Opposition Brief — Carmoucheche v. Center for Individual Freedom (No. 06-494)

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IN THE Je wit yy

Supreme Court of the United States

Pact J. Carmoucne. DistRicT ATTORNEY. IST JUDICIAL

DISTRICT: ROBERT ROLAND. CHAIRMAN, T.O. PERRY. JR..

Vick CHAIRMAN. JoHN W. GREENE. E.L. Guipey. JR..

RL. HARGROVE. JR. MICHAEL J. KANTROW,. SR.. JOSEPH

MASELLI. HENRY C. PERRETT. JR. ASCENSION DELGADO

Santi. DOLORES SPIKES. Epwin O. Ware. Tl. OF THE

LOUISIANA BOARD OF ETHICS AND THE SUPERVISORY

COMMITTER FOR CAMPAIGN FINANCE,

Petitioners.

CENTER FOR INDIVIDUAL FRELEDOAN.

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

Rint) LL. GLyciing JAN WITOLD BARAN

Ot Counsel PHONMTAS W. RERBY

CHENIER FOR INDIVIDU A Counsel of Record

bE DOM Cali BP. BURNS

113 South Columbus Street WH ey REIN & FIELDING LLP

Suite 310 1776 K Street. NW.

\lexandria, VA 22514 Washington. D.C. 20006

(703) 535-5836 (202) 719-7000

November 22. 2000

WiLSON-ErPeS PrintiInNGCo Inc — 1(202):789-0096 - WesHinGTon D C. 20001

CORPORATE DISCLOSURE STATEMENT

The Center for Individual Freedom is a nonprofit, nonstock

corporation existing under the laws of the Commonwealth

of Virginia. As a nonprofit, nonstock corporation, it has no

parent corporation, and no publicly held corporation owns

more than 10% of its stock.

(i)

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT............. i

TABLE OP AUT as onicvcccsncecsvievescsesoinstevcnereenes iv

INTRODUCTORY STATEMENT .............ccccscceeseeeeeees 1

1. STATEMENT OF THE CASE .................0000000 3

Cai FO cei ceceserisnvinsnsvvnsnientvipnneenensvees 3

(b) Trial Court Proceedings...........--ccscressseerees 6

2. REASONS FOR DENYING THE WRIT......... 8

(a) There Is No Circuit Split .............::ccceseeeeees 8

(b) The Fifth Circuit Correctly Analyzed This .

Court’s Controlling Precedents .................+. 9

EEE TCI incon cicchckvitinittornsntvcesentnteenins 12

(d) The Fifth Circuit’s Ruling Was A Narrow

Response To The Facts Before It ................ 13

(e) Louisiana’s Brief Did Not Seek Or Justify

Certification To The Louisiana Supreme

Court, Nor Does The Belated Certification

Argument Warrant Certiorafi ..............-0++++ 14

OG a pases iahcccactlechsninceniccnceegninetindannpientamnenih 19

PPT Be icsicrocsedcnrencintvesintentstniniinnretinnniiapinnmpminipons la

IG Ti i eictevenisen iesictersecanqpavrinnitnnctinthmninmmnonainpiaiatin 3a

PI i iieceintictntcvnchekcshidcnosensocssecsievenstunicasipnecebaniipig 5a

(iii)

TABLE OF AUTHORITIES

FEDERAL CASES Page

ACLU of Nevada v. Heller, 378 F.3d 979 (9th

1, FN sa cicsesinsecensrennnsinviatcisonteens wepcitinenanatiscenpen 8

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004)

cert. denied, 543 U.S. 956 (2004)...........:cces0e0 8, 11-12

Brayton v. United States, 500 U.S. 344 (1991)..... 9

Brewer v. Memphis Publishing Co., 626 F.2d

R758 1S Cir, TODD wicsccrecicevorecreseinsasontiesiossonires 18

Buckley v. Valeo, 424 U.S. 1 (1976).....:-ecseeseeee 4-5, 9-10

Center for Individual Freedom v. Carmouche,

449 F.3d 655 (Sth Cir. 2006) ........::cccccsesecseeenee 3

Chamber of Commerce of the United States v.

Moore, 288 F.3d 187 (Sth Cir. 2002) ..........--2++- 10

City of Houston v. Hii!, 482 U.S. 451 (1987)........ 15-16

Florida ex rel. Shevin v. Exxon Corp., 526 F.2d

DO Cs BO TG) onic cise cccccieicir esis 15

Hughes v. Tobacco Institute, Inc., 278 F.3d 417

(SOE: BOGE) wsesitesesntvcnctbnanceenstovsseosotinrenevenseseste 15

Jefferson v. Lead Industrial Ass'n, 106 F.3d 1245

CSG Cie. BIST) crisis ccin ninciicsse msec reedescemmentotonsoniicbe 15

Lucas v. United States, 807 F.2d 414 (Sth Cir.

IDS wiisiviserccerikcctvsstuleniicndacisiintiennscipdadanpsbtpestinn 18

Marrogi v. Howard, 248 F.3d 382 (Sth Cir: 2001) 17

Marston v. Red River Levee & Drainage District,

632 F.2d 466 (Sth Cir. 1980) .........ccsccecceseeeeeres 17

McConnell v. Federal Election Commission, 540

FS, BO ivi hss cicectncicorarermtntsascoenanions a:3533

In re Orso, 283 F.3d 686 (Sth CR FER eiicentins ; 18

Pacific Lining Co. v. Algernon-Blair Construc-

tion Co., 812 F.2d 237 (Sth Cir. 1987).............. 17

Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020

(5th Cir, Unit A June 1981).......cccccccereeeeeeeeeeees 15

Rubino v. Lynaugh, 845° F.2d 1266 (Sth Cir.

TABLE OF AUTHORITIES—Continued

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

Tanks v. Lockheed Martin Corp., 417 F.3d 456

(5a Cig: 2005) iiccariscosacrossssseicosscssessvesssorennsesnons

STATE CASES

Dufour v. Union Pacific Railroad Co.—Missouri

Pacific Railroad Co., 610 So. 2d 843 (La. Ct.

