Rio Grande Foundation et al v. Toulouse Oliver
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying Plaintiffs' Motion for Preliminary Injunction and Memorandum of Law in Support Thereof 33 . (baw)
Case 1:19-cv-01174-JCH-JFR Document 38 Filed 10/14/20 Page 1 of 33
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RIO GRANDE FOUNDATION and
No. Civ. 1:19-cv-01174-JCH-JFR
MAGGIE TOULOUSE OLIVER, in her
official capacity as Secretary of State
of New Mexico,
MEMORANDUM OPINION AND ORDER
On August 25, 2020, Plaintiffs Rio Grande Foundation (“RGF”) and Illinois Opportunity
Project (“IOP”) (collectively, “Plaintiffs”) filed a Motion for Preliminary Injunction and
Memorandum of Law in Support Thereof (ECF No. 33). To protect their First Amendment rights,
Plaintiffs request a preliminary injunction to enjoin Defendant Secretary of State of State of New
Mexico Maggie Toulouse Oliver (“Defendant”) from applying 2019 Senate Bill 3 to Plaintiffs by
requiring them to disclose certain financial supporters and to expressly state their respective
group’s sponsorship on the political mailings they intend to send within 60 days of the November
3, 2020 election. For purposes of this motion, Plaintiffs are only seeking “an order protecting their
specific organizations (an as-applied challenge).” Pls.’ Mot. 6-7, ECF No. 33. The parties indicated
that an evidentiary hearing on the motion is not necessary for the Court’s resolution of the motion.
See Order, ECF No. 34, and Court’s Docket Sheet. The Court, having considered the motion,
briefs, evidence, and applicable law, concludes that the motion for preliminary injunction should
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A. Illinois Opportunity Project and its statewide mailings on a New Mexico
Plaintiff IOP is a 501(c)(4) social-welfare organization based in Illinois that engages in
issue advocacy, educating the public in Illinois and other states about policy that is driven by the
principles of liberty and free enterprise. Decl. of Matthew Besler ¶¶ 1, 3-4, ECF No. 33-1. IOP
works on issues that are strongly opposed by public-employee labor unions, including collectivebargaining reform, pension reform, and school choice. Id. ¶ 15. IOP also is directly critical of some
public officials, such as the Illinois governor and speaker of the house. Id. ¶ 16. IOP intends to
spend over $9,000 on mailings to thousands of New Mexico voters within 60 days of the 2020
general election. Id. ¶ 6. The mailings will mention the upcoming referendum on amending the
New Mexico Constitution to end elections for the New Mexico Public Service Commission and
provide information about the American tradition of governmental accountability to voters. Id.
According to its 2018 IRS Form 990, IOP has a budget over $3 million.1 IOP receives
general-fund support from a variety of sources, including donations over $5,000 in a single
contribution or over $5,000 total in a two-year cycle. Id. ¶ 8. IOP protects donor privacy and does
not publicly disclose their donors. Id. ¶ 9. IOP fears that disclosure of its members, supporters and
donors may subject them to official retaliation or to retaliation and harassment by intolerant
elements of society. Id. ¶¶ 10-11. Based on his fundraising experience, Matthew Besler, the
president and a board member of IOP, believes that donors will be less likely to contribute to the
IOP and he knows of several donors who would discontinue their support if they were subject to
disclosure. Id. ¶¶ 2, 12. IOP is concerned that disclosure would change the focus from its message
See IRS, Tax Exempt Organization Search,
esultsPerPage=25&indexOfFirstRow=0&postDateTo=&state=All+States (last visited Oct. 8, 2020) (2018 990O
Filing at 1).
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to the people paying for the message and that it will lose donors. See id. ¶¶ 13-14, 20. Based on
the experience of other organizations, including those that have taken on public employee unions
and have supported economic-liberty candidates who in turn support traditional marriage, IOP
fears its donors may be subject to retaliation by union interests, harassment by activists, and
negative responses by government officials who it criticizes and that it will lose donors as a result
of the fear of retaliation. See id. ¶¶ 17-20.
B. Rio Grande Foundation and its legislative scorecard for legislative districts
Plaintiff RGF is a 501(c)(3) charitable and educational organization based in New Mexico
whose mission is to inform New Mexicans of the importance of individual freedom, limited
government, and economic opportunity. See Decl. of Paul Gessing ¶ 1, ECF No. 33-2. RGF
engages in issue advocacy in New Mexico on issues related to its mission, including collectivebargaining reform, pension reform, school choice, right-to-work legislation, the Second
Amendment, opposition to renewable portfolio mandates, and criticism/skepticism of climate
change. See id. ¶¶ 14-16. RGF has been critical of the New Mexico governor and New Mexico
legislators, including questioning the State’s COVID-19 mandates. Id. ¶ 17.
RGF publishes a “Freedom Index” that tracks New Mexico state legislators’ floor votes on
bills important to RGF. Id. ¶ 5. RGF posted on its website its “Freedom Index” scorecards from
2015-20. See Rio Grande Foundation, http://riograndefoundation.org/legislative-scorecard/#/ (last
visited Oct. 8, 2020). Prior to the November 3, 2020 election, RGF plans to publicize the results
of its “Freedom Index” using mailings that will mention the name of incumbent legislators and
provide information about his or her votes and score on the Freedom Index. Gessing Decl. ¶ 5,
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ECF No. 33-2. RGF will spend over $3,000 in individual legislative districts for paid
communications by mail to thousands of New Mexico voters within 60 days of the election. Id.2
RGF receives general-fund support from multiple sources, including donations over $5,000
in a single contribution or over $5,000 total in a two-year cycle. Id. ¶ 7. With one exception, RGF’s
list of members, supporters, and donors is private. Id. ¶ 8. Like IOP, RGF fears that if it must
disclose its donors, they may be subject to official retaliation or to retaliation and harassment by
intolerant elements of society, including boycotts, online harassment, and social ostracism. See id.
¶¶ 9-10. RGF particularly fears retaliation by union interests, harassment by activists who oppose
the issues RGF supports, and negative responses by government officials. See id. ¶¶ 18-21.
According to Paul Gessing, RGF’s president and chief executive officer, he is aware of at least
one past instance where individuals or organizations affiliated with certain causes or candidates in
New Mexico were threatened with or experienced retaliation from other public leaders. Id. ¶¶ 2,
9. Based on his fundraising experience, Mr. Gessing believes that some donors would not continue
to do so if subject to disclosure. Id. ¶¶ 11, 22.
C. 2019 Senate Bill 3’s changes to New Mexico’s Campaign Reporting Act
In 2019, Senate Bill 3 became law, expanding the definition of “independent expenditure”
to include an expenditure “made to pay for an advertisement that … refers to a clearly identified
candidate or ballot question and is published and disseminated to the relevant electorate in New
Mexico within thirty days before the primary election or sixty days before the general election at
which the candidate or ballot question is on the ballot.” N.M. Stat. Ann. § 1-19-26(N)(3)(c).3
Although Gessing’s Declaration states that “IOP plans to spend over $3,000” on the Freedom Index mailings, the
Court presumes this is an error and should have referred to RGF based on the context of the totality of the Declaration.
See Gessing Decl. ¶ 5, ECF No. 33-2.
“Independent expenditures” also cover expenditures for an advertisement that “expressly advocates the election or
defeat of a clearly identified candidate or the passage or defeat of a clearly identified ballot question,” N.M. Stat. Ann.
