                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                             In the                                  May 11, 2006
         United States Court of Appeals                        Charles R. Fulbruge III
                   for the Fifth Circuit                               Clerk
                        _______________

                          m 04-30877
                        Consolidated with
                          m 05-30212
                        _______________




             CENTER FOR INDIVIDUAL FREEDOM,

                                            Plaintiff-Appellant,

                            VERSUS


  PAUL J. CARMOUCHE; ROBERT ROLAND; JOHN W. GREENE;
  E.L. GUIDRY; R.L. HARGROVE, JR.; MICHAEL J. KANTROW;
    HENRY C. PERRETT, JR.; ASCENSION DELGADO SMITH;
DOLORES SPIKES; EDWIN O. WARE; T.O. PERRY; JOSEPH MASELLI,

                                            Defendants-Appellees.



            ____________________________________

           Appeals from the United States District Court
               for the Western District of Louisiana
           _____________________________________
Before DAVIS, SMITH, and DENNIS,                         Louisiana and various members of the Su-
  Circuit Judges.                                        pervisory Committee for Campaign Finance of
                                                         the Louisiana Board of Ethics under the Civil
JERRY E. SMITH, Circuit Judge:                           Rights Act, 42 U.S.C. § 1983, and the Declar-
                                                         atory Judgment Act, 28 U.S.C. § 2201. The
    The Center for Individual Freedom (the               defendants (collectively, “the Board”) are re-
“Center”) challenges, on First Amendment                 sponsible for implementing and enforcing the
grounds, the dismissal of its complaint ques-            CFDA. The Center asserts that certain pro-
tioning the constitutionality of certain provi-          visions of the CFDA violate the First Amend-
sions of Louisiana’s Campaign Finance Dis-               ment and are therefore invalid. The Center
closure Act (“CFDA”). Reading the statute                alleges that at the time it filed its complaint,
narrowly to avoid constitutional problems, we            “planning and development of the contem-
affirm.                                                  plated ads [was] well-advanced.” Complaint
                                                         ¶ 10.1
                        I.
    The Center is a nonpartisan, nonprofit                  The Center sought temporary, preliminary
§ 501(c)(4) corporation whose stated goal is             and permanent injunctive relief from enforce-
“to protect and defend individual freedoms and           ment of the CFDA. After a hearing on the
individual rights guaranteed by the U.S. Consti-         motion for preliminary injunction, the district
tution.” Complaint ¶ 3. To further this goal,            court held that the Center has standing to
in advance of the September 18, 2004, primary            mount a facial attack but denied preliminary
to fill a vacancy on the Louisiana Supreme               injunctive relief on the ground that the Center
Court, the Center desired “to speak to the               has little likelihood of success on the merits
[Louisiana] public . . . on matters of vital             because the relevant provisions of the CFDA
public interest, including . . . criminal law en-        were equivalent to the provisions of the federal
forcement and sentencing, legal reform, and              campaign finance statute that had withstood
judicial decision-making.” Complaint ¶ 10.               First Amendment challenge in Buckley v.
                                                         Valeo, 426 U.S. 1 (1976).
    To that end, the Center wanted to finance
and run television and radio advertisements                 The Center then sought emergency injunc-
that, while not advocating the election or de-           tive relief from this court pending appeal. Af-
feat of any candidate, would refer to the posi-          ter we had denied that request, the parties
tions of the candidates on issues of importance          agreed that the district court could render a
to the Center. Fearing, however, that its ad-            final judgment on the merits of the complaint
vertisements would be deemed as intended to              on the basis of the record and the submissions
influence an election and that it therefore              made in conjunction with the preliminary in-
would be forced to make certain disclosures              junction motion. For the reasons articulated in
under the CFDA, the Center opted to refrain
from running any ads until the constitutionality            1
of the relevant provisions of the statute could                Because the Center did not run the ads and
                                                         make the choice between complying with the
be determined.
                                                         CFDA and waiting for the Act to be enforced
                                                         against it, the Center is asserting a facial, rather
   On August 24, 2004, the Center sued the               than as-applied, challenge to the constitutionality of
District Attorney for the 1st Judicial District of       the statute.

                                                     2
its ruling on the preliminary injunction motion,        statute has been applied to him is generally
the court dismissed the complaint.                      correct.3 Because, however, our task is to de-
                                                        cide whether the Center has standing to launch
                      II.                               a facial, rather than as-applied, challenge, that
    The Board argues that this case is nonjus-          tautology is not helpful.
ticiable because the Center lacks standing and
because the completion of the relevant election            The district court held that the Center has
renders the complaint moot. We review all               standing to challenge the constitutionality of
questions of subject matter jurisdiction, in-           the relevant provisions of the CFDA on their
cluding the justiciability issues of standing,          face. Both its conclusion and its reasoning are
ripeness, and mootness, de novo.2                       sound. It is true that facial challenges are
                                                        generally disfavored because they “entail a de-
                        A.                              parture from the norms of federal-court adju-
    To have standing, a plaintiff must demon-           dication by calling for relaxation of familiar
strate that he has been injured, that the defen-        standing requirements to allow a determination
dant caused the injury, and that the requested          that the law would be unconstitutionally ap-
relief will redress the injury. See Lujan v. De-        plied to different parties and different circum-
fenders of Wildlife, 504 U.S. 555, 560 (1992).          stances from those at hand.” Sabri v. United
The Board argues that the Center lacks stand-           States, 541 U.S. 600, 609 (2004). The Sabri
ing to contest the constitutionality of the             Court acknowledged, however, that there are
CFDA because the Board never took or                    concerns in the First Amendment context that
threatened to take action against the Center            are “weighty enough to overcome our
under the statute. Pointing to the highly gen-          well-founded reticence” regarding facial chal-
eralized manner in which the complaint de-              lenges. Id. at 610.
scribes the proposed ads, the Board asserts
that the Center’s belief that it would be held to           As the district court noted, “[t]he First
the disclosure requirements of the CFDA is              Amendment challenge has unique standing is-
entirely subjective and insufficient to support         sues because of the chilling effect, self-censor-
standing. The Board contends that without               ship, and in fact the very special nature of po-
any enforcement action taken against it by the          litical speech itself.” Trial Transcript at 84.
Board, the Center cannot challenge the appli-           This assessment is based largely on Dombrow-
cation of the CFDA.                                     ski v. Pfister, 380 U.S. 479, 486-87 (1965), in
                                                        which the Court observed that
   In Adams v. Askew, 511 F.2d 700, 704 (5th
Cir. 1975), we noted that “[the plaintiffs] . . .          [a] criminal prosecution under a statute
confuse an attack on the constitutionality of a            regulating expression usually involves im-
statute on its face with an attack on the statute          ponderables and contingencies that them-
as applied.” The contention that a party can-              selves may inhibit the full exercise of First
not challenge a statute as-applied unless the              Amendment freedoms . . . . Because of the
                                                           sensitive nature of constitutionally protect-