ADD. 1992) ..cccccccccescsevosesisseorescoecsersorsarsesonorenseoons

Madison v. Travelers Insurance Co., 308 So. 2d

FEA CES, TOS sicctsutenidectshssnacaneoissnnnevvoninvgeipizanvee

State v. Touchet, 759 So. 2d 194 (La. Ct. App.

FEDERAL STATUTES AND RULES

BASE EAS OOANAY oo cosscscsssnseedsscccsbistesaneoneve

EN CBN oi asin alin

Supreme Court Rule 10(C)........:.::ccccceeeneeseeeeeeees

STATE CONSTITUTIONS, STATUTES

AND RULES

Adaska Stat. § 1S.US.1F5 nresisserrscsosesccssscosscsereeseoes

Alaska Stat. § 15.13.400(5) ............ccscccrssessressrroes

Alaska Stat. § 15.13.400(6)(C).........::cccsseereeeeeeeeees

Cal, Gov't Code § SSSI... cncvescscsccsscsnsssccoescczecererse

Cs: CARE, BIE, FAW Mile EGA F evcievitsantotsnnrencqoecinne

Che Ce, RE FEA tals OO cares cvcsnsevasncsiccsesiessvons

Fla. Stat. Ann. § 106.01 101 (D)3.........cccecsseeeeeetees

Fla. Stat. Ann. § 106.01 1(18) ..............cssccseecreerees

Haw. Rev. Stat. § 11-207 6.0... ccccusccsscsccsoccsovnsscosnee

Idaho Code Ann. § 67-6602(f) ..........ccccecsseesereeeees

Idaho Code Ann. § 67-6630 .........ccccscscceeeeereeeeeerees

10 Ill. Comp. Stat. Ann. § 5/9-1.5 2... eeeeeeeeeeeees

10 Ill. Comp. Stat. Ann. § 5/9-1.7 «0... ceeeseeeeeeeees

NNNNNNNNNNN NN

TABLE OF AUTHORITIES—Continued

Page

10 Ill. Comp. Stat. Ann, § 5/9-1.8 ........ccceeceeeeeeeees

10 Ill. Comp. Stat. Ann. § 5/9-1.14 20.0.0... eeeeeeeeee

PN me Ae OE © pg > & SRR aeeeance

La. Rev. Stat. Ann. § 18:1483(9)(a) ..........2:eceeeeees

Te. TU, Set, PIB. S TEESE EE ccenscccesneensensscsneveeve

Ee: Rev. Stat; Amn. 6 TBS UD \. ccccvescccoseccnvvessoerse

La. Rev. Stat. Ann. § 18:1511.6 ...........ceceseeeerseees

La. Supreme Court Rule XII, § 1..........:.:sceseeneeeeee — rie > Se

N.C. Gen. Stat. § 163-278.80 ............csssecseserreeeees

PEC, Coats, Beet 6 GSE TOGE accscecveystrersconctorecseccere

N.C. Gen. Stat. § 163-270.90 ...........cscsrsrseeerereeees

DEES Gam, BORE, © BGS Z TSS a ncccscscrnccerscsovesevavcoesve

Ohio Rev. Code Ann. § 3517. 1011 .........:cecceeeeeees

Okla. Ethics Commission Constitutional Rules

BEET: BPR siincaicnsenisentninvcbanideernsaveceeteniveseenensons

Okla. Ethics Commission Constitutional Rules

S.C. Code Ann. § 8-13-1300(6)............c:cccccesereeeees

S.C. Code Ann. § 8-13-1300(17)...........ccccccecceeeeens

S.C. Code Ann. § 8-13-1300(31)...........:ccccceeeeeeees

S.C. Code Aaah: © 6-13 1 SOG 5... .coceerevsscceeccceyreveseees

Wash. Rev. Code § 42.17.020 ............ccscssssereeeeeees

Wash. Rev. Code § 42.17.5695, ..............sssscereseerees

W. Va. Code Ann. § 3-8-1a(10) .........ccccceceeereeeees

WW. Vb, Cate Aae, § S-Be2B .essccceccvenserevevescosecsooees

MISCELLANEOUS

Letter from Louisiana Board of Ethics to

Republican State Leadership Committee (Apr.

BF BOE) crceracesnecsvsseptsoncnsereesnvoccnsnsmainnqipvencysvennees 5

National Conference of Commissioners on Uni-

form State Laws, Uniform Certificaticn of

Questions of Law [Act] [Rule] (1995) .............. 17

NNNNNNNNN SIN WY

NNNN NY NY NW WK WY

Vil

TABLE OF AUTHORITIES—Continued

. Page

Opinion of the Louisiana Board of Ethics, No.

2003-746, In the Matter of Republican State

Leadership Committee (Jan. 13, 2005).............- 6

Robert Stern, et al., Supreme Court Practice (8th

OE FIRING sn eievescnsreconeniibcsnninenintencbenadennenpmronnniions 9

IN THE

Supreme Court of the United States

No. 06-494

PAUL J. CARMOUCHE, DISTRICT ATTORNEY, IST 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, 7

Petitioners,

Vv.

CENTER FOR INDIVIDUAL FREEDOM,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

—_—— ———

RESPONDENT?’S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

—_—oa~——

INTRODUCTORY STATEMENT

Nothing about this case justifies singling it out for

discretionary review by this Court. The Fifth Circuit’s ruling

presents no split among the federal courts of appeals, nor

does it conflict with this Court’s precedents. To the contrary,

the Fifth Circuit’s careful and accurate analysis of this

Court’s decisions accords with that of the Sixth Circuit—the

only other circuit to address the point.

Nor is this one of those rare cases in which exceptional

public interests demand early intervention by this Court.

Louisiana repeatedly told the Fifth Circuit that its statutory

definition of “expenditure” was modeled on and intentionally

incorporated the meaning of an identically-worded federal

statute.’ The Fifth Circuit merely corrected Louisiana’s mis-

taken belief that the federal definition recently had changed

and preserved Louisiana’s statute from invalidity by holding

that it retained its traditional and intended meaning. This

modest ruling—far from the overbroad ruling claimed by the

Petition—imposed no new constraints and explicitly left

Louisiana free to enact any new definition that conforms to

long-settled First Amendment standards, a path that Congress

and other states already have taken.”

