Family Pac v. Rob McKenna

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 31, 2012
• Docket: 10-35832
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FAMILY PAC,  Plaintiff-Appellee, v. ROB MCKENNA, in his official capacity as Attorney General of Washington; JIM CLEMENTS, member of the Public Disclosure Commission, in his official capacity; DAVID SEABROOK, No. 10-35832 member of the Public Disclosure Commission, in his official  D.C. No. capacity; JANE NOLAND, member of 3:09-cv-05662-RBL the Public Disclosure Commission, in her official capacity; JENNIFER JOLY, member of the Public Disclosure Commission, in her official capacity; BARRY SEHLIN, member of the Public Disclosure Commission, in his official capacity, Defendants-Appellants. 

889 890 FAMILY PAC v. MCKENNA

FAMILY PAC,  Plaintiff-Appellant, v. ROB MCKENNA, in his official capacity as Attorney General of Washington; JIM CLEMENTS, member of the Public Disclosure No. 10-35893 Commission, in his official D.C. No. capacity; DAVID SEABROOK, 3:09-cv-05662-RBL member of the Public Disclosure Commission, in his official  ORDER AMENDING capacity; JANE NOLAND, member of OPINION AND the Public Disclosure Commission, AMENDED in her official capacity; JENNIFER OPINION JOLY, member of the Public Disclosure Commission, in her official capacity; BARRY SEHLIN, member of the Public Disclosure Commission, in his official capacity, Defendants-Appellees.  Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted November 16, 2011—Portland, Oregon

Filed December 29, 2011 Amended January 31, 2012

Before: Raymond C. Fisher, Richard A. Paez and Richard R. Clifton, Circuit Judges. FAMILY PAC v. MCKENNA 891 Opinion by Judge Fisher FAMILY PAC v. MCKENNA 893

COUNSEL

Robert M. McKenna, Attorney General, Linda A. Dalton, Senior Assistant Attorney General, and Nancy J. Krier (argued), Special Assistant Attorney General, Olympia, Washington, for the defendants-appellants-cross appellees.

James Bopp, Jr. (argued), Joseph E. La Rue and Noel John- son, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for the plaintiff-appellee-cross appellant. 894 FAMILY PAC v. MCKENNA William R. Maurer, Seattle, Washington; William H. Mellor and Paul M. Sherman, Arlington, Virginia, for amicus curiae Institute for Justice.

Peter S. Holmes, Seattle City Attorney, and Gary Keese, Assistant City Attorney, for amicus curiae Seattle Ethics and Election Commission.

ORDER

The mandate issued January 20, 2012, is recalled. The opinion filed December 29, 2011, and reported at 664 F.3d 296, is amended as follows:

In footnote 4, delete , and replace it with .

With this amendment, the mandate shall issue forthwith.

OPINION

FISHER, Circuit Judge:

We address the constitutionality of three provisions of Washington election law as applied to the political commit- tees that support and oppose ballot measures. We hold that FAMILY PAC v. MCKENNA 895 Washington’s disclosure requirements, Washington Revised Code § 42.17.090 and Washington Administrative Code § 390-16-034, which require these committees to disclose the name and address of contributors giving more than $25, and additionally to disclose the employer and occupation of con- tributors giving more than $100, survive exacting scrutiny because they are substantially related to the important govern- mental interest in informing the electorate. We hold that Washington Revised Code § 42.17.105(8), which prohibits a political committee from accepting from any one person con- tributions exceeding $5,000 within 21 days of a general elec- tion, is not closely drawn to achieve the state’s important interest in informing the electorate. Section 42.17.105(8) is therefore unconstitutional as applied to ballot measure com- mittees. We affirm the judgment of the district court.

I.

Family PAC is a continuing political committee organized under Washington Revised Code § 42.17.040. Compl. ¶ 21. According to the verified complaint, Family PAC organized as a political committee to support “traditional family values” by soliciting and receiving contributions and making contri- butions and expenditures to support or oppose ballot mea- sures. Id. ¶ 22. Family PAC’s initial project was to oppose Washington’s domestic partnership law by urging voters to support Referendum 71 in the 2009 election. Id.

