
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1744               NEW HAMPSHIRE RIGHT TO LIFE POLITICAL ACTION COMMITTEE,                                Plaintiff, Appellant,                                          v.           WILLIAM M. GARDNER, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF                     STATE OF THE STATE OF NEW HAMPSHIRE, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                              _________________________               James Bopp, Jr. with  whom Paul R. Scholle, Bopp,  Coleson &               _______________            _______________  ________________          Bostrom, and Stephen F. Queeney were on brief, for appellant.          _______      __________________               Lucy C. Hodder, Assistant Attorney General, with whom Martin               ______________                                        ______          P. Honigberg,  Senior Assistant  Attorney General, was  on brief,          ____________          for appellees.                              _________________________                                   November 1, 1996                              _________________________                    SELYA,  Circuit Judge.    Like  forecasted  hurricanes,                    SELYA,  Circuit Judge.                            _____________          approaching elections invariably  give rise not only  to gusts of          wind but also to feverish preparations.  And, just as the prudent          fisherman  does not  trust in  chance to save  his boat  from the          gathering  storm, the sage political activist does not rely on an          unenlightened   electorate  to   save  her  candidate   from  the          vicissitudes of the ballot  box.  Still, government from  time to          time  attempts to  circumscribe the  ways  and means  of bringing          enlightenment to a sometimes truculent public.  This appeal comes          to us by virtue of one such restriction:  the $1,000 per election          limit that New Hampshire  places on "independent expenditures" in          a  political campaign.1   See  N.H. Rev.  Stat. Ann.  (RSA), tit.                                    ___          LXIII, ch. 664:5, V; 664:3, I; 664:3, II (Supp. 1995).                    In this case the appellant New Hampshire  Right to Life          Political    Action    Committee    (N-PAC)     challenges    the          constitutionality of  the New Hampshire limitation,  arguing that          the statutory  scheme  violates the  First  Amendment.2   In  the          course  of  denying  a  requested  preliminary   injunction,  the                                        ____________________               1New Hampshire considers independent expenditures to include          expenditures  by  a  political   committee  for  the  purpose  of          "expressly  advocating  the  election  or  defeat  of  a  clearly          identified  candidate  which  are  made  without  cooperation  or          consultation with  any candidate, or any  authorized committee or          agent of [any] candidate, and which are not made in concert with,          or  at  the  request or  suggestion  of,  any  candidate, or  any          authorized  committee or agent  of [any]  candidate."   N.H. Rev.          Stat. Ann.,  tit. LXIII, ch. 664:2,  XI.  That  definition is not          atypical.   See, e.g., Ariz. Rev.  Stat. Ann., tit. 16,  ch. 6,                        ___  ____          16-901(11); Or. Rev. Stat., tit. 23, ch. 260.005(8).               2The  First Amendment applies to states  by operation of the          Fourteenth Amendment.   See 44 Liquormart, Inc. v.  Rhode Island,                                  ___ ___________________     ____________          116 S. Ct. 1495, 1501 n.1 (1996).                                          2          district court dismissed  the case  sua sponte.   The court  held          that  the  appellant  lacked  standing to  maintain  the  action.          Because N-PAC  faces  a  credible  threat of  prosecution  if  it          pursues  its wonted  activities, we  conclude that  it  does have          standing  to  mount a  pre-enforcement  facial  challenge to  the          statutory  cap.   Consequently, we  reverse the  district court's          order  of  dismissal, and,  because the  merits  of the  case are          clear,  we strike  down  New Hampshire's  ceiling on  independent          expenditures.          I.  THE STATUTORY SCHEME          I.  THE STATUTORY SCHEME                    Understandably perturbed  by  the corrosive  effect  of          money  on the  electoral  process, New  Hampshire began  to enact          campaign finance reform legislation as far back as 1989.  In 1991          the state  legislature capped a political  committee's ability to          make  "independent expenditures"  at $1,000  per election.3   The          relevant statute reads:                         No   political   committee  shall   make                    independent expenditures in excess  of $1,000                    for any or against any candidate  running for                    a  particular  office  in  a   state  primary                    election,  and  a  like  amount  in  a  state                    general election, in support  of or to oppose                    any candidate.          RSA  664:5,  V.    Two  other  statutes  complement  the  general          restriction  on  independent  expenditures.    First,  the  state          requires  a political committee  to file  a declaration  with the          Secretary  of  State  pledging  that  it  "will  not  exceed  the                                        ____________________               3In  the vocabulary  of the  statute, a  political committee          includes "any organization  of 2 or more persons  [that attempts]          to influence elections . . . ."  RSA 664:2, III.                                          3          expenditure limitations allowed under RSA 664:5, V."  RSA  664:3,          I.    Another  statute  provides  that  "[o]nly  those  political          committees  that  have  filed   a  declaration  with  respect  to          independent  expenditures . . . may make such expenditures."  RSA          664:3,  II.   The  violation  of any  of  these  provisions is  a          criminal offense.  See RSA 664:21, V.                             ___                    New  Hampshire  vests  enforcement  of  this  statutory          scheme in its  Attorney General.  See RSA 664:18.   The Secretary                                            ___          of  State is  charged  with receiving  and  examining reports  of          election expenditures  and notifying the Attorney  General of any          suspected improprieties.  See RSA 664:19.                                    ___          II.  THE GATHERING STORM          II.  THE GATHERING STORM                    N-PAC is a political committee within the contemplation          of RSA  664:2,  III and  has  been registered  as such  with  the          Secretary  of State for over a decade.  The organization's stated          purpose is to "promote the sanctity of human life from conception          to  natural  death."    N-PAC  works  in  a  variety of  ways  to          accomplish this  goal.  Among  other stratagems, it  supports (or          opposes) various candidates for state office whom it perceives as          endorsing (or denigrating) its  views.  