§ 1-19-26(N)(3)(a), and that “is susceptible to no other reasonable interpretation than as an appeal to vote for or against
a clearly identified candidate or ballot question,” id. § 1-19-26(N)(3)(b). These provisions are designed to cover
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Senate Bill 3 also enacted a new section of the Campaign Reporting Act that added reporting
requirements for independent expenditures not otherwise required to be reported. See id. § 1-1927.3(A); 2019 New Mexico Laws Ch. 262 (S.B. 3), Sec. 1(A). A person who makes independent
expenditures of more than $9,000 in a statewide election or more than $3,000 in a non-statewide
election “exclusively from a segregated bank account consisting only of funds contributed to the
account by individuals to be used for making independent expenditures” must report the name,
address, and amount of each contribution made by each contributor who gave more than $200 to
the segregated bank account in the election cycle. N.M. Stat. Ann. § 1-19-27.3(D)(1). If the
expenditures were made from a general fund (not a segregated bank account), a person who makes
independent expenditures of more than $9,000 in a statewide election or more than $3,000 in a
non-statewide election must report the name, address, and amount of each contribution made by
each contributor who gave more than $5,000 to the person during an election cycle. See id. § 119-27.3(D)(2). For contributors of more than $5,000 to a general fund, the disclosure rules do not
apply “if the contributor requested in writing that the contribution not be used to fund independent
or coordinated expenditures or to make contributions to a candidate, campaign committee or
political committee.” Id.
Further, Senate Bill 3 added another new section to the Campaign Reporting Act regarding
disclaimers in advertisements. See 2019 New Mexico Laws Ch. 262 (S.B. 3), Sec. 2. A person
making an independent expenditure for an advertisement exceeding $1,000 must include in the
advertisement “the name of the candidate, committee, or other person who authorized and paid for
the advertisement.” N.M. Stat. Ann. § 1-19-26.4. The disclosures are searchable on the Secretary
of State’s website by the public. See Secretary of State, Independent Expenditure,
express advocacy and its functional equivalent. See Wisconsin Right to Life, Inc v. Barland, 751 F.3d 804, 838 (7th
Cir. 2014); Free Speech v. Federal Election Com’n, 720 F.3d 788, 793-95 (10th Cir. 2013).
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https://portal.sos.state.nm.us/IESearch/ (last visited Oct. 8, 2020). A person who violates the
Campaign Reporting Act may be punished by a fine of not more than $1,000 or by imprisonment
for not more than a year or both. N.M. Stat. Ann. § 1-19-36(A).
Consequently, IOP and RGF, groups that intend engage in issue advocacy within 60 days
of the November 3, 2020 general election and who intend to spend, respectively, more than $9,000
on statewide and $3,000 on non-statewide mailings to New Mexico voters, are subject to the
disclosure and disclaimer requirements of the Campaign Reporting Act. Plaintiffs assert that, by
requiring them to disclose their financial supporters and identify themselves in their mailings,
Defendant violates their First and Fourteenth Amendment rights. See Am. Compl. ¶¶ 37-44, ECF
No. 13. Plaintiffs move the Court for a preliminary injunction, arguing that, if one is not granted,
they will be forced to decide between silencing their speech or losing their privacy, being
compelled to engage in certain speech, and exposing their donors to the risks of harassment,
protests, and other threats.
PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is an extraordinary remedy that should only be granted if the
movant carries the burden of showing a right to relief that is clear and unequivocal. Diné Citizens
Against Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016); Schrier v.
University of Co., 427 F.3d 1253, 1258 (10th Cir. 2005). To obtain a preliminary injunction the
moving party must demonstrate four elements: (1) a substantial likelihood of success on the merits;
(2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted;
(3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in
the public interest. Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir.
2019); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009).
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The movant, however, must satisfy a heightened burden if the requested preliminary
injunction is one of three disfavored types “to assure that the exigencies of the case support the
granting of a remedy that is extraordinary even in the normal course.” O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc). These
disfavored injunctions include: (1) preliminary injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it
could recover after a full trial on the merits. Id. “To get a disfavored injunction, the moving party
faces a heavier burden on the likelihood-of-success-on-the-merits and the balance-of-harms
factors: She must make a strong showing that these tilt in her favor.” Mrs. Fields, 941 F.3d at 1232
(Free the Nipple–Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019)).
As for the first disfavored injunction, the Tenth Circuit has indicated that the status quo refers to
the status existing before the enaction of a challenged law. See Free the Nipple-Fort Collins, 916
F.3d at 798 n. 3 (in dicta, discussing with approval 11A Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 2948 (3d ed. & Nov. 2018 update) for its definition of the status
quo as “the last peaceable uncontested status existing between the parties before the dispute
developed” and stating that status quo “would be the status existing before Fort Collins enacted
the challenged public-nudity ordinance”). The parties here agree that this case does not involve the
second type of disfavored injunction, a mandatory injunction. The third injunction is met if the
effect of the injunction, once complied with, cannot be undone; in other words, figuratively, one
cannot put the toothpaste back in the tube. Free the Nipple-Fort Collins, 916 F.3d at 798 n.3 (citing
with approval Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246–50 (10th Cir.
Plaintiffs argue that the heightened standard applies because the requested preliminary
injunction alters the status quo and would afford Plaintiffs all the relief they could get on their as7
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applied challenge. Defendants disagree, asserting that their requested injunction does not alter the
status quo that was in place before Senate Bill 3 passed, nor does it give full relief, because they
assert facial challenges to the law as well. The Court, however, need not definitively determine
whether the heightened standard applies, because on this record Plaintiffs cannot meet their burden
using the traditional standard, let alone a heightened one.
This case presents colliding interests of constitutional significance – a person’s or group’s
right to speak anonymously and donate to support speech anonymously on political issues against
the electorate’s right to know who is spending money and speaking to advocate for or against
candidates or ballot measures. On the one hand, encouraging discourse and testing the merits of a
person’s or group’s thoughts and arguments in the court of public opinion is essential to a
functioning democracy, and the source of the message should carry less weight than the merits of
the ideas. As the Supreme Court stated, “[a]nonymity … provides a way for a writer who may be
personally unpopular to ensure that readers will not prejudge her message simply because they do
not like its proponent.” McIntyre v. Ohio Elections Com’n, 514 U.S. 334, 342 (1995).4 Anonymity
also enables speakers concerned for their own safety, economic security, or social standing to
speak on issues without concern that they may incur personal or financial harm from opponents of
their speech. The First Amendment protects unpopular individuals from retaliation and the
suppression of their ideas by an intolerant society. Id. at 357. “Inviolability of privacy in group
association may in many circumstances be indispensable to preservation of freedom of association,
particularly where a group espouses dissident beliefs.” NAACP v. Alabama, 357 U.S. 449, 462
Notably, James Madison, Alexander Hamilton, and John Jay published The Federalist anonymously so that readers
would evaluate the arguments on the merits. See Majors v. Abell, 361 F.3d 349, 357 (7th Cir. 2004) (J. Easterbrook,
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(1958). “[F]orbidding anonymous political advertising reduces the amount of political advertising
because some would-be advertisers are unwilling to reveal their identity.” Majors v. Abell, 361
F.3d 349, 352 (7th Cir. 2004).