' Petitioners are referred to herein as “Louisiana.” Petitioners include

the District Attorney for the First Judicial District and members of the

Louisiana Board of Ethics and the Supervisory Committee for Campaign

Finance, which have authority to interpret and enforce Louisiana’s cam-

paign finance laws. La. Rev. Stat. Ann. §§ 18:1511.1, 1511.5, 1511.6.

2 McConnell v. FEC, 540 U.S. 93 (2003), approved Congress’ defini-

tion of a new category of regulated speech known as an “electioneering

communication.” New state statutes, constitutional amendments, and

rules that adopt analogous “electioneering communication” provisions

include the following: Alaska Stat. §§ 15.13.400(5), (6)(C), 15.13.135;

Cal. Gov’t Code § 85310; Colo. Const. art. XXVIII, §§ 2(7), 6; Fla. Stat.

Ann. §§ 106.011(1)(b)3, (18); Haw. Rev. Stat. § 11-207.6, Idaho Code

Ann. §§ 67-6602(f); 67-6630; 10 Ill. Comp. Stat. Ann. §§ §/9-1.5, 1.7,

1.8, 1.14; N.C. Gen. Stat. §§ 163-278.80, .82, .90, .92; Ohio Rev. Code

Ann. § 3517.1011; Okla. Ethics Comm'n Constitutional Rules §§ 257:1-

1-2, 10-1-2(d); S.C. Code Ann. §§ 8-13-1300(6), (17), (31), 1308; Wash.

Rev. Code §§ 42.17.020(20), (21), 565; W.Va. Code Ann. §§ 3-8-1a(10)

& 3-8-2b. Some of these go beyond the federal definition and thus may

be open to challenge.

Louisiana says the Fifth Circuit erred by not referring this

case to the Louisiana Supreme Court. The Petition does not

disclose, however, that Louisiana’s Brief to the Fifth Circuit

did not even suggest such referral, much less attempt to show

that it would be permissible or desirable.’ Instead, Louisiana

expressly represented that the case was controlled by the

federal definition of “expenditure”—an issue for the federal

courts. Moreover, certification likely wouid have failed un-

der Louisiana’s narrow certification rule and, given Louis-

iana’s unique legal system, could not have produced a defini-

tive answer. And the notion that judicial construction could

have entirely rewritten the Louisiana statute, substituting

Congress’ complex and detailed definition of “electioneering

communication,” is wholly implausible.

The Petition boils down to a fervent argument that the Fifth

Circuit committed ordinary legal error. The Petition is

wrong. But even assuming arguendo such error had occurred,

it would not elevate this case to one of the relative handful

reviewed each term. For these reasons, the Petition should be

denied.

1. STATEMENT OF THE CASE

(a) Background

Respondent Center for Individual Freedom (“Center”)

seeks to advance personal liberty through various means,

including public advertising. Pet. App. at 2.4 It has found the

* After the panel majority ruled against it, Louisiana then petitioned the

en banc court to order certification—without showing that Louisiana's

stringent certification standards could be met or what would be accom-

plished—but no member of the Fifth Circuit supported en banc review of

this belated effort.

* All citations to the Court of Appeals’ opinion herein are to the version

contained in the Appendix to Louisiana's Petition. The published version

of the Fifth Circuit’s opinion may be found at Center for Individual

Freedom v. Carmouche, 449 F.3d 655 (Sth Cir. 2006). The Appendix to

public to be most receptive to its messages when impending

elections have aroused an interest in public policy issues and

candidates provide concrete examples of its policy points. As

a matter of principle, however, the Center will not make the

type of intrusive and burdensome disclosures often required

by campaign finance legislation as the price of speech that is

sufficiently related to elections and candidates. Jd. Indeed, if

the law is unclear, so that contemplated speech may subject

the Center to such requirements, the Center will stand mute,

as actually occurred in this case. Jd. Thus, the Center has a

vital interest in knowing in advance exactly what speech will

subject it to regulation so it need not hedge and trim to steer

wide of vague restrictions. That interest, of course, also is

shared by members of the public who are denied the ability to

receive the Center’s speech when it is chilled into silence.

Louisiana’s campaign finance statute long has defined

regulated “expenditures” using the same language as its

federal analog. Compare La. Rev. Stat. Ann. § 18:1483(9){a)

(“anything of value made for the purpose of supporting,

opposing, or otherwise influencing the nomination or election

of a person to public office”) with 2 U.S.C. § 431(9)(A)(i)

(“anything of value, made by any person for the purpose of

influencing any election”). This was no accident. As

Louisiana explicitly and repeatedly explained to the Fifth

Circuit: “The Louisiana definition . . . must therefore be—and

is intended to be—interpreted consistently with [Buckley’s

express advocacy] directive.” Resp. App. at 2a (Br. for

Appellees at 14).° The state definition “was carefully

modeled after the [federal] statute” that was construed in

Buckley v. Valeo, 424 U.S. | (1976), and the district court

this Opposition contains relevant excerpts of other documents cited

herein.

* See also Resp. App. at 2a (Br. for Appellees at 11) (“the challenged

Louisiana statute was carefully modeled after the [federal] statute in

Buckley to ensure constitutionality”’).

agreed that it used “exactly the same . . . language [construed

in] Buckley” to convey the same meaning. Resp. App. at 4a

(Pet. for En Banc Reh’g at 5).° An echo of these statements

appears in Louisiana’s Petition to this Court (at 22) which

states: “The Louisiana statute was carefully tailored after the

federal statute that was the subject of examination in the

Buckley decision.”

Under the traditional Buckley definition that Louisiana law

incorporated, spending for speech is not a regulated

“expenditure” unless the speech uses explicit words such as

“vote for” or “elect” to expressly “advocate the election or

defeat of a clearly-identified candidate.” 424 U.S. at 44 &

n.52. That precise and objective definition permitted the

Center to know in advance and with confidence whether

contemplated speech would subject it to intrusive regulation.

The Center previously had run issue ads in Louisiana.