N-PAC's support manifests          itself  through the  expenditure  of funds  for such  purposes as          purchasing advertisements and distributing leaflets.                    Over the past decade N-PAC typically has  spent all the          contributions  that it  receives  on some  form of  right-to-life          political advocacy.  The 1996 election followed this well-trodden          path.   Originally,  N-PAC vowed  to make  political expenditures                                          4          opposing a certain  candidate in the  primary election, but  that          candidate  withdrew.   N-PAC then  shifted gears  and decided  to          throw its  support behind a  different candidate who  was running          for state office in the primary election.4                    Ellen  Dube,   a  state  employee,   functions  as  the          Secretary of State's liaison  with the Attorney General.   One of          Dube's duties  is to report possible violations of RSA 664 to the          Attorney  General,  who  then   makes  the  decision  whether  to          investigate  and/or  prosecute.     On  March  6,  1996,  N-PAC's          president, Barbara Hagan, telephoned Dube.  Hagan inquired if the          state intended to enforce the statutory limitation on independent          expenditures.   Dube replied that infractions  "would be noticed"          and that the state would commence enforcement actions against any          persons  who violated RSA 664:5, V.  Hagan subsequently posed the          same  question to Wynn Arnold, a member of the Attorney General's          staff.   Arnold advised her that the initiation of an enforcement          action would depend on whether there had been a referral from the          Secretary of State.  He refused to deny that the Attorney General          would enforce RSA 664:5, V.                    N-PAC  then  filed  suit  in  New  Hampshire's  federal          district  court  against  the  Secretary  of  State,  William  M.          Gardner, and the  Attorney General, Jeffrey  R. Howard.   N-PAC's          verified  complaint  alleged  that  it  intended  to  exceed  the          limitation  on  independent  expenditures  in the  1996  election                                        ____________________               4The   identity  of   the  candidate,   his  or   her  party          affiliation, and the  particular office sought are being  held in          confidence pursuant to an agreement between the parties.                                          5          campaign, that it  feared prosecution if it did  so, and that the          challenged statutory provisions impermissibly burdened  its free-          speech rights  and  thereby  ran  afoul of  the  Supreme  Court's          holding in Buckley v. Valeo, 424 U.S. 1 (1976) (per  curiam).  N-                     _______    _____          PAC sought a declaratory judgment that  RSA 664:5, V and 664:3, I          & II on  their face  chill its political  expression and  thereby          abridge  its  constitutional rights.    It also  sought  an order          restraining the defendants from  enforcing these statutes against          it.                    Within a  week, N-PAC filed a motion  for a preliminary          injunction.    In describing  the  need  for this  relief,  N-PAC          focused on three sets  of expenditures which it intended  to make          for  the September  10 primary  election:   (1)  its contemplated          purchase of an advertisement endorsing the candidate  in the June          edition of  the New  Hampshire Right  to  Life Committee  (NHRLC)          newsletter (estimated cost:   $900); (2) its planned distribution          at public  events around the  state on July  4 of  roughly 30,000          fliers supporting  the candidate (estimated cost:   slightly over          $3,000);   and  (3)   its  proposed   purchase  of   a  follow-up          advertisement  in either  the August  or September  issue of  the          NHRLC newsletter (estimated cost not disclosed in the record).                    After deposing  Hagan and  learning of  these projected          expenditures, the defendants informed  N-PAC that the state would          not  take any enforcement action  because of its  belief that the          pattern of contacts between  N-PAC and the candidate whom  it had          opted  to  support  precluded  classification  of  the   proposed                                          6          expenditures as  "independent" within  the purview of  RSA 664:2,          XI.    As  what seemed  to  them  a  logical  corollary  of  this          determination,  the defendants asserted that in  the absence of a          threat of enforcement, N-PAC could not claim to have suffered any          cognizable  injury by  operation of  the challenged  statutes and          therefore had no standing to contest their constitutionality.                    On June 21, 1996, the district  court denied the motion          for a  preliminary injunction.   In that  same order the  court            relying heavily on the Attorney General's representation that the          specified expenditures, if made, would not engender prosecution            sua sponte dismissed  the action for want  of standing.5  In  the          court's   view  its   conclusion   that  N-PAC   lacked  standing          "present[ed]   a   constitutional  barrier   not   only  to   the          adjudication  of  the  instant  motion but  also  to  the court's          consideration of the merits of the  case."  As part and parcel of          this determination, the court concluded that N-PAC did not face a          credible threat of  prosecution based on the aggregate  effect of          the  $900 expenditure  it  had already  made  and the  other  two          planned expenditures.  Importantly, the court neither dwelt on N-          PAC's prayer  for declaratory  relief nor  assayed the  threat of          prosecution vis- -vis other potential expenditures.                    N-PAC filed this appeal, but it refrained from printing                                        ____________________               5The court considered  and rejected N-PAC's  contention that          the  Attorney   General  lacked  the  authority   to  make  these          representations, finding "the representations  to be binding  and          the plaintiff to be protected by them."  Given the  basis for our          decision, see  text infra, we do not  review this finding, and we                    ___       _____          express  no opinion on  the correctness of  the legal proposition          upon which it rests.                                          7          the fliers or purchasing a second advertisement.          III.  STANDARD OF REVIEW          III.  STANDARD OF REVIEW                    We  review standing  determinations de  novo, crediting          the  plaintiff's factual allegations to  the extent that they are          material and  construing those  alleged facts, together  with the          reasonable inferences  therefrom, in favor of the plaintiff.  