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8/2/2019 Nom Transcript
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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
____________________________
NATIONAL ORGANIZATION FOR CIVIL ACTION
MARRIAGE, et al, Docket No: 09-538-B-H
Plaintiffs
-versus-
WALTER F. MCKEE, et al,
Defendants
____________________________
Transcript of Proceedings
Pursuant to notice, the above-entitled matter came on
for HEARING held before THE HONORABLE D. BROCK HORNBY,
United States District Court Judge, in the United
States District Court, Edward T. Gignoux Courthouse,
156 Federal Street, Portland, Maine on the 12th day of
August, 2010 at 10:00 AM as follows:
Appearances:
For the Plaintiff: Randy Elf, Esquire
Stephen C. Whiting, Esquire
For the Defendant: Phyllis Gardiner, Esquire
Thomas A. Knowlton, Esquire
Dennis R. Ford
Official Court Reporter
(Prepared from manual stenography and
computer aided transcription)
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(OPEN COURT. PARTIES PRESENT)
THE COURT: Good morning. This is civil
number 09-538, National Organization For Marriage et al
versus McKee, et al., and the matter is on this morning
for a consolidated hearing on the motion for
preliminary injunction and trial on the merits of the
part of the lawsuit that deals with candidate
elections, namely Counts 5, 6, 7 and 8.
You may have deduced from my voice that I picked
up a summer cold, a fairly bad one, and so don't be
surprised if I don't ask my normal number of questions
because I may not want to provoke a coughing spell, but
I do have some preliminary administrative type
questions that I'll lay out for you and you can deal
with them when it's your turn.
I take it in light of the agreement between you a
to how we should treat the procedural part of this
matter, and also the statement in the plaintiff's brief
about the risk of great confusion by looking at the
case as a whole, that I should probably treat this as a
Rule 42(b) severance.
As you know 42(b) says for convenience, to avoid
prejudice or to expedite and economize, the Court may
order a separate trial of one or more separate issues
claimed, et cetera, and as I understand it, this is a
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trial on the merits.
I expect however I come out, one of you will
probably want to appeal, and given election type timing
issues, I'm assuming, therefore, that you would also
want me to issue a Rule 54(b) judgment directing entry
of a final judgment as to one or more but fewer than
all claims within the case on the basis that there is
no just reason for delay, and I would like you to
address that.
Then I'm aware, of course, that you have been
making certain filings under seal that Judge Rich has
dealt with you about, but you've now stipulated what is
the record for the trial.
Trials are ordinarily public proceedings, and so
my expectation is that everything that has been
stipulated as part of the record is no longer under
seal, and that I need not be concerned in my opinion
about referring to the things that have been stipulated
as part of the record.
So you should address that issue as well and then
finally, just because you might be wondering, the only
reason that the other case, the Maine Clean Elections
law case, was reassigned to Judge Singal is that I have
longstanding plans to leave on vacation on Wednesday
and I knew that I could not deal with both cases in a
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timely manner, and so you should be expecting to hear
from me on this case by the middle of next week. I
will meet with Judge Singal on scheduling the other
matter.
So with those preliminary matters -- I have read
all of your filings, by the way, and I've read the
cases. I'm familiar with them. It's a complicated
area, as you know, and I'm pleased now to hear your
arguments and I understand that Mr. Elf is going to
argue for the plaintiff. It's your motion. Go ahead.
Mr. Whiting?
MR. WHITING: Your Honor, I would just like
to introduce --
THE COURT: Please do.
MR. WHITING: Attorney Randy Elf from the law
firm of Bopp, Coleson & Bostrom, Terre Haute, Indiana.
Mr. Elf will be presenting the arguments for the
plaintiff.
THE COURT: Thank you, Mr. Whiting.
Mr. Elf, you may use the podium or table,
whichever you prefer.
MR. ELF: Good morning, Your Honor.
THE COURT: Good morning.
MR. ELF: You were asking about 42(b) and
54(b). However the Court would like to proceed on
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42(b) and 52(b) would be fine with us. The suggestions
that the Court made, we wouldn't have any objection to
those.
As to the filings under seal, I have to confess in
all candor I wasn't expecting that question this
morning and my first reaction is that what was filed
under seal should remain under seal because of NOM's
concerns about the privacy of its own plans.