   2
     See Bissonnet Invs., LLC v. Quinlan, 320
                                                           3
F.3d 520, 522 (5th Cir. 2003); Sample v. Morri-             Exceptions include circumstances where third-
son, 406 F.3d 310, 312 (5th Cir. 2005).                 party standing is appropriate.

                                                    3
   ed expression, we have not required that all         that meaning is an expression of preference of
   of those subject to overbroad regulations            one candidate over another candidate, then the
   risk prosecution to test their rights . . . .        underlying contributions and expenditures
   We have fashioned this exception to the              should be reported as otherwise required by
   usual rules governing standing because of            applicable provisions of the CFDA.”4 In ad-
   the danger of tolerating, in the area of First       dition, in a recent opinion imposing a $20,000
   Amendment freedoms, the existence of a               fine on the Republican State Leadership Com-
   penal statute of sweeping and improper ap-           mittee, the Board held that the CFDA is appli-
   plication . . . . By permitting determination        cable where “any viewer of the advertisement
   of the invalidity of these statutes without          would understand, even without explicit
   regard to the permissibility of some regula-         word[s] of express advocacy, that when taken
   tion on the facts of particular cases, we            as a whole and in its factual context, the un-
   have, in effect, avoided making vindication          mistakable intent of the advertisement was to
   of freedom of expression await the out-              oppose or otherwise influence [a particular
   come of protracted litigation.                       candidate’s] election.”5

The Court echoed this conclusion in Virginia                Given the Board’s interpretation of the
v. Am. Booksellers Ass'n, 484 U.S. 383, 392             CFDA, if the Center pointed out the positions
(1988), when it stated that “the alleged danger         of candidates on issues of importance to it, it
of [the challenged statute] is, in large measure,       would run a nonspeculative risk that the Board
one of self-censorship; a harm that can be re-          would construe its ads as an “expression of
alized even without an actual prosecution.”             preference of one candidate over another can-
                                                        didate” and therefore would prosecute a wilful
   Controlling precedent thus establishes that          failure to make the required disclosures. On
a chilling of speech because of the mere exis-          that basis, the Center’s self-censorship consti-
tence of an allegedly vague or overbroad stat-          tutes sufficient injury to confer standing to
ute can be sufficient injury to support standing.       challenge the constitutionality of the CFDA on
The Center states that it “is not willing to            its face.
expose itself and its staff to civil and criminal
penalties and its contributors to disclosure,”             The causation and redressability prongs of
and thus it “has been forced to refrain from            the standing inquiry are easily satisfied here.
speaking . . . .” Complaint ¶ 15. To satisfy            Potential enforcement of the statute caused the
standing requirements, however, this type of            Center’s self-censorship, and the injury could
self-censorship must arise from a fear of prose-        be redressed by enjoining enforcement of the
cution that is not “imaginary or wholly spec-           CFDA. The Center therefore has standing to
ulative.” Babbitt v. United Farm Workers                mount its facial challenge.
Nat’l Union, 442 U.S. 289, 302 (1979).

   The Center “intend[ed] to refer to the posi-
tion of specific candidates on issues of impor-            4
tance to it.” Complaint ¶ 13. In a 1999 advis-               La. Bd. of Ethics, Campaign Finance Advi-
ory letter, the Board stated that “[i]f the mes-        sory Op. No. 1999-580 (Sept. 17, 1999).
sage is unmistakable, unambiguous, and sug-                5
                                                            La. Bd. of Ethics, Campaign Finance Ruling
gestive of only one plausible meaning, and if           No. 2003-746 (Jan. 13, 2005) (emphasis added).