In this action, filed in October 2009, Family PAC alleged that three provisions of Washington election law violate the First Amendment as applied to ballot measure committees: (1) Washington Revised Code § 42.17.090, which requires a political committee to report the name and address of each person contributing more than $25 to the committee; (2) Washington Administrative Code § 390-16-034, which adds the requirement that a political committee report the occupa- tion and employer of each person contributing more than $100 to the committee; and (3) Washington Revised Code 896 FAMILY PAC v. MCKENNA § 42.17.105(8), which prohibits a political committee from accepting from any one person contributions exceeding $5,000 within 21 days of a general election.1,2,3 Washington imposes no limit on contributions accepted by ballot measure committees outside this 21-day period. Nor do the rules limit 1 Section 42.17.090 provides in relevant part: Each report required under RCW 42.17.080 (1) and (2) shall dis- close the following: . . . (b) The name and address of each person who has made one or more contributions during the period, together with the money value and date of such contributions and the aggregate value of all contributions received from each such person during the campaign or in the case of a continuing politi- cal committee, the current calendar year: PROVIDED, That pledges in the aggregate of less than one hundred dollars from any one person need not be reported: PROVIDED FURTHER, That the income which results from a fund-raising activity con- ducted in accordance with RCW 42.17.067 may be reported as one lump sum, with the exception of that portion of such income which was received from persons whose names and addresses are required to be included in the report required by RCW 42.17.067: PROVIDED FURTHER, That contributions of no more than twenty-five dollars in the aggregate from any one person during the election campaign may be reported as one lump sum so long as the campaign treasurer maintains a separate and private list of the name, address, and amount of each such contributor: PRO- VIDED FURTHER, That the money value of contributions of postage shall be the face value of such postage . . . . Wash. Rev. Code § 42.17.090(1). The parties agree this provision requires committees to disclose the name and address of contributors giving over $25. 2 Section 390-16-034 states: Pursuant to RCW 42.17.090, each report required under RCW 42.17.080 shall disclose, in addition to the name and address of each person who has made one or more contributions in the aggregate amount of more than one hundred dollars, the occupa- tion and the name and address of the person’s employer. Wash. Admin. Code § 390-16-034; see also Wash. Rev. Code § 42.17.090(k) (authorizing the Washington State Public Disclosure Com- mission to issue disclosure requirements in addition to those specified in § 42.17.090(1) itself). 3 Section 42.17.105(8) provides: FAMILY PAC v. MCKENNA 897 what a ballot measure committee can spend, either before or during the 21-day period.

The complaint asserted that Family PAC intends to accept contributions in excess of $25 and $100, and that “[p]otential donors to Family PAC have indicated that they are unwilling to donate if Family PAC is required to report their name and address pursuant to [the disclosure laws].” Compl. ¶¶ 28-30. Family PAC also presented evidence that, but for the $5,000 contribution limit, it would have received contributions of $60,000 and $20,000 from Focus on the Family during the Referendum 71 campaign. Passignano Decl. ¶¶ 7-13.

Family PAC sought a declaration that the three challenged provisions violate the First Amendment and an order enjoin- ing the state from enforcing the provisions against ballot mea- sure committees. The defendants are the Washington State Attorney General and the members of the Washington State Public Disclosure Commission (PDC), which administers and enforces the challenged provisions. We refer to the defendants collectively as “the state.”

Family PAC moved for summary judgment, which the dis- trict court granted in part and denied in part. The court held that the $25 and $100 disclosure requirements survived exact- ing scrutiny because they are substantially related to an

It is a violation of this chapter for any person to make, or for any candidate or political committee to accept from any one person, contributions reportable under RCW 42.17.090 in the aggregate exceeding fifty thousand dollars for any campaign for statewide office or exceeding five thousand dollars for any other campaign subject to the provisions of this chapter within twenty-one days of a general election. This subsection does not apply to contribu- tions made by, or accepted from, a bona fide political party as defined in this chapter, excluding the county central committee or legislative district committee. Wash. Rev. Code § 42.17.105(8). 898 FAMILY PAC v. MCKENNA important governmental interest in allowing voters to “follow the money” behind ballot measures. The court explained:

[T]hough the limits may seem low to [Family PAC], small contributions when aggregated by organiza- tions of people (“special interests,” as we so often refer to them in the political debate: unions, business interests, occupational guilds or associations) they can have a powerful impact on the debate and voters can benefit from the information that disclosure pro- vides.

The court accordingly denied summary judgment with respect to the $25 and $100 disclosure requirements. The court subse- quently dismissed these claims with prejudice.

The court construed the 21-day contribution limit as “a ban on political speech,” and accordingly applied strict scrutiny. It agreed with the state that the government has a compelling interest in allowing voters to identify contributors to ballot measure campaigns, but concluded that the 21-day limit was insufficiently tailored to achieve this interest:

The State focuses on the fact that all but one of Washington counties use a vote-by-mail system and they mail ballots 18 days before the election date. This system is offered up as modern-day justification for a 1970s-era law that may have needed up to 21 days to gather, organize, and distribute the informa- tion about campaign contributions.