In our response to -- or in our replies to the
defendant's response to our preliminary injunction
motion and brief, we didn't even refer to the matters
that were under seal so we didn't have a -- we didn't
have any need to address what was under seal. We felt
very comfortable in addressing and responding to
their -- replying to their response by addressing what
was not under seal.
THE COURT: What were the reasons for the
seal? In other words, at least as I looked at it, this
is not disclosure of individual contributors, that sort
of thing. I know it was an issue among you. What was
the reason for the seal?
MR. ELF: My understanding -- and this goes to
the first part of the complaint, and as Your Honor
noted at the beginning, we are under the second part of
the complaint here, and the sealing all had to do with
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the first part of the complaint.
My understanding, though not having been
thoroughly involved in that first part of the
complaint, is that it went to the privacy of NOM's own
plans and it didn't want all of its plans disclosed
publicly.
THE COURT: Plans?
MR. ELF: Plans for its own political speech.
THE COURT: Alright, but certainly
characterizations of NOM, the nature of its
incorporation, its activities, et cetera, there would
be no grounds for sealing that; right?
MR. ELF: No, no. We put that in our
complaint.
THE COURT: Well, let me say this. I will ask
that you, by the close of business Friday, indicate
what you think needs to remain sealed under the
portions of the record that have become part of the
trial on the merits for part two.
As you know, it's really an uphill struggle for
you because trials are usually public events.
MR. ELF: And I appreciate that, what the
Court is confronting there, and will have the answer by
the close of business tomorrow.
I would like to begin, if I may please, with three
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words. Two words of thanks and then one word of what
this case is not about.
The first word of thanks goes to the Attorney
General's Office for the many courtesies that the
Attorney General's Office has extended to the
plaintiffs and, to my office in particular, during the
case. We appreciate everything they have done in that
regard and it's very nice when that happens.
THE COURT: Well, thank yous around. I'll
just tell you all, Judge Rich has told me how
professionally you all have managed the case so I'm
glad to hear that as such. Go ahead.
MR. ELF: The second word of thanks goes to
the Court and the Court staff, and particularly to the
Court's law clerk.
Having had the thrill of being a District Court
law clerk, I know what it's like when what looks like a
very big case comes flying over the transom, or I guess
nowadays, I guess it's when a big case comes over the
electronic filing system, and I'm sure, Judge, your law
clerks are way smarter than I ever was. That doesn't
diminish the appreciation we feel toward not only the
law clerk, but to the attention that everyone here has
given to this.
The third word I would like to begin with is what
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this case is not about. This case has absolutely
nothing to do, as the Court is aware, with marriage or
any of the attendant issues. I could be here
representing and making the same assertions on behalf
of people on the other side of this debate. I could
make the same assertions on behalf of most anyone on
most any side of any debate when it comes to political
speech in Maine or in any other state or nationally or
whatever the case may be.
There are a lot of things about this case that are
difficult, and what is most difficult about this case
is the pitfalls. The number of pitfalls in this case
are -- make this case very hard, and that's one reason
we are so appreciative that Judge Rich allowed us to
file an overlength brief.
As we indicated in our motion for an overlength
brief, it's easier to prevent mistakes before they
occur then to straighten them out afterwards, and we
appreciate Judge Rich's allowing the overlength brief
not only on behalf of ourselves, but on behalf of the
defendants as well because we wanted them to have a
full opportunity to respond to what we had to say.
THE COURT: That's not a comment about the
trial and appeal process.
MR. ELF: Pardon?
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THE COURT: I said that was not a comment
about the trial and appeal process. It's easier to
correct mistakes before it occurs than after it occurs.
I'm being factitious.
MR. ELF: And I appreciate the good humor and
that's not a comment about anyone in particular. It's
just a comment about the -- just general nature of the
way things like this flow, as I know Your Honor knows.
Sometimes when you have complicated things, it's
easy to make a mistake, and I don't attribute any
volitious intent or any bad intent of any sort to
anyone who makes a mistake. It's just easier to
prevent mistakes before they occur then to straighten
them out afterwards.
This action challenges three aspects of Maine law
First, the regulation of NOM as a political committee,
or to use Maine's word, political action committee.
Second, the regulation of what Maine calls independent
expenditures, and third, the attribution and disclaimer
requirements.