Resp. App. at 6a (Br. for Appellant at 7). In the fall of 2004,

the Center was preparing to run an ad discussing justice

themes illustrated by candidates in a pending election. The

Center became aware that the Louisiana Board of Ethics

(members of which are among the Petitioners here) was

investigating other advertising that did not use explicit words

of express advocacy. See Letter from Louisiana Board of

Ethics to Republican State Leadership Committee (Apr. 12,

2004) available at http://domino.ethics.state.la.us/CampOpn.

nsf/999d 109733 135¢25862567£8006847bf/d94c48701c6e172

986256e750054742a?OpenDocument&Highlight=0,2003-746.

There were assertions that recent federal authority, notably

McConnell v. FEC, 540 U.S. 93 (2003), had altered the

meaning of the statute on which Louisiana’s provision was

based and, hence, also had changed the meaning of the

* See also Resp. App. at 4a (Pet. for En Banc Reh’g at 1 n.1) (“The

Louisiana statute was carefully crafted to comport with the Buckley

language. . . .”).

identical state provision. The Center was concerned that

Louisiana was regulating independent speech based on its

own assessment of what speakers subjectively hoped to

achieve and what listeners would understand, without any

need for explicit words of express advocacy. See, e.g.,

Opinion of the Louisiana Board of Ethics, No. 2003-746, Jn

the Matter of Republican State Leadership Committee (Jan.

13, 2005) available at http://domino.ethics.state.la.us/Camp

Opn.nsf/999d 109733 135c25862567£8006847bf/329237426fd

€436486256f8d005d9657?OpenDocument&Highlight=0,200

3-746. Accordingly, the Center’s advertisement carried the

risk of being classified as a regulated “expenditure.”

(b) Trial Court Proceedings

Unwilling to risk intrusive and burdensome regulation, the

Center suspended its planned ad and brought suit contending

that, under Buckley, and its progeny, a statute that regulated

core, independent speech based on the subjective and pre-

dictive definition Louisiana appeared to be pursuing was

unconstitutional. Pet. App. at 2. Naming Louisiana’s

campaign finance enforcement authorities as Ex Parte Young

defendants, the Center sought preliminary relief to permit it to

proceed with its planned ad and final relief to allow it to

speak in the future. /d. at 3. The district court denied

preliminary and permanent relief, and the Fiftti Circuit denied

relief pending appeal. /d. at 3.

On appeal, Louisiana’s merits brief did not seek certifica-

tion of any question to the Louisiana Supreme Court, nor did

it contend that the controlling issue was one of state law.

Instead, it explicitly maintained that (i) Louisiana’s statute

was intentionally modeled on and intended to have precisely

the same meaning as the identically-worded federal statute

construed in Buckley (Pet. App. at 12); (ii) because of this

identity of meaning with the statute upheld in Buckley, the

Louisiana statute could not be facially unconstitutional (id.);

and (iii) because McConmell had altered the federal definition,

making it depend on subjective and predictive judgments, the

state definition now had that same new meaning (id. at 15).

The Fifth Circuit agreed with Louisiana in every respect

but one. It accepted that the state definition of “expenditure”

was intended to and did have the same meaning as the

identical federal language. Jd. at 12-14. It further accepted

that, because Buckley held that a statute with such a meaning

satisfied the First Amendment, Louisiana’s identical statute

likewise was facially constitutional. Jd. at 14. Indeed, it

agreed that Louisiana was free to enact alternative legislative

definitions crafted to satisfy the First Amendment, just as

Congress had done in the statute affirmed in McConnell. Id.

at 16.

The Fifth Circuit disagreed, however, with Louisiana’s

claim that McConnell altered the federal definition that the

State statute incorporated. Jd. at 15-16. Instead, the Fifth

Circuit read McConnell to uphold a detailed new legislative

definition that was found to be at least as precise and

objective as Buckley’s “express advocacy” definition. Jd. at

16. The earlier federal provision—which remains in effect

for many purposes—retained the meaning Buckley had given

it. Louisiana’s statute likewise continued to have the same

“express advocacy” meaning Buckley had declared, that

Louisiana said it had intentionally adopted, and that saved the

statute from facial invalidity. Jd. at 17. This holding simul-

taneously foreclosed the Center’s facial challenge and pro-

vided the Center with the clear advance guidance it had

sought. Jd. (The correctness of the Fifth Circuit’s reason-

ing and its consistency with other authority is demonstrated

below).

Rather than enacting additional or alternative definitions of

regulated speech, Louisiana sought rehearing en banc. Its

Petition for Rehearing largely rehashed earlier arguments, but

added a request—not made in Louisiana’s merits brief—to

certify the question of the statute’s meaning to the Louisiana

Supreme Court. No member of the Fifth Circuit supported en

banc intervention, which was denied. /d. at 34-35. Louisiana

then petitioned this Court for certiorari.

2. REASONS FOR DENYING THE WRIT

None of the factors this Court has identified as possible

grounds for granting certiorari apply here.

(a) There Is No Circuit Split

Louisiana’s Petition is most striking for what it omits. It

says nothing about the views of other courts of appeals,

failing even to cite, much less discuss, Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004), cert. denied, 543 U.S. 956

(2004). The reason for this thundering silence is that there is

no disagreement between the circuits. To the contrary, when

the Sixth Circuit considered how McConnell affected

Buckley’s “express advocacy” definition, it reached the same

conclusion as the Fifth Circuit here. /d. at 664-66. The Ninth

Circuit has cited the Sixth Circuit’s core conclusion with

approval.’

These authorities supporting the Fifth Circuit are discussed

in more detail in the following section, which demonstrates

that the Fifth Circuit’s ruling is legally correct. The

immediate point is simply that Louisiana is asking this Court

to grant review on an issue where there is no circuit split.

” ACLU of Nev. v. Heller, 378 F.3d 979, 985 (9th Cir. 2004). The

thrust and holding of Heller concerned the right to anonymous speech.

However, in setting its analytical framework, Heller said: “as stated

recently by the Sixth Circuit, McConnell ‘left intact the ability of courts to

make distinctions between express advocacy and issue advocacy, where

such distinctions are necessary to cure vagueness.’” /d. (quoting Ander-

son, 356 F.3d at 664-65).

Thus, a “principal purpose” of certiorari review is lacking

here. See Brayton v. United States, 500 U.S. 344, 347 (1991).

