Rio Grande Foundation v. Oliver

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 9, 2025
• Docket: 24-2070
• Status: Published

Opinion

Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH September 9, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

RIO GRANDE FOUNDATION,

Plaintiff - Appellant,

and

ILLINOIS OPPORTUNITY PROJECT,

Plaintiff, No. 24-2070

v.

MAGGIE TOULOUSE OLIVER, in her official capacity as Secretary of State of New Mexico,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:19-CV-01174-JCH-JFR) _________________________________

Jeffrey M. Schwab of Liberty Justice Center, Austin, Texas, for Plaintiff - Appellant.

Ellen L. Venegas, Assistant Solicitor General, Santa Fe, New Mexico (Raúl Torrez, New Mexico Attorney General; Seth C. McMillan, Deputy Solicitor General, Santa Fe, New Mexico; Alexander W. Tucker, Assistant Solicitor General, Albuquerque, New Mexico, with her on the brief), for Defendant - Appellee. Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 2

_________________________________

Before HARTZ, EID, and FEDERICO, Circuit Judges. _________________________________

FEDERICO, Circuit Judge. _________________________________

This case concerns First Amendment rights in the context of

electioneering laws. Rio Grande Foundation (RGF) is a nonprofit advocacy

group challenging an amendment to New Mexico’s Campaign Reporting Act

(CRA). It argues the CRA disclosure law unlawfully burdens its First

Amendment rights and chills potential donors from making donations. 1

RGF sought to enjoin New Mexico’s Secretary of State (Secretary) from

enforcing certain disclosure requirements in the amended CRA.

The district court ruled in favor of the Secretary and determined that

the CRA disclosure requirements are substantially related and narrowly

tailored to the governmental and public interest in knowing who is funding

large election-related advertisements about a candidate or ballot measure

shortly before an election. We agree with the district court.

1 Illinois Opportunity Project, another nonprofit advocacy group, was

a plaintiff, but its claims were previously dismissed for a lack of standing and mootness. See Rio Grande Found. v. Oliver, 57 F.4th 1147, 1165 (10th Cir. 2023).

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I2

We proceed in this section by first explaining the CRA: who and what

it covers, its limitations, and the applicable definitions. Next, we discuss

RGF: what it is, what it does, and what it intends to do. Last, we set out the

procedural history of this lawsuit to frame the current appeal.

A

Senate Bill 3 (2019) amended the CRA to include disclaimer and

disclosure requirements for certain electioneering communications.

Campaign Finance Reporting Act, ch. 262, 2019 N.M. Laws § 1. A violation

of the CRA is a misdemeanor punishable “by a fine of not more than one

thousand dollars ($1,000) or by imprisonment for not more than one year or

both.” N.M. Stat. Ann. § 1-19-36(A). The state ethics commission may also

institute a civil action for violations of the CRA. Id. § 1-19-34.6(B), (C).

The amended CRA requires “political committees” to register with the

Secretary and to disclose (1) the name of the committee with any sponsoring

organization and its address; (2) a statement of purpose; (3) the names and

addresses of the officers of the committee; and (4) any bank account used

for contributions or expenditures. Id. § 1-19-26.1(B), (C). The CRA defines

a “political committee” as (1) “a political party;” (2) “a legislative caucus

2 Unless otherwise indicated, the following facts are not in dispute.

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committee;” (3) “an association that consists of two or more persons whose

primary purpose is to make contributions to candidates, campaign

committees or political committees or make coordinated expenditures or

any combination thereof;” or (4) “an association that consists of two or more

persons whose primary purpose is to make independent expenditures and

that has received more than five thousand dollars ($5,000) in contributions

or made independent expenditures of more than five thousand dollars

($5,000) in the election cycle.” Id. § 1-19-26(U). The parties agree that RGF

qualifies as a political committee.

Further, an “expenditure” is defined as “a payment, transfer or

distribution or obligation or promise to pay, transfer or distribute any

money or other thing of value for a political purpose[.]” Id. § 1-19-26(P). A

“political purpose” “means for the purpose of supporting or opposing a ballot

question or the nomination or election of a candidate.” Id. § 1-19-26(W).

The amended CRA also requires political committees to disclose the

names and addresses of their donors if their “independent expenditures”

exceed a certain amount:

A person who makes independent expenditures required to be reported under this section in an amount totaling more than three thousand dollars ($3,000) in a nonstatewide election or nine thousand dollars ($9,000) in a statewide election, in addition to reporting the information specified in Subsection C of this section, shall either:

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(1) if the expenditures were made exclusively from a segregated bank account consisting only of funds contributed to the account by individuals to be used for making independent expenditures, report the name and address of, and amount of each contribution made by, each contributor who contributed more than two hundred dollars ($200) to that account in the election cycle; or

(2) if the expenditures were made in whole or part from funds other than those described in Paragraph (1) of this subsection, report the name and address of, and amount of each contribution made by, each contributor who contributed more than a total of five thousand dollars ($5,000) during the election cycle to the person making the expenditures; provided, however, that a contribution is exempt from reporting pursuant to this paragraph 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. § 1-19-27.3(D). The independent expenditure reports filed under these

laws may be accessed “via the internet” and are “in an easily searchable

format.” Id. § 1-19-32(C).

The CRA defines an “independent expenditure” as one that is (1)

“made by a person other than a candidate or campaign committee” and (2)

“not a coordinated expenditure as defined in the [CRA].” Id. § 1-19-26(Q).

Additionally, it is “made to pay for an advertisement that:”

(a) expressly advocates the election or defeat of a clearly identified candidate or the passage or defeat of a clearly identified ballot question;

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(b) is susceptible to no other reasonable interpretation than as an appeal to vote for or against a clearly identified candidate or ballot question; or

(c) 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.

Id. § 1-19-26(Q)(3). Notably, certain contributors may opt-out of these

requirements if they request “in writing” that their “contribution not be

used to fund independent or coordinated expenditures or to make

contributions to a candidate, campaign committee or political committee.”

Id. § 1-19-27.3(D)(2).

The amended CRA further imposes disclaimer requirements,

requiring a “person who makes a campaign expenditure, a coordinated

expenditure or an independent expenditure for an advertisement in an

amount that exceeds one thousand dollars ($1,000), or in an amount that,

when added to the aggregate amount of the campaign expenditures,

coordinated expenditures and independent expenditures for advertisements

made by the same person during the election cycle, exceeds one thousand

dollars ($1,000),” to “ensure that the advertisement contains the name of

the candidate, committee or other person who authorized and paid for the

advertisement.” Id. § 1-19-26.4(A). This requirement does not apply to “(1)

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bumper stickers, pins, buttons, pens and similar small items upon which

the disclaimer cannot be conveniently printed; or (2) skywriting, water

towers, wearing apparel or other means of displaying an advertisement of

such a nature that the inclusion of a disclaimer would be impracticable.” Id.

§ 1-19-26.4(B).

B

RGF is a charitable organization pursuant to 26 U.S.C. § 501(c)(3)

whose mission is to inform New Mexico’s citizens “of the importance of

individual freedom, limited government, and economic opportunity.” Aplt.

App. at 30. To support this mission, “RGF engages in issue advocacy in New

Mexico.” Id. at 31. For example, it publishes a “Freedom Index,” which

“tracks New Mexico state legislators’ floor votes on bills important to RGF.”

