Petition for Writ of Certiorari — Carmoucheche v. Center for Individual Freedom (No. 06-494)

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(1) Supreme Court, US.

No. 06-494 OCT 3 - 2006

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

PAUL J. CARMOUCHE, DISTRICT ATTORNEY,

1ST JUDICIAL DISTRICT; ROBERT ROLAND,

CHAIRMAN, T.O. PERRY, JR., VICE CHAIRMAN,

JOHN W. GREENE, E.L. GUIDRY, JR., R.L. HARGROVE,

JR., MICHAEL J. KANTROW, SR., JOSEPH MASELLI,

HENRY C. PERRETT, JR., ASCENSION DELGADO

SMITH, DOLORES SPIKES, EDWIN O. WARE, III,

OF THE LOUISIANA BOARD OF ETHICS AND

THE SUPERVISORY COMMITTEE FOR

CAMPAIGN FINANCE,

Petitioners,

CENTER FOR INDIVIDUAL FREEDOM, -

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

R. GRAY SEXTON

THE LOUISLANA BOARD OF ETHICS

2415 Quail Drive, Third Floor

Baton Rouge, LA 70808

(225) 763-8777

(4 KEE LAW BRIEF PRINTING CO | 800) 225-6904

OR CALL COLLECT 42> 442-2831

QUESTIONS PRESENTED FOR REVIEW

(1) Did the United States Court of Appeals for the Fifth

Circuit err by continuing to adhere to the express advo-

cacy/issue advocacy dichotomy established by Buckley, in

light of this Honorable Court’s pronouncements in McCon-

nell?

(2) Did the United States Court of Appeals for the Fifth

Circuit err in construing the provisions of Louisiana’s

Campaign Finance Disclosure Act to require disclosure

only when Buckley’s magic words are used instead of

construing the statute-to apply to “electioneering commu-

_nications” under this Court's decision in McConnell?

(3) Did the United States Court of Appeals for the Fifth

Circuit have any authority to narrowly construe the

provisions of Louisiana's Campaign Finance Disclosure Act

to require disclosure only when Buckley’s magic words are

used?

(4) Did the United States Court of Appeals for the Fifth

Circuit err in not certifying a res nova state law question

to the Louisiana Supreme Court?

PARTIES TO THE PROCEEDING

1. The State of Louisiana; Paul J. Carmouche, District

Attorney, Ist Judicial District; Robert Roland, Chairman,

T. O. Perry, Jr., Vice-Chairman, John W. Green, E. L.

Guidry, Jr., R. L. Hargrove, Jr., Michael J. Kantrow, Sr.,

Joseph Maselli, Henry C. Perrett, Jr., Ascension Delgado

Smith, Dolores Spikes, Edwin O. Ware, III, of the Louisi-

ana Board of Ethics and the Supervisory Committee for

Campaign Finance, represented by:

Raymond Gray Sexton, Louisiana Board of Ethics

Kathleen M. Allen, Louisiana Board of Ethics

Alesia M. Ardoin, Louisiana Board of Ethics

Charles H. Braud, Office of the Attorney General

2. The Center for Individual Freedom, represented by:

Jan Witold Baran, Esq., Wiley, Rein & Fielding

Thomas W. Kirby, Esq., Wiley, Rein & Fielding

Caleb P. Burns, Esq., Wiley, Rein & Fielding

Reid Alan Cox, Esq., Center for Individual Freedom

Renee L. Giachino, Esq., Center for Individual Freedom

Christopher K. Ralston, Esq., Phelps Dunbar, LLP

Harry Rosenberg, Esq., Phelps Dunbar, LLP

Mary Ellen Roy, Esq., Phelps Dunbar, LLP

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ..........+++ i

PARTIES TO THE PROCEEDING .........--cccseesreseeeees ii

TABLE OF CONTENTS.........:escceseeereseceerenneesseneeeeeees ili

TABLE OF AUTHORITIEG..........:::eccserssereessesernenerenseens Vv

CITATION OF OPINIONS BELOW ...........csscecsrsseressees 1

JURISDICTION. .......:ccsssssssseresecescseessneceeeeneccensensesceecenes 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED. .......0c.ceeecsccsssscseeveseeccscsennsnereeneeneneesensaeones 1

INTRODUCTION .........::sscccssesrereresssersertenscrneessonersecsnaens 3

STATEMENT OF THE CASE .........:c::ceceeeeeeeeeserereeers 5

ARGUMENT.......:2ccccccccecceecesersensrcssesercescescseneneesenesens 8

I. THE DECISION OF THE U5. FIFTH

CIRCUIT IS IRRECONCILABLE WITH

THIS HONORABLE COURT'S DECISION

IN MCCONNELL. .......:020cseeseeerserrserseerseesnenses 8

A. The majority opinion adopted a narrow-

ing construction that is not appropriate

in light of this Honorable Court’s state-

ments and directives in McConnell........-- 14

B. The majority erred when concluding that

the McConnell Court’s holdings have no

effect upon the “continuing relevance of

the magic words requirement as a tool of

statutory construction where a court is

dealing with a vague campaign finance

Tegulation.”.......0.ccccesesseceereeeeeeeenesssesennees 17

TABLE OF CONTENTS -— Continued

Page

If. REVIEW BY THIS COURT IS WARRANTED

BECAUSE THE PROCEEDING INVOLVES

A QUESTION OF EXCEPTIONAL IMPOR-

RAPP iotNatinsiten bien icbcatecaocatacdonts 21

lil. THE MAJORITY ERRED IN “‘FORMULAT-

ING A RULE OF CONSTITUTIONAL LAW

THAT IS BROADER THAN THE FACTS

Pe BAIT oie cssknisasdabtendeiiacsdtscksssinisbctekess 22

IV. THE MAJORITY ERRED BY NOT CERTI-

FYING A QUESTION OF STATE LAW TO

THE LOUISIANA SUPREME COURT CON-

CERNING THE INTERPRETATION AND

APPLICATION OF A PROVISION LOUISI-

ANA’S CAMPAIGN FINANCE DISCLO-

FOND BRM PUNE aiciassnesssessinsitgnocsiguivesiitcestesiniecices 24

RAPE VRRIAIEPRGIEN scorasonieten sisvesevnesarandshnevtdesanenaechlnsteantens 27

TABLE OF AUTHORITIES

Page

CASES

Ashwander v. TVA, 297 U.S. 288 (1936)........:ssecsceserserees 22

Bellotti v. Baird, 428 U.S. 132 (1976)..........csecceesseeeeeeeeees 26

Boos v. Barry, 485 U.S. 312 (1988) .......:-esseseeseserenrsenenees 19

Buckley v. Valeo, 424 U.S. 1 (1976)....eccessssceereseeerees passim

Burford v. Sun Oil Co., 319 U.S. 331, 63 S. Ct. 1107

CR OAGY iiss coiccsscisestevucsveveensusvatavstatpotesscabveakvatondennnasyeresene 25

Chamber of Commerce of the United States v.

Moore, 288 F.3d 187 (5th Cir. 2002)........:scssserseeseenesees 14

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993)........csccsseseesserereeeseeees 22, 24

FEC v. Massachusetts Citizens for Life, Inc., 470

UES, BBS (IOGG) vovivicveicccciscrcscndisccscusacsescxvetvéctensiaveceess 10, 11

Humphrey’s Executor v. United States, 295 U.S. 602

CRC cs ie.cicsscosncoseasubnundonouninybosasinssceaeyoas apessosteboccesesates 24

James B. Beam Distilling Co. v. Georgia, 501 US.

529, 111 S. Ct. 2439, 115 L.Ed.2d 481 (1991).............-. 23

Kastigar v. United States, 406 U.S. 441 (1972)........-.000 24

Lehman Brothers v. Schein, 416 U.S. 386, 94 S. Ct.

1741, 40 L.Ed.2d 215 (1974) .......cseccescoeereeseennnceeneeees 26

Liverpool, New York & Philadelphia S.S. Co. v.

Commissioners of Emigration, 113 U.S. 33 (1885)....... 22

McConnell v. FEC, 540 U.S. 93 (2003) ........:-eseceeerees passim

New Orleans Public Service, Inc. v. City of New

Orleans, 109 S. Ct. 2506 (1989) ...........-ecsecesereereeseneeesens 25

Stenberg v. Carhart, 530 U.S. 914 (2000).......--erseesersreees 19

TABLE OF AUTHORITIES — Continued

United States v. Raines, 362 U.S. 17 (1960)

Virginia v. American Booksellers Ass’n, 484 U.S.

383 (1988)

FEDERAL STATUTES, RULES AND REGULATIONS

2 U.S.C. § 434(e)

28 U.S.C. § 1254

28 U.S.C. § 1331

28 U.S.C. § 1343(a)(3)

STATE STATUTES

BGs TAG) CEOS. ssisciscinsciscsns cons enededongceehedovienccusdedsans 1

18:1483(9)(a)

18:1491.6(A)

DAs A sa ini shdscnaccaccsteseousscheniecsedeibebebeaebossdeoeoesinie 2

18:1501.1(A)

CITATION OF OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit was entered in this matter on May 11,

2006, Civil Action Nos. 04-30877, 05-30212, 449 F.3d 655

(5th Cir. (La.) May 11, 2006).

Rehearing and Rehearing en Banc was denied by the

United States Court of Appeals for the Fifth Circuit on

July 11, 2006,__ F.3d ___ (5th Cir. (La.) July 11, 2006).

The opinion of the United States District Court for the

Western District of Louisiana, Civil Action No. 04-1785,

was entered in this matter on September 2, 2004, denying

the Motion for Preliminary Injunction filed by the Center

for Individual Freedom.

JURISDICTION

Judgment was entered by the United States Court of

Appeals for the Fifth Circuit on May 11, 2006. Rehearing

was denied on July 11, 2006.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254. The jurisdiction of the United States District Court

for the Western District of Louisiana was invoked under 28

U.S.C. § 1331 and under 28 U.S.C. § 1343(a)(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

: Louisiana’s Campaign Finance Disclosure Act (LSA-

R.S. 18:1481 et seq.) (“CFDA”) is designed to ensure a

“knowledgeat .ectorate.” It therefore requires complete

disclosure of a.: transactions related to the financing of

election campaigns, including the requirement that

persons making independent expenditures in excess of

$500 file disclosure reports. The statute requiring inde-

pendent expenditures to be reported states:

§1501.1. Reports by persons not candidates

or committees

Any person, other than a candidate or a po-

litical committee, who makes any expenditure or

who accepts a contribution, other than to or from

a candidate or to or from a political committee,

shall file reports of all information required by

R.S. 18:1491.7 for such person if either said

expenditures or said contributions exceed five

hundred dollars in the aggregate during the ag-

gregating period as defined for committees. Such

reports shall be filed at the same time and shall

contain the same information as reports required

of political committees by this Part and shall be

certified correct as required by R.S. 18:1491.6(A)

by the person filing.’

The term “expenditure” is defined as follows:

“Expenditure” means a purchase, payment, ad-

vance, deposit, or gift, of money or anything of

value made for the purpose of supporting, oppos-

ing, or otherwise influencing the nomination or

election of a person to public office, for the pur-

pose of supporting or opposing a proposition or

question submitted to the voters, or for the

* LSA-R.S. 18:1482.

* LSA-R.S. 18:1501.1.

purpose of supporting or opposing the recall of a

public officer, whether made before or after the

election.’

INTRODUCTION

The Center for Individual Freedom (the “Center”)

brought this action in the United States District Court for

the Western District of Louisiana on August 26, 2004,

requesting a temporary restraining order enjoining the

Louisiana Board of Ethics in its capacity as the Supervi-

sory Committee on Campaign Finance Disclosure, (the

“Board”) from enforcing provisions of Louisiana’s Cam-

paign Finance Disclosure Act (“CFDA”). The Center’s

complaint challenged the “expenditure” standard estab-

lished under the CFDA. The Center claims its action is to

“vindicate free speech, free association, and due process

rights.” In reality, the Center’s goal is to deprive the

public, and more importantly, the electorate of information

critical to its decision-making process in the crucial days

preceding important judicial elections. This out-of-state

organization desires to come into Louisiana and express

its views in reference to future undefined and unspecified

Louisiana elections (apparently judicial elections), “par-

ticularly during election periods when the public is most

attuned to such discussion.” It has every right to do so.

