(CN) The First Amendment doesn’t prevent Montana from requiring a gun rights group to register as a political action committee before mailing fliers to voters that detail candidates’ positions on the Second Amendment, the Ninth Circuit ruled Monday.
National Association for Gun Rights Inc. is a 4.5 million-member, Colorado-based organization with the stated mission to “defend the right to keep and bear arms, and advance that God-given constitutional right by educating the American people and urging them to action in the public policy process.”
As a tax-exempt nonprofit, it can’t directly advocate for or against any political candidate. Instead, it educates voters on the positions of government officials related to the Second Amendment. That’s just what the group is planning for 2020, when it says it will send Montana voters information on “which public officials have supported the rights of citizens to keep and bear arms and engage in lawful self-defense, as well as those who have not done so.”
Montana called that electioneering and told the group to register as a political committee, based on a 2015 law requiring groups that spend more than $250 on “electioneering communications” – referring to candidates, ballot issues or questions being considered by voters – 60 days or less before an election to register as PACs.
The group sued Montana officials in 2016, claiming the law was too broad and violated the First Amendment. But U.S. District Judge Dana L. Christensen rejected those arguments, finding Montana has a legitimate interest in “increasing transparency, informing Montanans about who is behind the messages vying for their attention, and decreasing circumvention.”
Christensen noted the law requires the group to register only as an “incidental committee,” which would likely require only one expenditure report per election cycle. The group could then close its status as a political committee after the election.
The group appealed, and on Monday a three-judge panel for the Ninth Circuit largely sided with Montana. In a 37-page opinion by U.S. Circuit Judge Marsha Berzon, the panel found the First Amendment does not prohibit states from requiring disclosure of political speech such as the group’s fliers, which could influence voters.
“Far from restricting speech, electioneering disclosure requirements reinforce democratic decision-making by ensuring that voters have access to information about the speakers competing for their attention and attempting to win their support,” Berzon wrote.
U.S. Circuit Judge Susan P. Graber and U.S. District Judge John R. Tunheim of Minnesota, sitting by designation, joined Berzon’s opinion. All three judges were appointed by Bill Clinton.
But the panel reversed the lower court’s finding that Montana could require political committees to appoint a treasurer who is registered to vote in the state. The state said the requirement was “shorthand” for its real needs, like making sure it can subpoena the treasurer of a political committee – which it can only do for people within Montana. The state could have made that requirement without adding registration to vote, Berzon found. That additional requirement was an undue burden with no legitimate justification, she added.
“But that single invalid provision certainly does not mean that the entire disclosure statute falls,” Berzon wrote. “We hold that, despite the invalidity of the registered voter provision, the rest of Montana’s disclosure scheme remains in force.”
David Warrington, the attorney who argued National Association for Gun Rights’ case before the Ninth Circuit, called that narrow win “a strong proposition that states can’t impose restrictions on speakers simply because they are speaking during the election season.”
As for the main elements of the ruling, Warrington said in a phone interview that the group is considering next steps.
“On the part of the decision that upheld Montana law, we’re still in the process of analyzing our options,” Warrington said. “Whether to seek an en banc review or appeal to the Supreme Court.”