Nom Transcript

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)

Case 1:09-cv-00538-DBH Document 197 Filed 09/02/10 of 37 PageID #: 3141



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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.


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.


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.


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.


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


Nom Transcript

Documents

Transcript of Nom Transcript