Wednesday, July 06, 2022

Butcher v. Knudsen (9th Cir. - July 6, 2022)

Let's see if you can figure out where the Ninth Circuit comes out in today's sole published opinion.

A state statute says that you've got to register as a political committee if the thing you do involves “a combination of two or more individuals . . . who receive[] a contribution or makes an expenditure” to “support or oppose” a candidate or a ballot issue." Two people -- one a retired state legislator, the other his son -- operate a website that "ranks" state legislators on a scale of "A" through "F" depending on how often they adhere to the particular party line in that state. These two then travel around the state and give presentations to various meetings of members of that party, during which they sometimes recommend (or oppose) particular candidates. Basically, they want people to vote for people who are "loyal" to the party line in the primaries, as opposed to people that "cross the aisle" and occasionally vote for measures that are supported by the other side. The two admit that they spend over $1000 on travel expenses during these efforts, so while the state statute exempts groups that spend a "de minimis" amount of money (defined as less than $250) on such efforts, that exception definitely doesn't apply here.

The two individuals haven't registered as a political committee, someone complains, and the two people sue, claiming that the statute is unconstitutionally vague as applied to them, so they can't be penalized (e.g., fined) for not registering as a committee.

Those are the facts. I've deliberately omitted -- as you've likely noticed -- which political party the two individuals support. But I'll stipulate they're either (1) Republicans, or (2) Democrats. (I also omitted the identity of the state, lest it give you a potential clue one way or the other.)

Three questions:

(1) How do you think the Ninth Circuit comes out? Plaintiffs want you to say: "Hey, we're just doing what everyone does -- express our opinions about candidates -- and, yeah, we spend a little money to do so, but so does everyone, so the statute's unconstitutionally vague, because how were we to know that the typical run-of-the-mill stuff we're doing violated the statute?" Whereas the state wants you to say "Hey, these are political pros, and the text of the statute is clear that when you spend over $250, you've got to register, so it's not vague at all." Which of those arguments do you think the court found most persuasive?

(2) Do you think outcome would vary depending on which political party we're talking about? We all know, of course, that it shouldn't. But do you think it nonetheless does? Do you think that Ninth Circuit judges who are Republican appointees would be more likely to find the statute unconstitutional as applied here if the two individuals were Republicans, and less likely to find it unconstitutional if the individuals were Democrats? Do you think that Democratic appointees might lean to find the statute unconstitutional if the individuals were Democrats, but not if they were Republicans? Or do you think it wouldn't matter; that law is law, and the partisan lean of the participants doesn't matter?

(3) The judges on the panel are Judges Fletcher, Ikuta and Bress. So, respectively, a Clinton, Bush and Trump appointee. How do you think they voted?

Obviously, I can't answer (1) or (2) on your behalf. But I can tell you the answer to (3). The state is Montana. The two individuals were Republicans. The two Republican appointees on the panel voted to find the statute unconstitutionally vague as applied to these two individuals. The Democratic appointee dissented and thought the statute constitutional.