Now, however, campaign contributions can be reported and made publicly available within minutes, and certainly within 24 hours. Given that reality, a 21-day ban on large contributions cannot be viewed as necessary or narrowly tailored to effectuate the original purpose. FAMILY PAC v. MCKENNA 899 The fact that voters have access to ballots earlier than before, and that they may choose to vote before all the election debate is in fact over, is not a suffi- cient reason to save this statute as it pertains to [bal- lot measures].

The compelling State interest here is providing access to voters to information relevant to voting decision[s]. That information can be provided to vot- ers without a ban on large donations lasting for as long as 21 days prior to the election. The 21 days prior to an election is a time when the political debate is fully joined and the attention of voters is most focused. . . .

Such a ban may pass constitutional muster if lim- ited to a time more carefully calculated to reflect the current time necessary to gather and organize and disseminate the relevant information about contribu- tions and contributors that the government legiti- mately seeks to convey.

The court accordingly granted Family PAC’s motion for sum- mary judgment with respect to the 21-day contribution limit, declaring the $5,000 limit unconstitutional as applied to ballot measure committees.

The court entered judgment, and both parties appealed. We have jurisdiction under 28 U.S.C. § 1291, we review de novo, see City of L.A. v. San Pedro Boat Works, 635 F.3d 440, 446 (9th Cir. 2011), and we affirm.

II.

We begin by addressing Family PAC’s argument that the disclosure requirements, Washington Revised Code § 42.17.090(1)(b) and Washington Administrative Code § 390-16-34, are unconstitutional as applied to ballot measure 900 FAMILY PAC v. MCKENNA committees. Disclosure requirements are subject to exacting scrutiny. See Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010). To survive such scrutiny, the disclosure requirements must be “substantially related to a sufficiently important governmental interest.” Id.

A. Important Governmental Interest

Family PAC argues that requiring disclosure of contribu- tions to ballot measure committees serves no important gov- ernmental interest. Family PAC acknowledges that courts have often held that states have an important informational interest in requiring such disclosures, but points out that the Tenth Circuit called that interest into question in Sampson v. Buescher, 625 F.3d 1247, 1256 (10th Cir. 2010).

[1] Sampson did not ultimately reject the longstanding principle that the public has an interest in learning who sup- ports and opposes ballot measures. See id. at 1259. Even if Sampson had done so, however, Family PAC’s argument would be foreclosed by circuit precedent. We have repeatedly recognized an important (and even compelling) informational interest in requiring ballot measure committees to disclose information about contributions. See Human Life, 624 F.3d at 1005-06; Canyon Ferry Rd. Baptist Church of E. Helena, Inc. v. Unsworth, 556 F.3d 1021, 1031-32 (9th Cir. 2009); Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1178-79 & n.8 (9th Cir. 2007), abrogation on other grounds recog- nized in Human Life, 624 F.3d at 1013; Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1104-07 (9th Cir. 2003). Washington therefore has an important governmental interest — informing the voting public — in requiring the disclosure of contributions made to ballot measure committees. Family PAC’s argument to the contrary is without merit.

B. Substantial Relation

We turn to whether the state has shown that the $25 and $100 disclosure requirements are substantially related to the FAMILY PAC v. MCKENNA 901 state’s informational interest. To survive exacting scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Davis v. FEC, 554 U.S. 724, 744 (2008).

1. The Actual Burden on First Amendment Rights

As relevant here, Washington’s disclosure requirements can burden First Amendment rights in two ways. First, they can deter individuals who would prefer to remain anonymous from contributing to a ballot measure committee. See Buckley v. Valeo, 424 U.S. 1, 68 (1976) (“It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might con- tribute.”); id. at 83 (“[S]trict [disclosure] requirements may well discourage participation by some citizens in the political process.”); Canyon Ferry, 556 F.3d at 1036 (Noonan, J., con- curring) (observing that “[f]or business or social reasons, a small contributor may wish not to be publicly identified with one side of a controversial public issue. The required report strips this contributor of his chosen anonymity,” which may discourage him from contributing).

[2] This burden, however, is modest. Disclosure require- ments “may burden the ability to speak, but they impose no ceiling on campaign-related activities, and do not prevent anyone from speaking.” Citizens United v. FEC, 130 S. Ct. 876, 914 (2010) (citations and internal quotation marks omit- ted). Here, although Family PAC cites a survey conducted in six states (not including Washington) purporting to show that people may “think twice” about contributing to ballot measure committees if their names and addresses are to be publicly disclosed, Family PAC has not presented evidence suggesting that Washington’s disclosure laws actually and meaningfully deter contributors.4 The Washington requirements accordingly serve as only a modest deterrent to contributors. 4 In the survey cited by Family PAC, 82% of respondents agreed that the government should require that the identities of those who contribute to 902 FAMILY PAC v. MCKENNA [3] Second, “disclosure requirements can chill donations to an organization by exposing donors to retaliation.” Citizens United, 130 S. Ct. at 916. Here, however, Family PAC has made no showing that Washington’s disclosure requirements expose contributors to a significant or systemic risk of harass- ment or retaliation. In Doe v. Reed, 130 S. Ct. 2811 (2010), the Supreme Court considered whether disclosure of referen- dum petitions — containing the names and addresses of signers — violates the First Amendment. The Court acknowl-