However, the citizens of Louisiana have an equally com-

pelling right to know the identity of persons seeking to

* LSA-R.S. 18:1483(9 Xa).

* App. p. 37.

* App. p. 38-39.

influence elections, through the expenditure of substantial

funds in Louisiana.

The sharply divided opinion of the Fifth Circuit,

rejecting the carefully reasoned decision of the District

Court, has effectively ignored the pronouncements of this

Honorable Court in McConnell v. FEC’ and has imposed

on Louisiana (and, by implication, a host of similarly

situated state governments) an unwise and unnecessary

restriction on the capacity of legislatures to control the

essential requirement that those who seek to influence

elections disclose the source and identity of contributors of

campaign funds.

The majority opinion of the Fifth Circuit departs from

the settled law of McConnell, rejects its common sense

approach to evaluating electioneering, and has invited a

spectra of organizations — such as the “Center for Individ-

ual Freedom” — to secretly fund political campaigns. The

majority opinion of the Fifth Circuit has imposed on

Louisiana’s government (and other governments with

statutes modeled after Buckley’ and McConnell) a limita-

tion restricting campaign finance reporting requirements

to just those expenditures that overtly exhort voters to

“vote for candidate x” or “vote against candidate y.” This

decision, if allowed to stand, will erode years of hard-

fought-for transparency and will undermine governmental

requirements that organizations, which wage media

campaigns “clearly” and manifestly in support of (or in —

opposition to) a particular candidate, disclose the identity

and source of their funding.

* McConnell v. FEC, 124 U.S. 619 (2003).

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

It is imperative that candidates and elected officials in

Louisiana understand the disclosure requirements and

have confidence that their actions are in compliance with

those requirements. There is a need for clarity in the

arena of Campaign Finance Disclosure Law, especially at

this point in time when it has been the subject of great

controversy, not only in Louisiana but throughout the

United States. After McConnell, it was clear that persons

engaging in political advertising could no longer easily

evade disclosure requirements by avoiding the use of

certain phrases, such as “vote for” or “vote against.”

Candidates, elected officials, and political committees need

to know where the lines are drawn. The Fifth Circuit’s

decision confounds that issue, blurs the lines, and engen-

ders confusion and uncertainty. This decision should

therefore be reviewed by this Honorable Court.

STATEMENT OF THE CASE

The Center brought this action in the United States

District Court for the Western District of Louisiana on

August 26, 2004, requesting a temporary restraining order

enjoining the Board from enforcing provisions of Louisi-

ana’s Campaign Finance Disclosure Act (“CFDA”). After

injunctive relief was denied, the Center chose not to run

the proposed ads. The Center’s complaint challenged the

“expenditure” standard established by Louisiana law; the

challenged statute was carefully modeled after the statute

in Buckley to ensure constitutionality. It named as Ex

Parte Young defendants the members of the Louisiana

Board of Ethics who, sitting as the Supervisory Committee

for Campaign Finance, are charged with civil enforcement

and construction of the challenged laws.

The Board opposed the proceeding, arguing that the

challenged provisions of the CFDA are constitutionally

firm, that emergency relief would seriously disrupt the

then-impending election, and that there were threshold

obstacles to relief. At no time during the proceeding did

the Center provide a copy of the advertisements it wanted

to run. The District Court denied preliminary injunctive

relief, holding the challenged provision “for the purpose of

... influencing,” as used in the Louisiana statute, is

exactly the same as the language in the Buckley statute,

validated by the United States Supreme Court.’ The

District Court also found that the interest of the public in

knowing who is financing the Center’s proposed ad cam-

paign in an election for a seat on Louisiana’s highest court

far outweighs the Center’s interest in hiding the identity

of those who seek to influence the important election.”

The United States Court of Appeals for the Fifth

Circuit (“Fifth Circuit”) then denied the Center’s request

for a temporary injunction pending appeal stating that

they were not persuaded that there was an “adequate

showing to warrant” the injunction.” The parties then

agreed that the District Court could render final judgment

on the basis of the preliminary injunction submissions and

record. The District Court then dismissed the Complaint,

finding that the Center did not show a reasonable likeli-

hood of success on the merits." The Fifth Circuit consoli-

dated the timely appeals from the denial of preliminary

relief and from the final judgment dismissing the Center’s

* App. p. 33.

° App. p. 3.

App. p. 3.

Complaint. On May 11, 2006, a majority of the Fifth

Circuit panel rendered an opinion affirming the District

Court’s judgment of dismissal; however, the majority

opinion also applied a narrowing construction to provi-

sions of the CFDA, imposing upon the CFDA the Buck-

ley/magic words standard.

The majority opinion went beyond the scope of the

issue presented and concluded that “receiving no instruc-

tion from McConnell to do otherwise, we apply Buckley's

limiting principle to the CFDA and conclude that the

statute reaches only communications that expressly

advocate the election or defeat of a clearly identified

candidate. In limiting the scope of the CFDA to express

advocacy, we adopt Buckley’s definition of what qualifies as

such advocacy.”” However, as stated in the dissenting

opinion, “the majority opinion violates the tenets of the

Supreme Court, as reaffirmed in McConnell, against the

formulation of a constitutional rule broader than the

precise facts of the case to which it applies.”” The Board

filed a Petition for Rehearing En Banc. On July 11, 2006,

the Board’s Petition for Rehearing was denied. The major-

ity’s narrowing construction and the Board’s belief that

this narrowing construction is in direct conflict with the

Supreme Court’s pronouncements in McConnell have

prompted the Board to file this Petition for Writ of Certio-

rari.

There are no evidentiary facts contained in the record

as no testimony was taken at either the District Court

” App. p. 17.

* App. p. 28.

level or at the appellate level. The case was heard — and

decided — on motions, affidavits and arguments.

ARGUMENT

THE DECISION OF “HE FIFTH CIRCUIT IS

IRRECONCILABLE WITH THIS HONORABLE

COURT’S DECISION IN MCCONNELL.

Review by this Court is warranted to maintain uni-

formity of the Supreme Court’s decisions. The majority's

opinion is irreconcilable with the pronouncements by this

Honorable Court in McConnell.

The majority's decision undermines the unambiguous

expressions in McConnell that the “magic words” test of

Buckley is “functionally meaningless.” A holistic approach

needs to be taken and a rule of reason is to be used in

determining whether the words are clearly intended to

” influence an election. It is absolutely essential that an

informed electorate know from where financial support for

a particular individual’s candidacy is coming. Moreover, in

a modern society, it is far too easy to disguise express

advocacy as issue advocacy. The advertisement may not

explicitly exhort voters to vote for a specified candidate,

and yet, everyone knows exactly what is intended by a

particular ad.

Your Honors in McConnell adopted the Buckley court’s

articulation of the important governmental interests for

disclosure: “providing the electorate with information,

deterring actual corruption and avoiding any appearance

* McConnell at 689.

thereof, and gathering the data necessary to enforce more

substantive electioneering restrictions.”” The famous

quote from Justice Brandeis, used by the Buckley court,

and applicable here, is:

Publicity is justly commended as a remedy for

social and industrial diseases. Sunlight is said to

be the best of disinfectants; electric light the

most efficient policeman.

The election process is one in which both sunlight and

electric light are needed. The Center should not be allowed

to make expenditures without disclosing its activity. Of

course, the underlying question is whether the Center

wishes to engage in “express advocacy” or “issue advocacy.”

As recognized by the Center, Buckley v. Valeo, 424

U.S. 1 (1976) must be the starting point of any analysis of

a constitutional challenge against a campaign finance

statute. However, the Center fails to point out that, in

Buckley, the United States Supreme Court analyzed the

independent expenditure reporting requirements of

Section 434(e) of the Federal Election Campaign Act which

applied to “[elvery person . .. who makes contributions or

expenditures.” The definitions of “contributions” and

“expenditures” in that federal law, like the definitions in

Louisiana law, included the use of money “for the purpose .

of .. . influencing” the election of candidates.”

The Buckley Court construed the definition of “expen-

diture” to reach “only funds used for communications that

McConnell at 690.

Buckley at 77 (emphasis added).

expressly advocate.”’ In upholding the requirement of

disclosure of independent expenditures, the Court stated:

But the disclosure provisions, including §434(e),

serve another, informational interest, and even

as construed §434(e) increases the fund of infor-

mation concerning those who support the candi-

dates. It goes beyond the general disclosure

requirements to shed the light of publicity on

spending that is unambiguously campaign-

related but would not otherwise be reported be-

cause it takes the form of independent expendi-

tures or of contributions to an individual or

group not itself required to report the names of

its contributors. By the same token, it is not fatal

that §434(e) encompasses purely independent

expenditures uncoordinated with a particular

candidate or his agent. The corruption potential

of these expenditures may be significantly differ-

ent, but the informational interest can be as

strong as it is in coordinated spending, for dis-

closure helps voters to define more the

candidates’ constituencies.”

In FEC v. Massachusetts Citizens for Life, Inc.

(“MCFL”)” this Honorable Court specifically found that

MCFL’s publication entitled “Special Edition” constituted

express advocacy even though it purported to constitute

only “issue advocacy.” The court stated:

Buckley adopted the “express advocacy” require-

ment to distinguish discussion of issues and can-

didates from more pointed exhortations to vote

" Buckley at 80.

* Buckley at 81 (emphasis added).

*® 479 U.S. 238 (1986).

for particular persons. We therefore concluded in

that case that a finding of “express advocacy” de-

pended upon the use of language such as “vote

for,” “elect,” “support,” etc. Buckley, supra, at 44,

n. 52. Just such an exhortation appears in the

“Special Edition.” The publication not only urges

voters to vote for “pro-life” candidates, but also

identifies and provides photographs of specific

candidates fitting that description.... The fact

that this message is marginally less direct than

“Vote for Smith” does not change its essential na-

ture. The Edition goes beyond issue discussion to

express electoral advocacy. The disclaimer of en-

dorsement cannot negate this fact. The “Special

Edition” thus falls squarely within 441b, for it

represents express advocacy of the election of

particular candidates distributed to members of

the general public.”

The most recent proclamation by this Court is its 2003

decision in McConnell v. FEC.” McConnell involved

challenges to the new federal campaign law, the Biparti-

san Campaign Reform Act of 2002, commonly known as

BCRA. In McConnell, this Court rejected the concept of

“magic words,” which evolved from the Buckley decision,

as being necessary to constitute express advocacy, stating:

The major premise of plaintiffs’ challenge to

BCRA’s use of the term “electioneering communi-

cation” is that Buckley drew a constitutionally

mandated line between express advocacy and so-

called issue advocacy, and that speakers possess

an inviolable First Amendment right to engage in

the latter category of speech. Thus, plaintiffs

*” MCFL at 249-50.

** 124 U.S. 619 (2003).

maintain, Congress cannot constitutionally re-

quire disclosure of, or regulate expenditures for,

“electioneering communications” without making

an exception for those “communications” that do

not meet Buckley’s definition of express advocacy.

That position misapprehends our prior decisions,

for the express advocacy restriction was an end-

point of statutory interpretation, not a first prin-

ciple of constitutional law. In Buckley, ... [we

provided examples of words of express advocacy,

such as “‘vote for,’ ‘elect,’ ‘support,’ ... ‘defeat,’

land] ‘reject,’” id., at 44, n. 52, and those exam-

ples eventually gave rise to what is now known

as the “magic words” requirement.

+ ~ *

Thus, a plain reading of Buckley makes clear

that the express advocacy limitation, in both the

expenditure and the disclosure contexts, was the

product of statutory interpretation rather than a

constitutional command.

* * a

In short, the concept of express advocacy and the

concomitant class of magic words were born of an

effort to avoid constitutional infirmities.