See                                                                        ___          Warth  v. Seldin, 422 U.S. 490, 501 (1975); Benjamin v. Aroostook          _____     ______                            ________    _________          Medical  Ctr., Inc.,  57 F.3d  101, 104  (1st Cir.  1995); United          ___________________                                        ______          States v. AVX  Corp., 962 F.2d 108, 114 (1st  Cir. 1992).  Where,          ______    __________          as here,  dismissal is ordered sua sponte,  the ultimate standard          of review  does not vary, but  the court of appeals  must take an          extra  step,  scrutinizing  the  proceedings  carefully  to  make          certain that the plaintiff  has had a fair opportunity to put its          best foot forward.  See,  e.g., Carparts Distribution Ctr.,  Inc.                              ___   ____  _________________________________          v. Automotive Wholesaler's Ass'n  of New Eng., Inc., 37  F.3d 12,             ________________________________________________          15 (1st Cir.  1994); Preterm, Inc. v. Dukakis, 591  F.2d 121, 134                               _____________    _______          (1st Cir.), cert. denied, 441 U.S. 952 (1979).                      _____ ______          IV.  STANDING          IV.  STANDING                    Standing  is a  "threshold  question in  every  federal          case,  determining the power of the court to entertain the suit."          Warth, 422 U.S. at 498.   After all, "[i]f a party lacks standing          _____          to  bring a matter before the court, the court lacks jurisdiction          to decide the merits of  the underlying case."  AVX, 962  F.2d at                                                          ___          113.                    Curiously,  the  doctrine of  standing,  though vitally          important for  federal courts,  remains a morass  of imprecision.                                          8          The Justices once termed  it "a concept of uncertain  meaning and          scope," Flast v. Cohen,  392 U.S. 83, 95  (1968), and a  quarter-                  _____    _____          century later we acknowledged that, even after so many years, the          "ingredients  of standing  are .  . .  not easily  susceptible to          concrete definitions or mechanical application." AVX, 962 F.2d at                                                           ___          113.   In the absence  of any hard-and-fast  test, we  limn those          guidelines on which federal courts seemingly  agree and then move          to a more particularized discussion of the cases that provide the          best analogies for the present  situation.  After dealing briefly          with prudential concerns, we  apply these distilled principles to          the  standing  issue  in this  case.    Finally,  we address  the          possibility that the case is moot.                                          A                                          A                    Standing   involves   "a   blend    of   constitutional          requirements  and  prudential   considerations."    Valley  Forge                                                              _____________          Christian Coll. v. Americans United for  Separation of Church and          _______________    ______________________________________________          State, 454 U.S.  464, 471 (1982).  The  constitutional requisites          _____          stem from the admonition  that a federal court is  empowered only          to  decide "cases"  and "controversies."   See U.S.  Const., Art.                                                     ___          III.   Not every dispute is a case or controversy.  "The presence          of  a disagreement, however sharp  and acrimonious it  may be, is          insufficient by itself to meet Art. III's requirements."  Diamond                                                                    _______          v.  Charles, 476 U.S.  54, 62 (1986).   To clear  the Article III              _______          hurdle, the  party who invokes  a federal court's  authority must          show  that (1) he  or she personally has  suffered some actual or          threatened  injury as a result of the challenged conduct; (2) the                                          9          injury can fairly  be traced to that conduct;  and (3) the injury          likely  will be redressed by a favorable decision from the court.          See  Valley  Forge,  454  U.S.  at  472;  Vote  Choice,  Inc.  v.          ___  _____________                        ___________________          DiStefano,  4 F.3d 26, 36 (1st Cir. 1993).  The complaining party          _________          must satisfy this test throughout the litigation, not just at the          moment when the complaint is filed.  See Steffel v. Thompson, 415                                               ___ _______    ________          U.S. 452, 459 n.10 (1974).                    The second  and  third  prongs  of  the  test  are  not          legitimately  in  issue  here.   To  the  extent  that N-PAC  has          suffered a cognizable injury at all   a matter to  which we shall          soon  return    the  injury can  be traced  to the  existence and          threatened enforcement  of the challenged statutes.   That injury          is also redressable  in this  action:  when  a plaintiff seeks  a          declaration that  a particular  statute is unconstitutional,  the          proper  defendants  are  the government  officials  charged  with          administering and enforcing it.  See Diamond, 476 U.S. at 57 n.2;                                           ___ _______          Kentucky v. Graham,  473 U.S. 159, 165-66 (1985).   Consequently,          ________    ______          the  dispositive inquiry  here involves  the test's  first prong:          the existence vel non of an actual or threatened injury.                        ___ ___                    This inquiry is  always case-specific, and  that truism          applies with  special force  in this instance.   When, as  now, a          party  launches a  pre-enforcement  challenge to  a statute  that          provides for criminal penalties and  claims that the statute,  on          its face, abridges First Amendment rights, two potential injuries          must be considered.  First, there is the injury which attends the          threat of enforcement.  As the Court has repeatedly explained, it                                          10          is  not necessary  that  a person  expose  herself to  arrest  or          prosecution under a statute in order to challenge that statute in          a federal court.  See Babbitt v. United Farm Workers Nat'l Union,                            ___ _______    _______________________________          442 U.S. 289, 298  (1979); Steffel, 415 U.S. at  459; Epperson v.                                     _______                    ________          Arkansas,  393 U.S. 97 (1968).  The rationale that underlies this          ________          rule  is straightforward:  a credible threat of present or future          prosecution itself works an  injury that is sufficient  to confer          standing, even if  there is no history of past  enforcement.  See                                                                        ___          Doe v. Bolton, 410 U.S. 179, 188 (1973).          ___    ______                    The second  type of  injury  is peculiar  to the  First          Amendment context.   