ballot issue campaigns be available to the public. See Dick M. Carpenter II, Disclosure Costs: Unintended Consequences of Campaign Finance Reform, Institute for Justice, 7 (Mar. 2007), available at http://www.ij.org/ images/pdf_folder/other_pubs/DisclosureCosts.pdf. When asked whether public disclosure would impact their own decisions to contribute, how- ever, respondents suggested that they might “think twice” before contrib- uting. Almost 60% of respondents agreed with the following statement: “If by contributing to a ballot issue campaign my name and address were released to the public by the state, I would think twice before donating money.” Id. Almost 50% agreed with the following statement: “If by con- tributing to a ballot issue campaign my employer’s name were released to the public by the state, I would think twice before donating money.” Id. The state properly points out that Carpenter was not presented as an expert witness, and his survey was neither presented as evidence nor tested by the evidentiary rigors that apply to expert reports. We therefore decline to give it evidentiary weight. In any event, a survey purporting to show that respondents in six states would “think twice” before contributing to a bal- lot measure campaign offers little insight into the deterrent effect of Wash- ington’s disclosure requirements on individuals’ actual decisionmaking. We do not doubt that disclosure requirements have some deterrent effect on contributions, see Buckley, 424 U.S. at 68, 83, but the evidence in this case does not show that this burden is substantial. Notably, notwithstand- ing the state’s disclosure requirements, Washington’s ballot measure com- mittees have been able to raise a great deal of money. In 2008, 12 statewide ballot measure committees reported $9.5 million in contribu- tions and expenditures; 89 local ballot measure committees reported another $3.7 million in contributions and expenditures. Ellis Decl. ¶ 23. In 2005, expenditures on a single statewide initiative reached more than $15.6 million. Id. ¶ 24. And in the 2008 Washington election as a whole, more than $1.4 million was contributed by persons giving between $25.01 and $30 in 54,502 contributions. Id. ¶ 44. FAMILY PAC v. MCKENNA 903 edged that in the case of “particularly controversial petitions,” public disclosure could lead to harassment or intimidation of petition signers. See id. at 2820-21. There was, however, “no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like th[ose] burdens.” Id. at 2821. Thus, notwithstanding the possibility of harassment and retaliation in an isolated case, the disclosure rules as a general matter imposed only modest First Amend- ment burdens. See id. The Court explained that in an atypical case presenting a bona fide threat of harassment or retaliation, an aggrieved party could seek an exemption from compelled disclosure by making a sufficient evidentiary showing in an as-applied challenge. See id. at 2820-21.

[4] This same reasoning applies here. Family PAC has made no showing that §§ 42.17.090 and 390-16-034, as a gen- eral matter, expose contributors to harassment, intimidation or retaliation. In the unusual case presenting a genuine threat of harassment or retaliation, the affected party can challenge these disclosure requirements as applied. See Citizens United, 130 S. Ct. at 914 (“[A]s-applied challenges would be avail- able if a group could show a ‘reasonable probability’ that dis- closure of its contributors’ names ‘will subject them to threats, harassment, or reprisals from either Government offi- cials or private parties.’ ” (quoting McConnell v. FEC, 540 U.S. 93, 198 (2003))). Here, Family PAC has not asserted an as-applied challenge or attempted to make the particularized showing required by Supreme Court precedent.5 Thus, as in 5 Family PAC challenges §§ 42.17.090 and 390-16-034 on their face, but only as applied to ballot measure committees. For the reasons given in Doe, we treat this as a facial challenge: The claim is “as applied” in the sense that it does not seek to strike the [regulation] in all its applications, but only to the extent it covers referendum petitions. The claim is “facial” in that it is not limited to plaintiffs’ particular case, but challenges applica- tion of the law more broadly to all referendum petitions. The label is not what matters. The important point is that plain- tiffs’ claim and the relief that would follow . . . reach beyond the 904 FAMILY PAC v. MCKENNA Doe, the challenged disclosure requirements impose only a modest burden on First Amendment rights.6