Id. RGF’s publication of the Freedom Index is online, but RGF contends that

it had planned to mail its Freedom Index to New Mexico voters within sixty

days of the November 2020 general election. According to RGF, it did not

follow through with this plan because of the amended CRA’s disclosure

requirements.

The parties dispute the extent of RGF’s concerns about the risks of

donor disclosure. RGF fears that its members, supporters, and donors would

be subject to harassment by “intolerant elements in society” due to the

organization’s controversial positions. Id. at 32. RGF’s president, Paul

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Gessing, declared that he was personally aware of instances where donors

to organizations with similar views were subject to retaliation and

harassment, such as boycotts, online harassment, and social ostracism.

Gessing also declared that donor disclosure requirements would lessen

contribution from individuals, organizations, and corporations. He asserted

that he knows of several donors who would not continue supporting RGF if

it is subject to donor disclosure requirements. 3

C

RGF filed a complaint against the Secretary in December 2019, and

an amended complaint in February 2020, challenging the above disclosure

and disclaimer requirements. In its amended complaint, RGF asserted that

it hoped to send advertisements that would be subject to the amended CRA

before the November 2020 general election. It requested injunctive and

declaratory relief, claiming that requiring it to disclose its members and

supporters violated its rights to free association and speech and that

requiring it to register and disclose its sponsorship of issue advocacy also

violated its free speech rights.

3 Although Gessing made this assertion in his declaration, during his

subsequent deposition he testified that RGF “donors have not stated that they would not donate if their information were public.” Aplt. App. at 72. 8 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 9

In August 2020, RGF moved for a preliminary injunction. The district

court denied the motion, after which the parties proceeded to discovery.

Both parties then filed cross-motions for summary judgment. Making a

facial challenge to the amended CRA, RGF argued the disclosure and

disclaimer requirements were unconstitutional. In its response and cross-

motion, the Secretary argued that RGF lacked standing to bring a facial

challenge because they were not injured by the challenged laws,

alternatively arguing that the law withstands constitutional scrutiny.

The district court granted the Secretary’s motion for summary

judgment, determining RGF lacked Article III standing. RGF timely

appealed and this court reversed in part, holding that RGF has standing to

pursue its challenge to the disclosure requirement but lacks standing to

pursue its challenge to the disclaimer requirement. Rio Grande Found. v.

Oliver, 57 F.4th 1147, 1162, 1165 (10th Cir. 2023). We further concluded

that the case was not moot because “determining the law’s constitutionality

would have a real effect on RGF.” Id. at 1165–66.

Following remand to the district court, both parties again filed cross-

motions for summary judgment on the legality of the amended CRA’s

disclosure requirement. The district court denied RGF’s motion while

granting the Secretary’s motion, reasoning that the disclosure requirements

are substantially related and narrowly tailored to the governmental and

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public interest in knowing who is funding large election-related

advertisements about a candidate or ballot measure shortly before an

election.

RGF timely appeals, challenging the district court’s interpretation of

the CRA, as well as its decision to grant the Secretary summary judgment.

We have jurisdiction over this appeal from 28 U.S.C. § 1291.

II

We review summary judgment decisions de novo and apply the same

standard as the district court. Koel v. Citizens Med. Ctr., Inc., 128 F.4th

1329, 1333 (10th Cir. 2025). Summary judgment is appropriate only “if the

movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A fact is “material” if, under the governing law, it could influence the

outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute over a material fact is “genuine” if a rational jury could

find in favor of the nonmovant on the evidence presented. Id. We must

construe all facts and reasonable inferences in the light most favorable to

the nonmovant. Quaker State Minit-Lube, Inc. v. Fireman’s Fund Ins. Co.,

52 F.3d 1522, 1527 (10th Cir. 1995).

When, as here, the parties filed cross motions for summary judgment,

“we are entitled to assume that no evidence needs to be considered other

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than that filed by the parties, but summary judgment is nevertheless

inappropriate if disputes remain as to material facts.” Atl. Richfield Co. v.

Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). Because

this is a First Amendment challenge, “[o]ur review of the record is more

rigorous.” Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1283 (10th

Cir. 2002); Rio Grande Found., 57 F.4th at 1153.

RGF argues that the disclosure requirements under section 1-19-

26(Q)(3)(c) are facially unconstitutional under a traditional facial analysis

and an overbreadth analysis. For a traditional facial challenge to succeed,

there must be no set of circumstances that exist under which the law would

be valid, or the law must lack “a plainly legitimate sweep.” Americans for

Prosperity Foundation v. Bonta, 594 U.S. 595, 615 (2021) (citation omitted).

Facial challenges are disfavored, but we have said that they can best be

understood as “a challenge to the terms of the [law], not hypothetical

applications.” United States v. Supreme Court of New Mexico, 839 F.3d 888,

917 (10th Cir. 2016) (citation omitted). We do not “conjure up whether or

not there is a hypothetical situation in which application of the [law] might

be valid.” Id. (citation omitted). Likewise, in the First Amendment context,

“a second type of facial challenge” has been recognized, “whereby a law may

be invalidated as overbroad if a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate

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sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010) (internal

quotation marks and citation omitted).

III

RGF’s opposition to the amended CRA includes both a statutory

construction argument and a constitutional challenge. We must first

explore the meaning of the amended CRA and whether the district court

erred in concluding that an advertisement that merely refers to a candidate

or ballot question is made for a political purpose. 4 We next examine whether

the district court erred in granting the Secretary summary judgment,

necessarily also concluding the amended CRA does not unlawfully violate

RGF’s First Amendment rights.

The district court concluded that an advertisement published and

disseminated shortly before an election, that refers to a candidate or ballot

question, has a political purpose under the amended CRA. Aplt. App. at 173.

RGF contends that this interpretation of the statute is flawed, and both

parties agree this is a threshold question that we must decide first because

it frames the constitutional analysis. In other words, because RGF argues

4 RGF does not argue that the CRA has no applicability to its activities. Also, RGF does not bring an as-applied constitutional challenge but instead a facial challenge to one subsection of the amended CRA.

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the CRA is overbroad in its application, we must consider the scope of the

speech that it captures.

RGF focuses its challenge on section 1-19-26(Q)(3)(c), 5 contending

that advertisements covered under this subsection of the definition of an

“independent expenditure” cannot have a political purpose because this

subsection necessarily excludes the advertisements found in the preceding

two subsections. That is, section (3)(c) advertisements do not include those

that are expressly political advertisements (the advertisements that fall

under section (3)(a)), as well as advertisements that are “susceptible to no

other reasonable interpretation than as an appeal to vote for or against” a

particular candidate or ballot question (the advertisements that fall under

section (3)(b)). See N.M. Stat. Ann. § 1-19-26(Q)(3)(a), (b).

Moreover, RGF argues that section (3)(c) sweeps up too much speech,

is overly broad, and fails to achieve its intended objective because the “only

reasonable interpretation of [section (3)(c)] is that it applies to all

[advertisements], regardless of purpose, that simply mention, but do not

advocate and cannot reasonably be interpreted as advocating for or against

a candidate or ballot initiative within [thirty] days before a primary and

[sixty] days before a general election.” Op. Br. at 29. But RGF’s argument

5 For simplicity, we refer to section 1-19-26(Q)(3)(c) as section (3)(c).

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misconstrues section (3)(c) and is contradicted by both the text of the CRA

and binding precedents.