In such  cases, an actual  injury can  exist          when the plaintiff is  chilled from exercising her right  to free          expression or  forgoes expression  in order to  avoid enforcement          consequences.   See  Meese v.  Keene, 481  U.S. 465,  473 (1987);                          ___  _____     _____          Wilson v. Stocker,  819 F.2d 943, 946 (10th Cir.  1987).  In such          ______    _______          situations  the  vice of  the statute  is  its pull  toward self-          censorship.   See Virginia  v. American Booksellers  Ass'n, Inc.,                        ___ ________     _________________________________          484 U.S. 383, 393 (1988).                    Of course, these two  types of injury are interrelated.          Both  hinge  on  the existence  of  a  credible  threat that  the          challenged law will be enforced.   If such a threat exists,  then          it poses a  classic dilemma  for an  affected party:   either  to          engage in the expressive  activity, thus courting prosecution, or          to  succumb to the threat, thus forgoing free expression.  Either          injury  is  justiciable.   Conversely, if  no credible  threat of          prosecution  looms,  the chill  is  insufficient  to sustain  the                                          11          burden  that Article III imposes.  A party's subjective fear that          she may  be prosecuted for  engaging in expressive  activity will          not  be held to constitute an injury for standing purposes unless          that fear is  objectively reasonable.   See Laird  v. Tatum,  408                                                  ___ _____     _____          U.S. 1,  13-14 (1972); Chamber of  Commerce v. FEC, 69  F.3d 600,                                 ____________________    ___          603-04  (D.C. Cir. 1995); see also  ACLU v. Florida Bar, 999 F.2d                                    ___ ____  ____    ___________          1486,  1492 (11th Cir. 1993) (noting that when the claimed injury          is one  of self-censorship, the likelihood  of enforcement action          becomes an important factor in  determining whether there is more          than merely  a subjective  chill).  The  bottom line is  that, as          long as a credible  threat of prosecution exists, a  litigant has          standing  to  mount a  pre-enforcement  challenge  to the  facial          constitutionality of  a  statute  on the  basis  that  her  First          Amendment rights arguably are being trammelled.                    Because  the   threat  of   prosecution  is   a  common          denominator  of  both types  of  injury, their  existence  can be          resolved  in a single inquiry.   The contours of that inquiry are          well-defined.    In  a  pre-enforcement challenge  to  a  statute          carrying criminal penalties, standing exists when "the  plaintiff          has  alleged  an  intention to  engage  in  a  course of  conduct          arguably affected  with a constitutional interest, but proscribed          by  [the]  statute,   and  there  exists  a  credible  threat  of          prosecution."  Babbitt, 442 U.S. at 298.  The first two-thirds of                         _______          the Babbitt framework fit  this case snugly.  The  record reveals              _______          that  N-PAC intends to engage in political expenditures of a type          protected under the First Amendment, see Buckley, 424 U.S. at 14,                                               ___ _______                                          12          and New Hampshire's statutory scheme restricts N-PAC's freedom to          make  those expenditures.  Thus,  the bone of  contention here is          whether  the third prong  of the Babbitt framework  fits.  In the                                           _______          next section, we gnaw upon that bone.                                          B                                          B                    While bright lines grow faint in  the area of standing,          we believe that a discussion of pertinent caselaw illuminates the          path to appropriate  resolution of  this appeal.   We begin  with          bedrock:   "The  conflict  between state  officials empowered  to          enforce a  law and private  parties subject to  prosecution under          that  law is a classic `case' or `controversy' within the meaning          of  Art.  III."   Diamond,  476 U.S.  at  64.   To  establish the                            _______          conflict needed to animate this principle, however,  a party must          show that her  fear of  prosecution is "not  imaginary or  wholly          speculative." Babbitt, 442 U.S. at 302.                        _______                    This standard    encapsulated in  the phrase  "credible          threat of prosecution"   is quite forgiving.  Babbitt illustrates                                                        _______          how readily  one can meet it.   There, the plaintiffs  attacked a          statute  that  criminalized  certain  deceptive  statements  made          during consumer  publicity campaigns and sought  a declaration of          the statute's  unconstitutionality.   Id. at  301.  Although  the                                                ___          defendants noted that no criminal penalties had  ever been levied          under the statute and argued that none might ever be imposed, the          Court found a credible  threat of prosecution.  It  observed that          the plaintiffs had engaged in consumer publicity campaigns in the                                          13          past  and that  they  professed  an  intent  to  engage  in  such          activities in  the  future.    Id.   Since  "the  State  has  not                                         ___          disavowed  any  intention   of  invoking  the  criminal   penalty          provision against [violators]," the plaintiffs were  "not without          some  reason in fearing prosecution  for violation of  the ban on          specified forms of consumer publicity."  Id. at 302.                                                   ___                    Other cases set a similarly low threshold.  In Doe, the                                                                   ___          Justices  held that a  class consisting of  doctors who performed          abortions  had standing  to  challenge  the constitutionality  of          Georgia's  statutes  restricting  the procedure,  notwithstanding          that  no physician  "ha[d]  been prosecuted,  or threatened  with          prosecution, for violation  of the . . . statutes."   410 U.S. at          188.  The  Doe Court  distinguished Poe v.  Ullman, 367 U.S.  497                     ___                      ___     ______          (1961), in which standing had been denied, on the ground that Poe                                                                        ___          involved  a hoary statute that had led to only one prosecution in          more  than  eighty years.   "Georgia's  statute, in  contrast, is          recent and not moribund."  Doe, 410 U.S. at 188.                                     ___                    American  Booksellers  is of  like  tenor.   That  case                    _____________________          involved  a  pre-enforcement  facial  challenge  to  a   Virginia          obscenity  statute.  