2. The Strength of the Governmental Interest

[5] We next consider whether the strength of the govern- mental interest in disclosure justifies these modest burdens. The governmental interest in informing the electorate about who is financing ballot measure committees is of great impor- tance. Disclosure enables the electorate to “give proper weight to different speakers and messages,” Citizens United, 130 S. Ct. at 916, by “providing the voting public with the information with which to assess the various messages vying for their attention in the marketplace of ideas,” Human Life, 624 F.3d at 1008. The money in ballot measure campaigns “produces a cacophony of political communications through which . . . voters must pick out meaningful and accurate mes- sages.” Getman, 328 F.3d at 1105. “Given the complexity of the issues and the unwillingness of much of the electorate to independently study the propriety of individual ballot mea- sures, we think being able to evaluate who is doing the talking is of great importance.” Id. Disclosure also gives voters insight into the actual policy ramifications of a ballot mea- sure. “Knowing which interested parties back or oppose a bal- lot measure is critical, especially when one considers that ballot-measure language is typically confusing, and the long- term policy ramifications of the ballot measure are often unknown.” Id. at 1106. “At least by knowing who backs or

particular circumstances of these plaintiffs. They must therefore satisfy our standards for a facial challenge to the extent of that reach. 130 S. Ct. at 2817. 6 These disclosure requirements also impose administrative burdens on ballot committees, which are responsible for compiling and filing required disclosure reports. See, e.g., Canyon Ferry, 556 F.3d at 1034 (discussing “the burden of reporting”). These burdens too, however, are generally modest, and Family PAC does not challenge them on an as-applied basis. FAMILY PAC v. MCKENNA 905 opposes a given initiative, voters will have a pretty good idea of who stands to benefit from the legislation.” Id. In addition, “mandating disclosure of the financiers of a ballot initiative may prevent ‘the wolf from masquerading in sheep’s cloth- ing.’ ” Canyon Ferry, 556 F.3d at 1032 (quoting Getman, 328 F.3d at 1106 n.24); see also Human Life, 624 F.3d at 1017; Randolph, 507 F.3d at 1179 n.8 (observing that the names groups give themselves for disclosure purposes are frequently ambiguous or misleading). Washington’s disclosure require- ments therefore serve a strong governmental interest.

[6] Balancing the aforementioned burdens against the gov- ernmental interest, we have little trouble in holding that Washington’s disclosure requirements are, as a general mat- ter, substantially related to an important governmental inter- est. The requirements impose only modest burdens on First Amendment rights, while serving a governmental interest in an informed electorate that is of the utmost importance. We therefore reject Family PAC’s broad challenge to Washington Revised Code § 42.17.090 and Washington Administrative Code § 390-16-034.

That is not the end of the inquiry, however, because, even if §§ 42.17.090 and 390-16-034 are permissible as a general matter, Family PAC argues that the $25 and $100 thresholds themselves are too low to survive exacting scrutiny.

Family PAC’s argument rests on a generally sound premise — that the informational interest in disclosure applies with greater force to large contributions than to small ones. We explained in Canyon Ferry that, “[a]s a matter of common sense, the value of this financial information to the voters declines drastically as the value of the expenditure or contri- bution sinks to a negligible level.” 556 F.3d at 1033 (empha- sis omitted).7 The informational interest weakens as the size 7 As the size of the contribution falls, and the informational value of dis- closure thereby declines, the deterrent effect of disclosure may actually 906 FAMILY PAC v. MCKENNA of the contributions decrease, and at some point contributions are so small that disclosure may provide voters with little rele- vant information.8 When that point is reached, a court presum- ably should ask whether the burdens imposed by disclosure outweigh the informational interests served by it.

[7] We are not persuaded, however, that the tipping point has been reached in the case of Washington’s $25 and $100 thresholds. Critically, we do not agree with Family PAC’s contention that disclosure of small contributors does not pro- vide information that enables the electorate to evaluate cam- paign messages and make informed decisions. It is true that the public disclosure of a single $25.01 contribution to a bal-

