                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 22 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MONTANANS FOR COMMUNITY                          No.   16-35997
DEVELOPMENT,
                                                 D.C. No. 6:14-cv-0055 DLC
              Plaintiff-Appellant,

 v.
                                                 MEMORANDUM*
JEFFREY A. MANGAN,** in his official
capacity as Commissioner of Political
Practices; TIMOTHY C. FOX, in his
official capacity as Attorney General of the
State of Montana; LEO J. GALLAGHER,
in his official capacity as Lewis and Clark
County Attorney,

              Defendants-Appellees.



                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                       Argued and Submitted April 12, 2018
                               Seattle, Washington
_________________

      *      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **   Jeffrey A. Mangan is substituted for his predecessor, Jonathan Motl,
as Commissioner of Political Practices, pursuant Fed. R. App. P. 43(c)(2).
Before:      TASHIMA and GRABER, Circuit Judges, and MIHM,*** District
             Judge.

      Plaintiff-Appellant Montanans for Community Development (“MCD”)

appeals from the district court’s grant of summary judgment in favor of

Defendants-Appellees on MCD’s facial and as-applied First Amendment

challenges to certain aspects of Montana’s election law. We affirm.

      MCD wanted to distribute what it deems pro-job growth mailers that

mentioned candidates in upcoming Montana elections. It refrained from doing so

because the group would have to comply with Montana’s political committee

reporting and disclosure requirements. MCD therefore brought these pre-

enforcement First Amendment challenges against several political committee

reporting and disclosure statutes and their implementing regulations.

      1.     As a threshold matter, MCD has standing to challenge most of the

reporting statutes and regulations. See Susan B. Anthony List v. Driehaus, 134 S.

Ct. 2334, 2342 (2014) (“[A] plaintiff satisfies the injury-in-fact requirement where

he alleges an intention to engage in a course of conduct arguably affected with a



             ***
                    The Honorable Michael M. Mihm, United States District Judge
for the Central District of Illinois, sitting by designation.
                                          2
constitutional interest, but proscribed by a statute, and there exists a credible threat

of prosecution thereunder.” (internal quotation marks omitted)). MCD may also

challenge those regulations that did not go into effect until nine days after MCD

filed the operative complaint. See Blanchette v. Conn. Gen. Ins. Corps., 419 U.S.

102, 143–45 (1974) (holding that pre-implementation challenges are ripe where it

is inevitable that the law will become effective).

      However, MCD does not have standing to challenge MONT. CODE ANN. §

13-37-111(1) & (2), and MONT. ADMIN. R. 44.11.106(3) & (5), which grant the

Commissioner of Political Practices (“Commissioner”) authority to investigate

violations of Montana’s political committee and disclosure laws. That MCD will

become the subject of an investigation and that the investigation will harm it via

release of its confidential information is too speculative to establish standing. See

Laird v. Tatum, 408 U.S. 1, 13–14 (1972). We thus dismiss the appeal of this

claim for lack of standing.

      Likewise, MCD cannot assert its discriminatory enforcement claims because

they are moot. All of the allegations in the operative complaint relate to former

Commissioner Jonathan Motl’s discriminatory treatment of the group, but Jeffrey

A. Mangan replaced Motl as the Commissioner in April 2017. MCD’s bare

assertion that Mangan will continue the allegedly discriminatory treatment is not


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sufficient to maintain the claim. See Mayor of City of Phila. v. Educ. Equal.

League, 415 U.S. 605, 622–23 (1974). We dismiss the appeal of this claim for

mootness.

      2.     All of MCD’s justiciable claims fail on the merits. MCD’s scattershot

complaint and briefing seem to assert three categories of constitutional challenges

to Montana’s political committee reporting and disclosure laws. MCD contends

that the laws are (1) vague, (2) overbroad (i.e., they do not withstand scrutiny), and

(3) unconstitutional as applied to MCD. In addressing MCD’s claims, “[w]e

review only issues which are argued specifically and distinctly in [its] opening

brief.” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

      3.     All of MCD’s vagueness challenges fail. MCD first asserts three

arguments against language that appears in multiple statutes and regulations. MCD

then attacks language specific to individual statutes and regulations.

      As to the language that appears in multiple provisions of Montana’s election

law scheme, MCD challenges the statutes and regulations as vague on account of

using (1) “circular” definitions, (2) the “appeal to vote test,” or (3) the word

“may.”

      First, MCD argues that various Montana statutes and regulations are

unconstitutionally vague because their definitions are “circular” in that some of the


                                           4
defined terms use at least one of the other defined terms in their definitions. All of

Plaintiff’s “circular” definition arguments are unavailing because there is nothing

inherently vague about definitions referring to one another. Further, in context, the

definitions “provide a person of ordinary intelligence fair notice of what is

prohibited” or required. United States v. Williams, 553 U.S. 285, 304 (2008).