All of this law is unconstitutional for either/or
both of two reasons. It is unconstitutional because it
is unconstitutionally vague. It is also
unconstitutional because it is overbroad and fails the
appropriate level of scrutiny.
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In addition, we submit that the law is
substantially overbroad, which is different from
overbroad and, therefore, is facially unconstitutional.
As to vagueness, we submit that the law is
unconstitutionally vague because, as we have described
in our briefing, it uses words such as "influencing",
"purpose of influencing," "promoting," "initiate" and
"initiation." It refers to "context" in the expressed
advocacy definition and it also refers to the
appeal-to-vote test.
As for --
THE COURT: Well, there's no as applied
challenge here.
MR. ELF: Yes, there is. There is an as
applied both for vagueness and overbreadth.
THE COURT: But I don't have any specifics, do
I, of what the as applied challenge would be. I don't
have your speech. I don't have the specifics of what
you're doing; correct?
MR. ELF: No, sir. Exhibits 13, 14 and 15 to
the complaint have our speech.
THE COURT: Those are the ads?
MR. ELF: Yes, sir.
THE COURT: You said in your reply brief you
have no intent of running them. You say you don't want
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to make that speech. Your reply brief says you no
longer have any interest in making that speech.
MR. ELF: That referred to the speech at issue
in the first amended complaint. When we filed the
second amended complaint, we submitted new speech and
substituted new ads, two radios ads and one mailer for
the radio ads and mailings that were in the first
amended complaint.
THE COURT: So when your reply brief said no
longer any interest, you weren't -- I see. I
misunderstood that then. Go ahead.
MR. ELF: As for overbreadth, the first thing
I'll address is political committee status and this is
an area of law that is full of --
THE COURT: Let me back up one more time. Is
that -- any other things that are as applied beyond
those three ads?
MR. ELF: No.
THE COURT: Okay.
MR. ELF: Maine's political committee or
political action committee definition and the
corresponding expenditure definition are
unconstitutional because they allow Maine to regulate
as political committees, as political action
committees, organizations other than those that are
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under the control of the candidate, or which have the
major purpose of nominating or electing candidates.
As we have noted, this is a challenge to the
political action committee and the corresponding
expenditure definition. It's not a challenge to the
disclosure requirement themselves in the sense that the
claim, the prayer for relief, challenges the political
committee and corresponding expenditure definitions,
not the disclosure requirements.
THE COURT: Explain that to me. I saw that in
the brief as well. Don't I still have to take into
account the disclosure requirements in determining
whether there's an unconstitutional burden here?
You're not being prohibiting from speaking.
Instead, you're subject to certain requirements if you
do speak.
MR. ELF: A challenge to a political committee
definition, as Fourth Circuit courts have noted, and as
Buckley versus Valeo impliedly notes, is a challenge to
the political committee definition through which
government imposes particular requirements; in this
case, registration requirements, extensive
recordkeeping requirements, and the extensive reporting
requirements.
THE COURT: But the requirement's surely an
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act. I mean if it was prohibiting from speech, that
would be a different manner of regulation, permitted
disclosure requirement.
MR. ELF: That would be a different method of
regulating. It's still though a challenge to the
political committee definition through which Government
imposes political committee burdens.
THE COURT: One more question on that line.
To say it's attacking the definition, while true, it
surely is not enough. You can have a definition with
no consequence. The definition matters only because of
the consequence.
MR. ELF: That's exactly right. It matters
because the definition is the means to which Maine
imposes full fledged political committee disclosure
requirements, including registration, including
extensive reporting requirements, and including
extensive recordkeeping requirements, all of which
Citizens United versus Federal Election Commission, 130
S.Ct at 897 to 898, recognize as full fledged political
committee burdens.
THE COURT: Go ahead.
MR. ELF: Once we get beyond political
committee status, we address the regulation of what
Maine calls "independent expenditures." When it comes
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to spending for political speech by organizations that
government may not -- underline may not -- regulate as
political committees, the Supreme Court has
recognized -- there is Supreme Court precedence that
recognizes that government has an established interest
in regulating two types of speech.
Those two types of speech arise from -- first from
Buckley versus Valeo where the government -- where the
Court allowed government to regulate expressed advocacy
as defined in Buckley.