increase. See Buckley, 424 U.S. at 83 (“Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences.”). If this is the case, then applying disclosure requirements to smaller and smaller contributions eventually risks tipping the constitutional balance against disclosure. It is far from clear, however, that even a zero-dollar disclosure threshold would succumb to exacting scrutiny. See Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 300 (1981) (“[I]f it is thought wise, legislation can outlaw anony- mous contributions.”); Canyon Ferry, 556 F.3d at 1034 (“It may very well be that . . . all monetary contributions convey sufficiently valuable infor- mation about the supporters of an initiative to justify the burden of disclo- sure.”). We need not confront that question here, because Washington has not chosen a zero-dollar threshold, and, as we explain in text, the informa- tion disclosed at the $25 and $100 levels established by Washington law is sufficiently important to the electorate that the thresholds withstand exacting scrutiny. 8 See, e.g., Elizabeth Garrett, Voting with Cues, 37 U. Rich. L. Rev. 1011, 1042 (2003) (“The source and amount of small contributions and expenditures are not generally informative to voters . . . .”); William McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of Political Con- tribution Disclosure, 6 U. Pa. J. Const. L. 1, 47 (2003) (“[D]iffuse and hard-to-digest data, concerning modest-sized individual contributions made for various unknowable reasons, adds little ‘relevant information’ to a voter’s decision-making process.”); Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics Line, 77 Tex. L. Rev. 1751, 1789-90 (1999) (“Knowing about [small contributions] provides the voters with lit- tle in the way of useful information.”). FAMILY PAC v. MCKENNA 907 lot measure campaign may provide little relevant information to voters. As the district court recognized, however, small contributions may provide useful information to voters when considered in the aggregate. On the PDC’s website, voters can conduct detailed searches and sort ballot measure contri- bution data by city, state and zip code.9 Voters can use this geographical information to determine, for example, whether statewide ballot measures are financed by out-of-state contrib- utors, or to determine whether county-wide ballot measures are financed by out-of-county interests. With respect to con- tributions exceeding $100, voters can also aggregate the data by employer and occupation to determine whether particular economic interests stand to benefit from the legislation. This type of information may not be as critical as knowing that XYZ Corporation gave $10 million to the campaign, but it is nonetheless useful and relevant. We therefore hold that the $25 and $100 thresholds are substantially related to the state’s informational interest.

Our holding is reinforced by several additional consider- ations. First, we are not aware of any judicial decision invali- dating a contribution disclosure requirement, or holding that a contribution disclosure threshold was impermissibly low.10 9 According to the state’s evidence, the PDC website received 40,423 unique visitors and 596,223 web pages were viewed during fiscal year 2009. Ellis Decl. ¶ 14. 10 In both Canyon Ferry and Sampson, the courts invalidated reporting requirements — i.e., when an organization is required to file contribution and expenditure reports with state election regulators — rather than contri- bution disclosure requirements — i.e., assuming an organization is subject to a reporting requirement, what contributions must be disclosed in the reports. See Canyon Ferry, 556 F.3d at 1033-34 (granting the plaintiff’s challenge to Montana’s “zero-dollar” reporting threshold as applied to the plaintiff’s in-kind, de minimis expenditures in support of a statewide bal- lot measure); Sampson, 625 F.3d at 1249, 1259-61 (granting the plaintiffs’ challenge — to a Colorado law requiring any group of two or more per- sons that has accepted or made contributions or expenditures exceeding $200 to support or oppose a ballot issue to register as an issue committee 908 FAMILY PAC v. MCKENNA Second, in Citizens Against Rent Control v. City of Berke- ley, 454 U.S. 290, 294 n.4, 298, 299-300 (1981), the Supreme Court spoke approvingly of a city ordinance requiring politi- cal committees to disclose the names and addresses of persons contributing $50 or more to a ballot measure campaign, a threshold roughly comparable to the $25 and $100 disclosure thresholds at issue here. The disclosure requirement was not challenged in Citizens Against Rent Control, so the Court’s language is dictum. Nevertheless, the decision certainly sug- gests that the Court would have upheld the requirement had the question been raised. See also Randolph, 507 F.3d at 1182 (upholding contribution disclosure requirements covering contributions totaling $100 or more and requiring disclosure of the contributor’s name, address, occupation and employer); Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n, 761 F.2d 509, 512 (8th Cir. 1985) (per curiam) (upholding a Min- nesota law requiring disclosure of the name, address and employer of each person who contributes $50 or more in one year for legislative races or $100 or more per year for state- wide races or ballot questions).

Third, disclosure thresholds, like contribution limits, are inherently inexact; courts therefore owe substantial deference to legislative judgments fixing these amounts. As the Supreme Court explained in Buckley:

[W]e cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional

and report the names and addresses of contributors — as applied to the plaintiffs, who opposed the annexation of their neighborhood into the adjacent town, and who had raised less than $1,000 in monetary and in- kind contributions for their cause). By contrast, we are not aware of any decision invalidating a contribution disclosure requirement, either facially or as applied to a particular actor. FAMILY PAC v. MCKENNA 909 discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality.

424 U.S. at 83.11 This deference is not absolute, see Randall v. Sorrell, 548 U.S. 230, 248-49 (2006) (plurality opinion); Canyon Ferry, 556 F.3d at 1034, but it strongly reinforces our conclusion that Washington has chosen thresholds within a permissible range. This deference is all the more appropriate when, as here, the state’s thresholds are comparable to those in other states.12

[8] In sum, §§ 42.17.090 and 390-16-34 are, as applied to ballot measure committees, “substantially related to a suffi- ciently important governmental interest.” Human Life, 624 F.3d at 1005. They therefore survive exacting scrutiny.