We start with the text of the CRA, which in section (3)(c) provides that

an “independent expenditure” includes paid advertisements that “refer[] to

a clearly identified candidate or ballot question and [are] published and

disseminated” to New Mexico residents shortly before an election. N.M.

Stat. Ann. § 1-19-26(Q)(3)(c). Relevant here, an “expenditure” is a payment

made “for a political purpose,” id. § 1-19-26(P), and a “political purpose”

“means for the purpose of supporting or opposing a ballot question or the

nomination or election of a candidate,” id. § 1-19-26(W). Considering this,

an independent expenditure, by definition, must be made for a political

purpose. There can be no reasonable interpretation otherwise because the

“political purpose” component is embedded within the roots of the definition

of an “independent expenditure.”

To interpret section (3)(c) we must look to the entire definition of

“independent expenditure.” Resolution Trust Corp. v. Love, 36 F.3d 972, 976

(10th Cir. 1994). Again, RGF does not challenge sections (3)(a) and (b), but

they are relevant to our reading and interpretation of section (3)(c) because

we must read this section in light of the statutory scheme as a whole.

Seminole Nursing Home, Inc. v. Comm’r of Internal Revenue, 12 F.4th 1150,

1156 (10th Cir. 2021) (internal citations omitted).

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Section (3)(a) covers express advocacy advertisements, whereas

section (3)(b) covers implied advocacy that “is susceptible to no other

reasonable interpretation” than to have a political purpose (or the

functional equivalent of express advocacy). But there could also be implied

advocacy advertisements that could be reasonably interpreted as having or

not having a political purpose. Even if the advertisement may not be an

obvious or express attempt to influence New Mexico voters by telling them

how to vote, its more subtle political purpose may lie beneath.

Perhaps unwittingly, RGF acknowledges this distinction in its reply

brief. When discussing the definition of “political purpose,” it says the

purpose can be demonstrated by “an [advertisement] that either expressly

advocates for or against a candidate or ballot initiative or can reasonably

be interpreted as advocating for or against a candidate or ballot initiative.”

Reply Br. at 10. Exactly right. Section (3)(c) advertisements are those that

could reasonably be interpreted to advocate for or against a candidate or

ballot initiative, even if they are susceptible to another reasonable

interpretation of their purpose. But there is also more to the section (3)(c)

definition that ensures that any such advertisements are published for a

political purpose.

More fatal to RGF’s statutory construction argument is that it puts a

spotlight only on the first portion of section (3)(c) but ignores or reads out

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of the statute the temporal and distribution components of the definition.

When searching for statutory meaning, we must give effect, if possible, to

every clause or word of the statute. Loughrin v. United States, 573 U.S. 351,

358 (2014).

The district court correctly observed “[t]he timing of the expenditures

on [advertisements] shortly before an election indicate the political purpose

of such [advertisements].” Aplt. App. at 173. Section (3)(c) only covers those

advertisements that, within the relevant thirty-day time frame (before a

primary election) or sixty-day time frame (before a general election), are

“disseminated to the relevant electorate in New Mexico.” N.M. Stat. Ann. §

1-19-26(Q)(3).

Both the temporal and distribution components of section (3)(c),

ignored by RGF, are constitutional guardrails that significantly increase

the likelihood that any speech covered by section 3(c) is made for a political

purpose. Reading the entirety of the definition of “independent expenditure”

together with the definition of “expenditure” as a payment made “for a

political purpose,” id. § 1-19-26(P), we see that these sections work in

harmony to capture only speech that expressly or implicitly is made for a

political purpose. Thus, the temporal and distribution components of (3)(c)

justify a lesser showing that the speech is made for a “political purpose”

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because the timing and geographic area of dissemination are highly

relevant to the reasonable interpretation of the expenditure’s purpose.

RGF also argues that its reading of section (3)(c) prevails because an

independent expenditure is traditionally understood to be express or tacit

political advocacy, citing Citizens United v. Fed. Election Comm’n, 558 U.S.

310, 319 (2010). But RGF misinterprets Supreme Court precedent. In

Citizens United, the Court held that disclosure requirements are not limited

to expressly political speech or its functional equivalent. See id. at 369

(“[W]e reject Citizens United’s contention that the disclosure requirements

must be limited to speech that is the functional equivalent of express

advocacy.”). That is because a disclosure law “is a less restrictive alternative

to more comprehensive regulations of speech.” Id.

Citing Citizens for Responsible Gov’t State Pol. Action Comm. v.

Davidson, 236 F.3d 1174, 1194 (10th Cir. 2000), RGF insists that “the First

Amendment shields communications that do not advocate the election or

defeat of a candidate.” Op. Br. at 27. But if there is any tension between our

decision in Davidson and Citizens United (decided ten years after

Davidson), the latter prevails. In this case, we must and do faithfully apply

Citizens United’s rejection of the argument that only express advocacy, or

its functional equivalent can be subject to disclosure requirements. See

Citizens United, 558 U.S. at 369.

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Although express and implicit political advocacy are protected by the

First Amendment, this protection is not so absolute as to escape all state

regulation. Independence Institute v. Williams, 812 F.3d 787, 791 (10th Cir.

2016) (Supreme Court precedent permits disclosure requirements for

certain advertisements prior to an election even if they “make no obvious

reference to a campaign.”). 6 Applying this precedent to the text of the CRA,

the district court correctly concluded that advertisements under section

(3)(c) have a political purpose. The district court determined that an

advertisement “may refer to a candidate or ballot question, without being

so overt as to constitute express advocacy or its functional equivalent, but

still have been published for the purpose of supporting or opposing a ballot

question or the nomination or election of a candidate.” Aplt. App. at 173. It

highlighted that such advertisements are disseminated shortly before

elections and such timing implies a political purpose.

We agree with the district court that section (3)(c) properly carves out

a third category of independent expenditures that are spent on

6 See also Free Speech v. Fed. Election Comm’n, 720 F.3d 788, 795 (10th Cir. 2013); Gaspee Project v. Mederos, 13 F.4th 79, 86 (1st Cir. 2021); Delaware Strong Fams. v. Att’y Gen. of Delaware, 793 F.3d 304, 308 (3d Cir. 2015); Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 484 (7th Cir. 2012); Hum. Life of Washington, Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010).

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advertisements published for a political purpose. It is not as broad as RGF

claims it to be. We again emphasize, however, that advertisements must be

reasonably interpreted as advocacy (even if another reasonable mind would

conclude otherwise) for those advertisements to properly fall within the

purview of section (3)(c), whether through their timing or otherwise. Given

this interpretation, we now move to RGF’s constitutional challenge to the

section (3)(c) of the CRA.

Given RGF’s facial challenge, we must next decide whether section

(3)(c) survives constitutional scrutiny. 7 Neither party disputes that First

Amendment rights are implicated by section (3)(c). Political speech is at the

“highest rung of the hierarchy of First Amendment values.” NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (citation omitted). Also,

the Supreme Court has “long understood as implicit in the right to engage

in activities protected by the First Amendment a corresponding right to

associate with others.” Bonta, 594 U.S. at 606 (quoting Roberts v. United

7 RGF first argued in its briefs that we must apply strict scrutiny to

this law. However, RGF conceded during oral argument that an exacting scrutiny applies. Oral Arg. at 18:47–19:50. It presents a strict scrutiny argument purely for preservation purposes, while acknowledging that binding authority requires the application of exacting scrutiny. See Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 607 (2021).

