prohibited electioneering. 356 F.3d 651,

663–65 (6th Cir. 2004). The court held that a standard

that depends on how a communication might be

understood in context must be narrowed to avoid

unconstitutional vagueness. Id. at 665. Absent a

“narrowing

construction,”

a

definition

of

electioneering, “which included political speech that

did not expressly advocate the election or defeat of

candidates for public office, prohibited more speech

than was necessary.” Id.

Remarkably, Fourth Circuit precedent occupies

opposite poles of the conflict. Contrast N.C. Right to

Life, Inc. v. Leake, 344 F.3d 418, 429–35 (4th Cir.

2003) with RTAA, 681 F.3d at 550. In Leake, the

Fourth Circuit confronted a state disclosure regime

materially indistinguishable from Alaska’s: a

“political

committee”

designation—triggering

registration, periodic reporting, and public disclosure

of activities and donors—defined not by explicit words

of advocacy but by whether a communication was, in

context, “intended to influence” an election. 344 F.3d

at 429–35. The Fourth Circuit held that “context

prong” facially unconstitutional under Buckley,

because a standard that asks regulators, courts, and

speakers to divine intent and effect from surrounding

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circumstances “does not provide the sort of narrow,

objective, and definite standards that must

accompany a facially content-based regulation of

speech.” Id. On remand after WRTL II and McConnell,

the Fourth Circuit doubled down, holding that a

context-driven inquiry, if left unchecked, “threatens

the regulation of too much ordinary political speech.”

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288–89

(4th Cir. 2008). This holding conflicts directly with

RTAA. 681 F.3d at 557 (emphasizing “[t]he necessity

of a contextual inquiry”). That the Fourth Circuit

cannot maintain a consistent position on this question

confirms confusion over the correct standard,

confusion that warrants this Court’s review.

Regardless, this Court’s most recent decisions

foreclose both the categorical exemption and a

context-centric, audience-focused approach. First

Choice Women’s Resource Centers v. Davenport,

reaffirmed “that government actions tending to

‘curtai[l] the freedom to associate’”—like disclosure

demands—warrant “‘the closest scrutiny’ under the

First Amendment.” 608 U.S. ____, 146 S. Ct. 1114,

1122 (2026) (quoting NAACP, 357 U.S. at 460–461).

And per AFP, a disclosure demand must be narrowly

tailored to an important government interest. 594

U.S. at 611–12.

The categorical theory of McKee and RTAA

requires no tailoring at all. And the looser-application

theory of Brumsickle and Free Speech fares no better.

Indeed, a contextual, audience-perception-dependent

trigger is the antithesis of narrow tailoring. It cannot

tell a speaker, ex ante, whether his or her speech will

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trigger disclosure obligations. The answer will instead

turn on “an open-ended rough-and-tumble set of

contextual factors,” WRTL II, 551 U.S. at 469 (opinion

of Roberts, C.J.), like an election’s proximity, current

events, and a regulator’s assumptions about what a

“reasonable listener” should know.

In sum, this Court should resolve the three-way

conflict over how WRTL II applies to disclosure

obligations. It should confirm that AFP’s narrowtailoring requirement forecloses both the categorical

exemption and the loose-application theory. Such

theories are unconstitutional because they “offer[] no

security for free discussion” and “compel[] the speaker

to hedge and trim.” Buckley, 424 U.S. at 43. This case

cleanly and squarely presents just that question.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari.

August 20, 2026

Respectfully submitted,

ERIN MORROW HAWLEY

Counsel of Record

ANNE MARIE MACKIN

LEX POLITICA PLLC

611 Pennsylvania Ave., SE #353

Washington, DC 20003

512.354.1785

ehawley@lexpolitica.com

amackin@lexpolitica.com

Counsel for Amici Curiae

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