III.

The state argues that the district court erred by invalidating Washington Revised Code § 42.17.105(8) as applied to ballot measure committees. This provision imposes a $5,000 limit on contributions during the 21 days preceding a general elec- tion. All parties agree that the $5,000 limit would be unconsti- tutional if it applied without temporal restriction. See Citizens Against Rent Control, 454 U.S. at 299-300 (invalidating a city ordinance placing a $250 limitation on contributions to com- mittees formed to support or oppose ballot measures). The 11 In Buckley, the Court upheld a federal law requiring disclosure of con- tributions exceeding $100. The Court expressly declined to “reach the question whether information concerning gifts [between $10 and $100] can be made available to the public without trespassing impermissibly on First Amendment rights.” Buckley, 424 U.S. at 84. 12 Washington’s $25 and $100 thresholds are within the range of disclo- sure requirements in other states. See McGeveran, Mrs. McIntyre’s Check- book, 6 U. Pa. J. Const. L. at 10 (“Almost all [states] require campaigns to itemize contributions below the federal threshold of $200. Eight states set thresholds as low as $20 or $25, and several others require reporting of all contributions, no matter what their size.” (footnote omitted)). 910 FAMILY PAC v. MCKENNA only question, therefore, is whether Washington’s contribu- tion limit can survive constitutional scrutiny because it is lim- ited to a 21-day period.

[9] The district court construed the 21-day contribution limit as a “ban on large contributions” and therefore applied strict scrutiny. Contribution limits, however, are not subject to strict scrutiny. They are constitutionally valid “if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley, 424 U.S. at 25; see also Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647, 652 (9th Cir. 2007) (noting that limits on contributions to can- didates and ballot measure committees are subject to the same level of scrutiny). We therefore ask whether § 42.17.105(8) is “ ‘closely drawn’ to match a sufficiently important interest.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1117 (9th Cir. 2011) (quoting Randall, 548 U.S. at 247).

A. Sufficiently Important Interest

As noted, the state has an important interest in giving vot- ers access to contributor information. The only question is whether the 21-day limit is closely drawn to advance that interest.

B. Closely Drawn

The state argues that the rule is closely drawn because it is designed to force big-money contributors to identify them- selves by the time the state mails ballots to voters — which takes place 18 days before the general election. The theory is that all voters should know who is paying for ballot measure campaigns by the time they cast their votes, and because vot- ers have the option of voting before election day, this infor- mational interest cannot be adequately protected unless large contributors make themselves known 21 days in advance of the election: “Given the timing of Washington’s vote-by-mail FAMILY PAC v. MCKENNA 911 system, which encompasses the vast majority of voters in the state, and the timing of Wash. Rev. Code § 42.17.105(8), there is a substantial relation between the governmental inter- est and the timing of this disclosure provision.” First Brief on Cross-Appeal 25.

[10] We disagree. As a threshold matter, we note that § 42.17.105(8) imposes a significant burden on First Amend- ment rights. In Citizens Against Rent Control, the Supreme Court recognized that contribution limits imposed on ballot measure committees burden both the freedom of association, by making it harder for individuals to “band together to advance their views on a ballot measure,” and the freedom of speech, because a limit on contributions affects expenditures, “and limits on expenditures operate as a direct restraint on freedom of expression of a group or committee desiring to engage in political dialogue concerning a ballot measure.” 454 U.S. at 296, 299. Washington’s temporal limit is less bur- densome than the permanent limit at issue in Citizens Against Rent Control, because ballot measure committees can arrange their fundraising around the 21-day limit with respect to planned contributions. See Thalheimer, 645 F.3d at 1122. Washington’s limit nonetheless imposes a significant burden, because it limits contributions during the critical three-week period before the election, when political committees may want to respond to developing events. See Human Life, 624 F.3d at 1019 (recognizing “the unique importance of the tem- poral window immediately preceding a vote”); cf. Anderson v. Celebrezze, 460 U.S. 780, 786 (1983) (observing that early candidate filing deadlines prevent independent candidates from seizing “unanticipated political opportunities”).13 Section 13 In decisions upholding temporal restrictions on otherwise protected political activities, the restrictions at issue generally did not apply to the period immediately preceding the election. In North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999), the Fourth Circuit upheld a North Carolina law prohibiting political committees employing lobbyists from contributing to elected officials while the legislature was in 912 FAMILY PAC v. MCKENNA 42.17.105(8) therefore imposes a significant burden on pro- tected activity.