* . +

Nor are we persuaded, independent of our prece-

dents, that the First Amendment erects a rigid

barrier between express advocacy and so-called

issue advocacy. That notion cannot be squared

with our longstanding recognition that the pres-

ence or absence of magic words cannot meaning-

fully distinguish electioneering speech from a

true issue ad. See Buckley, supra, at 45. Indeed,

the unmistakable lesson from the record in this

litigation, as all three judges on the District

Court agreed, is that Buckley's magic-words re-

quirement is functionally meaningless. [citations

omitted] Not only can advertisers easily evade

the line by eschewing the use of magic words, but

they would seldom choose to use such words even

if permitted. And although the resulting adver-

tisements do not urge the viewer to vote for or

against a candidate in so many words, they are

no less clearly intended to influence the

election. (Emphasis added.)

It is abundantly clear from this Honorable Court’s

analysis in the McConnell case that it is necessary to

consider the effect of an advertisement as a whole to

determine if it was designed to influence an election,

the same language used in the Louisiana definition of

“expenditure.” The McConnell ruling does not support the

Center’s argument that the Louisiana statutes are uncon-

stitutional. To the contrary, the McConnell court recog-

nized the need to go beyond the specific words of an

advertisement to determine if the advertisement was

intended to “influence an election” and therefore subject to

regulation by statute. :

The Court in Buckley concluded that the test is

whether the definition affords the “[p]recision of regula-

tion [that] must be the touchstone in an area so closely

_ touching on our most precious freedoms.”” The Buckley

Court thus concluded that to preserve the definition of

expenditure against invalidation on vagueness grounds,

the definition “must be construed to apply only to expendi-

tures for communications that in express terms advocate

* Buckley at 41.

the election or defeat of a clearly identified candidate for

federal office.”” (Emphasis added.)

The majority opinion, as well as the dissenting opin-

ion, correctly concluded that — as in Buckley — the defini-

tion of “expenditure” in the CFDA is constitutional.

However, the majority opinion ignores the McConnell

Court’s conclusion that there is no need to limit disclosure

requirements to express advocacy rather than so-called

issue advocacy.”

A. The majority opinion adopted a narrow-

ing construction that is not appropriate

in light of this Honorable Court’s state-

ments and directives in McConnell.

After declaring the CFDA’s definition of “expenditure”

“facially constitutional,” the majority opinion went beyond

the question posed and asked whether, ih light of McCon-

nell, the court is required to adhere to the express advo-

cacy/issue advocacy dichotomy set forth in Buckley.” The

majority opinion clearly and correctly states that “the

Court held that for purposes of regulating election-related

speech, there is no constitutionally mandated line that

* Buckley at 44.

* McConnell at 689.

* This Court adhered to the express advocacy/issue advocacy

dichotomy in Chamber of Commerce of the United States v. Moore, 288

F.3d 187, 194-95 (5th Cir. 2002). Chamber of Commerce was decided

prior to McConnell. Also, a distinction between Chamber of Commerce

and the instant case is that in Chamber of Commerce the Court was

asked to apply Mississippi's definition of expenditure to a specific ad —

and whether that known language contained in the ad constituted

“express advocacy.”

must be drawn between express advocacy and issue

advocacy.”

However, the majority opinion was incorrect in con-

cluding that the McConnell Court has not provided a

broad approach to determining when expenditures have

been made for the purpose of influencing an election. As

stated by Judge Dennis, in the dissenting opinion, McCon-

nell flatly rejected the argument that Buckley established

that the First Amendment absolutely guaranteed the right

of persons to anonymously engage in political speech for

the purpose of issue advocacy under any and all circum-

stances. The McConnell Court did not adopt the Buckley

express advocacy limitation and magic word implementa-

tion as a freestanding commandment of the First Amend-

ment.

As stated by the McConnell Court, and by Judge

Dennis in his dissent, disclosure requirements are consti-

tutional because they do not prevent individuals from

speaking.” McConnell clearly indicates that individuals

are required to comport with the disclosure requirements

of the CFDA under a construction that is no broader than

is required by the facts of the case at issue. The Center

never made known the content of its “ad.” Neither the

Board nor the courts below were afforded the opportunity

to adjudicate the Board’s application of the provisions of

the CFDA to the “expenditures” made under either the

Buckley or McConnell decisions. However, the Center

admitted that its broadcast would clearly identify one or

more candidates and be targeted to the relevant elector-

ate. Arguably, with additional facts made known with

*® McConnell at 693.

respect to the content of the ad, the Center would be

required to abide by the disclosure requirements pursuant

to the application of either Buckley or McConnell.

The majority opinion ignores the Supreme Court’s

decision in McConnell and its application to express

advocacy expenditures. McConnell upheld challenges to

the Bipartisan Campaign Reform Act of 2002, commonly

known as BCRA. In order to prevent evasion of disclosure

requirements by individuals supporting or opposing a

candidate but failing to use the “magic words,” BCRA set

forth factors, other than the use of the magic words, to be

considered when determining if disclosure is required.

As Judge Dennis stated in his dissenting opinion,

“(T]he McConnell court did not adopt the Buckley express

advocacy limitation and magic word implementation as a

freestanding commandment of the First Amendment. The

majority opinion misinterpreted the McConnell decision

and has misapplied it in engrafting Buckley’s limiting

construction on the [CFDA).” The majority’s “limiting

interpretation of the CFDA would be acceptable only

under the theory that the court in Buckley had constitu-

tionalized the express advocacy limitation and magic

words prescription, a constitutional theory that the Court

expressly rejected in McConnell.”

The Court in McConnell stated that “the express

advocacy restriction was an endpoint of statutory interpre-

tation, not a first principle of constitutional law.” Fur-

thermore, the Court stated that “the First Amendment

does not erect such a rigid barrier between express advo-

cacy and so-called issue advocacy ... [t]hat notion cannot

be squared with our longstanding recognition that the

presence or absence of magic words cannot meaningfully

distinguish electioneering speech from a true issue ad. See

Buckley, supra, at 45.”"

It is clear from the Court’s analysis in McConnell that

it is necessary to consider the effect of an advertisement as

a whole to determine if it was designed to influence an

election, the same language used in the Louisiana defini-

tion of “expenditure.” The McConnell Court recognized the

need to go beyond the specific words of an advertisement

to determine if the advertisement was intended to “influ-

ence an election” and therefore subject to regulation by

statute. Contrary to the majority's opinion and consistent

with the dissenting opinion, the scope of the CFDA should

not be limited to “express advocacy” that contains Buck-

ley’s magic words requirement. Any application by the

Board consistent with the McConnell Court’s decision

cures any vagueness with respect to constitutional attacks

by persons making expenditures that are for the purpose

of influencing the nomination or election of candidates for

office.

B. The majority erred when concluding that

the McConnell Court’s holdings have no

effect upon the “continuing relevance of

the magic words requirement as a tool of

statutory construction where a court is

dealing with a vague campaign finance

regulation.”

The majority agrees that Buckley's magic words

requirement is functionally meaningless; however, the

7 McConnell at 689.

* App. p. 28.

majority states that “the [McConnell] Court said nothing

about the continuing relevance of the magic words re-

quirement as a tool of statutory construction where a court

is dealing with a vague campaign finance regulation.”

The majority then concludes that “in light of that silence,

we must assume that Buckley remains good law in such

circumstances.” The majority’ application of Buckley’s

“magic words” requirement is based on flawed and partial

analysis. Justice Dennis in his dissent disagrees with the

majority’s analysis. Judge Dennis states:

The majority's assumption rests precariously on

a false syllogism, viz, McConnell dealt with an

ambiguous statute; the present case deals with

an ambiguous statute (according to the majority’s

necessarily non-authoritative state law interpre-

tation); therefore, nothing McConnell saya bears

upon our narrowing construction of a state stat-

ute. Only a moment’s reflection is needed to see

the fallacy of this sophism. The Supreme Court

has developed First Amendment principles that

it has applied to determine whether any particu-

lar statute is constitutionally ambiguous and in

need of a narrowing construction. Therefore, the

Court’s teachings on the First Amendment in

such cases are generally authoritative and bind-

ing upon the inferior federal courts regardless of

the court’s conclusion as to whether the statute

in the particular case before it is found to be am-

biguous and in need of a narrowing construction.

Thus, the majority cannot legitimately disregard

the teachings of the McConnell Court as irrele-

vant “assertions,” as it seeks to do, simply be-

cause the Court determined that the statute in

* App. p. 28.

that case was not ambiguous and the majority

has decided the case before us is ambiguous.”

The majority simply dismisses this Honorable Court’s

directives in McConnell as inapplicable based upon its

determination that the statute at issue is ambiguous, a

conclusion that is not supported in fact or in law. The

McConnell Court did not remain “silent” about “the con-

tinuing relevance of the magic words requirement as a tool

of statutory construction.” To the contrary, the Court, by

concluding that the magic words requirement was “func-

tionally meaningless,” clearly recognized its -ineffective-

ness and denounced its continuing application, as

explained in detail above.

If a narrowing construction is necessary to cure any

defects in the challenged statute, the “readily apparent”

construction is the standard established in McConnell.

The Center admitted in its brief that its broadcasts would

clearly identify one or more candidates and be targeted to

the relevant electorate. The Center’s planned advertise-

ments clearly constitute “electioneering communications”

and this Honorable Court has determined that such

communications are subject to disclosure. Justice Dennis

in his dissent states:

“(Tlhe Supreme Court’s decision in McConnell

clearly indicates that the State of Louisiana may

constitutionally require the Center to comply

with the disclosure requirements of the CFDA

* App. p. 28-29.

” Stenberg v. Carhart, 530 U.S. 914, 944 (2000) (quoting Boos v.

Barry, 485 U.S. 312, 330 (1988)). Federal courts are without power to

adopt a narrowing construction of a state statute unless such a

construction is reasonable and readily apparent.

under a construction that is no broader than is

required by the precise facts to which it is to be

applied in the present case. In this case, the Cen-

ter asserts that it desired only to engage in issue

advocacy, and that the TV and radio advertising

it proposed to broadcast during the three weeks

prior to the September 18, 2004 Louisiana Su-

preme Court Associate Justice election, would

not have been funded or broadcast for the pur-

pose of influencing the election. But the Center

admitted that its broadcasts would clearly iden-

tify one or more candidates and be targeted to

the relevant electorate. Consequently, the broad-

casts that the Center desired to fund fall

squarely within a category of speech closely

analogous to the definition of “electioneering

communication” in respect to which the Supreme

Court held that Congress may under the First

Amendment require disclosure, viz. (1) a broad-

cast (2) clearly identifying a candidate (3) aired

within a specific time prior to election and (4)

targeted to the relevant electorate. McConnell,

540 U.S. at 194.”

The more appropriate standard which should be applied in

this matter is the “electioneering communication” stan-

dard set out in McConnell. Here, the majority opinion

adopted a narrowing construction that is not appropriate

in light of this Honorable Court’s statements and direc-

tives in McConnell and therefore review by this Honorable

Court is warranted.

* App. p. 27.

Il. REVIEW BY THIS COURT IS WARRANTED

BECAUSE THE PROCEEDING INVOLVES A

QUESTION OF EXCEPTIONAL IMPORTANCE.

This proceeding should be reviewed by this Honorable

Court as it involves a question of exceptional importance;

the final resolution of this conflict promises to have a far-

reaching and significant impact on Louisiana election

laws. The majority’s decision — while declaring the opera-

tional provisions of the CFDA “facially constitutional” —

goes beyond the scope of the facts presented. If allowed to

stand, the decision will afford individuals and groups an

opportunity to avoid essential disclosures of the amount

and identity of the source of the expended funds if they

craft their ads in such a way as to avoid the “magic words”

listed in Buckley. This certainly frustrates and unneces-

sarily limits the true purpose of the CFDA. Such a conclu-

sion ignores the dictates of this Honorable Court in

McConnell.

