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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1578%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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No. 06-494 MSY UM
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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
(c) The Fifth Circuit Decision. ...........:ceseeeee 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
(c) No Question of Exceptional Importance
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)

iv

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.

Vv
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

vi
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

© 2572 1O-2-20G) .ccoviereceroncenvovecevsesensevervneversesensees
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

oo
NNNNNNNNN SIN WY

nN

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

2

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.

3

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

4

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”’).

5

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. . . .”).

6

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.

(c) The Fifth Circuit Decision

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

7

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

8

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).

9

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

10

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 . 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1578%3A2. Public record. Not legal advice.