                                                    4
                       B.                                Comm’n, 565 F.2d 295, 297 n.3 (5th Cir.
    The Board contends that the Center’s claim           1977), that “[s]uits challenging the validity of
is moot because the election that gave rise to           state election laws are classic examples of cas-
the complaint has already occurred. Mootness             es in which the issues are ‘capable of repeti-
is “the doctrine of standing in a time frame.            tion, yet evading review.’” The case before us
The requisite personal interest that must exist          therefore satisfies the first prong of that excep-
at the commencement of litigation (standing)             tion.
must continue throughout its existence (moot-
ness).” United States Parole Comm’n v. Ger-                 With regard to the second prong of the
aghty, 445 U.S. 388, 397 (1980). Generally,              “capable of repetition, yet evading review”
any set of circumstances that eliminates actual          inquiry, the Center has stated that it “has spok-
controversy after the commencement of a law-             en out on public issues in Louisiana in the past
suit renders that action moot.                           and plans to do so in the future.” Complaint
                                                         ¶ 3(b). Thus, the Center may again feel the
    There are, however, exceptions to the oper-          need to censor itself to avoid possible applica-
ation of the mootness doctrine. For purposes             tion of the CFDA. The Board does not dis-
of this case, the relevant exception is “the class       pute the Center’s assertion regarding its past
of controversies capable of repetition, yet              and likely future activity in Louisiana, and
evading review.” First Nat’l Bank v. Bellotti,           there is no reason to doubt that claim.
435 U.S. 765, 774 (1978). Outside the class
action context, the “capable of repetition, yet             Moreover, despite the Supreme Court’s re-
evading review” exception can be invoked if              minder that there must be a “reasonable ex-
two elements are met: “(1) [T]he challenged              pectation that the same complaining party
action was in its duration too short to be fully         would be subject to the same action again,”
litigated prior to its cessation or expiration,          Weinstein, 423 U.S. at 149, the Court does
and (2) there was a reasonable expectation that          not always focus on whether a particular
the same complaining party would be sub-                 plaintiff is likely to incur the same injury. For
jected to the same action again.” Weinstein v.           example, in Storer, 415 U.S. at 737 n.8, the
Bradford, 423 U.S. 147, 149 (1975).                      Court stated that “[t]he 1972 election is long
                                                         over, and no effective relief can be provided to
   Controversy surrounding election laws, in-            the candidates or voters, but this case is not
cluding campaign finance regulations, is one of          moot, since the issues properly presented, and
the paradigmatic circumstances in which the              their effects on independent candidacies, will
Supreme Court has found that full litigation             persist as the California statutes are applied in
can never be completed before the precise                future elections.”
controversy (a particular election) has run its
course.6 Echoing Supreme Court precedent,                   Similarly, in Dunn v. Blumstein, 405 U.S.
this court stated in Morial v. Judiciary                 330, 333 n.2 (1972), the Court held that the
                                                         exception to the mootness doctrine applied de-
                                                         spite the fact that the plaintiff would no longer
   6                                                     be subject to the challenged statute, because
    See Moore v. Ogilvie, 394 U.S. 814, 816
                                                         “[a]lthough [plaintiff] now can vote, the prob-
(1969); Storer v. Brown, 415 U.S. 724, 737 n.8
(1974); First Nat’l Bank, 435 U.S. at 774; Nor-
                                                         lem to voters posed by the Tennessee resi-
man v. Reed, 502 U.S. 279, 288 (1992).                   dence requirements is ‘capable of repetition,

                                                     5
yet evading review.’” Thus, even if it were              tion . . . as reports required of political
doubtful that the Center would again attempt             committees,” which includes “the full name
to engage in election-related speech in Louisi-          and address of each person who has made one
ana, precedent suggests that this case is not            or more contributions to and which have been
moot, because other individuals certainly will           received and accepted by the [individual or
be affected by the continuing existence of the           group] during the reporting period.” LA. REV.
CFDA.                                                    STAT. § 18:1491.7(B)(4)(a).

                       III.                                  If an individual or organization is required
   We review questions of law de novo. See               to file a report and fails to do so, the CFDA
Kona Tech. Corp. v. S. Pac. Transp. Co., 225             authorizes civil penalties. See id. § 18:1505.4.
F.3d 595, 601 (5th Cir. 2000). Because a fa-             If the failure to file is knowing, wilful, or
cial challenge to the constitutionality of a stat-       fraudulent, the person required to file (either
ute presents a pure question of law, we employ           as an individual or representative of an organi-
that standard here as we examine the merits.             zation) may be fined up to $500 dollars and
                                                         sentenced to up to six months in prison. See
   In general, to mount a successful facial at-          id. § 18:1505.6(A)(2).
tack, “the challenger must establish that no set
of circumstances exists under which the Act                  At the heart of the Center’s challenge is the
would be valid.” United States v. Salerno,               statutory definition of “expenditure.” Section
481 U.S. 739, 745 (1987). The requirement is             18:1483(9)(a) states that an expenditure is “a
different in the First Amendment context,                purchase, payment, advance, deposit, or gift,
where we recognize the overbreadth doctrine.             of money or anything of value made for the
With regard to facial First Amendment chal-              purpose of supporting, opposing, or otherwise
lenges, the challenger need only show that a             influencing the nomination or election of a per-
statute or regulation “might operate unconsti-           son to public office.” The Center contends
tutionally under some conceivable set of cir-            that this definition is vague and overbroad be-
cumstances.” Id.                                         cause it could be interpreted to reach both ex-
                                                         press advocacy and issue advocacy. Because
   The provisions of the CFDA relevant to the            disclosure requirements burden protected pol-
Center’s claim are as follows: Louisiana Re-             itical speech and subject those who do not
vised Statute section 18:1501.1(A) states that           comply to civil and criminal penalties, and be-
                                                         cause the disclosure requirements are trig-
   [a]ny person, other than a candidate or a             gered, inter alia, by “expenditures” in excess
   political committee, who makes any expen-             of $500, the Center contends that the defini-
   diture or who accepts a contribution, other           tion is vague and overbroad and therefore vio-
   than to or from a candidate or to or from a           lates the First Amendment.
   political committee, shall file reports if ei-
   ther said expenditures or said contributions             The Board counters that because the rele-
   exceed five hundred dollars in the aggre-             vant provisions of the CFDA are equivalent to
   gate during the aggregating period defined            the disclosure provisions in the Federal Elec-
   for committees.                                       tion Campaign Act (“FECA”) that were up-
                                                         held in Buckley, the CFDA provisions are not
The reports must “contain the same informa-              facially unconstitutional. We agree, but only