The stated purpose of the CFDA is set forth in LSA-

R.S. 18:1482:

The legislature recognizes that the effectiveness

of representative government is dependent upon

a knowledgeable electorate and the confidence of

the electorate in their elected public officials. The

legislature, therefore, enacts this Chapter to pro-

vide public disclosure of the financing of election

campaigns and to regulate certain campaign

practices.”

The State of Louisiana bears the responsibility of

protecting its state elections by enacting and enforcing

* LSA-R.S. 18:1482.

campaign finance disclosure laws which ensure democratic

elections free of corruption. The majority’s decision unnec-

essarily restricts the State of Louisiana’s ability to provide

proper regulation of campaign finance practices by limit-

ing the disclosure of information critical to maintaining a

knowledgeable electorate. .

This is a case of unparalleled importance involving

national interests, as any decision the Fifth Circuit ren-

ders which invalidates a Louisiana State statute will

invalidate, by precedent, similar state statutes elsewhere.

The Louisiana statute was carefully tailored after the

federal statute that was the subject of examination in the

Buckley decision. Louisiana and other states have used the

language in Buckley to craft disclosure requirements. The

decision of the Fifth Circuit will be applicable not only to

the Louisiana Legislature, but to legislatures elsewhere.

Therefore, review is warranted as the question is of

exceptional importance to the State of Louisiana’s interest

in requiring full and complete disclosure of funds ex-

pended to influence the outcome of Louisiana elections.

Ill, THE MAJORITY ERRED IN “FORMULATING

A RULE OF CONSTITUTIONAL LAW THAT IS

BROADER THAN THE FACTS PRESENTED.”

The majority needlessly narrowed the scope of the

CFDA by imposing the Buckley/magic words standard; the

“ Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 572 (1993); Ashwander v. TVA, 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia

S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885)).

same standard which has been overruled by McConnell.”

The Court’s narrowing construction undermines the

holding in McConnell and violates a basic principle of the

majority's adjudicatory process, as reaffirmed in McCon-

nell:

“We have long ‘rigidly adhered’ to the tenet

‘never to formulate a rule of constitutional

law broader than is required by the precise

facts to which it is to be applied, United

States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4

L.Ed.2d 524 (1960) (citation omitted), for ‘[t]he

nature of judicial review constrains us to con-

sider the case that is actually before us,’ James

B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

547, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991).”"

The Center filed suit to have provisions of the CFDA

declared unconstitutional. The District Court dismissed the

Center’s Petition for Preliminary and Injunctive Relief from

enforcement of the CFDA declaring the provisions of the

CFDA constitutionally valid. The Fifth Circuit affirmed the

District Court’s judgment of dismissal. The central issue

was therefore disposed of by the Fifth Circuit.

It was unnecessary for the majority, as noted in Judge

Dennis’ dissent, to “needlessly and most harmfully grait

onto the CFDA the Buckley magic words of express candi-

date advocacy, thereby nullifying the CFDA’s disclosure

requirement except in those rare instances in which

* The Court, in upholding most of its provisions by concluding that

the “express advocacy” limitation derived by Buckley is not a constitu-

tionally mandated line, has, in one blow, overturned every Court of

Appeals that has addressed this question. McConnell at 278, n. 11

(Thomas, J., dissenting).

* McConnell v. FEC, 540 U.S. 93, 103 (2003) (emphasis added).

political speakers fail to eschew the magic words.” “A rule

of law unnecessary to the outcome of a case approaches

without more the sort of dicta which may be followed if

sufficiently persuasive but which are not controlling.”” In

the proceedings before the district and appellate courts,

the Center not only declines to disclose the text of the

advertisements that it apparently seeks to broadcast some

day, but declined to reveal (or identify) the particular

election in which it seeks to run these advertisements. The

Fifth Circuit found that the Center does not have standing

to launch a challenge on the application of the CFDA but

rather restricts its challenge to a facial attack.” In affirm-

ing the District Court’s ruling that the complained-of

provisions of the CFDA were constitutional, it was unnec-

essary for the majority to opine on the application of the

CFDA, thereby, allowing the “as-applied” challenge. The

majority has in effect commented on words that have

never been spoken.

IV. THE MAJORITY ERRED BY NOT CERTIFYING

A QUESTION OF STATE LAW TO THE LOUISI-

ANA SUPREME COURT CONCERNING THE

INTERPRETATION AND APPLICATION OF

A PROVISION LOUISIANA’S CAMPAIGN FI-

NANCE DISCLOSURE ACT.

This Honorable Court has held that due to concerns

for comity and federalism, federal courts should either

* App. p. 30.

* Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 572 (1993); Humphrey's Executor v. United States, 295 U.S.

602, 627 (1935); Kastigar v. United States, 406 U.S. 441, 454-455

(1972).

* App. p. 7.

abstain from deciding federal constitutional issues that

are entwined with the interpretation of state law or should

certify the questions of state law to the state’s highest

court for an authoritative interpretation of the law before

reaching the merits of the case.”

This Honorable Court has continuously recognized

that when uncertain questions of law need to be adjudi-

cated, the federal courts should abstain until a state court

has addressed the state questions. State courts should

provide the authoritative adjudication of questions of state

law. As stated by Judge Dennis," the policies underlying

abstention clearly support that a federal court should wait

for a definitive construction by a state court rather than

allowing a facial challenge, as seen in this case, to the

constitutionality of a state statute. To determine if LSA-

R.S. 18:1501.1(A) of the Louisiana Campaign Finance

Disclosure Act is substantially broad, as alleged by the

Center, construction and interpretation of LSA-R.S.

18:1501.1(A) is necessary to assess its scope.

The abstention doctrine, however, presently is viewed

as cumbersome and problematic and causes delay to the

judicial process.” An alternative to the abstention doctrine

is the use of state certification procedures. As stated by

Judge Dennis in his dissenting opinion, “(t]he purpose of

certification is to obtain the benefit of an authoritative

“ App. p. 20-21 and Burford v. Sun Oil Co., 319 U.S. 334, 63 S. Ct.

1107 (1943); New Orleans Public Service, Inc. v. City of New Or-

leans,109 S. Ct. 2506 (1989), Burford at 331, and Federal Practice and

Procedure, Wright & Miller, p. 75-82 vol. 17A and Virginia v. American

Booksellers Ass’n, 484 U.S. 383, 397 (1988).

“ App. p. 21.

“ Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397 (1988).

construction from the state’s highest court before proceed-

ing to the merits of the dispute. As LSA-R.S. 18:1501.1(A)

of the Louisiana Campaign Finance Disclosure Act has not

been interpreted by the Louisiana Supreme Court, the

state has a right and interest in being provided an oppor-

tunity to address such statute before a federal court

applies its own interpretation and construction. This

would allow a federal court to save “time, energy, and

resources and helps build a cooperative judicial federal-

ism.”

As correctly stated by Judge Dennis in his dissenting

opinion, the meaning of the disclosure provision of the

Louisiana Campaign Finance Disclosure Act is res nova;

the Louisiana Supreme Court has never authoritatively

interpreted this statute.“ The federal court’s foray into the

complex procedures and regulations in place regarding the

CFDA would constitute needless conflict with state regula-

tion and the State of Louisiana should have the right to

first authoritatively interpret its own statute. It would

wreak untold confusion and uncertainty upon the Board if

the federal court was allowed to interpret the construction

of the Louisiana Campaign Finance Disclosure Act by

imposing such limiting language into the statute’s mean-

ing without first giving the Louisiana Supreme Court the

opportunity to interpret the disclosure statute’s meaning

“ Bellotti v. Baird, 428 U.S. 132, 148 (1976) citing Lehman

Brothers v. Schein, 416 U.S. 386, 391, 94 S. Ct. 1741, 1744, 40 L.Ed.2d

215, 220 (1974).

“ App. p. 18.

in connection with the Louisiana Legislature’s intent when

it promulgated such disclosure law.

CONCLUSION

Significant and important government interests will

be compromised if the decision of the Fifth Circuit is not

reversed by this Honorable Court. The decision of the Fifth

Circuit is in direct contradiction to decisions of this Court.

These conflicting decisions emphasize the need to review

the decision of the Fifth Circuit which rejects Louisiana's

attempt to combat the “pernicious influence” of “sham

issue advocacy.”

The challenged Louisiana statute was modeled after

the language of Buckley. Many other states have similar

disclosure requirements. The application of the statute

should not be subjected to a magic words requirement

which was never intended by this Court in Buckley, and

was expressly overruled by this Court in McConnell. This

case presents an important federal question which has not

been, but should be, settled by Your Honors. Buckley left

open the question of what constitutes “express advocacy.”

It is the Board’s contention that McConnell answered this

question. However, if the Fifth Circuit is correct that

McConnell is not applicable in this case, then the question

has not been answered and the opportunity has now

“ McConnell at 627.

arisen for Your Honors to resolve this important issue of

campaign finance disclosure.

Respectfully submitted,

R. GRAY SEXTON-Bar No. 7531

Counsel for the Board of Ethics

2415 Quail Drive, 3rd Floor

Baton Rouge, LA 70808

Telephone: (225) 763-8777

Facsimile: (225) 763-8780

-AND-

CHARLES H. BRAUD-Bar No. 3409

Assistant Attorney General

1885 North Third Street, 6th Floor

Baton Rouge, LA 70802

Telephone: (225) 326-6081

Facsimile: (225) 326-6099

App. 1

449 F.3d 655

In the

United States Court of Appeals

for the Fifth Circuit

No 04-30877

Consolidated with

No 05-30212

CENTER FOR INDIVIDUAL FREEDOM,

Plaintiff-Appellant,

VERSUS

PAUL J. CARMOUCHE; ROBERT ROLAND;

JOHN W. GREENE; E.L. Guipry; R.L. HARGROVE JR.;

MICHAEL J. KANTROW; HENRY C. PERRETT, JR.;

ASCENSION DELGADO SMITH; DELORES SPIKES;

EDWIN O. WARE; T.O. PERRY; JOSEPH MASELLI,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

(Filed May 11, 2006)

Before DAVID, SMITH, and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Center for Individual Freedom (the “Center”)

challenges, on First Amendment grounds, the dismissal of

its complaint questioning the constitutionality of certain

provisions of Louisiana’s Campaign Finance Disclosure Act

App. 2

(“CFDA”). Reading the statute narrowly to avoid constitu-

tional problems, we affirm.

The Center is a nonpartisan, nonprofit § 501(c)(4)

corporation whose stated goal is “to protect and defend

individual freedoms and individual rights guaranteed by

the U.S. Constitution.” Complaint 7 3. To further this goal,

in advance of the September 18, 2004, primary to fill a

vacancy on the Louisiana Supreme Court, the Center

desired “to speak to the [Louisiana] public ... on matters

of vital public interest, including ... criminal law en-

forcement and sentencing, legal reform, and judicial

decision-making.” Complaint J 10.

To that end, the Center wanted to finance and run

television and radio advertisements that, while not advo- -

cating the election or defeat of any candidate, would refer

to the positions of the candidates on issues of importance

to the Center. Fearing, however, that its advertisements

would be deemed as intended to influence an election and

that it therefore would be forced to make certain disclo-

sures under the CFDA, the Center opted to refrain from

running any ads until the constitutionality of the relevant

provisions of the statute could be determined.

On August 24, 2004, the Center sued the District

Attorney for the 1st Judicial District of Louisiana and

various members of the Supervisory Committee for Cam-

paign Finance of the Louisiana Board of Ethics under the

Civil Rights Act, 42 U.S.C. § 1983, and the Declaratory

Judgment Act, 28 U.S.C. § 2201. The defendants (collec-

tively, “the Board”) are responsible for implementing and

enforcing the CFDA. The Center asserts that certain

App. 3

provisions of the CFDA violate the First Amendment and

are therefore invalid. The Center alleges that at the time

it filed its complaint, “planning and development of the

contemplated ads [was] well-advanced.” Complaint 10.’

The Center sought temporary, preliminary and per-

manent injunctive relief from enforcement of the CFDA.

After a hearing on the motion for preliminary injunction,

the district court held that the Center has standing to

mount a facial attack but denied preliminary injunctive

relief on the ground that the Center has little likelihood of

success on the merits because the relevant provisions of

the CFDA were equivalent to the provisions of the federal

campaign finance statute that had withstood First

Amendment challenge in Buckley v. Valeo, 426 US. 1

(1976).