(b) The Fifth Circuit Correctly Analyzed This Court’s

Controlling Precedents

Unable to identify a split in the circuits, the Petition (at 8)

contends that the decision of the Fifth Circuit (and pre-

sumably the unmentioned Sixth Circuit) is “irreconcilable

with . .. McConnell.” That is a telling choice of words. This

Court’s Rule 10(c) says certiorari may be granted to review a

decision that “conflicts” with decisions of this Court. As a

tule, the type of conflict contemplated “must truly be direct

and must be readily apparent.” Robert Stern, et al., Supreme

Court Practice, 233 (8th ed. 2002). After all, working out the

implications of this Court’s rulings is bread and butter for the

courts of appeals, so that a looser standard would open the

door to extensive review of claimed ordinary error. It would

be remarkable if the Fifth Circuit’s ruling construing a

vaguely-worded Louisiana statute modeled on a similarly-

vague federal law could be said to “conflict” with Mc-

Connell’s approval of a different statute whose new, detailed,

precise, and objective language did not call for construction.

At most, the Petition is arguing that some of McConnell’s

reasoning pointed in a different direction than the Fifth

Circuit took. Such an argument could not justify certiorari if

it were correct, and here it is mistaken.

Public speech concerning public policy lies at the very

heart of the First Amendment. Buckley, 424 U.S. at 14-15.

The language of the First Amendment commands in absolute

terms that Congress shall make “no law” restricting such

speech. Buckley held that compelling necessity could

overcome that seemingly absolute ban, but that such laws

must meet demanding standards of clarity and precision,

particularly where they carry criminal or civil penalties, as

does the Louisiana statute. 424 U.S. at 40-41. Among other

things, such a statute must draw a clear and objective bright

line so that speakers do not “hedge and trim,” suppressing

core First Amendment speech to avoid legal risk. /d. at 41-

43. This is a much higher standard than the ordinary due

process standard of vagueness, reflecting the extreme

constitutional sensitivity of regulating and punishing pub-

lic speech on public policy—legislating where the First

Amendment’s text permits “no law.” Absent such a bright

line, there is an unacceptable risk that speakers will hedge

and trim, refraining from core speech that the law does not

forbid. /d. at 41 n.48.

Buckley held that federal statutory language regulating

speech ““‘for the purpose of influencing’ an election” did not

itself provide the clear advance guidance the First Amend-

ment required. Jd. at 42-43. It held inadequate a D.C. Circuit

proposal to construe the phrase to mean speech that simply

advocated the election or defeat of a candidate, explaining

that the First Amendment did not permit speakers to be

subjected to the risk of differing judgments as to their intent

or the likely understandings by hearers. Jd. at 42 & n.49.

Instead, to assure that permissible core speech would not be

chilled by uncertainty, Buckley construed the federal language

to apply only to speech using “explicit words” such as “elect”

or “vote for” to “expressly advocate the election or defeat of a

clearly identified candidate.” /d. at 78-80 (referring to 424

U.S. at 44 & n.52); see also Chamber of Commerce of the

U.S. v. Moore, 288 F.3d 187, 194-95 (Sth Cir. 2002)

(discussing the Buckley standard as it persisted through the

years). It was this construction, and not the federal language,

that avoided facial invalidity.

Buckley flatly acknowledged its bright ‘ine test could

readily be circumvented simply by avoiding <xplicit words of

advocacy. 424 U.S. at 45. But it held that the First

Amendment’s demand that speakers receive precise advance

guidance prevailed over desires for broader coverage. /d.

As discussed above, McConnell construed Buckley to

control the construction of vague legislation restricting core

election-related independent speech, rather than as a

constitutional limit on precise and tailored legislation. It held

that Congress’ definition of a new category of regulated

election-related speech—which laid out in detail the media,

time, speakers, and content regulated—was at least as precise

as Buckley’s express advocacy standard. McConnell, 540

U.S. at 194. Thus, in McConnell, there was no unconsti-

tutional vagueness to be cured, and there was no occasion to

alter Buckley’s holdings concerning vague definitions.

For these reasons, the Fifth Circuit correctly held that

McConnell did not alter the federal definition that the

Louisiana statute incorporated. Pet. App. at 15-16. Thus, the

existing Louisiana statute was construed to require explicit

words of express advocacy, although the state was left free to

follow the lead of Congress and other states in attempting to

craft alternative statutory definitions that would provide the

precise and objective bright line that the First Amendment

demands in this highly sensitive area.

The Fifth Circuit’s analysis is strongly supported by the

Sixth Circuit’s ruling in Anderson v. Spear. There, the Sixth

Circuit confronted a Kentucky statute that excluded “elec-

tioneering” speech from a wide zone around polling places.

356 F.3d at 663. The Sixth Circuit found that the undefined

term “electioneering” posed the same concerns of vagueness

and overbreadth that led Buckley to adopt the “express

advocacy” standard. /d. at 663-66. It recognized that

McConnell had held that the “express advocacy” standard

was not constitutionally compelled and did not reach much

speech that was intended to and did affect elections. /d. at

664-65. However, because the statute had not provided a

definition that satisfied the First Amendment standards

established in Buckley, the Sixth Circuit saved Kentucky’s

Statute by construing it to apply only to “speech which

expressly advocates the election or defeat of a clearly

identified candidate or ballot measure.” Jd. at 665.

Anderson was a harder case because the state statute was

not identical to a federal provision, it had not been adopted

for the specific purpose of incorporating the federal standard,

and Kentucky did not contend that its statute’s meaning was

established by federal authority. Even so, Anderson held that,

in the absence of a precise and objective legislative definition,

Buckley’s “express advocacy” definition should apply, and

that nothing in McConnell held otherwise. Jd. at 664-65.

This holding strongly supports the ruling of the Fifth Circuit.

Thus, the Fifth Circuit’s ruling correctly construed this

Court’s relevant precedent. Certainly it does not present

the type of “conflict” with McConnell that would warrant

certiorari.

Review

Louisiana’s claim (Pet. at 21-22) that a question of

exceptional importance justifies review is greatly exag-

gerated. As discussed above, the Fifth Circuit ruling gives

the state statute the meaning that Louisiana concedes it was

intended to have, that it had for many years, and that the

identical federal statute continues to have. Moreover, the

Fifth Circuit made explicit that the state is free to follow the

lead of Congress (and other states) in seeking to craft new

legislative definitions that will satisfy the First Amendment’s

demand for precise and objective standards while achieving

whatever broader coverage can be sufficiently justified.