      Second, MCD also challenges the “appeal to vote test” and any statute or

regulation that incorporates it. The Supreme Court has foreclosed this argument by

using the appeal to vote test. See Citizens United v. Fed. Election Comm’n, 558

U.S. 310, 324–25 (2010).

      Third, MCD challenges various laws for their use of the word “may” in front

of a list of factors. MCD argues that “may” means that the Commissioner has

complete discretion to consider whatever he wants. MCD’s interpretation is

illogical and against the plain language of the statutes and regulations. “May”

limits the Commissioner to considering only the listed factors.

      As to the vagueness challenges to specific language in individual statutes

and regulations, MCD’s claims also fail. MCD contends that the “electioneering

communication” statute and rule are vague because whether 100 recipients can

receive a communication is “indeterminable,” and because a person “that engages

in electioneering communications must guess as to which reporting requirements


                                           5
they are subject to.” A person of average intelligence can determine whether an

advertisement may reach 100 people, and can read the statutes and regulations to

determine which reporting rules apply.

      Next, Plaintiff argues that MONT. ADMIN. R. 44.11.605(1) and MONT.

ADMIN R. 44.11.605(4) are vague because they are inconsistent and because

MONT. ADMIN. R. 44.11.605(4) impermissibly includes an “intent-based” test.

While the regulations are not perfectly clear, “uncertainty at a statute’s margins

will not warrant facial invalidation if it is clear what the statute proscribes ‘in the

vast majority of its intended applications.’ ” See Cal. Teachers Ass’n v. State Bd.

of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001) (quoting Hill v. Colorado, 530 U.S.

703, 733 (2000)).

      4.     We also reject MCD’s challenges to the political committee disclosure

laws and filing requirements as overbroad, or not “substantially related” to the

state’s interest. “[A] campaign finance disclosure requirement is constitutional if it

survives exacting scrutiny, meaning that it is substantially related to a sufficiently

important governmental interest.” Human Life of Wash. Inc. v. Brumsickle, 624

F.3d 990, 1005 (9th Cir. 2010). The Supreme Court has identified three

“important” interests “in the context of reporting and disclosure requirements:

providing the electorate with information, deterring actual corruption and avoiding


                                            6
any appearance thereof, and gathering the data necessary to enforce more

substantive electioneering restrictions.” Yamada v. Snipes, 786 F.3d 1182, 1197

(9th Cir. 2015) (internal quotation marks omitted).

      First, the argument that disclosure laws are overbroad unless they apply only

to groups whose major or primary purpose is political advocacy has been rejected

multiple times in this circuit. See Human Life of Wash., 624 F.3d at 1009–10; see

also Yamada, 786 F.3d at 1198–99. Further, the disclosure requirements of filling

out a short form and designating a treasurer and bank account are not overly

burdensome. See Human Life of Wash., 624 F.3d at 1012–14.

      Second, the electronic and repeated reporting requirements survive exacting

scrutiny. That the election disclosure and reporting laws might be constitutionally

infirm based on a requirement that speakers electronically file reports is absurd,

especially in light of the fact that the Commissioner can provide a waiver to those

without access to electronic filing. See MONT. ADMIN. R. 44.11.302(2). Further,

requiring political committees to repeatedly report contributions within two days of

making them is substantially related to Montana’s important informational interest.

Otherwise a political committee could make a flurry of contributions just days

before an election, when many people are finalizing their views, without having to

report them until after voting has occurred.


                                          7
      Third, the definition of “electioneering communication” and related

reporting requirements are not duplicative of the political committee requirements.

The definition of “electioneering communications” extends further. See MONT.

CODE ANN. § 13-1-101(16); MONT. ADMIN R. 44.11.605. Even if electioneering

communications only educate the public about a candidate, Montana still has a

substantial interest in disclosing to the public who is doing the educating. See

Citizens United, 558 U.S. at 369 (“Even if the ads only pertain to a commercial

transaction, the public has an interest in knowing who is speaking about a

candidate shortly before an election.”).

      Finally, MCD’s challenge to the “paid-for” attribution requirement survives

exacting scrutiny. See id. at 366–67 (“paid-for” attributions subject to exacting

scrutiny rather than strict scrutiny). Montana’s “paid-for” attribution requirement

is narrower than the one struck down in American Civil Liberties Union v. Heller,

378 F.3d 979 (9th Cir. 2004), and is more similar to the requirement upheld in

Alaska Right to Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006).

      5.     We reject MCD’s as-applied challenges for the same reason that its

overbreadth argument fails. Political committee reporting and disclosure laws can

extend beyond groups whose major purpose is political advocacy. See Human Life

of Wash., 624 F.3d at 1011. Even if MCD’s primary purpose is not electoral


                                           8
advocacy in Montana, the political committee reporting and disclosure laws

survive exacting scrutiny as applied to the group.

                                     •   !    •

      The judgment of the district court is

      AFFIRMED in part and DISMISSED in part. Costs awarded to

defendants-appellees.




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