On the other hand, bringing more transparency and informing the electorate of special
interests seeking to influence candidate elections or ballot measures helps citizens evaluate who
stands to gain and lose from the election or defeat of candidates or from proposed legislation. State
and local governments have passed disclosure requirements to try to limit the impact of “dark
money” and the disproportionate effect that wealthy individuals or entities may have on an
election. As the Supreme Court noted in a case in which it upheld a corporation’s right to spend
money to publicize its views on a ballot question, “[i]dentification of the source of advertising may
be required as a means of disclosure, so that people will be able to evaluate the arguments to which
they are being subjected.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 767-69, 792 n.32
Plaintiffs contend that the campaign disclosure laws invade their rights to anonymity and
privacy, chilling their speech because of the “cancel” or “call-out” culture.5 They assert that forced
disclosure of their donors will result in fewer donations to their organizations, and thus, limit their
speech. According to Plaintiffs, because they are substantially likely to prevail on their First
Amendment claims, a preliminary injunction is necessary to protect their organization and donor
privacy so that they can proceed with their pre-election mailings without fear of retribution.
A. RGF and IOP Have Not Satisfied their Burden of Showing a Substantial
Likelihood of Success on the Merits
According to dictionary.com, “cancel culture” refers to withdrawing support for persons or companies after they
have done or said something considered objectionable or offensive. See https://www.dictionary.com/e/popculture/cancel-culture/?itm_source=parsely-api (last visited Sept. 30, 2020).
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The First Amendment provides that “Congress shall make no law . . . abridging the freedom
of speech.” U.S. Const. amend. I. Discussion of public issues and debate on the merits of
candidates for political office are essential to the operation of democracy. See Buckley v. Valeo,
424 U.S. 1, 14 (1976); Republican Party of New Mexico v. King, 741 F.3d 1089, 1092 (10th Cir.
2013). The First Amendment provides fundamental protections against contribution and
expenditure limitations for political campaigns. King, 741 F.3d at 1092 (“the financing and
spending necessary to enable political speech receives substantial constitutional protection”).
Unlike restrictions on campaign spending, disclosure and disclaimer requirements “impose no
ceiling on campaign-related activities and do not prevent anyone from speaking.” Citizens United
v. Federal Election Com’n, 558 U.S. 310, 366 (2010) (internal citations and quotations omitted).
Accordingly, the Supreme Court in Citizens United held that the “Government may regulate
corporate political speech through disclaimer and disclosure requirements, but it may not suppress
that speech altogether.” Id. at 319. “[D]isclosure requirements certainly in most applications
appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption
that Congress found to exist.” Buckley, 424 U.S. at 68.
The First Amendment also protects political association, as group association may enhance
effective advocacy. Id. at 15 (quoting NAACP, 357 U.S. at 460). Compelled disclosure may
seriously infringe on the rights to associational privacy and belief guaranteed by the First
Amendment. Id. at 64. Concerns about squelching speech through compelled disclosures arises
not only from direct government action but also indirect action from private citizens. See id. at 65.
Compelled disclosures must survive exacting scrutiny – there must be a substantial relationship
between the governmental interest and the information that must be disclosed. Id. at 64. See also
Citizens United, 558 U.S. at 366-67. “To withstand this scrutiny, the strength of the governmental
interest must reflect the seriousness of the actual burden on First Amendment rights.” Doe v. Reed,
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561 U.S. 186, 196 (2010) (internal quotations omitted).
1. New Mexico has an interest in informing the electorate of the source of
significant funding for mailed advertisements referring to candidates or
referendums shortly before an election
In Buckley, the Supreme Court upheld disclosure requirements for contributions and
expenditures for candidates and political committees seeking to influence the nominations or
elections of candidates. See 424 U.S. at 60-72. The plaintiff in Buckley challenged the federal
disclosure laws that required political committees to register as such and keep detailed records,
including the name and address of everyone making a contribution in excess of $10, along with
the date and amount of the contribution; and if a person's contributions totaled more than $100,
the reports must include the person’s occupation and principal place of business. Id. at 63. The
Supreme Court concluded that disclosure directly serves three substantial governmental interests.
See id. at 60-72. First, disclosure gives voters information to aid them in evaluating candidates and
the interests to which candidates may be most responsive. See id. at 66-67. Second, disclosure
helps deter actual corruption and the appearance of corruption by helping citizens detect postelection favors. Id. at 67. Third, the reporting requirements gather the data needed to detect
violations of contribution limits. Id. at 67-68.
In this case, the parties focus on the informational interest, which the Tenth Circuit held is
the only interest at play for issue advocacy, which does not involve the risk of quid pro quo
corruption. See Sampson v. Buescher, 625 F.3d 1247, 1255-56 (2010). Issue advocacy involves
communications about public issues more generally, even if they mention a candidate, while
express advocacy involves communications that expressly advocate for the election or defeat of a
clearly identified candidate. See Federal Election Com’n v. Wisconsin Right to Life, Inc., 551 U.S.
449, 456-57, 469-71 (2007); Delaware Strong Families v. Attorney Gen. of Delaware, 793 F.3d
304, 308 (3d Cir. 2015). The parties appear to agree that the constitutional issue here pertains to
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issue advocacy, rather than express advocacy. Indeed, IOP’s mailings pertain to a referendum on
amending the New Mexico Constitution to end elections for the New Mexico Public Service
Commission and will provide information about the American tradition of governmental
accountability to the voters. Besler Decl. ¶ 6, ECF No. 33-1. Although the Freedom Index, a
scorecard about specific legislators’ votes, will mention incumbent legislators by name, it is
informational issue advocacy, not express advocacy for or against a specific candidate. Cf.
Delaware Strong Families, 793 F.3d at 309 (“By selecting issues on which to focus, a voter guide
that mentions candidates by name and is distributed close to an election is, at a minimum, issue
The Supreme Court recognized the informational interest in disclosures of contributions
designed to influence elections and in disclaimers stating the name of the person or group funding
the advertisement. See Citizens United, 558 U.S. at 371 (transparency regarding who is making
corporate speech “enables the electorate to make informed decisions and give proper weight to
different speakers and messages”). In Citizens United, the plaintiff disputed that an informational
interest justified the disclaimer and disclosure provisions because it merely sought to air an
advertisement that referred to then-Senator Clinton by name to promote the movie Hillary. See id.
at 367-68. Although the Supreme Court concluded the ads fell within the federal definition of an
“electioneering communication,” it rejected the contention that disclosure requirements for
independent expenditures should be limited to express advocacy and its functional equivalent. Id.
at 368-69. Instead, even though the ads “only pertain to a commercial transaction,” the Supreme
Court concluded “the public has an interest in knowing who is speaking about a candidate shortly
before an election.” Id. at 369. Lower courts have construed this language in Citizens United as
signifying that its holding is not limited to political advertising that is the functional equivalent of
a federal electioneering communication. See, e.g., Yamada v. Snipes, 786 F.3d 1182, 1203 (9th
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Cir. 2015) (“nothing in Citizens United suggests that a state may not require disclaimers for
political advertising that is not the functional equivalent of a federal electioneering
Numerous circuit courts have extended Citizens United to some forms of issue advocacy
before an election. According to the First Circuit, there is an equally compelling interest in
identifying speakers behind political messages because citizens “rely ever more on a message's
source as a proxy for reliability and a barometer of political spin.” National Organization for
Marriage v. McKee, 649 F.3d 34, 57 (2011). Relying on Citizens United, the First Circuit
concluded that “the distinction between issue discussion and express advocacy has no place in
First Amendment review of these sorts of disclosure-oriented laws.” Id. at 54-55. The Seventh
Circuit also recognized the governmental interest in knowing the speakers or funders behind issue
advocacy: “the quality of the political advertising … is enhanced because the advertising contains
additional information useful to the consumer” and “a speaker's credibility often depends crucially
on who he is.” Majors, 361 F.3d at 352. See also Human Life of Wash., Inc. v. Brumsickle, 624
F.3d 990, 1016 (9th Cir. 2010) (“Given the Court's analysis in Citizens United, and its holding that
the government may impose disclosure requirements on speech, the position that disclosure
requirements cannot constitutionally reach issue advocacy is unsupportable.”).