The impact of the Fifth Circuit’s ruling simply is not of a

magnitude that might make this one of the 100 or so cases

this Court accepts each year. Moreover, as demonstrated

above, there is no substantial question that the Fifth Circuit’s

ruling was correct. Thus, this simply is not one of those

13 :

unusual situations in which review is justified by a question

of exceptional importance.®

(d) The Fifth Circuit’s Ruling Was A Narrow

Response To The Facts Before It

Louisiana asserts that, by declaring what the Louisiana

Statute meant, the Fifth Circuit granted broader relief than

was justified by the facts. Pet. at 22-24. In fact, this is a

conventional means of avoiding a facial challenge, as Buckley

itself demonstrates.

Louisiana fails to cite a single case in which a facial First

Amendment vagueness challenge was avoided by a narrow-

ing construction without actually stating that construction.

Nor does Louisiana offer any claim or showing that its

argument presents an important issue on which the circuits

are split.

Moreover, the Fifth Circuit did not itself create the defi-

nition that saved the statute. As discussed above, Louisiana

expressly and repeatedly argued that the state statute could

not be facially invalid because it had the same meaning as the

federal statute construed and sustained in Buckley. The Fifth

Circuit accepted that position, then held that McConnell had

not changed that meaning, and stated what that meaning was.

Pet. App. at 12-17. Seo

Louisiana’s argument here simply misses Buckley’s critical

point. Public policy speech has such high constitutional value

that it must not be curtailed by the need to trim and hedge and

steer clear of the regulated area. Instead, such speakers are

* To be clear, having a precise and objective standard by which to

judge whether its public speech will subject it to intrusive and bur-

densome regulation is extremely important to the Center and many other

similar speakers, as well as the public that receives their speech. Thus, if

the Fifth Circuit had sustained Louisiana’s position, an error of excep-

tional importance would have occurred. But that is not the situation here.

entitled to a precise and objective bright line test that allows

them ¢ ~fidently to know in advance just what is and is not

forbic « If Louisiana’s statute lacked such a bright line

meaning, it would be facially invalid.

(e) Louisiana’s Brief Did Not Seek Or Justify

Certification To The Louisiana Supreme Court,

Nor Does The Belated Certification Argument

Warrant Certiorari

Louisiana’s Fifth Circuit Brief did not ask for certification

of any issue to the Louisiana Supreme Court, nor did it

attempt to explain how such certification would have been

useful. To the contrary, Louisiana expressly represented that

its statute was intended to and did adopt a federal definition

and argued that the rulings of this Court concerning that

federal definition thus also controlled the meaning of the

state statute. See supra at 6-7. The Center did not dispute

those representations—they were made by the state agency

entrusted with responsibility for construing and enforcing the

statute, they reflected a traditional understanding, and they

are consistent with Louisiana authority that a state statute

modeled on a federal statute generally takes its meaning.”

Thus, Louisiana is asking this Court to grant certiorari to

review the Fifth Circuit’s supposed error in failing to sua

sponte perceive a need for certification that Louisiana’s

argument rendered unnecessary.'” That would be remarkable.

® When Louisiana statutes parallel or are modeled on federal law,

Louisiana courts are “guided by federal jurisprudence.” Dufour v. Union

Pac. R.R. Co. Mo. Pac. R.R. Co., 610 So. 2d 843, 846 n.4 (La. Ct. App.

1992); see also State v. Touchet, 759 So. 2d 194, 197 (La. Ct. App. 2000)

(where state statue is “parallel” to federal statute, federal construction is

“persuasive”); Madison v. Travelers Ins. Co., 308 So. 2d 784, 786 (La.

1975) (same).

'° Moreover, having prevailed in the district court and in defeating the

Center’s motion for preliminary appellate relief, Louisiana may well have

This Court has been clear that the failure of a party to seek

certification before a court of appeals panel rules on the

merits undercuts a later certification request, if it does not bar

it altogether. See Stenberg v. Carhart, 530 U.S. 914, 945

(2000) (noting the absence of a certification request from the

brief in the court of appeals as a reason not to certify); City of

Houston v. Hill, 482 U.S. 451, 467 n.16 (1987) (city’s failure

to seek abstention “until it had lost on the merits before the

panel . . . undercut the force of the city’s argument” but was

not an absolute bar). Delay is particularly inexcusable where,

as here, the purpose of the litigation is to relieve an ongoing

chill to core First Amendment speech. In such cases, federal

courts prefer to avoid delays, including the delays associated

with referring issues to state court without clear justification.

See id, at 467; Red Bluff Drive-In, Inc. v. Vance, 648 F.2d

1020, 1032 (Sth Cir. Unit A June 1981).

Moreover, because certification burdens two courts with

one case, certification is appropriate only where the likely

benefits exceed its costs. See Hughes v. Tobacco Inst., Inc.,

278 F.3d 417, 426 (Sth Cir. 2001); Jefferson v. Lead Indus.

Ass'n, 106 F.3d 1245, 1247 (Sth Cir. 1997); Fla. ex rel.

Shevin v. Exxon Corp., 526 F.2d 266, 274-75 (Sth Cir. 1976)

(“practical” factors including procedural doubts disfavor

certification).

Thus, in addition to acting promptly, a party seeking

certification must demonstrate that the statute is “obviously

susceptible” to a construction that will avoid the constitu-

tional issue. Hill, 482 U.S. at 468: Stenberg, 530 U.S. at 945

(“fairly susceptible”). “A federal court may not properly ask

a state court if it would care, in effect, to rewrite a statute.”

Hill, 482 U.S. at 471. At the same time, however, if the

available narrowing construction is “readily apparent” to the

made a tactical judgment that it could obtain a swift and definitive victory

from the Fifth Circuit.

federal court, then there is no need for certification. Sten-

berg, 530 U.S. at 944.

Louisiana’s brief to the Fifth Circuit plausibly (and

correctly) contended that the state definition of “expenditure”

was intended to be the same as the federal definition. Resp.