                                                     6
by imposing the same limiting construction on            sufficiently important to outweigh the possi-
the CFDA that the Court employed in Buckley.             bility of infringement [of First Amendment
                                                         rights], particularly when the free functioning
                    A.                                   of our national institutions is involved . . . .
   The challenged provisions are similar to              The governmental interests sought to be vindi-
what the Court confronted and upheld in                  cated by the disclosure requirements are of this
Buckley. Section 434(e) of FECA required                 magnitude.” Id. at 66. In reaching that con-
that                                                     clusion, the Court focused on voters’ need for
                                                         information about candidates and their sup-
   [e]very person (other than a political com-           porters to evaluate the candidates and expose
   mittee or candidate) who makes contribu-              corruption. Id. at 66-68.
   tions or expenditures, other than by contri-
   bution to a political committee or candi-                Nevertheless, with regard to § 434(e), the
   date, in an aggregate amount in excess of             Court stated that “the provision raises serious
   $100 within a calendar year . . . file with           problems of vagueness, particularly treacher-
   the [Federal Election] Commission a state-            ous where, as here, the violation of its terms
   ment containing the information required by           carries criminal penalties and fear of incurring
   this section.                                         these sanctions may deter those who seek to
                                                         exercise protected First Amendment rights.”
Buckley, 424 U.S. at 160. In relevant part,              Id. at 76-77. The source of vagueness was
FECA defined “expenditure” as “a purchase,               the “for the purpose of influencing” language
payment, distribution, loan, advance, deposit,           within the definition of expenditure, which
or gift of money or anything of value, made for          gave the provision “potential for encompassing
the purpose of influencing the nomination for            both issue discussion and advocacy of a politi-
election, or the election, of any person to              cal result.” Id. at 76, 79. Due process “re-
Federal office, or to the office of presidential         quires that a criminal statute provide adequate
and vice presidential election.” Id. at 147.             notice to a person of ordinary intelligence that
                                                         his contemplated conduct is illegal.” Id. at 77.
    The challengers in Buckley “attack[ed]               Without knowing whether the reporting re-
§ 434(e) as a direct intrusion on privacy of be-         quirements of § 434(e) were triggered by
lief . . . and as imposing very real, practical          political advocacy, issue discussion, or both,
burdens . . . certain to deter individuals from          an individual (or organization) wishing to
making expenditures for their independent po-            speak out could not know whether his contem-
litical speech . . . .” Id. at 75. In discussing a       plated conduct would subject him to criminal
similar requirement within the FECA, the                 sanction if he did not disclose the information
Court agreed that disclosure requirements “can           required by FECA.
seriously infringe on privacy of association and
belief guaranteed by the First Amendment”                   In addition, the Court held that § 434(e)
and that such requirements must therefore                was rendered potentially overbroad by the fact
“survive exacting scrutiny.” Id. at 64.                  that it could be interpreted to require disclo-
                                                         sure when an independent individual or group
   The Court held, however, that in general,             engages only in issue advocacy. The Court
disclosure requirements survive exacting scru-           reasoned that if § 434(e) did cover that situa-
tiny because “there are governmental interests           tion, the connection between the information

                                                     7
sought and the governmental interest in pro-               cacy and issue advocacy. “Speakers,” the
moting clean and well-informed elections “may              Court stated, do not “possess an inviolable
be too remote.” Id. at 80.                                 First Amendment right to engage in the latter
                                                           category of speech.” McConnell, 540 U.S. at
   Rather than striking § 434(e) down as un-               190. The Court further asserted that
constitutional, however, the Court imposed a
limiting construction on the statute, bringing it             a plain reading of Buckley makes clear that
within constitutional bounds by drawing a line                the express advocacy limitation, in both the
between express advocacyand issue advocacy.                   expenditure and the disclosure contexts,
The Court stated that “we construe ‘expendi-                  was the product of statutory interpretation
ture’ for purposes of [§ 434(e)] . . . to reach               rather than a constitutional command. In
only funds used for communications that                       narrowly reading the FECA provisions in
expressly advocate the election or defeat of a                Buckley to avoid problems of vagueness
clearly identified candidate.” Id. Words of                   and overbreadth, we nowhere suggested
express advocacy include terms “such as ‘vote                 that a statute that was neither vague nor
for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’             overbroad would be required to toe the
‘Smith for Congress,’ ‘vote against,’ ‘defeat,’               same express advocacy line.
‘reject.’” Id. at 44 n.52. These are the well-
known “magic words.”                                       Id. at 192.

    Given that the CFDA links the disclosure                  The Board contends that McConnell elimi-
requirements for expenditures made by inde-                nates completely the express advocacy/issue
pendent individuals and groups to the same                 advocacy delineation and in its place provides
“for the purpose of influencing” language that             a more holistic, “practical” approach to deter-
the Court confronted and upheld in Buckley,                mining whether expenditures have been made
we can likewise construe the CFDA in a way                 for the purpose of influencing an election and
that saves it from constitutional infirmity. On            therefore, consistent with the First Amend-
that basis, the Center fails in its facial challenge       ment, can be subject to regulation. That read-
to the constitutionality of the disclosure provi-          ing of McConnell is incorrect. McConnell
sions of the CFDA.                                         states only that a campaign finance regulation
                                                           can cover issue advocacy and nevertheless be
                       B.                                  constitutional so long as the regulation is
    The more difficult question, in light of Mc-           “closelydrawn” to match a “sufficientlyimpor-
Connell v. Fed. Election Comm’n, 540 U.S.                  tant” government interest, id. at 135, and is
93 (2003), is whether we must, in circum-                  not vague. The Court has not provided a
stances such as this, continue to adhere to the            broader approach to determining when expen-
express advocacy/issue advocacy dichotomy                  ditures have been made for the purpose of in-
that the Court set up in Buckley and that we               fluencing an election.
employed in Chamber of Commerce of the
United States v. Moore, 288 F.3d 187, 194-95                  Instead, the Court has stated that legisla-
(5th Cir. 2002). In McConnell the Court held               tures may employ standards other than a
that for purposes of regulating election-related           bright-line distinction between express and is-
speech, there is no constitutionally-mandated              sue advocacy as long as they are precise in re-
line that must be drawn between express advo-              gard to the types of activities that will subject