The Center then sought emergency injunctive relief

from this court pending appeal. After we had denied that

request, the parties agreed that the district court could

render a final judgment on the merits of the complaint on

the basis of the record and the submissions made in

conjunction with the preliminary injunction motion. For

the reasons articulated in its ruling on the preliminary

injunction motion, the court dismissed the complaint.

Il.

The Board argues that this case is nonjusticiable be-

cause the Center lacks standing and because the completion

' Because the Center did not run the ads and make the choice

between complying with the CFDA and waiting for the Act to be

enforced against it, the Center is asserting a facial, rather than as-

applied, challenge to the constitutionality of the statute.

App. 4

of the relevant election renders the complaint moot. We

review all questions of subject matter jurisdiction, includ-

ing the justiciability issues of standing, ripeness, and

mootness, «le novo.”

To have standing, a plaintiff must demonstrate that

he has been injured, that the defendant caused the injury,

and that the requested relief will redress the injury. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

The Board argues that the Center lacks standing to

contest the constitutionality of the CFDA because the

Board never took or threatened to take action against the

Center under the statute. Pointing to the highly general-

ized manner in which the complaint describes the pro-

posed ads, the Board asserts that the Center’s belief that

it would be held to the disclosure requirements of the

CFDA is entirely subjective and insufficient to support

standing. The Board contends that without any enforce-

ment action taken against it by the Board, the Center

cannot challenge the application of the CFDA.

In Adams v. Askew, 511 F.2d 700, 704 (5th Cir. 1975),

we noted that “[the plaintiffs} .. . confuse an attack on the

constitutionality of a statute on its face with an attack on

the statute as applied.” The contention that a party cannot

challenge a statute as-applied unless the statute has been

applied to him is generally correct.’ Because, however, our

? See Bissonnet Invus., LLC v. Quinlan, 320 F.3d 520, 522 (5th Cir.

2003); Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005).

* Exceptions include circumstances where third-party standing is

appropriate.

App. 5

task is to decide whether the Center has standing to

launch a facial, rather than as-applied, challenge, that

tautology is not helpful. |

The district court held that the Center has standing to

challenge the constitutionality of the relevant provisions of

the CFDA on their face. Both its conclusion and its reason-

ing are sound. It is true that facial challenges are gener-

ally disfavored because they “entail a departure from the

norms of federal-court adjudication by calling for relaxa-

tion of familiar standing requirements to allow a determi-

nation that the law would be unconstitutionally applied to

different parties and different circumstances from those at

hand.” Sabri v. United States, 541 U.S. 600, 609 (2004).

The Sabri Court acknowledged, however, that there are

concerns in the First Amendment context that are

“weighty enough to overcome our well-founded reticence”

regarding facial challenges. Jd. at 610.

As the district court noted, “[t]he First Amendment

challenge has unique standing issues because of the

chilling effect, self-censorship, and in fact the very special

nature of political speech itself.” Trial Transcript at 84.

This assessment is based largely on Dombrowski v. Pfister,

380 U.S. 479, 486-87 (1965), in which the Court observed

that

[a] criminal prosecution under a statute regulat-

ing expression usually involves imponderables

and contingencies that themselves may inhibit

the full exercise of First Amendment free-

doms. ... Because of the sensitive nature of con-

stitutionally protected expression, we have not

required that all of those subject to overbroad

regulations risk prosecution to test their

rights.... We have fashioned this exception to

App. 6

the usual rules governing standing because of

the danger of tolerating, in the area of First

Amendment freedoms; the existence of a penal

statute of sweeping and improper application. .. .

By permitting determination of the invalidity of

these statutes without regard to the permissibil-

ity of some regulation on the facts of particular

cases, we have, in effect, avoided making vindi- -

cation of freedom of expression await the out-

come of protracted litigation.

The Court echoed this conclusion in Virginia v. Am.

Booksellers Ass’n, 484 U.S. 383, 392 (1988), when it stated

that “the alleged danger of [the challenged statute] is, in

large measure, one of self-censorship; a harm that can be

realized even without an actual prosecution.”

Controlling precedent thus establishes that a chilling

of speech because of the mere existence of an allegedly

vague or overbroad statute can be sufficient injury to

support standing. The Center states that it “is not willing

to expose itself and its staff to civil and criminal penalties

and its contributors to disclosure,” and thus it “has been

forced to refrain from speaking... .” Complaint 4 15. To

satisfy standing requirements, however, this type of self-

censorship must arise from a fear of prosecution that is

not “imaginary or wholly speculative.” Babbitt v. United

Farm Workers Nat'l Union, 442 U.S. 289, 302 (1979).

The Center “intend[ed] to refer to the position of

specific candidates on issues of importance to it.” Com-

plaint 4 13. In a 1999 advisory letter, the Board stated

that “li]f the message is unmistakable, unambiguous, and

suggestive of only one plausible meaning, and if that

meaning is an expression of preference of one candidate

over another candidate, then the underlying contributions

App. 7

and expenditures should be reported as otherwise required

by applicable provisions of the CFDA.” In addition, in a

recent opinion imposing a $20,000 fine on the Republican

State Leadership Committee, the Board held that the

CFDA is applicable where “any viewer of the advertise-

ment would understand, even without explicit word[s] of

express advocacy, that when taken as a whole and in its

factual context, the unmistakable intent of the advertise-

ment was to oppose or otherwise influence [a particular

candidate’s] election.”

Given the Board’s interpretation of the CFDA, if the

Center pointed out the positions of candidates on issues of

importance to it, it would run a nonspeculative risk that

the Board would construe its ads as an “expression of

preference of one candidate over another candidate” and

therefore would prosecute a wilful failure to make the

required disclosures. On that basis, the Center’s self-

censorship constitutes sufficient injury to confer standing

to challenge the constitutionality of the CFDA on its face.

The causation and redressability prongs of the stand-

ing inquiry are easily satisfied here. Potential enforcement

of the statute caused the Center’s self-censorship, and the

injury could be redressed by enjoining enforcement of the

CFDA. The Center therefore has standing to mount its

facial challenge.

‘ La. Bd. of Ethics, Campaign Finance Advisory Op. No. 1999-580

(Sept. 17, 1999).

> La. Bd. of Ethics, Campaign Finance Ruling No. 2003-746 (Jan.

13, 2005) (emphasis added).

App. 8

The Board contends that the Center’s claim is moot

because the election that gave rise to the complaint has

already occurred. Mootness is “the doctrine of standing in

a time frame. The requisite personal interest that must

exist at the commencement of litigation (standing) must

continue throughout its existence (mootness).” United

States Parole Comm’n v. Geraghty, 445 U.S. 388, 397

(1980). Generally, any set of circumstances that eliminates

actual controversy after the commencement of a lawsuit

renders that action moot.

There are, however, exceptions to the operation of the

mootness doctrine. For purposes of this case, the relevant

exception is “the class of controversies capable of repeti-

tion, yet evading review.” First Nat'l Bank v. Bellotti, 435

U.S. 765, 774 (1978). Outside the class action context, the

“capable of repetition, yet evading review” exception can

be invoked if two elements are met: “(1) [T]he challenged

action was in its duration too short to be fully litigated

prior to its cessation or expiration, and (2) there was a

reasonable expectation that the same complaining party

would be subjected to the same action again.” Weinstein v.

Bradford, 423 U.S. 147, 149 (1975).

Controversy surrounding election laws, including

campaign finance regulations, is one of the paradigmatic

circumstances in which the Supreme Court has found that

full litigation can never be completed before the precise

controversy (a particular election) has run its course.”

* See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Storer v. Brown,

415 U.S. 724, 737 n.8 (1974), First Nat'l Bank, 435 U.S. at 774, Norman

v. Reed, 502 U.S. 279, 288 (1992).

App. 9

Echoing Supreme Court precedent, this court stated in

Morial v. Judiciary Comm’n, 565 F.2d 295, 297 n.3 (Sth

Cir. 1977), that “[s]uits challenging the validity of state

election laws are classic examples of cases in which the

issues are ‘capable of repetition, yet evading review.’” The

case before us therefore satisfies the first prong of that

exception.

With regard to the second prong of the “capable of

repetition, yet evading review” inquiry, the Center has

stated that it “has spoken out on public issues in Louisi-

ana in the past and plans to do so in the future.” Com-

plaint J 3(b). Thus, the Center may again fee] the need to

censor itself to avoid possible application of the CFDA. The

Board does not dispute the Center’s assertion regarding its

past and likely future activity in Louisiana, and there is

no reason to doubt that claim.

Moreover, despite the Supreme Court’s reminder that

there must be a “reasonable expectation that the same

complaining party would be subject to the same action

again,” Weinstein, 423 U.S. at 149, the Court does not

always focus on whether a particular plaintiff is likely to

incur the same injury. For example, in Storer, 415 US. at

737 n.8, the Court stated that “[t/he 1972 election is long

over, and no effective relief can be provided to the candi-

dates or voters, but this case is not moot, since the issues

properly presented, and their effects on independent

candidacies, will persist as the California statutes are

applied in future elections.”

Similarly, in Dunn v. Blumstein, 405 U.S. 330, 333 n.2

(1972), the Court held that the exception to the mootness

doctrine applied despite the fact that the plaintiff would

no longer be subject to the challenged statute, because

App. 10

“(ajlthough [plaintiff] now can vote, the problem to voters

posed by the Tennessee residence requirements is ‘capable

of repetition, yet evading review.’” Thus, even if it were

doubtful that the Center would again attempt to engage in

election-related speech in Louisiana, precedent suggests

that this case is not moot, because other individuals

certainly will be affected by the continuing existence of the

CFDA.

ITl.

We review questions of law de novo. See Kona Tech.

Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir.

2000). Because a facial challenge to the constitutionality of

a statute presents a pure question of law, we employ that

standard here as we examine the merits.

In general, to mount a successful facial attack, “the

challenger must establish that no set of circumstances

- exists under which the Act would be valid.” United States

v. Salerno, 481 U.S. 739, 745 (1987). The requirement is

different in the First Amendment context, where we

recognize the overbreadth doctrine. With regard to facial

First Amendment challenges, the challenger need only

show that a statute or regulation “might operate unconsti-

tutionally under some conceivable set of circumstances.”

Id.

The provisions of the CFDA relevant to the Center’s

claim are as follows: Louisiana Revised Statute section

18:1501.1(A) states that

[alny person, other than a candidate or a political

committee, who makes any expenditure or who

accepts a contribution, other than to or from a

candidate or to or from a political committee,

App: 11

shall file reports if either said expenditures or

said contributions exceed five hundred dollars in

the aggregate during the aggregating period de-

fined for committees.

The reports must “contain the same information ... as

reports required of political committees,” which includes

“the full name and address of each person who has made

one or more contributions to and which have been received

and accepted by the [individual or group] during the

reporting period.” LA. REV. StaT. § 18:1491.7(B)(4)(a).

If an individual or organization is required to file a

report and fails to do so, the CFDA authorizes civil penal-

ties. See id. § 18:1505.4. If the failure to file is knowing,

wilful, or fraudulent, the person required to file (either as

an individual or representative of an organization) may be

fined up to $500 dollars and sentenced to up to six months

in prison. See id. § 18:1505.6(AX2).

At the heart of the Center’s challenge is the statutory

definition of “expenditure.” Section 18:1483(9)(a) states

that an expenditure is “a purchase, payment, advance,

deposit, or gift, of money or anything of value made for the

purpose of supporting, opposing, or otherwise influencing

the nomination or election of a person to public office.” The

Center contends that this definition is vague and over-

broad because it could be interpreted to reach both express

advocacy and issue advocacy. Because disclosure require-

ments burden protected political speech and subject those

who do not comply to civil and criminal penalties, and

because the disclosure requirements are triggered, inter

alia, by “expenditures” in excess of $500, the Center

contends that the definition is vague and overbroad and

therefore violates the First Amendment.