The Court rejected the state's plea that the          plaintiffs  had sued  prematurely (the  statute having  been only          recently  enacted and not yet having taken effect).  The Justices          reasoned that the law  was "aimed directly" at entities  like the          plaintiffs, who would either have to "take significant and costly          compliance measures  or  risk criminal  prosecution."    American                                                                   ________          Booksellers,  484  U.S. at  392.   Since  "[t]he State  ha[d] not          ___________                                          14          suggested that the newly  enacted law will not be  enforced," the          booksellers had  "an actual  and well-founded  fear that  the law          [would] be  enforced against them."   Id. at 393.   They thus had                                                ___          standing  to mount a pre-enforcement facial challenge to it.  See                                                                        ___          id.   In reaching this conclusion,  the Court took pains  to note          ___          that the  "danger of this  statute is, in  large measure,  one of          self-censorship" and  termed self-censorship "a harm  that can be          realized even without an actual prosecution."  Id.                                                         ___                    Federal  appellate  courts  echo these  holdings.    In          Chamber  of Commerce the D.C.  Circuit found standing  to mount a          ____________________          facial challenge  to  a Federal  Election  Commission  regulation          despite the fact that  the FEC was  split on the advisability  of          the rule and  there was  no present danger  of enforcement.   The          court explained that a credible threat of prosecution nonetheless          existed because  nothing "prevents the Commission  from enforcing          its rule at any time with, perhaps, another change of mind of one          of the  Commissioners."  69  F.3d at 603.   Similarly, in Wilson,                                                                    ______          which bears  a family resemblance to  the case at  bar, the Tenth          Circuit held that  when a  state statute chills  the exercise  of          First Amendment rights, standing  exists even though the official          charged  with enforcement  responsibilities  has  not  taken  any          enforcement action  against the plaintiff and  does not presently          intend to take any such action.  819 F.2d at 946-47.                    The preceding  cases make clear that  when dealing with          pre-enforcement challenges  to  recently enacted  (or, at  least,          non-moribund) statutes that facially restrict expressive activity                                          15          by the class to which the plaintiff belongs, courts will assume a          credible  threat  of prosecution  in  the  absence of  compelling          contrary evidence.                                          C                                          C                    Of   course,   in   addition   to   its  constitutional          dimensions,  "the doctrine  of standing also  embraces prudential          concerns regarding  the proper exercise of federal jurisdiction."          AVX,  962 F.2d at  114.  To  satisfy these concerns,  a suit must          ___          meet  certain additional  criteria.   We mention  three of  them.          First, the  complaint must  "fall  within the  zone of  interests          protected by the  law invoked."  Allen  v. Wright, 468 U.S.  737,                                           _____     ______          751  (1984).    Next, under  the  principle  of  jus tertii,  the                                                           ___ ______          plaintiff  ordinarily  "must  assert  his own  legal  rights  and          interests,  and  cannot rest  his claim  to  relief on  the legal          rights or interests of  third parties."  Warth, 422  U.S. at 499.                                                   _____          Third, the suit  must present  more than  "abstract questions  of          wide public significance which amount  to generalized grievances,          pervasively  shared  and  most  appropriately  addressed  in  the          representative  branches."    Valley   Forge,  454  U.S.  at  475                                        ______________          (citations and internal quotation marks omitted).                    In  the  circumstances  of  this  case,  N-PAC  readily          satisfies the  prudential prerequisites for a  grant of standing.          First, its  complaint implicates  basic political  expression and          advocacy; it  thus falls comfortably within the zone of interests          protected by the First Amendment.  Second, N-PAC is asserting its          own legal rights, as the  statute takes direct aim at a  class of                                          16          entities (political  committees) to which it belongs.   Third, N-          PAC's  disagreement  with  New  Hampshire's  cap  on  independent          political   expenditures   is   a   sufficiently   particularized          grievance.                                          D                                          D                    In  this case, therefore, standing depends upon whether          N-PAC faces a  credible threat  of prosecution.   To answer  this          question, we must first place the matter into better perspective.                    In  its complaint  N-PAC  sought  both declaratory  and          injunctive  relief.   Because  it  projected that  it  would make          certain expenditures in  June, it focused its  initial efforts on          securing a  preliminary injunction that  would permit it  to make          those  outlays in  the proper  time frame.   The  defendants also          concentrated  on these  expenditures, eventually  representing to          the  district court  that the  Attorney General did  not consider          them to be "independent"  under RSA 664:2, XI, and  therefore the          expenditures,  even if made, would not  trigger RSA 664:5, V.  In          its ruling on  the motion for preliminary  injunctive relief, the          lower court correctly focused on this point.                    But then the court went beyond the scope of the pending          motion, deemed  the treatment of  the initial expenditures  to be          dispositive  of the entire case,  and dismissed the complaint out          of  hand.   In  doing  so, the  court erred.    The purpose  of a          preliminary  injunction  is  simply  to  "preserve  the  relative          positions of  the  parties until  a trial  on the  merits can  be          held."    University of  Texas v.  Camenisch,  451 U.S.  390, 395                    ____________________     _________                                          17          (1981).  Because a  preliminary injunction is customarily granted          or  denied on  the basis  of procedures  and considerations  that          differ  markedly  from those  that apply  at  trial, it  is risky          business  for a  district court  to enter  final judgment  at the          preliminary injunction stage.   