The Seventh Circuit also more specifically determined there is a governmental interest in
educating voters in initiative and referenda elections on the source of messages promoting or
opposing ballot measures. Center for Individual Freedom v. Madigan, 697 F.3d 464, 480 (7th Cir.
2012). As the Seventh Circuit explained when discussing initiative elections:
[V]oters act as legislators, while interest groups and individuals advocating a
measure's defeat or passage act as lobbyists. In an initiative campaign, average
citizens are subjected to advertising blitzes of distortion and half-truths and are left
to figure out for themselves which interest groups pose the greatest threats to their
self-interest. Because the issues can be complex and the public debate confusing,
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voters' interest in knowing the source of messages promoting or opposing ballot
measures is especially salient in such campaigns.
Disclosure laws are substantially related to the public's interest in
information during ballot initiative campaigns. Research shows that one of the most
useful heuristic cues influencing voter behavior in initiatives and referenda is
knowing who favors or opposes a measure. Because nominally independent
political operations can hide behind misleading names to conceal their identity,
often only disclosure of the sources of their funding may enable the electorate to
ascertain the identities of the real speakers.
Id. at 480-81 (internal citations, quotations, and footnote omitted). The Seventh Circuit
consequently concluded that Illinois’s disclosure laws, which covered persons who made
independent expenditures of more than $3,000 in a year for electioneering communications that
refer to a clearly identified ballot question with an appeal to vote for or against the ballot issue
shortly before an election, were substantially related to the state’s “strong” informational interest
in maintaining an informed electorate. Id. at 472, 480-83.6
The Tenth Circuit, however, has taken a more measured view in its assessment of the value
of disclosure laws to ballot initiative voters, summarizing the Supreme Court’s view of disclosure
in ballot-issue campaigns as “such disclosure has some value, but not that much.” Sampson, 625
F.3d at 1257. The Tenth Circuit explained that the interest diminishes substantially as the amount
of monetary support a donor gives falls to a negligible level. Id. at 1259-60; Coalition for Secular
Government v. Williams, 815 F.3d 1267, 1278 (10th Cir. 2016) (“the strength of the public's
interest in issue-committee disclosure depends, in part, on how much money the issue committee
has raised or spent”). It has, nevertheless, found such an informational interest in issue-committee
disclosures, but that at a $3,500 contribution level for a statewide ballot initiative, the Tenth Circuit
In interpreting Citizens United, the Seventh Circuit subsequently clarified that “nothing in Citizens United suggests
that the Court was tossing out the express-advocacy limitation for all disclosure systems, no matter how burdensome;”
instead, Citizens United lifted the express-advocacy limitation in the limited context of “event-driven disclosure for
federal electioneering communications—large broadcast ad buys close to an election.” Wisconsin Right to Life, Inc.
v. Barland, 751 F.3d 804, 836 (7th Cir. 2014).
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determined that the interest was not substantial. See Williams, 815 F.3d at 1278.
Where issue speech mentions a candidate shortly before an election, the Tenth Circuit has
upheld disclosure requirements when they are sufficiently well-tailored. See Independence
Institute v. Williams, 812 F.3d 787, 792 (10th Cir. 2016). In Williams, within sixty days of the
gubernatorial election, the plaintiff intended to run a television advertisement supporting an audit
of the state’s health care exchange by urging voters to call the governor to tell him to support
legislation for an audit. Id. at 790. In rejecting the plaintiff’s argument that unambiguously noncampaign-related speech should be exempted from disclosure requirements, the Tenth Circuit
explained: “The logic of Citizens United is that advertisements that mention a candidate shortly
before an election are deemed sufficiently campaign-related to implicate the government's
interests in disclosure.” Id. at 796.
Turning to the mailings at issue here, RGF intends to send mailings mentioning the names
of incumbent legislators and provide information about their votes and score on a Freedom Index
within 60 days of the election. In accordance with Independence Institute, New Mexico has an
informational interest in disclosure of the sponsors of such issue speech that mention a candidate
shortly before an election. See id.; see also Independence Institute v. Federal Election Commission,
216 F.Supp.3d 176, 190 (D.D.C. 2016) (“The Institute's advertisement triggers those same
informational interests because it links an electoral candidate to a political issue—pending federal
legislation addressing unjust sentencing of criminal defendants—and solicits voters to press the
legislative candidate for his position on the legislation in the run up to an election.”).
Unlike RGF’s mailings, IOP’s intended mailings do not mention a candidate; rather, they
will mention the upcoming referendum to the New Mexico Constitution. The Sampson and
Williams cases are thus more applicable to IOP’s mailings than Independence Institute. According
to Sampson and Williams, the strength of the government’s informational interest in issue speech
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related to a referendum increases as the amount of monetary spending on the advertising increases.
IOP has set a floor for its spending – “over $9,000” statewide. Besler Decl. ¶ 6, ECF No. 33-1.
The record, however, is unclear as to how much higher the spending may climb. The lack of a
ceiling on spending makes the sliding-scale analysis difficult to apply to Plaintiffs on this motion
for preliminary injunction.
Faced with a similar predicament, the Eleventh Circuit conducted a facial analysis of the
state law. See Worley v. Florida Secretary of State, 717 F.3d 1238, 1249-50 (11th Cir. 2013). In
Worley, the plaintiffs brought both a facial and as-applied challenge to Florida’s campaign finance
disclosure and disclaimer laws. Id. at 1242. Although the plaintiffs asserted that they planned to
spend at least $600 on radio advertisements, they also wanted to raise and spend more money if
able. Id. at 1240. The Eleventh Circuit thus noted, “the record before us is not sufficient to establish
the nature and scope of Challengers' activity.” Id. at 1242 n. 2. Accordingly, it analyzed the case
as a facial challenge for the following reasons:
We know little if anything about how much money they intend to raise or how many
people they wish to solicit. We will not speculate about their future success as
fundraisers. Based on the record we do have, we consider this challenge to the
Florida PAC regulations to be a facial challenge. This means that Challengers
cannot prevail unless they can prove “that no set of circumstances exists under
which the [regulations] would be valid.”
Id. at 1249-50 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
For similar reasons, Plaintiffs’ challenge based on the record thus far seems designed more
as a facial challenge set to the statute’s minimum thresholds. Without providing the Court with
specific facts as to the outer limits of Plaintiffs’ independent expenditures, the Court cannot say
on this record that the governmental interest is minimal. At the floor, IOP will spend more than
twice the amount deemed insufficient for a statewide race in Williams. Nevertheless, the Court
need not decide at this time if $9,000 is enough under Sampson/Williams to establish an important
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governmental interest because the record says IOP will spend “over $9,000.” There is evidence in
the record that IOP has a budget over $3 million, so its ambiguous figure of “over $9,000” could
well rise sufficiently high to satisfy an amount that the Tenth Circuit would deem sufficiently
important. Consequently, the Court finds a sufficiently important governmental interest exists in
the disclosure of the funding sources of IOP’s mailings sent within 60 days of an election. Cf.
Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 202-03 (1999) (“Disclosure
of the names of initiative sponsors, and of the amounts they have spent gathering support for their
initiatives, responds to that substantial state interest” in “a control or check on domination of the
initiative process by affluent special interest groups”.)); Rio Grande Foundation v. City of Santa
Fe, 437 F.Supp.3d 1051, 1070 (D.N.M. Jan. 29, 2020) (“Applying the sliding scale approach, the
Court finds that the $7,700 RGF spent in the small municipal election creates a substantial
informational interest in the financial disclosures.”) (on appeal).