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States Jaycees, 468 U.S. 609, 622 (1984)). The Court has explained that

“compelled disclosure of affiliation with groups engaged in advocacy” may

constitute “a restraint on freedom of association” protected by the First

Amendment. Id. (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S.

449, 462 (1958)).

Exacting scrutiny “applies to First Amendment challenges to

compelled disclosure.” Id. at 607; see also Citizens United, 558 U.S. at 366–

67 (applying the exacting scrutiny standard to disclosure laws). Exacting

scrutiny requires “a substantial relation between the disclosure

requirement and a sufficiently important governmental interest.” Id.

(citation omitted).

To withstand exacting scrutiny, “the strength of the governmental

interest must reflect the seriousness of the actual burden on First

Amendment rights.” Id. (citation omitted). “Such scrutiny . . . is appropriate

given the ‘deterrent effect on the exercise of First Amendment rights’ that

arises as an ‘inevitable result of the government’s conduct in requiring

disclosure.’” Id. (citation omitted). And although “exacting scrutiny does not

require that disclosure regimes be the least restrictive means of achieving

their ends, it does require that they be narrowly tailored to the

government’s asserted interest.” Id. at 608.

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We start with New Mexico’s interest in requiring disclosures of the

donors who make qualifying independent expenditures. RGF concedes that

there is an important governmental interest in the public knowing who is

advocating for or against candidates and ballot questions. Op. Br. at 38. It

nonetheless argues that advertisements under section (3)(c) do not advocate

for or against candidates or ballot questions, so disclosures would tell

“voters absolutely nothing.” Id. at 39. Which is to say, RGF contends that

section (3)(c) only regulates speech that does not amount to election-related

advocacy. But as we have already established, section (3)(c) covers only

those advertisements that can reasonably be interpreted to have a political

purpose. See N.M. Stat. Ann. § 1-19-26(P) (defining “expenditure” as

payments made “for a political purpose”). Therefore, disclosure of these

expenditures would provide the public with information about who is

advocating for or against a candidate or ballot question. See id. § 1-19-26(W)

(defining a “political purpose” as “supporting or opposing a ballot question

or the nomination or election of a candidate”).

RGF publishes and disseminates to New Mexico voters a “Freedom

Index,” which tracks New Mexico state legislators’ floor votes on bills

important to RGF, and which RGF has described as a “report card.” Aplt.

App. at 111. The Freedom Index gives numerical scores to each legislator.

Legislators who supported legislation RGF deems favorable receive higher

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scores in green, while those who did not support this legislation receive

lower scores in red.

At oral argument, RGF asserted that such color-coding is

“meaningless.” Oral Arg. at 8:00–8:30. We cannot agree, and no New Mexico

voter would be so easily fooled. There is no doubt that RGF intends for the

“green” to signify a good or favorable candidate, while red signifies a bad or

unfavorable candidate. After all, in this country we are hard-wired to know

that green means go, and red means stop. The Freedom Index then

combines the color coding with the numerical scores on a “report card,”

which signal which legislators pass, and which legislators fail. 8 The

combination of the two, color-coding and a numerical “report card,” reflects

8 Given this conclusion, the Freedom Index would likely fall under section (3)(b) because it “is susceptible to no other reasonable interpretation than an appeal to vote for or against a clearly identified candidate[.]” N.M. Stat. Ann. § 1-19-26(Q)(3)(b). However, the Secretary conceded that it may fall under section (3)(c). Given that this distinction does not change the outcome of this appeal, we accept this concession and consider the Freedom Index as a section (3)(c) advertisement.

22 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 23

an obvious intent by RGF to influence voters to vote for and against specific

legislators. 9

RGF attempts to create a parallel to McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334 (1995), where the Supreme Court held that “Ohio’s

informational interest [was] plainly insufficient to support the

constitutionality of its disclosure requirement” because merely “providing

voters with additional relevant information” is inadequate, and “in the case

of a handbill written by a private citizen who is not known to the recipient,

the name and address of the author add little, if anything, to the reader’s

ability to evaluate the document’s message.” Id. at 348–49. As the district

court noted, however, McIntyre is easily distinguishable from the case at

hand, which involves the disclosure of relatively large expenditures meant

to influence elections on a wide scale, not the in-person distribution of

anonymous handbills. See Citizens United, 558 U.S. at 371 (stating

9 Responding to a hypothetical during oral argument, the Secretary

pointed out that if the Freedom Index contained neither the numerical scores nor the color-coding, then it may not be captured under the definition of an “independent expenditure” but may instead be considered a “nonpartisan voter guide.” N.M. Stat. Ann. § 1-19-26(A)(4). The nonpartisan voter guides are exempted from the definition of an “advertisement” and do not trigger the disclosure requirement. Id. However, neither party suggests the RGF Freedom Index falls under this exemption.

23 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 24

expenditure disclosure “enables the electorate to make informed decisions

and give proper weight to different speakers and messages”); First Nat.

Bank of Boston v. Bellotti, 435 U.S. 765, 792 n.32 (1978) (“Identification of

the source of advertising may be required as a means of disclosure, so that

the people will be able to evaluate the arguments to which they are being

subjected.”).

The Secretary explains that the state has an informational interest in

the disclosure of donors spending large amounts to fund advertisements

covered by section (3)(c). See Wyoming Gun Owners v. Gray, 83 F.4th 1224,

1244 (10th Cir. 2023) (“The Supreme Court has long accepted the

informational interest as an important one.”). In support, the Secretary

again highlights the timing of such advertisements because they are

published and disseminated shortly before elections. See Citizens United,

558 U.S. at 369 (“[T]he public has an interest in knowing who is speaking

about a candidate shortly before an election.”); Gaspee Project v. Mederos,

13 F.4th 79, 93 (1st Cir. 2021) (“The fact that the [Citizens United] Court

did not adopt the McIntyre framework in the election-law context speaks

eloquently to its inapplicability.”). As discussed, independent expenditures

under section (3)(c) are inherently made for a political purpose by their very

definition. See N.M. Stat. Ann. § 1-19-26(P), (W). And although section (3)(c)

may not implicate the most obvious, express form of political advocacy, it

24 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 25

captures its functional equivalent or implicit political advocacy when it

would reasonably be interpreted as having this purpose.

Importantly, in Independence Institute we explained that 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.” 812 F.3d at 796. We further noted

that “the Court in Citizens United was nearly unanimous in applying . . .

disclosure requirements both to Citizens United’s express advocacy and to

[advertisements] that did not take a position on a candidacy.” Id.; 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.”). Simply put, because we deem advertisements under

section (3)(c) to be made for a political purpose, we have no trouble

concluding that New Mexico has an important governmental interest to give

25 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 26

the electorate useful information about who is paying for these

advertisements. 10

We next look to whether the Secretary has shown a substantial

relationship between the CRA’s burden on speech and association and the

interest described above. “[T]he strength of the governmental interest must

reflect the seriousness of the actual burden on First Amendment rights.”

John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010) (quoting Davis v. Fed.

Election Comm’n, 554 U.S. 724, 744 (2008)). The Secretary argues the

government’s interest in disclosure is “critical,” and notes that several

limitations were imposed in the amended CRA to tighten the regulation and

ensure its relation to the important interest of New Mexico. Resp Br. at 34

(quoting Nat’l Assn. for Gun Rights, Inc. v. Mangan, 933 F.3d 1102, 1114

(9th Cir. 2019)).