App. at 2a (Br. for Appellees at 11, 14). The close similarity

of language and purpose made that understanding highly

probable, as did the fact that it was advanced by the state

agency entrusted with construing the statute. Since the

Center did not dispute that point, and the panel accepted it,

Louisiana is in no position now to argue that certification was

necessary. See Tanks v. Lockheed Martin Corp., 417 F.3d

456, 460 (Sth Cir. 2005) (no certification where no practical

effect). Louisiana’s argument that its definition properly

incorporated subjective and predictive elements flowed

entirely from its view that the federal definition had been so

construed. The meaning of federal law, of course, was a

federal matter for the Fifth Circuit.

The Petition’s section (at 24-27) arguing for certification

makes no attempt to show that Louisiana’s statute plausibly

could be given a construction other than the one that

Louisiana contended for below and that was adopted by the

Fifth Circuit. In an earlier section, however, the Petition

asserts (at 20) that the Louisiana statute should be given

the same meaning as the “electioneering communication”

standard upheld in McConnell. But that standard was

carefully crafted by Congress, which specified which media

were to be regulated during which time periods, provided that

specific numbers of voters could receive the speech. 2 U.S.C.

§ 434(f)(3). To ask the Louisiana Supreme Court to impose

that meaning on a state statute would be to ask it “in effect, to

rewrite a statute,” which federal courts cannot do. Hill, 482

U.S. at 471. :

The Petition also does not discuss Louisiana’s certification

rule and practice or respond to the Center’s showing, made in

response to the Petition for Rehearing En Banc, that there is

grave doubt certification would be accepted. Our research

Suggests that, over the last fifteen years, the Fifth Circuit

certified about one case per year to the Louisiana Supreme

Court, and that court has rejected about half of those cases.

See Marston v. Red River Levee & Drainage Dist., 632 F.2d

466, 468 n.3 (Sth Cir. 1980) (noting low acceptance rate and

wasted time). That low rate has occurred despite the Fifth

Circuit’s careful and sparing use of such certification.

Ignored by the Petition, there are substantial procedural

obstacles to certification. The first difficulty arises because

Louisiana Supreme Court Rule XII, §1, limits certification to

matters that “are determinative of said cause independently of

any other questions involved in said case” (emphasis added).

This language is much more demanding than the “Uniform

Certification of Questions of Law [Act] [Rule],” which

speaks of questions that “may be determinative of an issue”

(emphasis added) without mentioning other questions in the

case. National Conference of Commissioners on Uniform

State Laws, Uniform Certification of Questions of Law [Act]

[Rule] (1995) § 3, available at http://www.law.upenn.edu/

bll/ulc/fnact99/1990s/ucqla95.htm. It also is more demanding

than the authorizing Louisiana statute, La. Rev. Stat. Ann.

§ 13:72.1, which omits the phrase “independent of any other

questions.” This obviously intentional variance suggests that

the point is important. The Fifth Circuit has taken care to

respect this aspect of the Louisiana rule. See Pac. Lining Co.

v. Algernon-Blair Constr. Co., 812 F.2d 237, 242 (Sth Cir.

1987) (this Court certified “to the Louisiana Supreme Court

that its answer ... will be determinative in . . . resolving all

issues remaining in contention”); Marrogi v. Howard, 248

F.3d 382, 386 (Sth Cir. 2001) (explaining how the Louisiana

Supreme Court answer “will determine the issue”).

In this case, any construction the Louisiana Supreme Court

might give to the Louisiana definition would then remain

subject to federal evaluation under the First Amendment.'!

Thus, the Louisiana Supreme Court’s answer would not be

determinative, but would -merely be grist for the federal

judicial mill. See Brewer v. Memphis Publ’g Co., 626 F.2d

1238, 1242 n.5 (5th Cir. 1980) (an open issue of con-

stitutionality precludes certification); Rubino v. Lynaugh, 845

F.2d 1266, 1271 (Sth Cir. 1988) (to permit a dispositive state

answer, a federal court must resolve constitutional issues

before certification); Lucas v. United States, 807 F.2d 414,

421 (Sth Cir. 1986) (all potentially dispositive federal issues

must be decided before certification). In theory, this Court

might analyze in advance the constitutionality of all possible

constructions and then ask the Louisiana Supreme Court to

pick one. In practice, such an approach would not be

practical here and would involve a great deal of hypothetical

constitutional adjudication, contrary to settled policy.

Also, Louisiana’s civilian heritage makes certifying ques-

- tions to the Louisiana Supreme Court less meaningful than in

common law states. The highest source of statutory inter-

pretation in Louisiana is not its Supreme Court but its

legislature, which freely enacts fully retroactive interpretive

laws. See In re Orso, 283 F.3d 686, 695-" ~ (5th Cir. 2002).

Moreover, judicial precedent lacks the force in Louisiana it

has elsewhere. /d. A solid line of cases may establish

“jurisprudence constante” that receives deference. Id. at 695

n.29. But “in Louisiana, courts must begin every legal

analysis by examining primary sources of law: the State’s

Constitution, codes, and statues.” Jd.

These considerations have dual significance. First, in

contrast to other states, certification to the Louisiana Supreme

Court does not produce a definitive construction of state law;

the ruling remains subject to free reinterpretation by the

'! A federal court cannot “certify the entire constitutional challenge to

the state court . . . for certified questions should be confined to uncertain

questions of state law.” Hill, 482 U.S. at 471 n.23.

legislature and significant reassessment in subsequent cases.

Second, because Louisiana’s legislature may act sua sponte,

the most authoritative source of Statutory construction in

Louisiana has had ample time to address the present dispute

and has chosen not to act. Of course, certification to the

Louisiana Supreme Court may yield useful guidance in some

cases, but the considerations are significantly different than in

other states.

But there is no need to plumb the intricacies of civilian

practice or Louisiana procedure to reject certification here.

The Fifth Circuit accepted Louisiana’s position that its

definition was identical to the federal definition. Louisiana

has made no showing that it was error to do so. For that

reason alone, certification was properly denied.

CONCLUSION

None of the factors that traditionally support a grant of

certiorari are present here. The Petition should be denied.