Second, the combination of McConnell versus
Federal Election Commission, the Wisconsin Right to
Life II decision and Citizens United decision allow
government to regulate election and communications as
defined in the Federal Election Campaign Act. Those
are the two types of speech that the Supreme Court has
allowed government to regulate.
Does that mean that that's it for all time? No,
it doesn't mean that. What it does mean is that's what
the Supreme Court has allowed government to regulate.
One day there may be more. One day there may be less,
but right now that's what the Supreme Court allows
government to regulate, and if the good people of
Maine, through their Legislature and their other
elected officials want to regulate more speech than
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that, then they have the burden of proving that the law
survives scrutiny.
NOM's speech is not express advocacy as defined in
Buckley, and only the broadcast speech that occurs in
the 30 to 60-day windows; that is, in the 30 days
before a primary or 60 days before an election, a
general election, is an electionary communication as
defined in the Federal Election Campaign Act.
For that reason, Maine law is unconstitutional
because the Maine express advocacy definition, the
corresponding expenditure definition -- the Court will
please recall that there are two expenditure
definitions here. One that corresponds to the
political committee definition, one that corresponds to
the express advocacy, independent expenditure
requirement.
So we have the express advocacy definition, the
expenditure definition, and the independent expenditure
definition, taken together, reach beyond those two
areas, express advocacy as defined in Buckley and
electionary communication as defined in the Federal
Election Campaign Act.
In addition -- I shouldn't say in addition. The
reason that they reach beyond those areas is that the
express advocacy definition includes a reference to
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context, and the express advocacy definition also
includes the appeal-to-vote test.
THE COURT: And the context, is that in the
statute or just in the regulation?
MR. ELF: That's in the regulation.
THE COURT: Go ahead.
MR. ELF: As to the reporting and the
attribution and disclaimer requirements, we submit that
those are unconstitutional because the $100 -- first,
because the $100 reporting threshold is too low.
As Judge Noonan noted in the Canyon Ferry decision
from the 9th Circuit, if -- and this is the way he put
it, rather casually. If Hank Jones is going to spend
$76 for a particular candidate, why would I be against
it? And Judge Noonan put it more eloquently than I
just did, but that's the sum and substance of what he
suggested. Our suggestion is that the $100 reporting
threshold is just too low.
In addition, the attribution and disclaimer
requirements for speech other than express advocacy or
FECA electionary communication distract readers and
listeners. Particularly with radio ads, it is hard to
get all of the disclaimer requirements into a 30 second
ad, and even a 60 second ad and still have much room
for anything else.
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In addition, the 24-hour reporting requirement is
just too much. It is a burden on an organization such
as NOM, or organizations such as NOM, to have to report
their speech within 24 hours.
We appreciate the defendant's suggestion that it's
important to know where last minute spending comes
from, but the 24-hour reporting requirements, as we
noted in our reply brief, don't apply just to last
minute spending for political speech. They're broader
than that.
If I may note one correction to our reply brief,
there is an unartful sentence on page 19 that creates
the misimpression that the $100 -- that there was a
$100 threshold at issue in the Daggett case. That was
not right. It was a $50 threshold at issue in the
Daggett case and we have that right on page 46 of our
opening brief.
As for the presumption that certain speech is
express advocacy, section 1019(b) presumes speech about
Maine Clean Election candidates in the 21-35-day
windows; that is, in the 21 days before a primary or
35 days before a general election, is express advocacy.
Such a presumption is unconstitutional, we submit,
under the Colorado Republican I case that we have
provided.
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MR. ELF: Finally, we suggest that Maine law
at issue here is facially unconstitutional because it
is substantially overbroad.
Resolving the vagueness and overbreadth of Maine
law through a number of as applied challenges will take
many challenges and many years, as the Fourth Circuit
noted in the North Carolina Right to Life III decision,
and as the Supreme Court noted in Citizens United, all
the while a law such as Maine's will chill political
speech, and with that, I'm happy to respond to any
questions the Court may have or --
THE COURT: Well, let me ask this question
about chill, which is where you are.
As I understand it, you've been fairly active in
other states. Why is it that Maine's a chill as
opposed to other states where you've found the
regulations not so troubling. Is Maine really that
more dramatic -- drastic?
MR. ELF: Which other states?
THE COURT: Have you been active in
California? Don't you have PACs in other states?
MR. ELF: We have PACs in other states, but a
PAC is a legal entity separate from NOM itself.