10 Section (3)(c) covers both candidates and ballot questions. We have

previously said “the justifications for requiring disclosures in a candidate election may not apply, or may not apply with as much force, to a ballot initiative.” Sampson v. Buescher, 625 F.3d 1247, 1249 (10th Cir. 2010). Regardless of this distinction in the case law, RGF does not argue that its speech or other activities are limited to (or even implicate) ballot questions, even though it brings a facial challenge. And because RGF does not parse this distinction to make this argument, we decline to do so on its behalf. State v. EPA, 989 F.3d 874, 885 (10th Cir. 2021).

26 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 27

Generally, requiring the disclosure of donor information related to

advertisements intended to influence voters is important to the state’s

“interest in promoting transparency and discouraging circumvention of its

electioneering laws.” Mangan, 933 F.3d at 1114. RGF argues that the

district court erred in “simply accept[ing]” the Secretary’s argument

“because it applies to [advertisements] that mention a candidate or ballot

initiative.” Op. Br. at 51. Here again, RGF’s argument is dependent upon

its interpretation of the breadth of section (3)(c), which we reject. Rather,

given the best textual interpretation of section (3)(c), the relationship

between the state’s informational interest in election advocacy

communications and the disclosures is somewhat self-evident.

Moreover, the Secretary correctly highlights the limitations placed on

the CRA’s disclosure requirements. Expenditures that do not fall within

certain monetary, temporal, and geographic ranges are not required to be

disclosed. On top of this, the Secretary also highlights the CRA’s opt-out

provision, which provides even more flexibility for potential donors. See

N.M. Stat. Ann. § 1-19-27.3(D)(2). The Secretary explains that the CRA

focuses on “large donors who do not opt out of supporting advertisements

and who support expenditures designed to influence the relevant electorate,

within a short period of time prior to an election.” Resp. Br. at 35; see also

Independence Institute, 812 F.3d at 792–93; cf. Sampson v. Buescher, 625

27 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 28

F.3d 1247, 1259 (10th Cir. 2010) (recognizing that the public’s interest is

“significantly attenuated when the organization is concerned with only a

single ballot issue and when the contributions and expenditures are

slight”). In all, the Secretary has shown that the CRA disclosure

requirement is substantially related to an important government interest.

Lastly, we consider whether the CRA is narrowly tailored enough to

withstand exacting scrutiny. RGF argues, again, that section (3)(c) “casts

too wide a net and covers speech that is not relevant to the government’s

informational interest.” Reply Br. at 25. It also contends that donors whose

funds go to such advertisements will not “understand” the CRA’s opt-out

provision or will require donors to “micromanage their donations.” Op. Br.

at 46–47. Additionally, RGF argues that “social science shows that donor

information is substantially less useful information for voters than party

affiliation and major endorsements.” Id. at 55. These arguments fail to

persuade us.

To demonstrate narrow tailoring, the Secretary must establish its

need for the disclosure provisions in light of any less intrusive alternatives.

Wyoming Gun Owners, 83 F.4th at 1247. The Secretary again points to the

following: (1) temporal limitations, (2) monetary thresholds, (3)

earmarking, (4) the opt-out provision, and (5) geographic range. The CRA

28 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 29

limits disclosure requirements to relatively large independent expenditures

made shortly before an election, targeting New Mexico voters, and it

provides an opt-out for the donors. As the Secretary points out, the CRA

requires the disclosure of major funders of significant election

advertisements, “while closing loopholes that would leave the [CRA]

toothless.” Resp. Br. at 43. The Secretary contends that the law seeks to

disclose who is attempting to influence elections and that the law is properly

confined using narrow tailoring through several means. We agree.

RGF argues, and the dissent concludes, that this degree of narrow

tailoring is insufficient to survive exacting scrutiny. The dissent proposes

further limiting measures that New Mexico could have taken, dissent at 8,

but “exacting scrutiny does not require that disclosure regimes be the least

restrictive means of achieving their ends[.]” Bonta, 594 U.S. at 608; see also

McCutcheon v. Fed. Election Comm'n, 572 U.S. 185, 218 (2014) (“[W]hen the

Court is not applying strict scrutiny, we still require a fit that is not

necessarily perfect, but reasonable[.]” (internal quotation marks omitted)).

The dissent states that (3)(c) advertisements do “not provide voters

with quality information about who is commenting on a candidate or ballot

question during election season” because it applies “even to general fund

donors.” Dissent at 7. Additionally, the dissent concludes the CRA amounts

to an overbroad inclusion of donors who do not support political advocacy

29 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 30

but may donate to campaigns that “endeavor only to inform the electorate

by disseminating information about candidates and ballot questions[.]” Id.

at 9.

However, it is reasonable to infer that people who make larger

donations to a political committee, such as RGF, are people who agree with

its point of view and want to support its mission to promote that point of

view to New Mexico’s citizens. Again, the purpose of (3)(c) is to notify the

public who is financing a political advertisement prior to an election, which

supports “the public’s interest ‘in knowing who is speaking about a

candidate shortly before an election.’” Independence Institute, 812 F.3d at

796 (quoting Citizens United, 558 U.S. at 369).

Also, if the political committee’s endeavor is truly just to inform, then

the advertisement would not have been made for a “political purpose” and

would not count as an “independent expenditure.” See N.M. Stat. Ann.

§ 1-19-26(P), (W). While some political advertisements captured under

section (3)(c) may cause voters to have different, but reasonable,

interpretations of whether an advertisement is for a political purpose, large

donors giving to a political committee, right before an election, are certain

to be aware of the advertisement’s political purpose. To say nothing of the

opt-out provision, wherein these same large donors have the option to avoid

disclosure by making their donations limited to the general fund by

30 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 31

requesting in writing that their donation not be used to fund independent

expenditures (made for a political purpose). Id. at § 1-19-2703(D)(2).

By erecting guardrails and an opt-out, the CRA is narrowed to only

capture larger expenditures that are express advocacy or made at a

particular time and to a certain audience that make them the functional

equivalent. RGF’s arguments about the wide net, donor confusion, and

social science do not defeat the narrowness of the CRA’s structure. The CRA

is properly, narrowly tailored and thus survives the application of exacting

scrutiny.

As a final matter, RGF filed with the district court a declaration from

its president, Paul Gessing, which generally describes how and why the

CRA may chill potential donors who fear retaliation if they must disclose

their contributions and associations. The district court analyzed the

evidence of chilled speech when examining New Mexico’s informational

interest in requiring disclosure. In other words, at the first analytical step

during the application of exacting scrutiny.

RGF insists this was error because, relying on Bonta, it argues the

burden of the chilled speech “outweighs the strength of the government’s

interest only where a disclosure requirement has been found to be narrowly

tailored.” Op. Br. at 56 (citing Bonta, 594 U.S. at 611, 617). In other words,

31 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 32

a court must consider the burden only after it concludes that a disclosure

law is narrowly tailored at the final step of the exacting scrutiny analysis.

The Secretary disagrees and argues that Bonta “did not impose a particular

order of operations,” and “the district court appropriately structured its

opinion.” Resp. Br. at 35–36.

