[00:00:00] Speaker 02:
Rio Grande Foundation versus Oliver 24-2070, Mr. Schwab.

[00:00:14] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 04:
I'm Jeffrey Schwab, and I represent Plaintiff Appellant, the Rio Grande Foundation.

[00:00:23] Speaker 04:
The provision in New Mexico's Campaign Reporting Act requiring donor disclosure of ads

[00:00:29] Speaker 04:
that mention but do not expressly or implicitly advocate for or against a candidate or ballot question violates the First Amendment on its face.

[00:00:40] Speaker 04:
Three points support this conclusion.

[00:00:44] Speaker 04:
First, the Rio Grande Foundation's speech, which simply mentions candidates but does not expressly or implicitly advocate for or against their election, is not for the purpose of influencing the outcome of an election.

[00:00:58] Speaker 04:
And the district court's conclusion that speech that refers to a candidate or ballot question without expressly or implicitly advocating for or against them could still be published for the purpose of supporting or opposing a candidate or ballot question is wrong.

[00:01:20] Speaker 02:
Let me ask you about the, let's start with what the statute says because that's going to be important to the analysis.

[00:01:27] Speaker 02:
So we're talking about disclosures of independent expenditures, right?

[00:01:32] Speaker 02:
Correct, Your Honor.

[00:01:33] Speaker 02:
And an independent expenditure has to be an expenditure, is that correct?

[00:01:37] Speaker 02:
That's correct, Your Honor.

[00:01:38] Speaker 02:
And an expenditure is something that's a payment incurred in an election, let's see, or other thing of value, I should just read the language, but it ends with for a political purpose.

[00:01:52] Speaker 02:
It has to be made for a political purpose.

[00:01:54] Speaker 02:
That's correct.

[00:01:55] Speaker 02:
And political purpose means for the support, for the purpose of support or opposing a ballot question or the nomination or election of a candidate.

[00:02:03] Speaker 02:
So you agree that to be an independent expenditure, by statutory definition, it has to be for the purpose of supporting, in this context, the nomination or election of a candidate, supporting or opposing.

[00:02:20] Speaker 02:
Correct.

[00:02:20] Speaker 02:
You agree with that?

[00:02:21] Speaker 02:
I agree with that, yes.

[00:02:24] Speaker 02:
The provision you're talking about now is 3C.

[00:02:30] Speaker 02:
That's right.

[00:02:31] Speaker 02:
And you say because 3C is obviously in addition to the requirements in 3A and 3B, it's got to be something different.

[00:02:40] Speaker 02:
That's right, yes.

[00:02:41] Speaker 02:
And here's where I don't understand your point.

[00:02:45] Speaker 02:
3B says if it's an expenditure that is made to pay for an advertisement that

[00:02:52] Speaker 02:
is susceptible of no other reasonable interpretation than as an appeal to vote for or against a clearly identified candidate.

[00:03:04] Speaker 02:
Therefore, C could include something where there's a reasonable interpretation and it's to support a candidate, but it's not the only reasonable interpretation.

[00:03:13] Speaker 02:
And you seem to say it's got to be an expenditure that

[00:03:20] Speaker 02:
could not reasonably be interpreted as supporting or opposing the candidate.

[00:03:27] Speaker 02:
But I think there's a broad area in between where it could be reasonably interpreted one way or reasonably interpreted the other way.

[00:03:36] Speaker 04:
I don't think that's correct, Your Honor.

[00:03:38] Speaker 04:
I think A applies to express advocacy, advocacy that everybody would know is advocacy because it has the magic words or it's pretty clear.

[00:03:49] Speaker 04:
I think B is something that is not so clear, but a reasonable person would understand it as advocacy.

[00:03:58] Speaker 02:
There's no other interpretation of this expenditure except as being to support a candidate.

[00:04:04] Speaker 04:
I don't think it's that clear.

[00:04:06] Speaker 04:
I think it's susceptible to no other reasonable interpretation.

[00:04:09] Speaker 02:
The only reasonable interpretation would be that it's to support a candidate.

[00:04:18] Speaker 02:
So if there's a possibility of a reasonable interpretation that it's not to support a candidate, and also a reasonable interpretation that it is to support a candidate, then it's not covered by 3B.

[00:04:31] Speaker 02:
And 3C would include that.

[00:04:34] Speaker 04:
I still don't think that's true.

[00:04:36] Speaker 04:
I think if there's any reasonable interpretation that it is in support or in opposition to a candidate or ballot question, it would be covered by B.