Disclaimers on mailings revealing the name of the group expending significant amounts
on funding the mailing likewise serves a sufficiently important governmental interest in informing
the electorate of who is attempting to influence their vote. Cf. Citizens United, 588 U.S. at 368
(finding interest in disclaimers that provide electorate with information about person or group who
is speaking in political advertisements shortly before election); Williams, 815 F.3d at 1278
(acknowledging public’s informational interest in issue-committee financial disclosures); Worley,
717 F.3d at 1249 (“Our reading of Supreme Court and persuasive Circuit precedent compels us to
conclude that promoting an informed electorate in a ballot issue election is a sufficiently important
governmental interest to justify the Florida PAC regulations we consider here.”).
2. While general concerns exist that Senate Bill 3 will result in loss of privacy
and some loss of contributions, Plaintiffs have not established a reasonable
likelihood of retaliation
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Plaintiffs point to four burdens they face from the requisite disclosures mandated by Senate
Bill 3: (1) increased difficulty in soliciting charitable donations; (2) decreased effectiveness of
their message if readers focus on the donors, not the content of their message; (3) loss of privacy;
and (4) threats, harassment, or reprisals by public officials and/or activists and opponents in society
Disclosure of contributions “will deter some individuals who otherwise might contribute”
and “may even expose contributors to harassment or retaliation.” Buckley, 424 U.S. at 68. These
general concerns, however, do not de facto invalidate every disclosure law; rather, a court must
carefully consider the evidence of chilled speech and weigh the burdens against the legislative
interests. See id.
Turning first to the difficulty soliciting donations, Mr. Bessler and Mr. Gessing each
averred that he knows of several donors who would not continue their support of their respective
organizations if their names were disclosed. See Besler Decl. ¶ 12, ECF No. 33-1; Gessler Decl. ¶
11, ECF No. 33-2. Supreme Court authority, however, indicates that evidence of the loss of only
a few donors may not be enough to overcome the government’s interest. Cf. Buckley, 424 U.S. at
71-72 (finding insufficient appellants’ evidence of testimony of several minor-party officials that
one or two persons refused to contribute because of the possibility of disclosure).
As to the loss of privacy or the reduced effectiveness of the message, the Supreme Court
in McIntyre recognized the importance of anonymity, in part, because it allows a person to preserve
more of her privacy and it permits an unpopular person or group to communicate without readers
prejudging the message. See McIntyre, 514 U.S. at 342. In McIntyre, the Supreme Court
considered an Ohio elections law that prohibited the distribution of anonymous campaign
documents designed to influence voters in an election. See id. at 336, 344. The law required written
documents covered by the statute to contain “the name and residence or business address of the
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chairman, treasurer, or secretary of the organization issuing the same, or the person who issues,
makes, or is responsible therefor.” Id. at 345 (quoting Ohio Rev. Code Ann. § 3599.09(A) (1988)).
Because the law regulated the content of speech, the Court applied exacting scrutiny, in which the
law is valid “only if it is narrowly tailored to serve an overriding state interest.” Id. at 347. It noted
that Buckley’s principles extend equally to issue-based elections like the school tax referendum to
which the plaintiff’s handbills were addressed. Id. The McIntyre Court concluded that the state’s
informational interest in the identity of the speaker was insufficient to require disclosure. Id. at
348-49. It later, however, distinguished Buckley, explaining that Buckley’s mandatory reporting of
independent expenditures identifies the amount and use of money in support of a candidate. Id. at
355. The McIntyre Court contrasted expenditure disclosure laws from disclaimer requirements on
a written leaflet, because disclosure of expenditures reveals less information, is less specific,
personal, and provocative. Id. at 355. Although disclosure of donations says something about the
spender’s political views, the Supreme Court concluded that “when money supports an unpopular
viewpoint it is less likely to precipitate retaliation.” Id. Consequently, under Supreme Court
precedent, with respect to disclosure of expenditures, the loss of privacy and a reduced efficacy of
the message alone are not enough to overcome the government’s informational interest. Threats,
harassment, and retaliation that may occur from mandatory disclosures, however, in some
circumstances can outweigh the government’s informational interest.
In the seminal case of NAACP v. Alabama, the NAACP “made an uncontroverted showing
that on past occasions revelation of the identity of its rank-and-file members has exposed these
members to economic reprisal, loss of employment, threat of physical coercion, and other
manifestations of public hostility.” 357 U.S. 449, 462 (1958). In Buckley, the Supreme Court
explained that the governmental interests in disclosure as a general matter serve substantial
governmental interests. 424 U.S. at 68. To determine if the interests justified the requirements, it
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examined the extent of the burden the requirements placed on individual rights. Id. The appellants
argued that the balance tipped against disclosure when required of contributors to minor parties
and independents. See id. at 68-69. The Buckley Court noted that “no appellant in this case has
tendered record evidence of the sort proffered in NAACP v. Alabama.” Id. at 71. Although
appellants relied on the testimony of several minor-party officials that one or two persons refused
to contribute because of the possibility of disclosure, id. at 71-72, the Supreme Court determined
on the record that “the substantial public interest in disclosure identified by the legislative history
of this Act outweighs the harm generally alleged.” Id. at 72. It explained that “any serious
infringement on First Amendment rights brought about by the compelled disclosure of contributors
is highly speculative.” Id. at 69-70.
The Buckley Court then addressed the appellants’ argument that a blanket exemption
should apply for minor parties “lest irreparable injury be done before the required evidence can be
gathered.” Id. at 72. Instead of a blanket exemption, the Court opted for a flexible standard of
We recognize that unduly strict requirements of proof could impose a heavy burden,
but it does not follow that a blanket exemption for minor parties is necessary. Minor
parties must be allowed sufficient flexibility in the proof of injury to assure a fair
consideration of their claim. The evidence offered need show only a reasonable
probability that the compelled disclosure of a party's contributors' names will
subject them to threats, harassment, or reprisals from either Government officials
or private parties. The proof may include, for example, specific evidence of past or
present harassment of members due to their associational ties, or of harassment
directed against the organization itself. A pattern of threats or specific
manifestations of public hostility may be sufficient. New parties that have no
history upon which to draw may be able to offer evidence of reprisals and threats
directed against individuals or organizations holding similar views.
Id. at 74 (italics added).
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Because Plaintiffs’ donors have yet to be Fdisclosed to the public,7 Plaintiffs contend that
they cannot offer evidence of retaliation; instead, they rely on evidence of reprisals and threats
directed against individuals or organizations holding similar views. Before turning to the evidence
of reprisals against other groups, the Court notes that RGF is not a new foundation. RGF has been
an established nonprofit speaking out in state and local matters since 2000. See Rio Grande
Foundation, 437 F.Supp.3d at 1058; https://riograndefoundation.org/about/ (last visited Oct. 8,
2020). Although it has not disclosed most of its donors previously, RGF has a history upon which
to draw regarding its organization, staff, board members, speakers, etc. Yet, RGF did not submit
specific evidence of reprisals or threats directed against it, its staff, its speakers, or affiliates during
the time it has advocated for and against legislation in New Mexico. Arguably, the best evidence
of whether there is a reasonable probability RGF’s donors would face threats and reprisals is what
RGF and persons associated with it have experienced in the last approximately 20 years of RGF’s
advocacy. As for IOP, it has been operating since 2010, engaging in issue advocacy in Illinois and
other states, yet IOP submitted no evidence of harassment or retaliation against the organization
itself or its staff.8
Plaintiffs nonetheless have concerns about reprisals from public officials who may retaliate
for not scoring well on the “Freedom Index,” for example, and may deny donor’s requests for
meetings, discount their lobbying efforts, or other like reprisals. Additionally, they fear reprisals
by activists who may take economic retaliation in the form of boycotts. For example, they cite
publications from around the country reporting the following: (i) Target and Best Buy were subject
RGF notes there is one exception to its donor privacy related to its litigation arising from Rio Grande Foundation v.