THE COURT: Right, but that's not a burden.
MR. ELF: It's not a burden on NOM. It's a
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burden on the PAC. Sometimes, for example, PAC
regulations are constitutional. They are
constitutional for organizations that are under the
control of the candidate, or which have the major
purpose of nominating or electing candidates.
If, for example, NOM wants to form a PAC, then a
PAC is a separate legal entity, as the Supreme Court
recognized in Citizens United, and the PAC then, the
PAC itself, not the whole NOM organization, not the
whole C4, has to comply with the applicable PAC
disclosure requirements, the registration requirement,
the record keeping requirement, the extensive reporting
requirements.
So, for example, if NOM has a PAC in New York,
that doesn't require NOM to report all of the C4, that
is all of NOM's spending or keep records for all of
NOM's spending. That requires NOM to keep records for
the political action committee, the separate legal
entity as it exists in New York and as it does speech
in New York.
THE COURT: And let me just bring you back to
page ten of your reply brief which confused me, and
while you're turning to that, I'll ask the clerk to
please print out -- would you go to docket 114 and
print out Exhibits 13 through 15.
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So at the top paragraph, I saw a bullet point that
confused me where you said that three ads drafted for
NOM in December 2009 are no longer speech plaintiff
seeks to do, see document 114, Exhibits 13 through 15.
What you're telling me now is that document 114,
Exhibits 13 through 15, are now the speeches you do
want to do as opposed to some earlier speech; is that
what you're saying?
MR. ELF: That's correct.
THE COURT: Okay. I'll get those before we're
done. Those are my questions. I may in reply have
some more after I review those statements, but I'll put
those aside since you're not longer seeking to use
them.
MR. ELF: Very well.
THE COURT: Thank you. Mr. Knowlton.
MR. KNOWLTON: Thank you, Your Honor. Good
morning. Thomas Knowlton from the AG's Office along
with Phyllis Gardiner.
Let me first address the administrative questions
that Your Honor mentioned at the beginning. We don't
believe that Rule 42(b) severance is necessary, but we
don't have any particular objection to it either. If
that's what the Court would like to do, that's fine.
THE COURT: That's effectively what I have --
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what you have done for me; is it not?
MR. KNOWLTON: I think in effect, yes, without
mentioning the rule. In terms of Rule 54(b), it
probably makes sense, separate judgment to the extent
that more things need to happen for those claims.
In terms of the seal issue, we certainly have no
objection to the Court referring to anything in the
record, making public in any of its opinions. We will
just allow NOM to make whatever case it makes for why
it thinks certain documents should or should not remain
under seal. That's their case, not our's.
In terms of the severance issue, just we want to
make sure that even if there is some evidence -- that
no evidence gets excluded on the theory that somehow it
has more to do with NOM's activities in Maine dealing
with the (B)(2)(c) law as opposed to candidate
elections; in other words, what's before the Court is
going to be considered on these claims, even if some of
the deposition testimony or other evidence deals with
NOM's activities in Maine.
THE COURT: Well, let's just be clear on that.
As far as I'm concerned, the record for this trial is
what you all have stipulated to.
MR. KNOWLTON: Right. That's great. Thank
you.
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THE COURT: All right.
MR. KNOWLTON: Before getting to what NOM
would like to do or the arguments it doesn't make, it's
worth mentioning what NOM is not arguing.
They are making no argument about the contribution
definitions. No vagueness or overbreadth argument
about those definitions. They are making no arguments
that disclosing the names of their contributors would
result in threats, harassment or reprisals if, in fact,
that's what they need to report in a PAC report. Those
were arguments they were making earlier, but they're
gone.
I have to confess, I'm still a bit stymied by the
arguments about the PAC disclosure requirements. What
the reply brief says is that the disclosure
requirements are not before the Court. Whether the PAC
disclosure requirements are constitutional is not
before the Court.
So I took that to mean that NOM is only
challenging the definition as being vague or inherently
somehow unconstitutional in some other way, but that
NOM was not challenging and, in fact, did not make a
point by point argument as to why the various
disclosure requirements were burdensome.
They're simply making the wholesale legal argument
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that PAC status is burdensome, without going through
the various disclosure requirements in Maine law and
making any argument about why those happen to be
burdensome.