Respectfully submitted,

RENEE L. GIACHINO JAN WITOLD BARAN

Of Counsel THOMAS W. KIRBY

CENTER FOR INDIVIDUAL Counsel of Record

FREEDOM CALEB P. BURNS

113 South Columbus Street WILEY REIN & FIELDING LLP

Suite 310 1776 K Street, N.W.

Alexandria, VA 22314 Washington, D.C. 20006

(703) 535-5836 (202) 719-7000

November 22, 2006

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

No. 05-30212

CENTER FOR INDIVIDUAL FREEDOM,

Plaintiff-Appellant,

PAUL J. CARMOUCHE, DISTRICT ATTORNEY, IST 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 0. WARE, III, OF THE

~ LOUISIANA BOARD OF ETHICS AND THE SUPERVISORY

COMMITTEE FOR CAMPAIGN FINANCE,

Defendants-Appellees.

ON APPEAL FROM A DECISION AND JUDGMENT OF

THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES, THE LOUISIANA BOARD OF

ETHICS AND ITS INDIVIDUAL MEMBERS

R. GRAY SEXTON

THE LOUISIANA BOARD OF ETHICS

2415 Quail Drive, Third Floor

Baton Rouge, LA 70808

(225) 763-8777

* * * *

_ SUMMARY OF THE ARGUMENT

A. The Ruling of the District Court was correct.

The Honorable District Court, below, was correct in its

conclusion that the challenged Louisiana statute was carefully

modeled after the statute in Buckley to ensure constitutional-

ity: “for the purpose of . . . influencing,” as used in the Lou-

isiana statute, is exactly the same as the language in the

Buckley statute, validated by the United States Supreme

Court, as long as the application of the words are limited to

“express advocacy.” The District Court stated:

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.’

x* * * *

The Center is incorrect in its contention that “express

advocacy” is not the standard under the CFDA.”’ Buckley

makes clear that speech must rise to the level of “express

advocacy” in order to be subject to disclosure. The Louisiana

definition of “expenditure” must therefore be—and is in-

tended to be—interpreted consistently with that directive.

And, since the definition of expenditure examined in Buckley

included the same language as that in the Louisiana statute,

“for the purpose of . . . influencing,” an election, no

constitutional infirmity is presented.

* * * &

9 Tr 88.

7R 10.

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

No. 04-30877 consolidated with 05-30212

CENTER FOR INDIVIDUAL FREEDOM,

Plaintiff-Appellant,

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,

Defendants-Appellees.

ON APPEAL FROM A DECISION AND JUDGMENT OF

THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF LOUISIANA

PETITION FOR EN BANC REHEARING SUBMITTED

ON BEHALF OF DEFENDANTS-APPELLEES,

THE LOUISIANA BOARD OF ETHICS AND

ITS INDIVIDUAL MEMBERS

THE LOUISIANA BOARD OF ETHICS

2415 Quail Drive, Third Floor

Baton Rouge, LA 70808

(225) 763-8777

R. Gray Sexton, Counsel

x * * *

The Board and Staff are keenly aware of Your Honors

pronouncements in 5" CIR R. 35.1. providing sanctions

against a party who submits a non-meritorious petition for

rehearing en banc. These issues compel en banc considera-

tion for the following reasons: ... The Louisiana statute was

carefully crafted to comport with the Buckley language and

the McConnell guidelines;

x* *- * *

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 the CFDA. After injunc-

tive relief was denied, the Center chose not to run the pro-

posed advertisements. 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 Cam-

paign Finance, are charged with civil enforcement and con-

struction of the challenged provisions.

The Board opposed the proceeding, arguing that the chal-

lenged 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. 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 U.S.

Supreme Court.

* * * *

’ Tr. 89.

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30212

CENTER FOR INDIVIDUAL FREEDOM,

Plaintiff-Appellant,

Vv.

PAUL J. CARMOUCHE, DISTRICT ATTORNEY, IST JUDICIAL

DISTRICT; ROBERT ROLAND, CHAIRMAN, T.O. PERRY, JR.,

VICE-CHAIRMAN, JOHN W. GREENE, E.L. GuIpDRY, 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,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Louisiana ;

BRIEF FOR APPELLANT

REID ALAN COX, Of Counsel JAN WITOLD BARAN

RENEE L. GIACHINO, Of Counsel THOMAS W. KIRBY *

CENTER FOR INDIVIDUAL FREEDOM CALEB P. BURNS

113 South Columbus Street WILEY, REIN & FIELDING

Suite 310 1776 K Street, NW

Alexandria, VA 22314 Washington, DC 20006

HARRY ROSENBERG Telephone: (202) 719-7000

CHRISTOPHER K. RALSTON * Lead Counsel

PHELPS DUNBAR, LLP

365 Canal Street, Suite 2000

New Orleans, LA 70130-6534

Telephone: (504) 566-1311

STATEMENT OF THE FACTS

The Center and Its Activities

Plaintiff-appellant Center “is a non-partisan, non-profit or-

ganization whose mission is to protect and defend individual

freedoms and individual rights guaranteed by the U.S. Con-

stitution.” R. 3. It is headquartered in and organized under

the laws of Virginia, and is tax exempt under § 501(c)(4) of the

Internal Revenue Code. R. 4.

“The Center seeks to focus public, legislative, and judicial

attention on the rule of law as embodied in the federal and

state constitutions and structural protections that constrain

and disperse governmental authority.” R. 3. “It also seeks to

foster intellectual discourse and to promote education that

reaffirms the imperatives of the U.S. Constitution as they

relate to contemporary conflicts.” /d. “For example, in 2003

the Center broadcast advertisements in Louisiana concerning

the need to provide prompt confirmation votes for nominees

to the federal bench.” /d. The Center’s goals, principies, and

nationwide activities are more fully described at its Internet

website at <http://www.cfif.org>. Id.'

* * * *

' The Center’s Louisiana activities and interests are part of a broader

mission. “[S]ince 2000 the Center has spoken out on . . . similar issues of

public importance in other states and nationwide. For example, the Center

has run broadcast and print advertisements in the District of Columbia and

the States of Illinois, Maryland, North Daketa, and Virginia, as well as

nationally, on matters of public importance ranging from the dire need to

confirm federal judges to taxation issues to concerns about public corrup-

tion to the right of citizens not to be compelled to fund speech with which

they disagree.” R. 3, 45.

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.