City of Santa Fe, 437 F.Supp.3d 1051, 1070 (D.N.M. Jan. 29, 2020), in which it disclosed donors as required by the
City of Santa Fe’s ordinance. See Gessing Decl. ¶ 8, ECF No. 33-2.
To establish that IOP was founded in 2010, Defendants cite IOP’s website, which says it is celebrating its 10-year
anniversary. See Defs.’ Resp. 19 & n.10, ECF No. 35. Because Plaintiffs did not refute this factual assertion, the Court
has considered that it has been operating for 10 years.
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to boycotts when they gave money to a Chamber of Commerce affiliate that praised a Minnesota
candidate who also supported traditional marriage; (ii) retailers and other companies whose owners
donated to a Proposition 8 campaign in California were subject to boycotts and some executives
lost their jobs for supporting traditional marriage in 2008 and 2014; (iii) in Wisconsin in 2011,
unions encouraged members to withdraw funds from a local bank in retaliation of its financial
support to Governor Scott Walker in the fight over collective-bargaining reforms; (iv) after guncontrol and climate activists targeted corporations that supported the nonprofit American
Legislative Exchange Council, over 80 companies ended their financial support of the nonprofit;
(v) the graffitiing of a Chick-fil-A by a man upset with its perceived views on homosexuality and
Palestine; and (vi) the use of an explosive device found in a mailbox at the home of George Soros,
a large contributor to Democratic and progressive causes, among other examples. See Pls.’ Mot.
15-18, ECF No. 33 (and websites cited therein). This type of evidence from online news sites
offers a scattershot picture of reprisals across the country over a time period of more than ten years.
Moreover, the evidence is of retaliation against disparate groups and is not enough to establish a
reasonable probability that the compelled disclosure of RGF's or IOP’s donor’s identities will
subject them to threats, harassment, or reprisals from officials or private parties. Plaintiffs, for
example, have not submitted sufficient evidence to establish that the nonprofit American
Legislative Exchange Council is similar enough to RGF or IOP for the Court to draw a conclusion
that they are reasonably likely to suffer similar retaliation from their activities.
Citizens United is instructive on this issue of proof. In its as-applied challenge, Citizens
United argued that the disclosure requirements could chill donations to it. Citizens United, 558
U.S. at 370. Although the Supreme Court noted its concern, it determined that the evidence
Citizens United provided did not meet the standard of showing a reasonable probability its
members would face threats, harassment, or reprisals where it had disclosed donors for years and
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identified no instance of such retaliation. Id. It therefore concluded that the informational interest
in knowing who is speaking about a candidate shortly before an election outweighed the group’s
unsupported, general concern about chilled speech. See id. at 369-70. Examining the record here,
the concerns about chilled speech are likewise general and unsupported. There is not enough
evidence to establish a reasonable probability that identified RGF and/or IOP donors have been or
would be subject to threats, harassment, and reprisals.9
3. Senate Bill 3’s disclaimer requirement imposes a burden on Plaintiffs by
compelling speech and infringing on their right to privacy and anonymity
In Count II, Plaintiffs assert that the law’s mandate to state the sponsors of the mailings on
the face of their advertisements is also unconstitutional. Disclosure and disclaimer burdens differ
in some ways. The Tenth Circuit interpreted the Supreme Court’s decision in Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), (hereinafter “ACLF”) as distinguishing
“between the mandatory disclosure in public of a speaker's identity and the requirement that a
speaker provide information to the government that could later be used to trace speech back to its
source.” Doe v. Shurtleff, 628 F.3d 1217, 1222-23 (10th Cir. 2010). According to the Tenth Circuit,
in ACLF the Supreme Court distinguished between a provision that required petition circulators to
wear name badges and a provision that required circulators to file with the state affidavits including
their names and addresses: while the former provision unconstitutionally burdened speech because
it compelled identification “at the precise moment when the circulator's interest in anonymity is
In Citizens United, like here, the plaintiff presented evidence of retaliation against supporters of Proposition 8 in
California. See Citizens United, 558 U.S. at 480-82 (Thomas, J., concurring in part and dissenting in part). Justice
Thomas dissented from upholding the federal disclosure, disclaimer, and reporting provisions, explaining how the
internet enables activists to access information needed to intimidate and retaliate against opponents long before a
plaintiff could prevail on an as-applied challenge. See id. at 484. Justice Thomas’ view, however, was rejected by the
majority. This Court is bound by the majority opinion and the evidentiary burden a plaintiff must satisfy to establish
that disclosure will expose its members to retaliation to avoid application of the disclosure law. While the Supreme
Court offers a more flexible approach to proof, so a plaintiff does not have to wait for threats or retaliation to start
before challenging a law that is chilling its members’ speech, the Supreme Court nonetheless requires more specific
evidence that a plaintiff may face similar threats or reprisals than Plaintiffs presented here. See id. at 370.
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greatest,” the affidavit requirement affected anonymity only after the conversations were complete,
“exemplif[ying] the type of regulation for which McIntyre left room.” Id. (quoting ACLF, 525 U.S.
at 199, 200).
Relying on McIntyre, Plaintiffs assert that the disclaimer requirement burdens their right
to privacy by identifying them as the speaker, undermining the effectiveness of their message and
subjecting them to the probability of official and unofficial retaliation. As for potential retaliation,
for the same reasons given above, Plaintiffs have not demonstrated enough evidence to establish a
reasonable probability that RGF or IOP would be subject to threats, harassment, and reprisals.
Nonetheless, the Supreme Court recognized that requiring the inclusion of a speaker’s identity is
no different from requiring other content in a document that the speaker is free to include or
exclude, McIntyre, 514 U.S. at 348, and such compelled speech is more burdensome than
Though such mandatory reporting undeniably impedes protected First Amendment
activity, the intrusion is a far cry from compelled self-identification on all electionrelated writings. A written election-related document—particularly a leaflet—is
often a personally crafted statement of a political viewpoint. Mrs. McIntyre's
handbills surely fit that description. As such, identification of the author against her
will is particularly intrusive; it reveals unmistakably the content of her thoughts on
a controversial issue. Disclosure of an expenditure and its use, without more,
reveals far less information.
Id. at 355. In accordance with McIntyre and ACLF, compelled disclaimers impose a burden on
Plaintiffs’ right to privacy and anonymity that this Court must consider.
4. On this record, balancing of informational interest against burdens of
disclosure and disclaimer requirements weighs in favor of applying Senate
Bill 3 to Plaintiffs’ mailings
a. New Mexico’s disclosure requirements likely will survive exacting
scrutiny as applied to RGF and IOP
New Mexico’s disclosure requirements are limited to advertisements that refer to a clearly
identified candidate or ballot question and are published and disseminated to the relevant electorate
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in New Mexico within 30 days before a primary election or 60 days before a general election. New
Mexico’s law is thus temporally cabined. Had RGF and IOP chosen to send their mailings more
than 60 days before the election, they would not be subject to the disclosure requirements. The law
is also only triggered when certain threshold amounts are met for independent expenditures -$9,000 for statewide elections and $3,000 for non-statewide elections. The holding of
Independence Institute thus appears to apply here. Cf. Independence Institute, 812 F.3d at 797-98
(upholding Colorado disclosure regime as applied to nonprofit for communications that
unambiguously referred to gubernatorial candidate within 60 days of election where spending
requirements covered those who annually spend $1000 or more to disclose donors of $250 or more
and that were “sufficiently tailored to the public's informational interests”).