THE COURT: Well, I struggled with that as
well, and you heard my interchange with Mr. Elf that,
if I understood him -- I don't want to put words in his
mouth here -- he is challenging the definition because
he says an organization like NOM should not be subject
to it and, of course, the definition only matters if it
has operational effects.
So he's not challenging -- or PACs in general
whether the disclosure requirements are appropriate or
not, but what he is challenge for NOM is the bevy of
requirements that flow from this being considered as
either major purpose PAC, or as having passed the
$5,000 threshold.
MR. KNOWLTON: I'll leave that to Your Honor.
It's not clear to me that that's really what they're
saying, but I'll leave that.
What NOM says it wants to do in Maine is truly
remarkable, Your Honor. They would like to spend more
than $5,000 on political ads that name -- clearly
identified candidates, run these ads to the targeted
electorate.
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NOM concedes that if it does, in fact, run these
ads, that it would run them for the purpose of
influencing those elections, yet NOM doesn't want to
tell Maine voters about their organizational structure,
about who its decision-makers are, about its
expenditures or about its contributions that it
receives for the purposes of promoting or opposing
Maine candidates.
In addition, NOM doesn't want to tell Maine voter
in its ads whether a candidate has authorized the ad or
who paid for it.
Now, as an initial matter, Your Honor, as we said
in our brief, we don't think NOM's claims are properly
before the Court because they're academic and
hypothetical; in other words, NOM doesn't really have
standing here. They haven't demonstrated any concrete
plan to actually engage in spending in Maine candidate
races.
If you look at even the three ads, Your Honor, the
first ad, even the revised ad, which is Exhibit 13,
seems aimed at someone who is not even a candidate. It
talks about someone who was supposedly a paid
consultant for the "No On One" campaign. That seems
directed at Hannah Pingree, who's not even in the race.
So it seems that this is more a hypothetical or
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academic dispute rather than one that is generated by a
sincere desire by this organization to engage in the
candidate elections in Maine.
THE COURT: Well, how -- let's confront that.
How do I deal with that? I have a verified complaint
where the principal of NOM says, according to paragraph
86, NOM seeks in 2010 to engage in multiple forms of
speech, including various ads, and I've got ads that he
said he wants to use in Maine.
Now, you've given me deposition testimony where
things are vaguer, but NOM is saying because of the
Maine restrictions, we're not going to go out and spend
money preparing for things that we might not be able to
do.
Don't I have at least enough there of a desire to
speak to meet the threshold?
MR. KNOWLTON: We don't think you do. Even as
late as June 23rd, after the primaries, they couldn't
identify a single candidate whom they were considering
supporting. I take it back, Your Honor. They were
considering one person who had lost his primary and
wasn't even in the race. That's Mr. Emory.
So they had budgeted zero money in their
organizational documents. They have not only prepared
no list of Maine candidates, but they don't have any
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idea whom they might support or oppose and at this
point in the game, it seems that just saying in the
verified complaint that we'd like to engage in
candidate spending in Maine isn't good enough without
some more concrete plan as to whom and when spending is
addressed to.
THE COURT: You say as late as June 23. June
23 was also the date of the verified amended complaint.
So both the deposition, the last part of the deposition
and the affidavit apparently were the same day.
MR. KNOWLTON: I wasn't aware that -- the
simultaneity of the dates, Your Honor, but you know,
when the executive director of the organization can't
identify a single candidate and, in fact, they submit
an ad on June 23rd that's aimed at someone who isn't --
had never been a candidate, who's term limited out, and
is just makes you wonder whether this is an academic
litigation exercise rather than a real world desire to
engage in spending.
THE COURT: Go ahead.
MR. KNOWLTON: Alright. In terms of the
statutes that are at issue, we won't go through them
point-by-point. We will leave that for our brief, but
we will say that none of the statutes that NOM is
challenging is vague.
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They don't prohibit NOM from speaking, but rather
they require only disclosures that further Maine's
important or even compelling interest in informing the
electorate, deterring corruption, and avoiding the
appearance of any corruption and gathering or providing
data necessary for the Commission to enforce other
substantive election laws.
THE COURT: Well, let's take "influence."
Tell me why "influence" is not vague. What does that
mean?
MR. KNOWLTON: "Influence" in the
definition -- let's say in the PAC definition, Your
Honor, first of all, it's a word that Your Honor
approved in the (B)(2)(c) law. It's the exact same
phrase, "for the purpose of influencing."