Bonta says, “that a reasonable assessment of the burdens imposed by

disclosure should begin with an understanding of the extent to which the

burdens are unnecessary, and that requires narrow tailoring.” 594 U.S. at

611. It thus implicitly invokes the government’s interest (after all, if there

is no interest then the burdens would be unnecessary) and it is the interest

analysis which leads to a narrow tailoring requirement.

So far, we have assessed the CRA by putting the Secretary to the

burden of demonstrating how the CRA withstands exacting scrutiny. But

Bonta also discussed a potential burden on a plaintiff who brings a facial

challenge to show “that donors to a substantial number of organizations will

be subjected to harassment and reprisals.” Id. at 617. In this context,

“plaintiffs may be required to bear this evidentiary burden where the

challenged regime is narrowly tailored to an important government

interest.” Id. (emphasis added).

This Bonta language is most certainly obiter dictum and responsive

to an argument made by the dissent in that case. However, we are “bound

32 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 33

by Supreme Court dicta almost as firmly as by the Courts’ outright holdings,

particularly when the dicta is recent and not enfeebled by later statements.”

Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015) (quoting

United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007); Surefoot LC

v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008)).

Because we have found the CRA is narrowly tailored to an important

government interest, RGF may be required to bear this evidentiary burden

because it brings a facial challenge. And whether RGF’s evidence defeats

New Mexico’s informational interest in requiring donor disclosure (as the

district court analyzed) or otherwise dismantles our completed exacting

scrutiny analysis is of no concern in this appeal. Either way, the district

court was correct at some point to balance RGF’s evidence of chilled speech

against the legislative interests invoked by the CRA.

More to the point, Gessing’s declaration does not establish a present

harm to defeat the state’s informational interest, nor its narrowly-tailored

disclosure law. Rather, his concerns were untethered from concrete facts

that would permit a court to find “a reasonable probability that [the

disclosure requirements] will subject them [donors] to threats, harassment,

or reprisals.” Buckley v. Valeo, 424 U.S. 1, 74 (1976). Indeed, RGF admitted

that it was not aware of any harassment or retaliation of its employees or

donors in its over twenty-year history. As the district court found, even

33 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 34

viewing the evidence in RGF’s favor, the Gessing declaration was simply

insufficient to establish a reasonable probability that the compelled

disclosures will subject RGF’s donors to threats, harassment, or reprisals

or otherwise chill donors from making contributions. Which is to say, the

record here simply does not support the chilling effect professed by RGF. 11

IV

Because the Secretary has demonstrated a substantial relation

between the CRA’s disclosure requirement and a sufficiently important

governmental interest, as well as narrow tailoring, section (3)(c) withstands

exacting scrutiny. Accordingly, we AFFIRM the district court’s order

11 In contrast to the district court’s findings, the dissent takes the Gessing declaration to be clear evidence that speech will be chilled because the real-world effects of the disclosure requirements “demonstrate[] the reality of those burdens.” Dissent at 3, n.2. But Gessing’s speculation and conclusory opinions in his declaration do not support this finding. For example, in the declaration Gessing explained his and RGF’s belief that if the donors are disclosed, then they “will be less likely to continue to contribute to [RGF’s] mission. . . . I know that several donors who support RGF would not continue to do so if they were subject to disclosure.” Aplt. App. at 32-33. But thereafter, Gessing contradicted his own declaration when he testified in his deposition that, “although donors have told RGF that they fear the disclosure of their identify, donors have not stated that they would not donate if their information were made public.” Id. at 72. The record of chill here is scant and speculative. See Center for Individual Freedom v. Madigan, 697 F.3d 464, 482-83 (7th Cir. 2012). 34 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 35

granting summary judgment to the Secretary and denying summary

judgment for RGF. 12

12 As a final matter, we consider Doctor Randy Elf’s motion seeking

leave to file an amicus brief. Such motions are granted when the “briefing is relevant to the disposition of the case.” New Mexico Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs., 994 F.3d 1166, 1176 (10th Cir. 2021) (citing Federal Rule of Appellate Procedure 29). The briefing here fails to comply with Federal Rule of Appellate Procedure 29 because it is not useful to the resolution of this case. Accordingly, we deny the motion.

35 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 36

24-2070, Rio Grande Foundation v. Oliver HARTZ, J., concurring I join the opinion of Judge Federico in full because I believe it properly follows

controlling precedent. I write separately, however, because I am uncomfortable with the

scope of that precedent.

It seems to me that the infringements on free speech imposed by disclosure

requirements for expenditures in support of or opposed to ballot initiatives are not only

unjustified but are harmful to the public interest. The “reason” to require disclosure is

presumably to inform the electorate of who supports or opposes the initiative so that

voters can make a better choice. As one circuit court has put it, “[T]he relevant

informational goal is to inform voters as to who backs or opposes a given initiative

financially, so that the voters will have a pretty good idea of who stands to benefit from

the legislation.” Canyon Ferry Baptist Church v. Unsworth, 556 F.3d 1021, 1033 (9th Cir.

2009) (internal quotation marks omitted).

But experience demonstrates that the most likely effect of disclosures is to

facilitate ad hominem arguments. As the Supreme Court recognized 30 years ago when it

protected anonymous leafleting regarding a proposed tax levy: “Anonymity . . . 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 Comm’n, 514 U.S. 334, 342 (1995).

Why else did the authors of the Federalist Papers publish anonymously? Each of

the authors would have brought some baggage to the debate. They preferred that voters Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 37

address their arguments on the merits. Yet despite nondisclosure of the authors’ identities,

the nation somehow has survived. Again quoting McIntyre:

Don't underestimate the common man [or woman]. People are intelligent enough to evaluate the source of anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is responsible, what is valuable, and what is truth.

514 U.S. at 348 n.11 (internal quotation marks omitted).

Anyone who is distressed by the political discourse in this country, which

often amounts to no more than identifying which public figures support (or

oppose) a proposition and choosing sides accordingly, may wish to reconsider the

wisdom of laws mandating disclosure of expenditures on ballot initiatives.

2 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 38

No. 24-2070, Rio Grande Foundation v. Oliver EID, J., dissenting.

Under New Mexico’s Campaign Reporting Act (the “CRA”), political

committees must disclose the names and addresses of certain donors if the funds from

those donors are used to pay for advertisements that mention a candidate or ballot

question in the weeks preceding an election. See N.M. Stat. Ann. § 1-19-26(Q)(3)(c)

(“Section (3)(c)”). Once disclosed, the donors’ names and addresses are published on

an official and “easily searchable” government website. Id. § 1-19-32(C). With few

exceptions, the CRA leaves political committees who wish to distribute information

about candidates or ballot questions during election season with four choices: They

may (1) adhere to the laws, and risk losing donors who fear retaliation by intolerant

members of society; (2) refuse to make the disclosures, and risk fines or

imprisonment; (3) significantly alter their speech to avoid triggering the disclosure

requirements; or (4) stop speaking entirely.

Viewing the CRA through rose-colored glasses, the majority concludes that

Section (3)(c) satisfies the stringent “exacting” scrutiny standard set forth in

Americans for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021). I disagree. In

my view, Section (3)(c) fails at the narrow-tailoring step of the analysis because it

casts too wide a net: It unnecessarily burdens core political speech, ignores serious

concerns of retaliation against donors, and disproportionately harms those who hold

unpopular beliefs. This far exceeds the bounds of permissible First Amendment Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 39

regulation and overlooks less restrictive alternatives for furthering the government’s

interest in informing the electorate. I respectfully dissent.