Plaintiffs, however, contend that the law is not carefully tailored because, unlike in
Independence Institute where disclosures only covered “those donors who have specifically
earmarked their contributions for electioneering purposes,” 812 F.3d at 797, the requisite
disclosures in New Mexico extend to donors who give to the general fund. According to Plaintiffs,
Senate Bill 3 too broadly covers donors who give more than $5,000 to the general fund, which
may be used for operations or issues that have nothing to do with the controversial issue advocacy,
and therefore, the informational interest is too de minimus to outweigh the burdens of disclosure.
Defendant asserts that the requirement of disclosing large donations to the general fund is
necessary to avoid a loophole that would allow groups to avoid disclosure altogether by using only
general funds for all issue advocacy within 60 days of the general election, subverting the purpose
of the law to disclose special interests to voters. Unlike the much lower $200 threshold for
disclosure of donors who earmark their donations for the expenditure, § 1-19-27.3(D)(2) requires
a higher $5,000 threshold for donors to the general fund. Moreover, contributors of $5,000 or more
to a general fund may also opt-out of disclosure by specifying in writing that the contribution was
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not to be used “to fund independent or coordinated expenditures or to make contributions to a
candidate, campaign committee or political committee.” N.M. Stat. Ann. § 1-19-27.3(D)(2).
Section 1-19-27.3 only requires disclosures of large donors who contribute to the general
fund when the organization uses general funds to pay for independent expenditures referring to
candidates or ballot initiatives shortly before a New Mexico election. By providing a way for
general fund donors to opt-out of disclosure under New Mexico law by specifying that their
donations were not for independent expenditures, the law focuses on donors whose general fund
contributions may have been used for independent expenditures in New Mexico. Consequently,
even though the law requires disclosures of some contributions to the general fund, with its optout provision and limitation for when general funds pay for independent expenditures in New
Mexico, the provision is carefully tailored to the informational interest. Cf. Delaware Strong
Families, 793 F.3d at 312 (rejecting argument that earmarking limitation was required for
Delaware’s campaign disclosure law to survive exacting scrutiny).
New Mexico has an important informational interest in the disclosure of donors of more
than $200 who earmark their contributions for mailings within 60 days of the election related to a
candidate and of donors of more than $5,000 to the general fund who do not opt-out of their
disclosure, when the expenditures are made from non-earmarked funds. Independence Institute is
on point as to RGF’s mailings regarding candidates. As for IOP’s mailings to influence the
referendum, the known expenditures at issue here exceed those of Sampson/Williams and the
potential expenditures may rise to a level invoking a substantial governmental interest. The
Supreme Court has indicated there is a governmental interest in knowing where ballot initiative
advocacy money comes from and how it is spent, so citizens have more information about whether
special interests are attempting to influence the election. See, e.g., ACLF, 525 U.S. at 202-03.
Voters will have more information to decide what weight to give the advertisements.
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As for the burdens, on the current record, neither RGF nor IOP has not shown a reasonable
probability that its donors will suffer reprisals. Even considering newspaper accounts as evidence,
the record of threats, harassment, or reprisals is highly speculative. Mr. Gessing’s and Mr. Besler’s
affidavits did not provide specific examples of retaliation to support their general fears of reprisals
and harassment. Nor did they give detailed evidence about the amount of expected lost
contributions or how such lost contributions could affect their ability to communicate their
messages. Although the Court has concerns about the potential chilling effect of disclosure laws,
in accordance with Buckley and Citizens United, a general concern about chilled speech does not
outweigh the important informational interest in this case. While the disclosures may “undoubtedly
chill potential donors to some extent, these requirements are sufficiently drawn to serve the public's
informational interests and are less restrictive than other alternatives.” Independence Institute, 812
F.3d at 798. In light of the absence of concrete, specific evidence of a reasonable probability that
the compelled disclosure will subject Plaintiffs to threats, harassment, or reprisals, the Court is not
convinced that Plaintiffs will prevail at trial on the merits of their as-applied challenged to the
state’s disclosure requirements.
Based on the current record, the law is tailored so that there is a substantial relationship
between the informational interest and the information sought to be disclosed. Accordingly, RGF
and IOP have not met their burden to show a substantial likelihood of success on the merits of
b. New Mexico’s disclaimer requirements likely will survive exacting
scrutiny as applied to RGF and IOP
Plaintiffs rely on Citizens for Responsible Government State Political Action Committee v.
Davidson, 236 F.3d 1174 (10th Cir. 2000), in arguing that, as-applied, New Mexico’s disclaimer
provision is unconstitutional. In Davidson, the plaintiffs challenged a provision in Colorado’s Fair
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Campaign Practices Act requiring persons who make independent expenditures over $1,000 to
include identifying information in any political message produced using the expenditure, including
the person’s name, the name of the registered agent, the amount of the expenditure, and a
prominent statement that “the advertisement or material is not authorized by any candidate.” Id. at
1198-99 & n.10. According to the Davidson plaintiffs, the disclaimer violated their right to engage
in anonymous political speech. Id. at 1199. Relying on McIntyre, the Tenth Circuit explained that
the “Supreme Court has recognized that disclaimer statutes, which require that a speaker include
specified language or information in her speech, impose more substantial burdens on First
Amendment rights than disclosure or reporting provisions….” Id. at 1199. It further noted that the
Supreme Court in ACLF expressed “its distaste” for disclaimer statutes. Id. Analyzing the
disclaimer provision using “strict scrutiny, the Tenth Circuit determined that Colorado offered
essentially no reasons in support of the disclaimer requirements, the statute was not narrowly
tailored, and consequently, it did not survive strict scrutiny. See id. at 1199-1200.
Defendant urges the Court to apply Citizens United, not McIntyre or Davidson. Defendant
asserts that McIntyre is limited to the facts of a lone individual handing out pamphlets who wishes
to remain anonymous and that Davidson should not be followed because it applied strict, rather
than exacting, scrutiny. Instead, Defendant contends that Citizens United should control the preelection communication here, also citing Worley v. Florida Secretary of State, 717 F.3d 1238 (11th
Cir. 2013), in support.
Approximately ten years after the Davidson decision, the Supreme Court decided Citizens
United, upholding the federal disclaimer provision as applied to a commercial advertisement
broadcast shortly before the election that referred to a political candidate by name with pejorative
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references to her candidacy. See Citizens United, 558 U.S. at 368.10 The Supreme Court, relying
on Buckley and Bellotti, confirmed that there is an informational interest in disclaimers in
electioneering communications to fully inform voters about the person or group who is speaking
shortly before an election. See id. at 368-69. Notably, the majority did not analyze McIntyre when
discussing the disclaimer provision. See id. at 368-69. Consequently, the Tenth Circuit’s
understanding that the Supreme Court has a “distaste” for disclaimer provisions is no longer
entirely accurate after Citizens United.