                                                       8
an individual or group to regulation. With re-        nition for what qualifies as such advocacy.7 As
gard to the particular provision at issue in          so limited, the challenged provisions of the
McConnell, for example, the Court held that           CFDA are facially constitutional.
new FECA § 304(f)(3)’s definition of “elec-
tioneering communication” “raises none of the            The judgment of dismissal is AFFIRMED.
vagueness concerns that drove our analysis in
Buckley,” because the term

   applies only (1) to a broadcast (2) clearly
   identifying a candidate for federal office,
   (3) aired within a specific time period, and
   (4) targeted to an identified audience of at
   least 50,000 viewers or listeners. These
   components are both easily understood and
   objectively determinable. Thus, the consti-
   tutional objection that persuaded the Court
   in Buckley to limit FECA’s reach to express
   advocacy is simply inapposite here.

Id. at 194.

    McConnell does not obviate the applicabil-
                                                         7
ity of Buckley’s line-drawing exercise where,              We are aware of the McConnell Court’s as-
as in this case, we are confronted with a vague       sertions, 540 U.S. at 193-94, that “the presence or
statute. See Anderson v. Spear, 356 F.3d 651,         absence of magic words cannot meaningfully dis-
664-65 (6th Cir. 2004). The flaw in the CFDA          tinguish electioneering speech from a true issue
is that it might be read to cover issue advo-         ad,” that “Buckley’s magic-words requirement is
                                                      functionally meaningless,” and that “Buckley’s ex-
cacy. Following McConnell, that uncertainty
                                                      press advocacy line . . . has not aided the legislative
presents a problem not because regulating             effort to combat real or apparent corruption.”
such communications is per se unconstitu-             Those statements, however, were made in the con-
tional, but because it renders the scope of the       text of the Court’s determination that a distinction
statute uncertain.                                    between express advocacy and issue advocacy is
                                                      not constitutionally mandated. The Court said
   To cure that vagueness, and receiving no           nothing about the continuing relevance of the magic
instruction from McConnell to do otherwise,           words requirement as a tool of statutory construc-
we apply Buckley’s limiting principle to the          tion where a court is dealing with a vague cam-
CFDA and conclude that the statute reaches            paign finance regulation.
only communications that expressly advocate
the election or defeat of a clearly identified            In light of that silence, we must assume that
candidate. In limiting the scope of the CFDA          Buckley remains good law in such circumstances.
                                                      If the State of Louisiana agrees with the Court that
to express advocacy, we adopt Buckley’s defi-
                                                      the magic words requirement is “functionally
                                                      meaningless,” then pursuant to McConnell it is free
                                                      to amend the CFDA in the same way that Con-
                                                      gress altered the FECA.

                                                  9
DENNIS, Circuit Judge, dissenting:

  Because the majority opinion (1) construes key provisions of the

Louisiana Campaign Finance Disclosure Act, La. R.S. 18:1501.1(A)

and 18:1483(9)(a), without first certifying the res nova state law

questions implicated to the state’s highest court as urged by the

Supreme Court, (2) disregards the Supreme Court’s clear holdings in

McConnell v. Federal Election Commission, 540 U.S. 93 (2003) that

(i) the First Amendment permits a campaign disclosure law to

require the names and addresses of persons who fund a television or

radio broadcast that clearly identifies a candidate within 30 days

of a primary and is targeted to the relevant electorate, and (ii)

when a federal court imposes a narrowing statutory construction, it

must never formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied, and (3)

saddles the State of Louisiana with a marginalized and ineffective

campaign financial disclosure law that is incongruous with the

intent of the Louisiana Legislature and the requirements of the

First Amendment, I respectfully dissent.

                            BACKGROUND

  The Center for Individual Freedom (the “Center”), a Virginia non-

profit corporation, brought this action under the Civil Rights Act,

42 U.S.C. § 1983, and the Declaratory Judgment Act, 28 U.S.C. §

2201, in the federal district court against the individual members

of the Louisiana Board of Ethics to have the Louisiana Campaign

Finance Disclosure Act (the “CFDA”) either declared unconstitu-

                                                                 10
tional on its face or to have the CFDA’s disclosure and record-

keeping provisions narrowly construed, just as the Supreme Court in

Buckley v.      Valeo,    424     U.S.    1    (1976),    limited       the   disclosure

provision of the Federal Election Campaign Act (“FECA”), to apply

only    to   persons     making       expenditures       for    communications      that

expressly advocate the election or defeat of a clearly identified

candidate, i.e., to communications containing express words of

advocacy of election or defeat (“magic words”), such as “vote for,”

“elect,” “support,” “cast your ballot for,” “Smith for Congress,”

“vote against,” “defeat,” “reject.” Id. at 44, n.52.