[11] We hold that § 42.17.105(8) is not closely drawn to provide voters with information they need to make informed choices. The limit is not reasonably necessary to inform vot-

session. See id. at 709. The court said that “North Carolina’s restrictions do nothing more than place a temporary hold on appellees’ ability to con- tribute during the General Assembly session, leaving them free to contrib- ute during the rest of the calendar year and to engage in political speech for the entire year.” Id. at 715. The rules advanced a compelling interest by preventing corruption and the appearance of corruption, and the restric- tions were narrowly tailored because “they last only during the legislative session, which typically, though not invariably, has covered just a few months in an election year,” and “cover only that period during which the risk of an actual quid pro quo or the appearance of one runs highest.” Id. at 715-16. In Thalheimer, we upheld a San Diego ordinance making it unlawful for a candidate to solicit or accept contributions until the 12 months preceding the primary election for the office sought. See 645 F.3d at 1113-14. The rule did not impose a serious burden because candidates could concentrate their fundraising activities during the 12 months leading up to the election. See id. at 1122. In addition, the ban served an important governmental interest in the prevention of actual and perceived corruption “because those contributions made near an election are clearer expressions of political speech, whereas off-year contributions are more likely linked to business the donor has before the city, thus creating the appearance of quid pro quo ‘corruption by the sale of influence.’ ” Id. at 1121. The rule was therefore closely drawn to a sufficiently important state anti- corruption interest. See id. at 1123. Both N.C. Right to Life and Thal- heimer are distinguishable from this case because the temporal restrictions did not cover the final phase of the election. In Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), by contrast, the Sixth Circuit upheld a Kentucky rule prohibiting gubernatorial candidates not participating in the state’s public financing system from accepting contri- butions during the 28 days preceding a primary or general election. See id. at 944. That temporal restriction applied to the critical pre-election period. The court upheld the provision, however, because it was necessary to the state’s implementation of its public funding system. See id. at 949-50. Here, Washington has not shown that § 42.17.105(8) is closely drawn to achieve the state’s informational interest, as we explain in text. FAMILY PAC v. MCKENNA 913 ers about large contributions made in the final three weeks of the election. As the district court found, “campaign contribu- tions can be reported and made publicly available within min- utes, and certainly within 24 hours.” In fact, Washington already has in place a system requiring committees, during the 21 days preceding the election, to disclose contributions from large contributors within 48 or 24 hours of receiving them.14

It is true that some voters may choose to vote early, and they may not learn of some large contributions until they have already voted. The state certainly has an interest in assuring that all voters, including those who vote early, have the infor- mation they need to make informed choices. Voters who cast their ballots while the campaigning is still in full swing, how- ever, make a voluntary choice to forgo relevant information that may come to light in the final weeks of the campaign. The state’s interest in ensuring that these voters — the num- ber of whom has not been identified — are maximally informed is therefore a weak one. It is outweighed by counter- vailing interests, including the right of ballot measure com- mittees to raise and spend funds, the right of individuals to contribute funds to ballot measure committees and the interest of the voting public in the messages that those committees may convey in the final weeks of the election. Thus, as the district court said, “[t]he fact that voters have access to ballots earlier than before, and that they may choose to vote before all the election debate is in fact over, is not a sufficient reason to save th[e] statute.”

Like the district court, we do not imply that a narrower restriction would suffer from the same infirmity. As the dis- 14 Washington’s disclosure law requires committees making and receiv- ing contributions in excess of $1,000 during a “special reporting period” to file reports within 48 hours. See Wash. Rev. Stat. § 42.17.105(3). If a committee has already filed a “special report,” any subsequent contribu- tions from the same contributor must be filed within 24 hours, regardless of the subsequent contribution’s size. See id. The 21 days before the elec- tion is a “special reporting period.” See id. § 42.17.105(1)(a). 914 FAMILY PAC v. MCKENNA trict court noted: “Such a [restriction] may pass constitutional muster if limited to a time more carefully calculated to reflect the current time necessary to gather and organize and dissemi- nate the relevant information about contributions and contrib- utors that the government legitimately seeks to convey.”

IV.

[12] The district court properly concluded that Washington Revised Code § 42.17.090 and Washington Administrative Code § 390-16-034, the state’s $25 and $100 disclosure requirements, are, as applied to ballot measure committees, substantially related to the important governmental interest in informing the electorate about the people and entities financ- ing ballot measure committees. The court also properly invali- dated Washington Revised Code § 42.17.105(8), the state’s $5,000 contribution limit applicable to ballot measure com- mittees during the 21 days preceding a general election. This provision is not closely drawn to match the state’s important informational interest. The judgment of the district court accordingly is affirmed. Each party shall bear its own costs of appeal.

AFFIRMED.