Additional reasons persuade the Court that Davidson does not control resolution of this
case. As this Court discussed previously, the government has an important interest in informing
the electorate of who is funding advertisements published shortly before an election and that refer
to a specific candidate or referendum on the ballot. In Davidson, however, the State of Colorado
failed to establish a governmental interest in support of its disclaimer requirement, so the Tenth
Circuit had little beneficial interest to weigh against the burdens of the disclaimer law. See
Davidson, 236 F.3d at 1199. Also, in Davidson, Colorado required considerably more information
for disclaimers: the name of the person, the name of the registered agent, the amount of the
expenditure, and a prominent statement that “the advertisement or material is not authorized by
any candidate.” Id. at 1198-99. New Mexico’s disclaimer provision by contrast only requires the
name of the candidate, committee, or other person who authorized and paid for the advertisement.
N.M. Stat. Ann. § 1-19-26.4(A). New Mexico’s provision therefore requires less compelled
speech. For these reasons, even if the Davidson court applied exacting scrutiny, there are other
reasons that its holding would not govern here.
Under Section 311 of the Bipartisan Campaign Reform Act of 2002 disclaimer provision, televised electioneering
communications funded by persons other than a candidate had to include the name and address (or website address)
of the person or group that funded the advertisement and statements that the communication “is not authorized by any
candidate or candidate's committee” and that “____ is responsible for the content of this advertising.” Citizens United,
558 U.S. at 366.
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Turning then to one of the out-of-circuit cases relied upon by Defendant, Worley, the
challengers opposed Florida’s disclaimer requirement that compelled speakers who spend money
on an election to identify themselves in their political ads. Worley, 717 F.3d at 1241. The Eleventh
Circuit rejected the argument that there is no informational interest in the context of ballot
initiatives, relying on Citizens United and Bellotti. See id. at 1246-47. In contrast to the Tenth
Circuit in Sampson, the Eleventh Circuit rejected the notion that knowing the messenger may
distort the message, id. at 1248; and instead, it concluded that the other circuits that recognized “a
sufficient informational interest in the ballot issue context have the better arguments,” id. at 1249.
The Worley court determined that, despite the context of a ballot election, Citizens United
controlled because the federal disclaimer requirement was materially indistinguishable, and
precedent did not support a meaningful distinction between candidate elections and ballot
initiatives. See id. at 1254. As for McIntyre, the Eleventh Circuit called it a “narrow decision”
limited to a person distributing leaflets and not applicable to groups that spend money in elections
for ads. See id. at 1254.11
While Worley supports Defendant’s position, this Court is nonetheless bound by Tenth
Circuit precedent. For a few reasons, a court in this circuit cannot merely overlay the Eleventh
Circuit’s analysis in Worley. At least as pertains to speech related to referendums, the Tenth Circuit
applies a sliding-scale approach based on the amount a group is spending on its issue advocacy to
determine the strength of the governmental interest, an approach the Eleventh Circuit rejected.
Unlike the Eleventh Circuit, the Tenth Circuit finds the difference between ballot initiatives and
The Seventh and Ninth Circuits have likewise distinguished McIntyre. See Yamada, 786 F.3d at 1203 n.14 (“An
individual pamphleteer may have an interest in maintaining anonymity, but [l]eaving aside McIntyre-type
communications ... there is a compelling state interest in informing voters who or what entity is trying to persuade
them to vote in a certain way.”) (omitting internal quotation); Majors, 361 F.3d at 355 (“Several cases, signally
McIntyre itself, expressly or implicitly contrast the fragility of the small independent participant in political campaigns
with large corporations or other organizations.”).
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candidate elections meaningful – who is helping to finance a candidate’s election may reveal a
candidate’s beliefs and what influences may be brought to bear on him or her in contrast to a ballot
election where the evaluation is only of discrete governmental action. Sampson, 625 F.3d at 125657. Although Citizens United did not discuss McIntyre in its reasoning on the constitutional
validity of disclaimer provisions, the Tenth Circuit has continued to rely on McIntyre’s expressions
of the importance of anonymity in allowing the message to be considered on its own merit. See id.
at 1257 (quoting McIntyre, 514 U.S. at 342). According to the Tenth Circuit, the Supreme Court
has sent a “mixed message” regarding the value of disclosures in ballot-issue campaigns, with
McIntyre on the one hand and dicta in cases like Bellotti and ACLF on the other. See id. at 125758. Subsequently, relying on ACLF, the Tenth Circuit indicated that after-the-fact disclosures of
funding sources may be more carefully tailored to the informational interest than disclaimers that
identify the speaker’s name at the time the speaker wishes to be heard. See Shurtleff, 628 F.3d at
Although ACLF indicates that disclosure provisions may be more carefully tailored to the
informational interest than disclaimer provisions, this Court is not convinced ACLF stands for the
proposition that disclaimer laws related to issue advocacy may never be sufficiently tailored to
informational interests. In ACLF, the Supreme Court concluded Colorado’s name badge
requirement for petition circulators was unconstitutional. See ACLF, 525 U.S. at 197-200.
Evidence in ACLF revealed that requiring circulators to wear identification badges interfered with
participation in the petitioning process because of the potential for in-person harassment while the
circulators attempted to persuade members of the public to sign petitions. See id. at 197-98.
Although the State argued that the badge helped identify those who engaged in misconduct, the
Supreme Court concluded that the provision requiring the filing of an affidavit with the circulator’s
name responded to that concern. See id. at 198. The affidavit requirement reduced the risk of in31
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the-heat-of-the-moment harassment yet allowed law enforcement access to the information for
compliance purposes. See id. at 198-99. The Supreme Court compared its decision to McIntyre,
explaining that circulating a petition is like distributing a handbill because they involve “one-onone communication” and the affidavit requirement, which is completed after the in-person
conversations, exemplifies the type of requirement “for which McIntyre left room.” Id. at 199-200.
Unlike in McIntyre and ACLF, Plaintiffs are mailing their communications. This case thus
does not involve the in-person potential for harassment at the time of the communication that was
at issue in McIntyre and ACLF. Plaintiffs in this case also have not made the particularized showing
necessary to establish that harassment against the organizations or their financial supporters is
reasonably likely to occur as a result of the disclaimer. The lack of in-person communication and
proven security concerns distinguish this case from ACLF and McIntyre.
None of the above cited authority on disclaimer provisions neatly covers the provision here.
Although this case is not on all fours with Citizens United, the Court finds its holding most akin
to the situation at hand. The informational interest here is important in knowing the name of
organizations intending to spend significant sums attempting to sway citizens’ vote on candidate
and referendum elections using mailings. As in Citizens United, the public has an interest in
knowing that RGF is sponsoring the mailings about candidates shortly before the election and the
disclaimer provision is carefully tailored to the name of the organization sending the mailings and
to mailings within 60 days of a general election. Although IOP’s mailings pertain to a referendum,
the voters have an informational interest in knowing who the source of the mailings is when the
source is spending a significant amount for the mailed advertisements. Again, the disclaimer is
carefully tailored to the name of the sponsor and only affect mailings sent within 60 days of the
general election. Although disclosure requirements are also in place, the Supreme Court in Citizens
United did not strike the federal disclaimer provision because the federal act also contained
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disclosure provisions. Accordingly, Plaintiffs have not satisfied their burden of establishing they
are sufficiently likely to succeed on the merits of Count II by showing that the disclaimer provision,
as applied to them, violates their First Amendment rights.
B. Preliminary injunction remaining elements
Because Plaintiffs have not succeeded on the first element necessary to prevail on a motion
for preliminary injunction, the Court need not consider the remaining requirements.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Preliminary Injunction and
Memorandum of Law in Support Thereof (ECF No. 33) is DENIED.
SENIOR UNITED STATES DISTRICT JUDGE
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