  The Center alleges that it desired to finance radio and televi-

sion broadcasts on “judicial decision-making” issues, inter alia,

during the last three weeks of a campaign for the September 18,

2004 primary election of an Associate Justice of the Louisiana

Supreme      Court    targeted    to     the   relevant        multi-parish    district

electorate.          The Center contends that it was prepared to run

television     and     radio    ads    referring     to   the     two    candidates    as

illustrating positions for and against its own viewpoint without

expressly advocating the election or defeat of either; that it

ultimately chose not to do so because it feared that its funding of

the broadcasts easily could have been interpreted as expenditures

for    the   purpose    of     supporting,      opposing,        or   influencing     the

election of a person to public office, for which the CFDA would

have required the Center to disclose and report the names and



                                                                                       11
addresses of its contributors funding the broadcasts; and that the

CFDA is unconstitutionally vague and overbroad because it does not

clearly guarantee such persons the right to anonymously fund such

broadcasts in the most effective way, viz., by advocating their

issue    positions     while     referring    to     candidates     illustrating

agreement   or    opposition     to   those   positions    in     communications

targeted to the relevant electorate during the last few weeks of a

primary election campaign.

  The majority grants the Center’s request to graft Buckley’s

limiting magic words construction on to the CFDA.                 The majority’s

reasoning is that: (1) the CFDA is vague because it requires

disclosure when persons make expenditures for the purpose of

influencing the election of a person to public office similar to

the FECA provision that the Supreme Court found vague and in need

of the limiting construction imposed in Buckley; (2) the Supreme

Court in McConnell held that the Bipartisan Campaign Reform Act of

2002 (the “BCRA”)’s definition of “electioneering communication” as

a disclosure trigger was not vague because it consisted of easily

understood and objectively determinable components, viz., expendi-

ture    funding   of   (i)   a   broadcast    (ii)    clearly     identifying   a

candidate (iii) aired within a specific time period (iv) and

targeted to the relevant electorate; (3) therefore, McConnell has

no application whatsoever, express or implicit, to a case involving

a vague statute like the CFDA; (4) “To cure [the CFDA’s] vagueness,


                                                                                12
and receiving no instruction from McConnell to do otherwise, we

apply Buckley’s limiting principle to the CFDA[.]”

                             DISCUSSION

                          1. Certification

  The meaning of the disclosure provision of the CFDA is res nova;

it has never been authoritatively interpreted by the Louisiana

Supreme Court.   Although federal courts generally have a duty to

adjudicate federal questions properly before them, the Supreme

Court has long recognized that concerns for comity and federalism

may require federal courts to either abstain from deciding federal

constitutional issues that are entwined with the interpretation of

state law or certify the questions of state law to the state’s

highest court for an authoritative interpretation of them before

reaching the merits of the cases.    In Railroad Comm’n v. Pullman

Co., 312 U.S. 496, 501 (1941), the Court held that where uncertain

questions of state law must be resolved before a federal constitu-

tional question can be decided, federal courts should abstain until

a state court has addressed the state questions. See also Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 236-237 (1984).   This

doctrine of abstention acknowledges that federal courts should

avoid the unnecessary resolution of federal constitutional issues

and that state courts provide the authoritative adjudication of

questions of state law.

Attention to the policies underlying abstention makes clear that in


                                                                 13
the circumstances of these cases, a federal court should await a

definitive construction by a state court rather than precipitously

indulging in a facial challenge to the constitutional validity of

a state statute.      The First Amendment overbreadth doctrine allows

a challenge to the validity of a statute on its face only if the

law is substantially overbroad. City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 799-801 (1984); New York v.

Ferber, 458 U.S. 747, 769-773 (1982).             Thus, analysis of the

constitutional claims advanced by the Center necessarily requires

construction of the CFDA to assess its scope. Id. at 769, n. 24;

Broadrick v. Oklahoma, 413 U.S. 601, 613, 618, n. 16 (1973). (“[A]

federal court must determine what a state statute means before it

can   judge    its   facial   constitutionality”;       application   of   the

overbreadth doctrine is “strong medicine” and is “employed by the

Court sparingly”).      Where provisions of a state statute have never

been construed or applied by the state’s highest court, it seems

rather obvious that interpretation of those statutory provisions by

that court could substantially alter the resolution of any claim

that the statute is facially invalid under the Federal Constitu-

tion.         See    Harmon   v.   Forssenius,        380   U.S.   528,    535

(1965)(explaining      that   abstention   may   be    necessary   where   the

statute at issue is “subject to an interpretation which will render

unnecessary or substantially modify” this Court’s decision once the

state court has been allowed to construe the statute).


                                                                            14
  The United States Supreme Court has encouraged the use of state

certification procedures as an alternative to “the more cumbersome

and...problematic abstention doctrine.” See Virginia v. American

Booksellers Ass’n, 484 U.S. 383, 397 (1988).                       The purpose of

certification      is    to   obtain     the    benefit      of   an   authoritative

construction from the state's highest court before proceeding to

the merits of the dispute. The state court's interest in accepting

a certified question for review is particularly strong when it has

not yet had the opportunity to interpret the pertinent statutory

language. Id. at 397.         Through certification of novel or unsettled

questions of state law for authoritative answers by a State's

highest   court,    a     federal      court    may   save    “time,    energy,   and

resources and help[] build a cooperative judicial federalism.”

Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974); see also

Bellotti v. Baird, 428 U.S. 132, 148 (1976) (to warrant district

court certification, “[i]t is sufficient that the statute is

susceptible of...an interpretation [that] would avoid or substan-

tially modify the federal constitutional challenge to the stat-

ute”). Taking advantage of certification made available by a State

may “greatly simplif[y]” an ultimate adjudication in federal court.

See Bellotti, 428 U.S. at 151.