I.

The First Amendment prohibits the government from “abridging the freedom

of speech, or of the press; or the right of the people peaceably to assemble.” U.S.

Const. amend. I. Implicit in these rights is “a corresponding right to associate with

others.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). Protected

association promotes the advancement of “a wide variety of political, social,

economic, educational, religious, and cultural ends, and is especially important in

preserving political and cultural diversity and in shielding dissident expression from

suppression by the majority.” Ams. for Prosperity Found., 594 U.S. at 606 (citation

modified).

Disclosure laws threaten First Amendment freedoms in several ways. To

begin, they decrease the efficacy of advocacy by deterring the formation of groups.

See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (“Effective

advocacy of both public and private points of view, particularly controversial ones, is

undeniably enhanced by group association.”). They endanger dissenting opinions.

Id. at 462 (“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.”). And in some cases, they lead to significant

retaliation against donors—including economic reprisal, loss of employment, and

threats of physical violence or death. Citizens United v. FEC, 558 U.S. 310, 481–82

2 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 40

(2010) (Thomas, J., concurring in part and dissenting in part) (discussing retaliation

against supporters of a 2008 California ballot measure aimed at amending the state

constitution to recognize only heterosexual marriages). 1

These real-world effects undoubtedly chill speech by disincentivizing political

activity that would trigger disclosure requirements. 2 To account for the seriousness

of these burdens, the Supreme Court has instructed us to review disclosure

requirements under “exacting” scrutiny. 3 See Citizens United, 558 U.S. at 366. The

1 See generally No on E v. Chiu, 85 F.4th 493, 523 (9th Cir. 2023) (Van Dyke, J., dissenting from denial of rehearing en banc) (“When only a minority of the community supports an institution . . . the public disclosure of a person’s support for that institution may often invite reprisal. In contrast, organizations and contributors that are culturally popular at a given time often do not risk similar harm by the surrounding community knowing of the association. The harms of compelled disclosure inevitably fall unevenly on the unpopular—that is, precisely those groups most in need of First Amendment protection.”). 2 This case demonstrates the reality of those burdens. At the district court, Rio Grande Foundation’s (“RGF”) president provided sworn testimony that he was “personally aware of instances where donors to organizations with similar views were subject to retaliation and harassment, including boycotts, online harassment, and social ostracism.” App’x at 179. These threats—fueled by disclosure laws— inevitably chill speech. As RGF’s president explained, “potential donors will be less likely to contribute to [RGF’s] mission if their identities are disclosed,” and “several [present] donors . . . [will] not continue to [donate] if they [are] subject to disclosure.” Id.; see id. at 153 (discussing RGF’s decision not to mail certain content because of New Mexico’s disclosure laws). 3 In recent years, several Supreme Court justices have expressed doubt that exacting scrutiny is the proper standard of review for compelled disclosure laws. Ams. for Prosperity Found., 594 U.S. at 620 (Thomas, J., concurring in part and concurring in the judgment) (“Laws directly burdening the right to associate anonymously, including compelled disclosure laws, should be subject to the same [strict] scrutiny as laws directly burdening other First Amendment rights.”); see id. at 622–23 (Alito, J., concurring in part and concurring in the judgment) (suggesting that strict scrutiny may apply to some disclosure requirements but declining to take a position because the disclosure requirements at issue failed under either standard). I share these doubts. But “[b]ecause the Court [has] not overturn[ed] its precedent 3 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 41

government bears the burden to show that a disclosure regime survives exacting

scrutiny. Wyo. Gun Owners v. Gray, 83 F.4th 1224, 1247 (10th Cir. 2023). “If the

government fails to make that showing, it cannot prevail.” Id. (quotation omitted).

Understanding—and then applying—any level of First Amendment scrutiny is

often easier said than done. See Club Madonna Inc. v. City of Miami Beach, 42 F.4th

1231, 1261–63 (11th Cir. 2022) (Newsom, J., concurring in part and concurring in the

judgment) (discussing the “‘exhausting’ doctrinal bloat” present in First Amendment

scrutiny jurisprudence (quotation omitted)). The exacting scrutiny standard is no

exception. For some time, we understood exacting scrutiny in compelled disclosure

cases to require “a substantial relation between the disclosure requirement and a

sufficiently important governmental interest.” Indep. Inst. v. Williams, 812 F.3d 787,

797 (10th Cir. 2016) (quoting Citizens United, 558 U.S. at 366–67). But recently, the

Supreme Court tightened our review of disclosure laws. It held that, to survive

exacting scrutiny, a disclosure regime must also “be narrowly tailored to the interest

it promotes, even if it is not the least restrictive means of achieving that end.” 4 Ams.

for Prosperity Found., 594 U.S. at 610; see id. at 609 (“[A] substantial relation to an

applying exacting scrutiny to [ ] disclosure requirements, [I] apply exacting scrutiny here.” Wyo. Gun Owners v. Gray, 83 F.4th 1224, 1244 (10th Cir. 2023). 4 Although Americans for Prosperity Foundation was a split opinion, a majority of the Court agreed that exacting scrutiny requires narrow tailoring. See 594 U.S. at 608 (plurality opinion); id. at 620 (Thomas, J., concurring in part and concurring in the judgment); id. at 622–23 (Alito, J., concurring in part and concurring in the judgment). 4 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 42

important interest is not enough to save a disclosure regime that is insufficiently

tailored.”).

Although the addition of a narrow-tailoring requirement does not dissolve the

doctrinal haze, one thing is certain: Narrow tailoring gives the exacting scrutiny

standard “real teeth.” Id. at 622 (Alito, J., concurring in part and concurring in the

judgment). Accordingly, we must be vigilant in ensuring that disclosure laws not

only advance an important interest, but are also “proportion[ate] to the interest

served.” Id. at 609 (quotation omitted). Our thorough review is essential “where

First Amendment activity is chilled—even if indirectly—‘because First Amendment

freedoms need breathing space to survive.’” Id. (quoting NAACP v. Button, 371 U.S.

415, 433 (1963)).

II.

Applying these principles here, Section (3)(c) cannot withstand exacting

scrutiny. Even assuming the disclosure requirement for Section (3)(c) advertisements

bears a substantial relation to a sufficiently important informational interest, New

Mexico has not shown the disclosure requirement is narrowly tailored to that interest.

Accordingly, I would conclude that Section (3)(c) is facially unconstitutional. 5

At the outset, I recognize that New Mexico has taken at least some measures to

tailor its disclosure laws to serve the public’s informational interest. For example,

5 Because RGF limits its challenge to Section (3)(c), I do not address the constitutional merits of the CRA’s remaining disclosure requirements for independent expenditures. See N.M. Stat. Ann. § 1-19-26(Q)(3)(a), (b). 5 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 43

Section (3)(c) includes temporal limitations: Disclosure is required only where the

advertisement is disseminated “to the relevant electorate [ ] within thirty days before

the primary election or sixty days before the general election at which the candidate

or question is on the ballot.” N.M. Stat. Ann. § 1-19-26(Q)(3)(c). The CRA also sets

monetary thresholds before disclosure is required. See id. § 1-19-27.3(D). And it

allows some donors to opt out of the disclosure requirements if they request “in

writing” that their “contribution not be used to fund independent or coordinated

expenditures or to make contributions to a candidate, campaign committee or

political committee.” Id. § 1-19-27.3(D)(2).