App. 12

The Board counters that because the relevant provi- -

sions of the CFDA are equivalent to the disclosure provi-

sions in the Federal Election Campaign Act (“FECA”) that

were upheld in Buckley, the CFDA provisions are not

facially unconstitutional. We agree, but only by imposing

the same limiting construction on the CFDA that the

Court employed in Buckley.

The challenged provisions are similar to what the

Court confronted and upheld in Buckley. Section 434(e) of

FECA required that

[elvery person (other than a political committee

or candidate) who makes contributions or expen-

ditures, other than by contribution to a political

committee or candidate, in an aggregate amount

in excess of $100 within a calendar year ... file

with the [Federal Election] Commission a state-

ment containing the information required by this

section.

Buckley, 424 U.S. at 160. In relevant part, FECA defined

“expenditure” as “a purchase, payment, distribution, loan,

advance, deposit, or gift of money or anything of value,

made for the purpose of influencing the nomination for

election, or the election, of any person to Federal office, or

to the office of presidential and vice presidential election.”

Id. at 147.

The challengers in Buckley “attack{ed] § 434(e) as a

direct intrusion on privacy of belief ... and as imposing

very real, practical burdens . . . certain to deter individuals

from making expenditures for their independent political

speech. ...” Jd. at 75. In discussing a similar requirement

App. 13

within the FECA, the Court agreed that disclosure re-

quirements “can seriously infringe on privacy of associa-

tion and belief guaranteed by the First Amendment” and

that such requirements must therefore “survive exacting

scrutiny.” Id. at 64.

The Court held, however, that in general, disclosure

requirements survive exacting scrutiny because “there are

governmental interests sufficiently important to outweigh

the possibility of infringement fof First Amendment

rights], particularly when the free functioning of our

national institutions is involved.... The governmental

interests sought to be vindicated by the disclosure re-

quirements are of this magnitude.” Id. at 66. In reaching

that conclusion, the Court focused on voters’ need for

information about candidates and their supporters to

evaluate the candidates and expose corruption. Jd. at 66-

68.

Nevertheless, with regard to § 434(e), the Court stated

that “the provision raises serious problems of vagueness,

particularly treacherous where, as here, the violation of its

terms carries criminal penalties and fear of incurring

these sanctions may deter those who seek to exercise

protected First Amendment rights.” Id. at 76-77. The

source of vagueness was the “for the purpose of influenc-

ing” language within the definition of expenditure, which

gave the provision “potential for encompassing both issue

discussion and advocacy of a political result.” Jd. at 76, 79.

Due process “requires that a criminal statute provide

adequate notice to a person of ordinary intelligence that

his contemplated conduct is illegal.” Id. at 77. Without

knowing whether the reporting requirements of § 434(e)

were triggered by political advocacy, issue discussion, or

both, an individual (or organization) wishing to speak out

App. 14

could not know whether his contemplated conduct would

subject him to criminal sanction if he did not disclose the

information required by FECA.

In addition, the Court held that § 434(e) was rendered

potentially overbroad by the fact that it could be inter-

preted to require disclosure when an independent individ-

ual or group engages only in issue advocacy. The Court

reasoned that if § 434(e) did cover that situation, the

connection between the information sought and the

governmental interest in promoting clean and well-

informed elections “may be too remote.” Jd. at 80.

Rather than striking § 434(e) down as unconstitu-

tional, however, the Court imposed a limiting construction

on the statute, bringing it within constitutional bounds by

drawing a line between express advocacy and issue advo-

cacy. The Court stated that “we construe ‘expenditure’ for

purposes of [§ 434(e)] ... to reach only funds used for

communications that expressly advocate the election or

defeat of a clearly identified candidate.” Id. Words of

express advocacy include terms “such as ‘vote for,’ ‘elect,’

‘support,’ ‘cast your ballot for, ‘Smith for Congress,’ ‘vote

against,’ ‘defeat,’ ‘reject.’” Id. at 44 n.52. These are the

well-known “magic words.”

Given that the CFDA links the disclosure require-

ments for expenditures made by independent individuals

and groups to the same “for the purpose of influencing”

language that the Court confronted and upheld in Buckley,

we can likewise construe the CFDA in a way that saves it

from constitutional infirmity. On that basis, the Center

fails in its facial challenge to the constitutionality of the

disclosure provisions of the CFDA.

App. 15

The more difficult question, in light of McConnell v.

Fed. Election Comm’n, 540 U.S. 93 (2003), is whether we

must, in circumstances such as this, continue to adhere to

the express advocacy/issue advocacy dichotomy that the

Court set up in Buckley and that we employed in Chamber

of Commerce of the United States v. Moore, 288 F.3d 187,

194-95 (5th Cir. 2002). In McConnell the Court held that

for purposes of regulating election-related speech, there is

no constitutionally-mandated line that must be drawn

between express advocacy and issue advocacy. “Speakers,”

the Court stated, do not “possess an inviolable First

Amendment right to engage in the latter category of

speech.” McConnell, 540 U.S. at 190. The Court further

asserted that

a plain reading of Buckley makes clear that the

express advocacy limitation, in both the expendi-

ture and the disclosure contexts, was the product

of statutory interpretation rather than a consti-

tutional command. In narrowly reading the

FECA provisions in Buckley to avoid problems of

vagueness and overbreadth, we nowhere sug-

gested that a statute that was neither vague nor

overbroad would be required to toe the same ex-

press advocacy line.

Id. at 192.

The Board contends that McConnell eliminates

completely the express advocacy/issue advocacy delinea-

tion and in its place provides a more holistic, “practical”

approach to determining whether expenditures have been

made for the purpose of influencing an election and there-

fore, consistent with the First Amendment, can be subject

to regulation. That reading of McConnell is incorrect.

App. 16

McConnell states only that a campaign finance regulation

can cover issue advocacy and nevertheless be constitu-

tional so long as the regulation is “closely drawn” to match

a “sufficiently important” government interest, id. at 135,

and is not vague. The Court has not provided a broader

approach to determining when expenditures have been

made for the purpose of influencing an election.

Instead, the Court has stated that legislatures may

employ standards other than a bright-line distinction

between express and issue advocacy as long as they are

precise in regard to the types of activities that will subject

an individual or group to regulation. With regard to the

particular provision at issue in McConnell, for example,

the Court held that new FECA § 304(f)(3)’s definition of

“electioneering communication” “raises none of the vague-

ness concerns that drove our analysis in Buckley,” because

the term

applies only (1) to a broadcast (2) clearly identify-

ing 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. These components are both easily un-

derstood and objectively determinable. Thus, the

constitutional objection that persuaded the Court

in Buckley to limit FECA’s reach to express advo-

cacy is simply inapposite here.

Id. at 194.

McConnell does not obviate the applicability of Buck-

ley’s line-drawing exercise where, as in this case, we are

confronted with a vague statute. See Anderson v. Spear,

356 F.3d 651, 664-65 (6th Cir. 2004). The flaw in the CFDA

is that it might be read to cover issue advocacy. Following

McConnell, that uncertainty presents a problem not

App. 17

because regulating such communications is per se uncon-

stitutional, but because it renders the scope of the statute

uncertain.

To cure that vagueness, and receiving no instruction

from McConnell to do otherwise, we apply Buckley's

limiting principle to the CFDA and conclude that the

statute reaches only communications that expressly

advocate the election or defeat of a clearly identified

candidate. In limiting the scope of the CFDA to express

advocacy, we adopt Buckley's definition for what qualifies

as such advocacy.’ As so limited, the challenged provisions

of the CFDA are facially constitutional.

The judgment of dismissal is AFFIRMED.

’ We are aware of the McConnell Court’s assertions, 540 U.S. at

193-94, that “the presence or absence of magic words cannot meaning-

fully distinguish electioneering speech from a true issue ad,” that

“Buckley's magic-words requirement is functionally meaningless,” and

that “Buckley's express advocacy line ... has not aided the legislative

effort to combat real or apparent corruption.” Those statements,

however, were made in the context of the Court’s determination that a

distinction between express advocacy and issue advocacy is not

constitutionally mandated. The Court said nothing about the continu-

ing relevance of the magic words requirement as a tool of statutory

construction where a court is dealing with a vague campaign finance

regulation.

In light of that silence, we must assume that Buckley remains good

law in such circumstances. If the State of Louisiana agrees with the

Court that the magic words requirement is “functionally meaningless,”

then pursuant to McConnell it is free to amend the CFDA in the same

way that Congress altered the FECA.

App. 18

DENNIS, Circuit Judge, dissenting:

Because the majority opinion (1) construes key provi-

sions of the Louisiana Campaign Finance Disclosure Act,

La. R.S. 18:1501.1(A) and 18:1483(9Xa), without first

certifying the res nova state law questions implicated to

the state’s highest court as urged by the Supreme Court,

(2) disregards the Supreme Court’s clear holdings in

McConnell v. Federal Election Commission, 540 U.S. 93

(2003) that (i) the First Amendment permits a campaign

disclosure law to require the names and addresses of

persons who fund a television or radio broadcast that

clearly identifies a candidate within 30 days of a primary

and is targeted to the relevant electorate, and (ii) when a

federal court imposes a narrowing statutory construction,

it must never formulate a rule of constitutional law

broader than is required by the precise facts to which it is

to be applied, and (3) saddles the State of Louisiana with a

marginalized and ineffective campaign financial disclosure

law that is incongruous with the intent of the Louisiana

Legislature and the requirements of the First Amendment,

I respectfully dissent.

BACKGROUND

The Center for Individual Freedom (the “Center”), a

Virginia non-profit corporation, brought this action under

the Civil Rights Act, 42 U.S.C. § 1983, and the Declaratory

Judgment Act, 28 U.S.C. § 2201, in the federal district

court against the individual members of the Louisiana

Board of Ethics to have the Louisiana Campaign Finance

Disclosure Act (the “CFDA”) either declared unconstitu-

tional on its face or to have the CFDA’s disclosure and

record-keeping provisions narrowly construed, just as the

App. 19

Supreme Court in Buckley v. Valeo, 424 U.S._1 (1976),

limited the disclosure provision of the Federal Election

Campaign Act (“FECA”), to apply only to persons making

expenditures for communications that expressly advocate

the election or defeat of a clearly identified candidate, i.e.,

to communications containing express words of advocacy

of election or defeat (“magic words”), such as “vote for,”

“elect,” “support,” “cast your ballot for,” “Smith for Con-

gress,” “vote against,” “defeat,” “reject.” Id. at 44, n.52.

The Center alleges that it desired to finance radio and

television broadcasts on “judicial decision-making” issues,

inter alia, during the last three weeks of a campaign for

the September 18, 2004 primary election of an Associate

Justice of the Louisiana Supreme Court targeted to the

relevant multi-parish district electorate. The Center

contends that it was prepared to run television and radio

ads referring to the two candidates as illustrating posi-

tions for and against its own viewpoint without expressly

advocating the election or defeat of either; that it ulti-

mately chose not to do so because it feared that its funding

of the broadcasts easily could have been interpreted as

expenditures for the purpose of supporting, opposing, or

influencing the election of a person to public office, for

which the CFDA would have required the Center to

disclose and report the names and addresses of its con-

tributors funding the broadcasts; and that the CFDA is

unconstitutionally vague and overbroad because it does

not clearly guarantee such persons the right to anony-

mously fund such broadcasts in the most effective way,

viz., by advocating their issue positions while referring to

candidates illustrating agreement or opposition to those

positions in communications targeted to the relevant

App. 20

electorate during the last few weeks of a primary election

campaign.