See id.  This case  bears witness                                          ___ ___          to that admonition.                    In grafting a sua sponte dismissal onto the denial of a          motion  for   a  preliminary   injunction,  the   district  court          effectively denied N-PAC any  opportunity to develop its evidence          and  arguments for  declaratory  relief.   More importantly,  the          court confused  the threat of enforcement  which existed relative                                                                   ________          to  the   initial  expenditures   with  the  broader   threat  of          _______________________________          enforcement that  had  to  be considered  in  ruling  on  N-PAC's          standing to  seek  a declaration  that  the statutory  scheme  is          unconstitutional on its face.   In this case, the  distinction is          crucial.                    The  district court may or may not have been correct in          determining  that  the  representations  made  by the  defendants          removed any  danger of prosecution for  the specific expenditures          that N-PAC sought to make in the summer of 1996.  See  supra note                                                            ___  _____          5.  But N-PAC's standing for purposes of the suit   as opposed to          the  preliminary injunction    cannot  be determined  solely with          reference  to  those  expenditures.    Given  the fact  that  the          district  court   dismissed  the  action  sua   sponte,  we  must          scrutinize the entire record to see what it reveals about N-PAC's          standing  to secure  declaratory relief.   The  record adequately                                          18          evinces  that N-PAC is an  organization whose very  purpose is to          make political  expenditures.   It has  done so  for more than  a          decade, and  it intends to  do so in  the future.   Indeed, N-PAC          typically spends  all  the  money that  it  raises  on  political          advocacy,  and  its  outlays,  past  and  prospective,  at  least          arguably fall  within the  statutory  definition of  "independent          expenditures."                      It is,  therefore, highly  probable that N-PAC  will at          some  point find  itself either  in violation  of a  statute that          takes direct aim at its customary  conduct or be forced to  self-          censor   (i.e.,  withhold  expenditures   earmarked  for  funding          expressive  activity) for  fear  of the  consequences.   In  such          circumstances,  a pre-enforcement facial challenge to a statute's          constitutionality is  entirely appropriate  unless the state  can          convincingly demonstrate  that the statute is moribund or that it          simply will not be enforced.                    New Hampshire has  failed to make such a  showing here.          As the record reflects,  an official in the Secretary  of State's          office told N-PAC's president that RSA 664:5, V would be enforced          and that violations would not escape notice.  A representative of          the  Attorney  General refused  to  disclaim  the possibility  of          enforcement.    As  late as  oral  argument  in  this court,  the          defendants  vouchsafed  the  constitutionality  of  the  statute.          Indeed,  the defendants  have  not only  refused  to disavow  RSA          664:5, V, but their defense  of it indicates that they will  some          day enforce it.                                          19                    To sum up, there is more than enough in this record  to          show  that  the  threat  of  future  prosecution  is  not  wholly          conjectural,  but, rather,  that it  is sufficiently  credible to          confer standing  to  launch  a facial  challenge  to  a  recently          enacted statute.  Hence,  we conclude that N-PAC has  standing to          challenge  the  constitutionality  of New  Hampshire's  statutory          scheme.                    This conclusion  is bolstered  by a  factual comparison          between this case and cases in which the Supreme Court  has found          standing.  As  in Babbitt, 442 U.S. at 301-02, the plaintiff here                            _______          has in  the past and intends  in the future to  engage in conduct          likely proscribed by  a challenged statute.  As  in Doe, 410 U.S.                                                              ___          at 188, the  statute in question  is not a  dead letter, and  the          defendants have not disclaimed any intention ever  to enforce it.          As in American Booksellers,  484 U.S. at 393, the  plaintiff must                ____________________          either risk  criminal prosecution under a  statute aimed directly          at it  or engage in self-censorship.  Finally, as was the case in          Doe, 410 U.S. at 188, the lack of past prosecutions is irrelevant          ___          given the statute's recent origin.                    Our holding finds additional support in a well-reasoned          decision  of the Eleventh Circuit. In that case, the plaintiff, a          candidate for elected judicial  office, brought a First Amendment          challenge to a provision  of the canons of judicial  conduct that          he believed would proscribe  a campaign speech that he  wished to          make.   See  ACLU, 999  F.2d at  1488.   The defendants  (persons                  ___  ____          charged with enforcement  of the canons) responded that  the rule                                          20          did not apply  to the plaintiff's  proposed speech, but  insisted          that the rule  itself was  constitutional.  In  finding that  the          plaintiff had standing  and that  the defendants'  representation          did not render the issue moot, Judge Kravitch wrote:                    [I]t  would be  an  anomalous result  if [the                    defendants]  were  permitted to  (1) maintain                    that Canon 7(B)(1)(a)  is constitutional  and                    enforceable  and yet,  if [the  plaintiff] or                    another    judicial    candidate   in    [the                    plaintiff's]  position  were  to   seek  pre-                    enforcement review,  to  2) again  come  into                    court  saying,  `Canon  7(B)(1)(a)  does  not                    apply to that proposed speech.'  This process                    itself,  aside from the canons and the rules,                    is enough to chill speech.          Id. at 1495.6  These words have clear pertinence here.          ___                                          E                                          E                    Because  the 1996  primary election  has been  held, we          must address a final  issue pertaining to justiciability, namely,          mootness.   A "case  is moot  when  the issues  presented are  no          longer `live' or the  parties lack a legally  cognizable interest          in the outcome."  Powell v. McCormack, 395 U.S.  486, 496 (1969).                            ______    _________          In our judgment, this case is not moot.                                        ____________________               6The  defendants tell  us  that ACLU  is  undermined by  the                                               ____          decision in Graham v.  Butterworth, 5 F.3d 496 (11th  Cir. 1993),                      ______     ___________          cert. denied, 114 S. Ct. 2136  (1994).  We do not agree.   Graham          _____ ______                                               ______          is  distinguishable on two bases.  First, the Graham court itself                                                        ______          set ACLU apart as  involving a situation in which  the defendants              ____          continued   to   maintain   that   the   underlying   rule    was          constitutional.     See  id.  at  500.    Here,  of  course,  the                              ___  ___          defendants,  as in  ACLU,  argue that  New Hampshire's  statutory                              ____          scheme passes constitutional muster.  Second   and more salient            the  Graham court  concluded that  there was  no chance  that the               ______          defendants there  would enforce  the challenged rule  against the          particular plaintiff.  See id. at  499-500.  That was not true in                                 ___ ___          ACLU,  and it  is not  an accurate statement  as applied  to this          ____          case.                                          21                    This conclusion stands  on two pillars.   In the  first          place,  N-PAC seeks  not  only an  injunction permitting  certain          planned expenditures  but also a  declaratory judgment as  to the          facial  constitutionality  of the  statute.    The latter  prayer          affects expenditures  that  N-PAC may  choose to  make in  future                                                                     ______          elections.  As to declaratory relief, then, the case is not moot.          See,  e.g., Allende v. Shultz,  845 F.2d 1111,  1114-15 (1st Cir.          ___   ____  _______    ______          1988) (holding  that, where  the plaintiffs sought  a declaratory          judgment condemning the government's visa policy, the granting of          one  visa did not moot the case,  as the government still had not          disavowed its general policy).                    In the  second place, cases  challenging statutes  that          touch upon the electoral process are sui generis.  There often is                                               ___ _______          insufficient  time to resolve  even a promptly  filed case before          the  election is  actually held.   Mindful  of that  pitfall, the          Supreme  Court  has tended  to  treat such  challenges  as coming          within the  exception to  the mootness doctrine  for cases  that,          though  capable of  repetition,  may evade  review.   See,  e.g.,                                                                ___   ____          Democratic  Party v.  Wisconsin, 450 U.S.  107, 115  n.13 (1981);          _________________     _________          First Nat'l Bank v. Bellotti, 435 U.S. 765, 774 (1978); Storer v.          ________________    ________                            ______          Brown, 415 U.S. 724, 737 n.8 (1974).            _____                    To fall  within this exception, "the  challenged action          [must be] in  its duration too short to  be fully litigated prior          to its cessation or expiration," and there must be "a `reasonable          expectation'  or  a  `demonstrated  probability'  that  the  same          controversy  will recur  involving  the same  complaining party."                                          22          Murphy  v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (citations          ______     ____          omitted).  The instant case passes the Murphy test.  As events to                                                 ______          date demonstrate, challenges to election spending laws can rarely          be  fully resolved before the election itself is over.  Moreover,          N-PAC's resolve that it will continue to  make expenditures which          are arguably prohibited  by RSA  664:5, V leads  to a  reasonable          expectancy that N-PAC will again find itself in the same quandary          involving  the same  statutory scheme.   Hence,  the case  is not          moot.   See Vote  Choice, 4 F.3d  at 37 n.12;  ACLU, 999  F.2d at                  ___ ____________                       ____          1496.          V.  THE MERITS          V.  THE MERITS                    Having  confirmed  N-PAC's  standing to  maintain  this          action,  we  must  now  decide  whether  to  remand  for  further          proceedings.  When a trial court resolves a matter on a threshold          ground and the appellate  court reverses, the usual praxis  is to          remand for  consideration of the  merits.   See, e.g., In  re Two                                                      ___  ____  __________          Appeals  Arising  Out of  the San  Juan  Dupont Plaza  Hotel Fire          _________________________________________________________________          Litig.,  994 F.2d 956, 968-69 (1st Cir. 1993); Rivera-Gomez v. de          ______                                         ____________    __          Castro, 843 F.2d 631, 634-35 (1st Cir. 1988).    Like most rules,          ______          however, this one admits of exceptions. Where the merits comprise          a   purely  legal  issue,  reviewable  de   novo  on  appeal  and          susceptible  of determination  without additional  factfinding, a          remand ordinarily will serve no useful purpose. See, e.g., United                                                          ___  ____  ______          States v. Pierro, 32 F.3d 611, 622 (1st Cir. 1994), cert. denied,          ______    ______                                    _____ ______          115 S.  Ct. 919 (1995); Cohen  v. Brown Univ., 991  F.2d 888, 904                                  _____     ___________          (1st  Cir.  1993); Societe  Des  Produits  Nestle,  S.A. v.  Casa                             _____________________________________     ____                                          23          Helvetia,  Inc., 982  F.2d 633, 642  (1st Cir.  1992).   So it is          _______________          here.  Accordingly, we reach the merits of N-PAC's constitutional          challenge.                    Buckley  controls our analysis.   There, the plaintiffs                    _______          asseverated  that  several  sections  of  the  Federal   Election          Campaign Act (the FEC Act), 2 U.S.C.    431-55, 18 U.S.C.    591-          610 (1995), violated their  First Amendment rights.   Among other          things,  they challenged a statutory cap ($1,000 per year) on the          "independent expenditures" that individuals and groups could make          "relative to a clearly identified candidate."  Buckley, 424  U.S.                                                         _______          at 7.  In evaluating the constitutionality of this provision, the          Supreme   Court  first   established   a  frame   of   reference:          expenditure  limitations, the Court said,  "operate in an area of          the most  fundamental First Amendment activities.   