  “Speculation by a federal court about the meaning of a state

statute in   the        absence   of    prior    state    court    adjudication    is

particularly gratuitous when...the state courts stand willing to


                                                                                   15
address questions of state law on certification from a federal

court.” Id. (quoting Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 510 (1985)(O'CONNOR, J., concurring)); see Arizonans for

Official English v. Arizona, 520 U.S. 43, 79 (1997)(“Warnings

against premature adjudication of constitutional questions bear

heightened attention when a federal court is asked to invalidate a

State's law, for the federal tribunal risks friction-generating

error when it endeavors to construe a novel state Act not yet

reviewed by the State's highest court.”)(citing Rescue Army v.

Municipal Court of City of Los Angeles, 331 U.S. 549, 573-574).

This is especially true in the context of a state campaign finance

disclosure   law   applicable   to   all   state    primary     and   general

elections, including those for the Legislature, the Governor, and

other Executive Branch officers, as well as the Supreme Court of

Louisiana and many other important offices.          The State of Louisi-

ana, as well as all of the other United States, has a great

interest in promoting genuinely democratic elections to fill its

major public offices free from corruption and other undue influ-

ences.   For these reasons, the Louisiana Supreme Court should have

been afforded an opportunity to construe the Louisiana Campaign

Finance Disclosure Act in the first instance.

                2. Buckley Is Out; McConnell Is In:
              Requiring Disclosure Of Expenditures On
         Electioneering-Type Communications Is Permissible

  Unfortunately,    the   majority   not   only    fails   to   certify   the


                                                                           16
question of the meaning of the state statute to the state supreme

court, it also proceeds through an incorrect interpretation of

federal law to superimpose an erroneous and overly intrusive

narrowing construction on the state law.

  In Buckley, the Supreme Court concluded that the FECA’s disclo-

sure requirement, in its effort to be all-inclusive, raised serious

problems of vagueness because it applied to every person who made

a contribution or expenditure for the purpose of influencing the

nomination or election of a candidate for federal office. 424 U.S.

at 76-77.   Thus, the subjective intent of the contributor was the

primary controlling factor in triggering the disclosure require-

ment.    Because    almost   any   contribution   funding   a    political

communication, even if made well prior to the election and without

mention of any candidate’s name, could be deemed to have been made

to influence an election, the potential reach of the FECA disclo-

sure provision was extremely broad. Thus, to insure that the reach

of the disclosure requirement was not impermissibly broad, the

Court   construed   “expenditure”    to   reach   only   funds   used   for

communications expressly advocating the election or defeat of a

clearly identified candidate. Id. at 44. The Court suggested that

there existed “magic words” of express advocacy of election or

defeat of a candidate, which were necessary to make communications

subject to the disclosure requirement. Id. at 44, n. 52.

  In contrast, the Supreme Court in McConnell upheld without



                                                                         17
limitation the clear and objective BCRA requirement of disclosure

of the names and addresses of persons funding an electronic media

broadcast made within a 30- or 60-day window prior to a primary or

general election, if it clearly identified a candidate and targeted

the relevant electorate.   540 U.S. at 105 (explaining that “issues

ads broadcast during the 30- and 60-day periods preceding federal

primary and general elections are the functional equivalent of

express advocacy” and “[t]he justifications for regulating express

advocacy apply equally to those ads if they have an electioneering

purpose, which the vast majority do”).             In drafting the BCRA

provision, Congress relied on almost 30 years’ experience which

taught that the Buckley “magic words” limitation was functionally

meaningless: under Buckley political advertisers easily evaded

disclosure by simply eschewing use of the magic words; the outcomes

of elections were often influenced by enormous sums spent anony-

mously to fund TV and radio advertising in the final campaign

stages; on the other hand, electronic media advertising during such

periods that clearly identified a candidate and targeted the

relevant electorate rarely, if ever, was funded for any other

purpose than to influence elections.        Id. at 189-94.

  Thus, the McConnell Court explained, the amount of pure issue

electronic media advocacy that might be chilled during a specified

campaign   homestretch   was   negligible     in   comparison   with   the

beneficial effects of public disclosure of the identities of the



                                                                        18
funders of such electronic electioneering communications.             Id. at

196 (agreeing that “the important state interests” upheld through

disclosure    requirements   are    “providing    the    electorate    with

information, deterring actual corruption and avoiding any appear-

ance thereof, and gathering the data necessary to enforce more

substantive electioneering restrictions”).        In fact, the McConnell

Court agreed with the lower court that “disclosure requirements are

constitutional because they do not prevent anyone from speaking.”

Id. at 201 (citation omitted).         The Court flatly rejected the

plaintiffs’   argument    that   Buckley   established   that   the   First

Amendment absolutely guaranteed the right of persons to anonymously

engage in political speech for the purpose of issues advocacy under

any and all circumstances.       Id. at 190-93.     The Court explained

that in Buckley it had merely adopted a narrowing construction of

the FECA to avoid a potential constitutional conflict; it did not

adopt the Buckley express advocacy limitation and magic words

implementation as a freestanding commandment of the First Amend-

ment.   Id.   Moreover, in doing so, the McConnell Court reaffirmed

that it had long rigidly adhered to the tenet never to formulate a

rule of constitutional law broader than is required by the precise

facts to which it is to be applied, id. at 192 (citing U.S. v.

Raines, 362 U.S. 17, 21 (1960); and that the nature of judicial

review constrains a federal court to consider only the case that is

actually before it.      Id. (citing James B. Beam Distilling Co. V.