The majority grants the Center’s request to graft

Buckley's limiting magic words construction on to the

CFDA. The majority’s reasoning is that: (1) the CFDA is

vague because it requires disclosure when persons make

expenditures for the purpose of influencing the election of

a person to public office similar to the FECA provision that

the Supreme Court found vague and in need of the limit-

ing construction imposed in Buckley; (2) the Supreme

Court in McConnell held that the Bipartisan Campaign

Reform Act of 2002 (the “BCRA”)’ s definition of “election-

eering communication” as a disclosure trigger was not

vague because it consisted of easily understood and objec-

tively determinable components, viz., expenditure funding

of (i) a broadcast (ii) clearly identifying a candidate (iil)

aired within a specific time period (iv) and targeted to the

relevant electorate; (3) therefore, McConnell has no

application whatsoever, express or implicit, to a case

involving a vague statute like the CFDA; (4) “To cure [the

CFDA’s] vagueness, and receiving no instruction from

McConnell to do otherwise, we apply Buckley’s limiting

principle to the CFDAI.]”

DISCUSSION

1. Certification

The meaning of the disclosure provision of the CFDA

is res nova; it has never been authoritatively interpreted

by the Louisiana Supreme Court. Although federal courts

generally have a duty to adjudicate federal questions

properly before them, the Supreme Court has long recog-

nized that concerns for comity and federalism may require

App. 21

federal courts to either abstain from deciding federal

constitutional issues that are entwined with the interpre-

tation of state law or certify the questions of state law to

the state’s highest court for an authoritative interpreta-

tion of them before reaching the merits of the cases. In

Railroad Comm’n v. Pullman Co., 312 U.S. 496, 501

(1941), the Court held that where uncertain questions of

state law must be resolved before a federal constitutional

question can be decided, federal courts should abstain

until a state court has addressed the state questions. See

also Hawaii Housing Authority v. Midkiff, 467 U.S. 229,

236-37 (1984). This doctrine of abstention acknowledges

that federal courts should avoid the unnecessary resolu-

tion of federal constitutional issues and that state courts

provide the authoritative adjudication of questions of state

law. Attention to the policies underlying abstention makes

clear that in the circumstances of these cases, a federal

court should await a definitive construction by a state

court rather than precipitously indulging in a facial

challenge to the constitutional validity of a state statute.

The First Amendment overbreadth doctrine allows a

challenge to the validity of a statute on its face only if the

law is substantially overbroad. City Council of Los Ange-

les v. Taxpayers for Vincent, 466 U.S. 789, 799-801 (1984);

New York v. Ferber, 458 U.S. 747, 769-73 (1982). Thus,

analysis of the constitutional claims advanced by the

Center necessarily requires construction of the CFDA to

assess its scope. Jd. at 769, n.24; Broadrick v. Oklahoma,

413 U.S. 601, 613, 618, n.16 (1973). (“[A] federal court

must determine what a state statute means before it can

judge its facial constitutionality”; application of the over-

breadth doctrine is “strong medicine” and is “employed by

the Court sparingly”). Where provisions of a state statute

have never been construed or applied by the state’s highest

App. 22

court, it seems rather obvious that interpretation of those

statutory provisions by that court could substantially alter

the resolution of any claim that the statute is facially

invalid under the Federal Constitution. See Harman v.

Forssenius, 380 U.S. 528, 535 (1965) (explaining that

abstention may be necessary where the statute at issue is

“subject to an interpretation which will render unneces-

sary or substantially modify” this Court’s decision once the

state court has been allowed to construe the statute).

The United States Supreme Court has encouraged the

use of state certification procedures as an alternative to

“the more cumbersome and ... problematic abstention

doctrine.” See Virginia v. American Booksellers Ass’n, 484

U.S. 383, 397 (1988). The purpose of certification is to

obtain the benefit of an authoritative construction from

the state’s highest court before proceeding to the merits of

the dispute. The state court’s interest in accepting a

certified question for review is particularly strong when it

has not yet had the opportunity to interpret the pertinent

statutory language. Jd. at 397. Through certification of

novel or unsettled questions of state law for authoritative

answers by a State’s highest court, a federal court may

save “time, energy, and resources and help[] build a

cooperative judicial federalism.” Lehman Brothers uv.

Schein, 416 U.S. 386, 391 (1974); see also Bellotti v. Baird,

428 U.S. 132, 148 (1976) (to warrant district court certifi-

cation, “(i]t is sufficient that the statute is susceptible of

. an interpretation [that] would avoid or substantially

modify the federal constitutional challenge to the stat-

ute”). Taking advantage of certification made available by

a State may “greatly simplif{y]” an ultimate adjudication

in federal court. See Bellotti, 428 U.S. at 151.

App. 23

“Speculation by a federal court about the meaning of a

state statute in the absence of prior state court adjudica-

tion is particularly gratuitous when ... the state courts

stand willing to address questions of state law on certifica-

tion from a federal court.” Jd. (quoting Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 510 (1985) (O;CONNOR, J.,

concurring)); see Arizonans for Official English v. Arizona,

520 U.S. 43, 79 (1997) (“Warnings against premature

adjudication of constitutional questions bear heightened

attention when a federal court is asked to invalidate a

State’s law, for the federal tribunal risks friction-

generating error when it endeavors to construe a novel

state Act not yet reviewed by the State’s highest court.”)

(citing Rescue Army v. Municipal Court of City of Los

Angeles, 331 U.S. 549, 573-74 (1947)). This is especially

true in the context of a state campaign finance disclosure

law applicable to all state primary and general elections,

including those for the Legislature, the Governor, and

other Executive Branch officers, as well as the Supreme

Court of Louisiana and many other important offices. The

State of Louisiana, as well as all of the other United

States, has a great interest in promoting genuinely democ-

ratic elections to fill its major public offices free from -

corruption and other undue influences. For these reasons,

the Louisiana Supreme Court should have been afforded

an opportunity to construe the Louisiana Campaign

Finance Disclosure Act in the first instance.

2. Buckley Is Out; McConnell Is In: Requiring Disclosure

Of Expenditures On Electioneering-Type Communica-

tions Is Permissible

Unfortunately, the majority not only fails to certify the

question of the meaning of the state statute to the state

App. 24

supreme court, it also proceeds through an incorrect

interpretation of federal law to superimpose an erroneous

and overly intrusive narrowing construction on the state

law.

In Buckley, the Supreme Court concluded that the

FECA’s disclosure requirement, in its effort to be all-

inclusive, raised serious problems of vagueness because it

applied to every person who made a contribution or

expenditure for the purpose of influencing the nomination

- or election of a candidate for federal office. 424 U.S. at 76-

77. Thus, the subjective intent of the contributor was the

primary controlling factor in triggering the disclosure

requirement. Because almost any contribution funding a

political communication, even if made well prior to the

election and without mention of any candidate’s name,

could be deemed to have been made to influence an elec-

tion, the potential reach of the FECA disclosure provision

was extremely broad. Thus, to insure that the reach of the

disclosure requirement was not impermissibly broad, the

Court construed “expenditure” to reach only funds used for

communications expressly advocating the election or

defeat of a clearly identified candidate. Jd. at 44. The

Court suggested that there existed “magic words” of

express advocacy of election or defeat of a candidate,

which were necessary to make communications subject to

the disclosure requirement. Id. at 44, n.52.

In contrast, the Supreme Court in McConnell upheld

without limitation the clear and objective BCRA require-

ment of disclosure of the names and addresses of persons

funding an electronic media broadcast made within a 30-

or 60-day window prior to a primary or general election, if

it clearly identified a candidate and targeted the relevant

electorate. 540 U.S. at 105 (explaining that “issues ads

App. 25

broadcast during the 30- and 60-day periods preceding

federal primary and general elections are the functional

equivalent of express advocacy” and “[t}he justifications for

regulating express advocacy apply equally to those ads if

they have an electioneering purpose, which the vast

majority do”). In drafting the BCRA provision, Congress

relied on almost 30 years’ experience which taught that

the Buckley “magic words” limitation was functionally

meaningless: under Buckley political advertisers easily

evaded disclosure by simply eschewing use of the magic

words; the outcomes of elections were often influenced by

enormous sums spent anonymously to fund TV and radio

advertising in the final campaign stages; on the other

hand, electronic media advertising during such periods

that clearly identified a candidate and targeted the rele-

vant electorate rarely, if ever, was funded for any other

purpose than to influence elections. Jd. at 189-94.

Thus, the McConnell Court explained, the amount of

pure issue electronic media advocacy that might be chilled

during a specified campaign homestretch was negligible in

comparison with the beneficial effects of public disclosure

of the identities of the funders of such electronic election-

eering communications. Jd. at 196 (agreeing that “the

important state interests” upheld through disclosure

requirements are “providing the electorate with informa-

tion, deterring actual corruption and avoiding any appear-

ance thereof, and gathering the data necessary to enforce

more substantive electioneering restrictions”). In fact, the

McConnell Court agreed with the lower court that “disclo-

sure requirements are constitutional because they do not

prevent anyone from speaking.” Jd. at 201 (citation omit-

ted). The Court flatly rejected the plaintiffs’ argument that

Buckley established that the First Amendment absolutely

App. 26

guaranteed the right of persons to anonymously engage in

political speech for the purpose of issu~s advocacy under

any and all circumstances. Jd. at 190-93. The Court

explained that in Buckley it had merely adopted a narrow-

ing construction of the FECA to avoid a potential constitu-

tional conflict; it did not adopt the Buckley express

advocacy limitation and magic words implementation as a

freestanding commandment of the First Amendment. Id.

Moreover, in doing so, the McConnell Court reaffirmed

that it had long rigidly adhered to the tenet never to

formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied,

id. at 192 (citing United States v. Raines, 362 U.S. 17, 21

(1960)); and that the nature of judicial review constrains a

federal court to consider only the case that is actually

before it. Id. (citing James B. Beam Distilling Co. v.

Georgia, 501 U.S. 529, 547 (1991) (Blackmun, J., dissent-

ing)).

For these reasons, the majority in the present case

has clearly misinterpreted the McConnell decision and has

misapplied it in engrafting Buckley’s limiting construction

on to the Louisiana Campaign Finance Disclosure Act.

Assuming, without deciding, that the majority has cor-

rectly guessed how the Supreme Court of Louisiana would

interpret the CFDA, and that the CFDA is unconstitution-

ally vague as so construed, it clearly does not follow that

the majority has adopted a narrowing construction that is

appropriate in the light of the Supreme Court’s holdings

and teachings in McConnell. On the contrary, the major-

ity’s limiting interpretation of the CFDA would be accept-

able only under the theory that the Court in Buckley had

constitutionalized the express advocacy limitation and

App. 27

magic words prescription, a constitutional theory that the

Court expressly rejected in McConnell.

Instead, the Supreme Court’s decision in McConnell

clearly indicates that the State of Louisiana may constitu-

tionally require the Center to comply with the disclosure

requirements of the CFDA under a construction that is no

broader than is required by the precise facts to which it is

to be applied in the present case. In this case, the Center

asserts that it desired only to engage in issue advocacy,

and that the TV and radio advertising it proposed to

broadcast during the three weeks prior to the September

18, 2004 Louisiana Supreme Court Associate Justice

election, would not have been funded or broadcast for the

purpose of influencing the election. But the Center admit-

ted that its broadcasts would clearly identify one or more

candidates and be targeted to the relevant electorate.

Consequently, the broadcasts that the Center desired to

fund fall squarely within a category of speech closely

analogous to the definition of “electioneering communica-

tion” in respect to which the Supreme Court held that

Congress may under the First Amendment require disclo-

sure, viz. (1) a broadcast (2) clearly identifying a candidate

(3) aired within a specific time prior to election, and (4)

targeted to the relevant electorate. McConnell, 540 U.S. at

194,

3. The Majority Opinion Formulates A Constitutional

Rule Broader Than The Facts Of This Case

In order to reduce the scope of the CFDA to a constitu-

tional scale it is only necessary to construe it so as to limit

its disclosure requirement to the names and addresses of

those who fund electronic media broadcasts, clearly

identifying a candidate, aired within three weeks prior to

App. 28

a primary election, and targeted to the relevant electorate.

The majority opinion, however, in disregard of McConnell,

grafts the Buckley express advocacy/magic words limita-

tion on to the CFDA, tacitly formulating and applying a

much broader rule that nullifies the CFDA’s disclosure

requirement in respect to all political speech except for

that containing the Buckley magic words of express candi-

date advocacy. Thus, the majority opinion violates the

tenet of the Supreme Court, as reaffirmed in McConnell, -

against the formulation of a <vnstitutional rule broader

than the precise facts of the case to which it applies.’