But the narrow-tailoring inquiry does not ask whether the government has

“made some effort” to limit the scope of a disclosure regime. Our precedents

demand more: As explained, government regulation of First Amendment rights must

be “proportion[ate] to the interest served.” Ams. for Prosperity Found., 594 U.S. at

609 (quotation omitted); id. (“In the First Amendment context, fit matters.”

(quotation omitted)); see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348

(1995) (“The simple interest in providing voters with additional relevant information

does not justify a state requirement that a writer make statements or disclosures she

would otherwise omit.”). Further, “[b]eyond proving a balanced relationship between

the disclosure scheme’s burdens and the government’s interests, the government must

‘demonstrate its need’ for the disclosure regime ‘in light of any less intrusive

alternatives.’” Wyo. Gun Owners, 83 F.4th at 1247 (quoting Ams. for Prosperity

Found., 594 U.S. at 614). And here, even accounting for New Mexico’s tailoring

6 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 44

efforts, there is a “dramatic mismatch” between the informational interest and “the

disclosure regime that [New Mexico] has implemented in service of that end.” Ams.

for Prosperity Found., 594 U.S. at 612.

To begin, the disclosure requirement for advertisements under Section (3)(c)

does not provide voters with quality information about who is commenting on a

candidate or ballot question during election season. Section (3)(c) applies even to

general-fund donors—many of whom support “the totality of [an] organization’s

activities,” but may not endorse a specific advertisement. Aplt. Br. at 45. Yet the

CRA subjects these donors to the same disclosure requirements as those who directly

fund a specific advertisement. And because the CRA draws no distinctions, the

electorate has no way to differentiate between general and specific donors.

This result does not comport with New Mexico’s interest in informing the

electorate. Consider a situation where an organization spends $5,000 on an

advertisement during election season that merely describes, in simple terms, a ballot

question. If a single donor contributed $4,500 with instructions to produce the

Section (3)(c) advertisement, and twenty other donors each contributed $5,000 to the

organization’s general fund during election season, the CRA would require the

organization to disclose for publication the names and addresses of all twenty-one

donors, as well as the amounts of their contributions. A member of the electorate

who wishes to identify the source of the message could not differentiate between the

twenty-one names; by numbers alone, she would overestimate the influence of the

7 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 45

twenty donors and underestimate the influence of the single donor on the

advertisement. 6

This mismatch casts doubt on New Mexico’s claim that the regime is narrowly

tailored to serve the state’s interest in informing the electorate. But perhaps more

fatal to New Mexico’s position is that there is a clear alternative means of furthering

that interest. Rather than imposing the broad-sweeping disclosure requirement for

advertisements under Section (3)(c), New Mexico could have outlined a special

earmarking system for those advertisements in the CRA. As we explained in

Wyoming Gun Owners, disclosure laws that are limited to “donors who have

specifically earmarked their contributions” for advertisements “help[] render [a]

statute’s scope sufficiently tailored.” 83 F.4th at 1248 (citation modified). This

principle has intuitive appeal: An earmarking system “directly links speaker to

content,” ensuring that voters truly understand the source of election-related content.

Id.

New Mexico does not explain why this alternative—which not only burdens

less speech, but also “better serves the state’s informational interest,” id.—is beyond

The CRA’s structure may also result in forced association between general- 6

fund donors and ad-specific donors. As explained, some general-fund donors may support “the totality of [an] organization’s activities,” Aplt. Br. at 45, but may not want their names and addresses published alongside a donor who has earmarked her funds for independent expenditures. Cf. Chiu, 85 F.4th at 523–24 (Van Dyke, J., dissenting from denial of rehearing en banc) (“The friends of your friend may want nothing to do with you—and vice versa.”). This raises additional constitutional concerns. See generally Cal. Democratic Party v. Jones, 530 U.S. 567, 581–82 (2000) (noting the “heav[y] burden” that forced association imposes on associational freedom). 8 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 46

its reach. 7 Although we do not categorically require legislatures to include an

earmarking provision to survive narrow tailoring in the disclosure context, see id. at

1249 n.8, New Mexico’s other efforts at tailoring the CRA fall short.

The opt-out provisions, for example, cannot save the disclosure requirement

for Section (3)(c) advertisements. Indeed, because some organizations do not use

their funds for express advocacy or its functional equivalent (and instead endeavor

only to inform the electorate by disseminating information about candidates and

ballot questions), donors may not understand the need to opt out of advertisements

they do not recognize as advocacy. 8 See generally Button, 371 U.S. at 438

(“Precision of regulation must be the touchstone in an area so closely touching our

most precious freedoms.”); Wyo. Gun Owners, 83 F.4th at 1247 (concluding a

Wyoming statute’s disclosure regime was not narrowly tailored in part because it

“burden[ed] an advocacy group with muddling through ambiguous statutory text that

fails to offer guidance on compliance”). And though the monetary thresholds and

timing requirements tighten the scope of the disclosure requirement for

7 In fact, New Mexico already has a limited earmarking system in place. The CRA requires disclosure where a donation exceeding $200 is “earmarked or made in response to a solicitation to fund independent expenditures.” N.M. Stat. Ann. § 1-19-27.3(C). But New Mexico does not explain why it could not limit its other disclosure requirements to donors who have specifically earmarked their contributions. 8 The unpredictability surrounding the breadth of Section (3)(c) raises significant constitutional concerns. Indeed, as the majority explains, Section (3)(c) captures advertisements that present competing but reasonable interpretations and have a “more subtle political purpose.” Maj. Op. at 15. This cloud of uncertainty— which covers a significant amount of speech—is not the “[p]recision of regulation” the First Amendment requires. Button, 371 U.S. at 438. 9 Appellate Case: 24-2070 Document: 54-1 Date Filed: 09/09/2025 Page: 47

advertisements under Section (3)(c), they do not “‘demonstrate [New Mexico’s] need’

for the disclosure regime ‘in light of [the] less intrusive alternative[]’” of an

earmarking system. Wyo. Gun Owners, 83 F.4th at 1247 (quoting Ams. for Prosperity

Found., 594 U.S. at 614).

The lack of tailoring to New Mexico’s informational interest “is categorical—

present in every case,” Ams. for Prosperity Found., 594 U.S. at 615—as are the

severe burdens Section (3)(c) places on associational freedom, see Ward v.

Thompson, 2022 WL 14955000, at *3 (9th Cir. Oct. 22, 2022) (unpublished) (Ikuta,

J., dissenting) (“As Americans for Prosperity Foundation made clear, whenever the

government compels disclosure of members’ identities, it burdens the First

Amendment right of expressive association.”). See supra pp. 1–3. Accordingly, I

would hold that the disclosure requirement for Section (3)(c) advertisements is

facially unconstitutional.

III.

“The government may regulate in the First Amendment area only with narrow

specificity, and compelled disclosure regimes are no exception.” Ams. for Prosperity

Found., 594 U.S. at 610 (citation modified). The disclosure requirement for

Section (3)(c) advertisements blatantly contradicts this directive: It does not comport

with New Mexico’s interest in informing the electorate; it unnecessarily burdens core

political speech; and it disproportionately harms those who hold unpopular beliefs.

The majority’s contrary conclusion is irreconcilable with the Supreme Court’s recent

imposition of a narrow-tailoring requirement. I respectfully dissent.