It's a standard fare in campaign finance laws that
the Second Circuit upheld in Landell v. Sorrell, that
the Ninth Circuit upheld in the Canyon Ferry case. It
tries to capture activity that is the parlance of what
goes on during elections. People engage in spending to
influence, either promote or oppose.
It is, to some extent, certainly overlapping with
promoting or opposing or defeating or attacking, but it
might indeed capture things that some clever
organization or attorney might claim isn't technically
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promoting or supporting.
So it's intended by the Legislature to capture the
universe of activities that Maine citizens should know
about. It's spending that's designed to change the
result of elections.
THE COURT: For example, I think this came
from out of the definition, if the purpose is at the
time of the election to make sure the legislator is
aware that some of his or her support comes from people
of particular views because it then may influence the
action that legislator takes later, is that influencing
election or is that issue advocacy?
MR. KNOWLTON: It depends on the ad, Your
Honor. It could be that some ads are -- serve both
purposes. That could be.
THE COURT: And if they do?
MR. KNOWLTON: And if they do, then if one of
the purposes is to influence the election, then it
seems that that should come within the reach of the
statute.
THE COURT: Go ahead.
MR. KNOWLTON: I'll continue to say about
these laws, Your Honor, they are the type of disclosure
that the Supreme Court recently endorsed in Citizens
United where they didn't make clear that speech that
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was not express advocacy was nonetheless subject to
laws that require disclosure because of the important
interest in informing the electorate about who is
spending money to try to influence their votes.
In terms of -- I won't -- the response to, I
think, any of the points that Mr. Elf made were
addressed in the briefs, so unless Your Honor has other
questions in particular, we would, I think, rest on
what we said in our briefs, rather than repeat them.
THE COURT: I do have one more. Let me just
find it. Citizens United, and you mentioned this in
your brief in passing, but I would like you to
elaborate on it.
In part three, the opinion for the Court does say
that PACs are burdensome alternatives. They are
expensive to administer and subject to extensive
regulations. For example, every PAC has to appoint a
treasurer, forward donations to the treasurer's
property, detail -- et cetera, et cetera.
Is that stating the law in terms of burdens in
this -- of what Maine has done here?
MR. KNOWLTON: No, Your Honor, and let me say
something first that we should have pointed out in the
brief which is PACs under the BCRA or BCRA are an
entirely different creature than PACs under Maine
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statutes.
What the Court was referring to in Citizens United
was that that corporation, in order to speak, had to
actually form another entity, a separate segregated
fund, appoint a treasurer, do fundraising and was
restricted by statute. That's what the Court was
saying was burdensome.
Here -- and by the way, you couldn't speak at all
until it did that.
What we have here is no requirements to form a
separate organization. Simply you have to file a two
page registration statement that identifies the
treasurer, whom NOM has had since its inception in any
event, and secondly, there is no prohibition on NOM's
speaking.
So we think what the Court was simply observing i
that certainly under federal law, PACs have burdens,
and the burdens that are associated under federal law
aren't the burdens here, but it simply was in the
statement that, as a matter of law and all
circumstances and every single state, PACs are, quote,
"burdensome." That's not what the Court was
indicating.
THE COURT: Well, another question related to
that, and one of the briefs addressed this and went on
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by it, does NOM qualify as a major purpose PAC as you
understand it here?
In other words, how does the Maine statute assess
"major purpose." Is it with respect to the entire
organization wherever it operates in the country or is
it with respect to its Maine activities?
That was mentioned and slid by on the briefs.
MR. KNOWLTON: There aren't rules on this,
Your Honor, but the Commission would interpret "major
purpose" similar to the way that the federal government
does, and it would not be just major purpose in Maine,
but rather what is the sort of -- one of the factors
would be the percentage of NOM's spending in Maine as
opposed to its spending nationwide.
So it seems that -- we don't have a basis to
dispute the claim that in 2010, NOM's major purpose is
not engaging in candidate elections in Maine. It's
simply we don't have a basis for disputing that.
THE COURT: Thank you very much.
MR. KNOWLTON: Thank you.
THE COURT: Mr. Elf.
MR. ELF: May I have a moment, Judge?
THE COURT: You may. Go ahead.
MR. ELF: Just a few thoughts, if I may,
please.