Consequently, the majority is simply mistaken in

assuming that the McConnell Court’s holdings have no

effect upon “the continuing relevance of the magic words

requirement as a tool of statutory construction where a

court is dealing with a vague campaign finance regula-

tion.” The majority's assumption rests precariously on a

false syllogism, viz., McConnell dealt with an unambigu-

ous statute; the present case deals with an ambiguous

statute (according to the majority's necessarily non-

authoritative state law interpretation); therefore, nothing

McConnell says bears upon our narrowing construction of

a state statute. Only a moment’s reflection is needed to see

the fallacy of this sophism. The Supreme Court has devel-

oped First Amendment principles that it has applied to

determine whether any particular statute is constitution-

ally ambiguous and in need of a narrowing construction.

Therefore, the Court’s teachings on the First Amendment

’ Although the majority does not disclose the constitutional rule

supporting its narrowing construction of the CFDA, the majority must

have tacitly formulated such a rule. For without a constitutional rule as

a basis this court has no authority to narrowly construe state statutes.

App. 29

in such cases are generally authoritative and binding upon

the inferior federal courts regardless of the court’s conclu-

sion as to whether the statute in the particular case before

it is found to be ambiguous and in need of a narrowing

construction. Thus, the majority cannot legitimately

disregard the teachings of the McConnell Court as irrele-

vant “assertions,” as it seeks to do, simply because the

Court determined that the statute in that case was not

ambiguous and the majority has decided the case before us

is ambiguous.

Therefore, the majority erred in concluding that it

must “continue to adhere to the express advocacy/issue

advocacy dichotomy that the Court set up in Buckley and

that we employed in Chamoer of Commerce of the United

States v. Moore, 288 F.3d 187, 194-95 (5th Cir. 2002).”

Further, as Justice Thomas aptly recognized, the McCon-

nell Court, “by concluding that the ‘express advocacy’

limitation derived by Buckley is not a constitutionally

mandated line, has, in one blow, overturned every Court

of Appeals that has addressed this question” including,

inter alia, Chamber of Commerce of the United States v.

Moore, supra., on which the majority erroneously relies.

540 U.S. at 278, n.11 (Thomas, J., dissenting)

CONCLUSION

For these reasons, I respectfully dissent. The majority

erred in refusing to certify the res nova state law questions

implicated in the interpretation of the CFDA to the Lou-

isiana Supreme Court. The majority further erred in

disregarding the holdings and teachings of McConnell

which require, at the most, limiting the CFDA's disclosure

requirement to a category of political speech analogous to

App. 30

that defined as “electioneering communication” by Con-

gress in the BCRA that the McConnell Court upheld.

Finally, the majority erred needlessly and most harmfully

in grafting on to the CFDA the Buckley magic words of

express candidate advocacy, thereby nullifying the CFDA’s

disclosure requirement except in those rare instances in

which political speakers fail to eschew the magic words.

Ultimately, I believe that this case would be more properly

decided by the Louisiana Supreme Court. For these

reasons, I respectfully dissent from the majority's decision.

App. 31

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

CENTER FOR INDIVIDUAL CIVIL ACTION NO. 04-1785

FREEDOM JUDGE

VERSUS S. MAURICE HICKS, JR.

MAGISTRATE JUDGE

PAUL CARMOUCHE, ET AL payng

JUDGMENT

(Filed Sept. 2, 2004)

This matter is before the Court on Plaintiff's, Center

for Individual Freedom’s (“The Center”), Motion for Pre-

liminary Injunction [Doc. 2] pursuant to Fed. R. Civ. P.

Rule 65. The Center moved for injunction to protect its

first amendment right to free speech against Louisiana’s

allegedly unconstitutional campaign finance statutes.

After reviewing the entire record, oral arguments, and

its own independent research of the issues, the Court finds

that the Plaintiff does not have a reasonable likelihood of

success on the merits and that a preliminary injunction is

not proper at this time. Therefore:

IT IS ORDERED that Plaintiff's Motion for Prelimi-

nary Injunction [Doc. 2] shall be DENIED.

Shreveport, Louisiana, September 2, 2004

/s/ S. Maurice Hicks, Jr.

S. MAURICE HICKS, JR.

UNITED STATES DISTRICT JUDGE

App. 32

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

CENTER FOR INDIVIDUAL * Civil Action

FREEDOM No. 5:04-1785

VERSUS , September 2, 2004

9:00 a.m.

PAUL J. CARMOUCHE :

- omareness Shreveport, Louisiana

KKKKKEKKKKRKEKKKRKERKEEKEHK

HEARING ON MOTION FOR PRELIMINARY INJUNCTION

Certified transcript of proceedings held before the Honor-

able S. Maurice Hicks, Jr., United States District Judge.

Reported By: Marie Moran Runyon, RMR, CRR

Federal Official Court Reporter

300 Fannin Street, Room 4212

Shreveport, Louisiana 71101

Phone: (318) 222-9203

PROCEEDINGS PRODUCED BY MECHANICAL STE-

NOGRAPHY AND TRANSCRIBED BY COMPUTER.

* * *

{88] of law, nor is it a new law, such as those presented

in other cases, including Ashcroft vs. ACLU and Arizona

Right to Life Political Action Committee vs. Bayless,

B-A-Y-L-E-S-S.

The Court is not saying that because this statute has

not been previously challenged or that because it has not

been previously challenged that it is valid, only that

similar statutes have in fact been tested through the

litigation process.

App. 33

The Court does not believe that the plaintiff has

shown how this Louisiana statute or this set of Louisiana

statutes as written is distinguishable from the other

statutes that have been interpreted and whose wording

has been upheld. The language used in the Louisiana

statute is patterned after and is identical to the language

used and actually approved in Buckley.

Moreover, the Supreme Court, both in Buckley and

McConnell, as well as numerous other cases, has held that

there is a substantial public interest in knowing who is

behind certain types of political communications. Disclo-

sure laws on independent expenditures — and that’s in

quotes — have been upheld in these cases. Extensive

factual findings have already been made on this specific

issue by the courts and no further factual finding is

needed here in terms of interpreting the language of the

statutes.

The McConnell case held that a clear, bright line

* * *

App. 34

In the

United States Court of Appeals

for the Fifth Circuit

No. 04-30877

Consolidated with

No. 05-30212

CENTER FOR INDIVIDUAL FREEDOM,

Plaintiff-Appellant,

VERSUS

PAUL J. CARMOUCHE; ROBERT ROLAND;

JOHN W. GREENE; E.L. Guipry; R.L. HARGROVE, JR.;

MICHAEL J. KANTROW; HENRY C. PERRETT, JR.;

ASCENSION DELGADO SMITH; DOLORES SPIKES;

EDWIN O. WARE; T.O. PERRY; JOSEPH MASELLI,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

No. 5:04-CV-1785-SMH-RSP

(Filed Jul. 11, 2006)

ON PETITION FOR

REHEARING EN BANC

(Opinion 449 F.3d 655

(5th Cir. May 11, 2006))

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a peti-

tion for panel rehearing, the petition for panel rehearing is

App. 35

DENIED. Judge Dennis dissents from the denial of panel

rehearing for the reasons assigned in his dissent from the

opinion of the panel majority. No member of the panel or

judge in regular active service and not disqualified having

requested that the court be polled on rehearing en banc

(Fep. R. App. P. 35 and 5TH Cir. R. 35), the petition for

rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Jerry E. Smith

United States Circuit Judge

App. 36

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

Shreveport Division

CENTER FOR INDIVIDUAL

FREEDOM,

Plaintiff, Case No.

Judge:

Vv.

PAUL J. CARMOUCHE,

District Attorney,

lst Judicial District;

ROBERT ROLAND,

Chairman of the Louisiana

Board of Ethics and the

Supervisory Committee

for Campaign Finance;

Vice-Chairman of the

Louisiana Board of Ethics

and the Supervisory

Committee for Campaign

Finance;

Defendants, continued:

HENRY C. PERRET, JR.,

of the Louisiana Board

of Ethics and the

Supervisory Committee

for Campaign Finance;

ASCENSION DELGADO

JOHN W. GREENE,

of the Louisiana Board of

Ethics and the Supervisory

Committee for Campaign

Finance;

E.L. GUIDRY, JR..,

of the Louisiana Board of

Ethics and the Supervisory’ /’ SMITH, of the Louisiana

Committee for Campaign Board of Ethics and the

Finance; . Supervisory Committee

)

T.O. PERRY, JR.,

)

App. 37

R.L. HARGROVE, JR.,

of the Louisiana Board of

Ethics and the Supervisory

Committee for Campaign

Finance; )

MICHAEL J. KANTROW,

SR., of the Louisiana Board EDWIN O. WARE, III,

of Ethics and the Supervisory < of the Louisiana Board

) for Campaign

)

Committee for Campaign of Ethics and the

)

Finance; DOLORES

SPIKES, of the Louisiana

Board of Ethics and the

Supervisory Committee

for Campaign Finance;

Finance; Supervisory Committee

JOSEPH MASELLI, for Campaign Finance;

of the Louisiana Board of

Ethics and the Supervisory )

Committee for Campaign

Finance;

Defendants.

COMPLAINT

Nature of the Action

1. This action seeks to vindicate free speech, free

association, and due process rights guaranteed by the

First and Fourteenth Amendments to the United States

Constitution, and Article I, § 7 of the Louisiana Constitu-

tion. Plaintiff Center for Individual Freedom (“Center”)

wants to address citizens of Louisiana on matters of

public importance, and many in Louisiana want to hear

what the Center has to say. Yet, at the very time when

the public is most interested in and attuned to such

discussion because of the impending September 18

primary election, Louisiana’s campaign finance statutes

make it impossible for the Center to speak, threatening

civil and criminal penalties for violation of untailored,

unduly burdensome, overbroad, and impermissibly vague

provisions. Proceeding under the Civil Rights Act, 42

U.S.C. § 1983, the Declaratory Judgment Act, 28 U.S.C.

App. 38

§ 2201, and the Constitution itself, the Center seeks

injunctive, declaratory, and other appropriate relief that

will protect the rights to speak and to receive speech. And

because irreparable injury is being inflicted on the Center,

its supporters, and its would-be listeners at this very

moment, the Complaint seeks emergency temporary as

well as permanent injunctive relief.

Jurisdiction and Venue

29. Because this action arises under the Constitution

and laws of the United States, this Court has federal

question jurisdiction under 28 U.S.C. § 1331. Because this

action seeks to redress the deprivation of civil rights, this

Court also has jurisdiction under 28 U.S.C. § 1343(a\(3).

Because a defendant resides in this District and a sub-

stantial part of the events or omissions underlying the

claim occurred here, venue is proper under 28 U.S.C.

§ 1391(b).

Irreparable Injury

28. But for the challenged laws, the Center would be

speaking to Louisiana recipients right now. Because of the

unconstitutional laws, the Center is muzzled and hearers

at this moment are being deprived of its speech. Such

constitutional deprivations are irreparable injury as a

matter of law.

(a) The injury being inflicted here is particularly

severe during the narrow window of time just before the

impending election in which the public is most interested

App. 39

in and attuned to discussion of the issues the Center

wishes to address.

(b) Persons who wish to receive the speech of the

Center are particularly injured because this narrow period

before the election is when they may make use of that

speech in discourse with others and in assessing the

presentations of the candidates.

Supreme Court of Louisiana will be decided at the open

primary on September 18, 2004. Thereafter, the public will

experience a period of fatigue related to discourse on

issues aired during the campaign. Thus, it is critical that

the Center be allowed to engage in public discussion of

relevant issues during the few weeks preceding that

primary election.

Prayer

WHEREFORE, Plaintiff Center for Individual Free-

dom requests emergency temporary, preliminary, and

permanent injunctive relief from the enforcement of the

challenged laws, a declaration that the laws are vague,

inadequately tailored, and void, a declaration of the legal

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.