Discussion of          public issues  and debate on the qualifications of candidates are          integral to the operation of the system of government established          by our Constitution."  Id. at 14.                                 ___                    Public debate about candidates, the Court continued, is          often fueled by money.   See id.  at 19.   As a consequence,  any                                   ___ ___          "restriction on  the amount of money a  person or group can spend          on political  communication during a campaign necessarily reduces          the quantity of  expression by restricting  the number of  issues          discussed,  the depth of their  exploration, and the  size of the          audience reached."   Id.   The FEC Act's  ceiling on  independent                               ___          expenditures  therefore  represented a  substantial  restraint on          political  speech.  See id.   In the  Court's evocative metaphor,                              ___ ___                                          24          "[b]eing free to engage in unlimited political expression subject          to  a ceiling  on expenditures  is like  being free  to  drive an          automobile as far and as often as one desires on a single tank of          gasoline."  Id. at n.18.                      ___                    Having described the depth of the restriction involved,          the Buckley Court proceeded  to find that the government  had not              _______          advanced a sufficiently compelling interest to warrant the severe          First  Amendment incursions  associated  with the  proviso.   The          principal government  interest asserted   avoiding  corruption of          the  political  process     could  not  justify  the  cap because          independent  expenditures,  by  definition,  were   made  without          consultation  or  cooperation  between  the  contributor  and the          candidate.  See id.  at 45-47.  The  Court likewise rejected  the                      ___ ___          idea that  expenditure limitations served a governmental interest          in equalizing the ability of various groups to affect the outcome          of  elections.     "The  First  Amendment's   protection  against          governmental abridgement of  free expression  cannot properly  be          made  to  depend on  a person's  financial  ability to  engage in          public discussion."  Id. at 49.                               ___                    Under   Buckley,  RSA   664:5,  V  insults   the  First                            _______          Amendment.  The  New Hampshire  statute limits the  same kind  of          independent expenditures that the  FEC Act attempted to regulate,          and the New Hampshire  law purports to cap those  expenditures at          precisely the  same level ($1,000)  as the FEC  Act set.7   To be                                        ____________________               7We do  not consider the  distinction between the  FEC Act's          $1,000 annual limit and New Hampshire's $1,000 per election limit          to  be  of  constitutional  consequence,  especially  since  most                                          25          sure, the price  of political  expression has changed    but  the          changes  work against  the state's  position.   We take  judicial          notice that political campaigns are much more expensive  now than          when  Buckley  was  decided  two  decades  ago.    The  price  of                _______          television and  newspaper advertisements has  ballooned, as  have          the costs associated with printing and distributing leaflets.  To          illustrate the point, N-PAC's plan to distribute 30,000 fliers at          various  public events  held around  the state  on July  4, 1996,          would have  required that it spend  in excess of $3,000.   In our          judgment,  this  single  example  makes  painfully  apparent  how          severely  RSA 664:5,  V restricts  political speech.   The  First          Amendment does not tolerate such drastic limitations of protected          political advocacy.8                    Our   determination  that   the  $1,000   per  election          limitation  on  independent   expenditures  is   unconstitutional          necessarily leads us  to invalidate  not only RSA  664:5, V,  but          also those portions of RSA 664:3, I & II which complement it. See                                                                        ___          supra Part  I.  One  cannot be compelled  to state that  one will          _____          comply with an unconstitutional statute. Accordingly, neither the          declaration requirement contained in RSA  664:3, I nor RSA 664:3,                                        ____________________          elected state officials in New Hampshire serve two-year terms.               8At oral  argument, counsel  for the  state argued  that New          Hampshire's particular  system  of campaign  finance  regulation,          which places heavy  emphasis on candidates'  voluntary acceptance          of spending limits,  creates a  uniquely compelling  governmental          interest  in curbing  independent expenditures.    Accepting this          argument would require us  to carve out an  unwarranted exception          to  a settled  constitutional rule.   We  decline to  do so.   An          organization's  right  to  unfettered  political  expression  and          advocacy is just as substantial within New Hampshire as without.                                          26          II's  proviso   conditioning  the   making  of   any  independent                                                           ___          expenditures on  the filing  of a  declaration pledging  that the          committee  will  observe   New  Hampshire's  $1,000  ceiling   is          enforceable.  See Perry  v. Sindermann, 408 U.S. 593,  597 (1972)                        ___ _____     __________          (explaining  that, in the area of free speech, government may not          indirectly deny, through  unconstitutional conditions, that which          it cannot directly prohibit).          VI.  CONCLUSION          VI.  CONCLUSION                    We  summarize  succinctly.   N-PAC  has  established  a          credible  threat that  New Hampshire will  enforce against  it in          future elections a statutory scheme that the state believes to be          constitutional.     Moreover,   the  statutes   contain  criminal          penalties  and  suppress core  activity  protected  by the  First          Amendment.   We  therefore conclude  that N-PAC  has suffered  an          actual injury and, consequently,  we reverse the district court's          dismissal of this case for lack of standing.  Moreover, since New          Hampshire's  limitation  on   independent  expenditures   plainly          violates  the   First  Amendment,   RSA  664:5,  V   is  facially          unconstitutional,  and RSA  664:3, I  and RSA  664:3, II,  to the          extent  that   they  command   fealty  to   RSA  664:5,   V,  are          unenforceable.   On  remand,  the district  court shall  enter an          appropriate decree.          Reversed and remanded.          Reversed and remanded.          _____________________                                          27