                                                                          19
Georgia, 501 U.S. 529, 547 (1991)(Blackmun, J., dissenting)).

  For these reasons, the majority in the present case has clearly

misinterpreted the McConnell decision and has misapplied it in

engrafting Buckley’s limiting construction on to the Louisiana

Campaign Finance Disclosure Act.         Assuming, without deciding, that

the majority    has    correctly   guessed    how   the   Supreme     Court   of

Louisiana would interpret the CFDA, and that the CFDA is unconsti-

tutionally vague as so construed, it clearly does not follow that

the majority has adopted a narrowing construction that is appropri-

ate in the light of the Supreme Court’s holdings and teachings in

McConnell. On the contrary, the majority’s limiting interpretation

of the CFDA would be acceptable only under the theory that the

Court   in   Buckley   had    constitutionalized    the    express    advocacy

limitation and magic words prescription, a constitutional theory

that the Court expressly rejected in McConnell.

  Instead,    the   Supreme    Court’s   decision   in    McConnell    clearly

indicates that the State of Louisiana may constitutionally require

the Center to comply with the disclosure requirements of the CFDA

under a construction that is no broader than is required by the

precise facts to which it is to be applied in the present case.               In

this case, the Center asserts that it desired only to engage in

issue advocacy, and that the TV and radio advertising it proposed

to broadcast during the three weeks prior to the September 18, 2004

Louisiana Supreme Court Associate Justice election, would not have


                                                                              20
been funded   or   broadcast   for   the   purpose   of   influencing   the

election. But the Center admitted that its broadcasts would clearly

identify one or more candidates and be targeted to the relevant

electorate.   Consequently, the broadcasts that the Center desired

to fund fall squarely within a category of speech closely analogous

to the definition of “electioneering communication” in respect to

which the Supreme Court held that Congress may under the First

Amendment require disclosure, viz. (1) a broadcast (2) clearly

identifying a candidate (3) aired within a specific time prior to

election, and (4) targeted to the relevant electorate.         McConnell,

540 U.S. at 194.

    3. The Majority Opinion Formulates A Constitutional Rule
               Broader Than The Facts Of This Case

  In order to reduce the scope of the CFDA to a constitutional

scale it is only necessary to construe it so as to limit its

disclosure requirement to the names and addresses of those who fund

electronic media broadcasts, clearly identifying a candidate, aired

within three weeks prior to a primary election, and targeted to the

relevant electorate.   The majority opinion, however, in disregard

of McConnell, grafts the Buckley express advocacy/magic words

limitation on to the CFDA, tacitly formulating and applying a much

broader rule that nullifies the CFDA’s disclosure requirement in

respect to all political speech except for that containing the

Buckley magic words of express candidate advocacy.              Thus, the

majority opinion violates the tenet of the Supreme Court, as


                                                                         21
reaffirmed in McConnell, against the formulation of a constitu-

tional rule broader than the precise facts of the case to which it

applies.1

   Consequently, the majority is simply mistaken in assuming that the McConnell Court’s holdings

have no effect upon “the continuing relevance of the magic words requirement as a tool of statutory

construction where a court is dealing with a vague campaign finance regulation.” The majority’s

assumption rests precariously on a false syllogism, viz., McConnell dealt with an unambiguous

statute; the present case deals with an ambiguous statute (according to the majority’s necessarily non-

authoritative state law interpretation); therefore, nothing McConnell says bears upon our narrowing

construction of a state statute. Only a moment’s reflection is needed to see the fallacy of this

sophism. The Supreme Court has developed First Amendment principles that it has applied to

determine whether any particular statute is constitutionally ambiguous and in need of a narrowing

construction. Therefore, the Court’s teachings on the First Amendment in such cases are generally

authoritative and binding upon the inferior federal courts regardless of the court’s conclusion as to

whether the statute in the particular case before it is found to be ambiguous and in need of a

narrowing construction. Thus, the majority cannot legitimately disregard the teachings of the

McConnell Court as irrelevant “assertions,” as it seeks to do, simply because the Court determined

that the statute in that case was not ambiguous and the majority has decided the case before us is

ambiguous.



   1
     Although the majority does not disclose the constitutional rule
supporting its narrowing construction of the CFDA, the majority must
have tacitly formulated such a rule. For without a constitutional rule
as a basis this court has no authority to narrowly construe state
statutes.

                                                                                                    22
   Therefore, the majority erred in concluding that it must “continue to adhere to the express

advocacy/issue advocacy dichotomy that the Court set up in Buckley and that we employed in

Chamber of Commerce of the United States v. Moore, 288 F.3d 187, 194-95 (5th Cir. 2002).”

Further, as Justice Thomas aptly recognized, the McConnell Court, “by concluding that the ‘express

advocacy’ limitation derived by Buckley is not a constitutionally mandated line, has, in one blow,

overturned every Court of Appeals that has addressed this question” including, inter alia, Chamber

of Commerce of the United States v. Moore, supra., on which the majority erroneously relies. 540

U.S. at 278, n.11 (Thomas, J., dissenting)

                                          CONCLUSION

   For these reasons, I respectfully dissent. The majority erred in refusing to certify the res nova

state law questions implicated in the interpretation of the CFDA to the Louisiana Supreme Court.

The majority further erred in disregarding the holdings and teachings of McConnell which require,

at the most, limiting the CFDA’s disclosure requirement to a category of political speech analogous

to that defined as “electioneering communication” by Congress in the BCRA that the McConnell

Court upheld. Finally, the majority erred needlessly and most harmfully in grafting on to the CFDA

the Buckley magic words of express candidate advocacy, thereby nullifying the CFDA’s disclosure

requirement except in those rare instances in which political speakers fail to eschew the magic words.

Ultimately, I believe that this case would be more properly decided by the Louisiana Supreme Court.

For these reasons, I respectfully dissent from the majority’s decision.




                                                                                                   23