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Political committee status, under Citizens United
is burdensome as a matter of law. Political committee
status is burdensome when government requires
registration, extensive reporting requirements, or
extensive recordkeeping requirements.
The Federal Election Campaign Act does that.
Maine law does that as well. For that reason,
political committee status in Maine is burdensome as a
matter of law.
As to the phrase "purpose of influencing," the
phrase "purpose of influencing" is unconstitutionally
vague because Butler versus Valeo, 424 US at 77, says
it's unconstitutionally vague. It is true that some
courts have held otherwise. The Supreme Court has said
that it is unconstitutionally vague.
As for standing, we submit that we have standing
for the reasons expressed in our reply brief, and based
on the whole string of Circuit court cases that we have
provided.
NOM wants to do its speech. It is afraid of being
subject to the regulation. It reasonably fears that
the Maine law, including the statute and the
regulations, subject NOM to all sorts of requirements
that NOM does not want to bear. Therefore, NOM's
speech is chilled. NOM has standing based on that.
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The best Circuit cite on that is the New Hampshire
Right to Life decision.
THE COURT: In the New Hampshire Right to
Life, of course, they were more specific as to what
that organization wanted to do than there are here.
MR. ELF: And we have submitted three examples
of our speech, just as the plaintiff in Wisconsin Right
to Life submitted three examples of its speech.
THE COURT: In Wisconsin Right to Life.
MR. ELF: In Wisconsin Right to Life, there
were three examples of the speech that the plaintiff
wanted to do.
It is true that the examples in Wisconsin Right to
Life had names and not just blanks where the
organization -- the speaker in that case, Wisconsin
Right to Life, wanted to fill in the blanks later.
Nevertheless, we submit that we have standing because
these are ads that NOM wants to do.
It just doesn't know -- didn't know at the point
of filing the amended complaint who it wants to put in
the blanks. That just depends on how the situation is
going to develop, but NOM does want to do that speech.
THE COURT: I'm not measuring things by the
date of the filing of the amended complaint. Now we
are at trial, so standing is something which -- of
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course is subject to a 12(b)(6) motion, but it's also
subject to proof at trial; right?
MR. ELF: Correct.
THE COURT: And so what do you say the record
is that I should make the decision on?
The Attorney General's Office has stated or
referred to statements made by the Executive Director
on June 23rd, and the amended complaint was verified on
June 23. What do you say the record is as to NOM's
intent?
MR. ELF: The record to NOM's intent is
everything that has been submitted, but let's be
careful. We don't determine the meaning of -- we don't
determine whether speech is regulable.
THE COURT: I'm just checking on standing.
MR. ELF: We look at the entire record then,
yes. We can look at the deposition. We look at the --
THE COURT: So the answer is we want to speak,
we think, but we don't know where.
MR. ELF: No. We do -- not we think. We
want to speak. We want to speak in Maine. We just
haven't filled in those blanks yet.
THE COURT: We don't know where.
MR. ELF: Well, the where is in Maine.
THE COURT: We don't know which candidates we
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want to take a position on.
MR. ELF: That's correct.
THE COURT: Go ahead.
MR. ELF: There was mention that Maine law
does not require an organization such as NOM to form
another entity. That does not mean the fact -- that
does not mean that the political committee says it's
not burdensome.
Political committee says it's burdensome
regardless of whether NOM has to form another entity or
whether all of the political committee burdens would
fall on NOM itself, and with that, we're happy to rest
on the briefing we have submitted.
THE COURT: Thank you, Mr. Elf. Thank you
both counsel. Those were helpful arguments. You
clarified some things that I was confused about and I
will get the decision out, as I say, by the middle of
next week.
These are interesting issues. I appreciate the
opportunity to read again all of these decisions, none
of which seem simple, all seem complicated, and I kind
of regret that I don't get to look at the other case
because that also looks interesting, but I'm sure
you'll do a great job with Judge Singal.
So thank you very much. The Court will stand in
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recess.
(END OF PROCEEDING)
C E R T I F I C A T I O N
I, Dennis R. Ford, Registered Merit Reporter and
Official Court Reporter for the United States District
Court, District of Maine, certify that the foregoing is
a correct transcript from the record of proceedings in
the above-entitled matter.
Dated: September 1, 2010
/s/ Dennis R. Ford
Official Court Reporter
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