[00:04:47] Speaker 04:
Because B follows the language of Citizens United.

[00:04:53] Speaker 04:
In Citizens United, they use the same susceptible to no other reasonable interpretation language, and they also sometimes call it the functional equivalent of express advocacy

[00:05:09] Speaker 04:
I call it implicit advocacy.

[00:05:11] Speaker 04:
I think those are all the same things.

[00:05:13] Speaker 02:
So I think that A covers express, B covers implicit or something that... I have a hard time reading B the way you do, but if the Supreme Court in Citizens United interpreted this exact same language the way you did, that would be pretty persuasive to me.

[00:05:30] Speaker 02:
And it makes a difference in how your argument goes, whether

[00:05:38] Speaker 02:
whether C could include contributions or an ad that could be interpreted as supporting a candidate but may not.

[00:05:51] Speaker 02:
For example, the sort of ads that Rio Grande produces that just rates candidates.

[00:06:01] Speaker 02:
and doesn't say whether that's good or bad necessarily.

[00:06:04] Speaker 02:
Well, I guess it probably says it's bad.

[00:06:06] Speaker 02:
But someone who gets a low rating for Rio Grande might run for office saying, hey, look, I'm great.

[00:06:12] Speaker 02:
I oppose everything that this organization supports.

[00:06:16] Speaker 04:
I don't think Rio Grande Foundation's speech would be covered by B, and I don't think it's also reasonably to interpret it as any kind of advocacy for or against the candidate for a couple of reasons.

[00:06:27] Speaker 04:
One is,

[00:06:28] Speaker 04:
I'm just pointing to the Freedom Index.

[00:06:34] Speaker 04:
I think there's a link in the appellee brief.

[00:06:36] Speaker 04:
If you haven't looked at it, I'd encourage you to look at it.

[00:06:39] Speaker 04:
But on their website, the Freedom Index, all it does is a legislative scorecard of pieces of legislation based on, I think there's 12 indices of things that Rio Grande Foundation finds important.

[00:06:55] Speaker 04:
There's things like government size, taxes,

[00:06:58] Speaker 04:
constitutional provisions, equal protection, things like that.

[00:07:03] Speaker 04:
And then for each piece of legislation, they give a yes or no vote, a score somewhere between negative eight and plus eight, depending on what number of issues are involved in that legislation.

[00:07:18] Speaker 04:
And then they total up the number of scores.

[00:07:22] Speaker 02:
Right, but a high score would tell people on the Rio Grande mailing list

[00:07:28] Speaker 02:
that this is someone you should support if you like what we do.

[00:07:33] Speaker 04:
But the Freedom Index doesn't say anything about the candidacy.

[00:07:38] Speaker 04:
It doesn't say anything about go vote for this person.

[00:07:41] Speaker 03:
But it's not subtle about it.

[00:07:43] Speaker 03:
I mean, if you just looked at it and it just had the scores, maybe.

[00:07:47] Speaker 03:
But it also happens to be color coded in a way that, again,

[00:07:53] Speaker 03:
Green?

[00:07:53] Speaker 03:
Wouldn't a member of the public say, well, this person got a score that's green.

[00:07:56] Speaker 03:
Therefore, under Rio Grande Foundation's view, green means go.

[00:08:00] Speaker 03:
I should vote for that person.

[00:08:01] Speaker 03:
Isn't that obvious?

[00:08:02] Speaker 04:
No.

[00:08:06] Speaker 04:
Because the scores are plus eight to negative eight, the green is just plus and the red is negative.

[00:08:12] Speaker 04:
So it doesn't say plus five or negative five.

[00:08:16] Speaker 04:
It says five in green or five in red.

[00:08:19] Speaker 04:
So it's either

[00:08:20] Speaker 04:
It's not, I don't think that it's a subtle, these are good people, these are bad people.

[00:08:25] Speaker 04:
It's just, this is the score, and if it's green, it's plus, if it's negative, it's not.

[00:08:30] Speaker 02:
I'm kind of worried, Judge Federico, is that I think people would take that as a support, but say no reasonable person could interpret this ad, this publication by Rio Grande, as endorsing candidates.

[00:08:50] Speaker 02:
then wouldn't it be very hard to show that it was made for a political purpose and therefore would not be an independent expenditure that has to be disclosed under the New Mexico statute?

[00:09:04] Speaker 04:
Well, first of all, the parties agree that if Rio Grande were to spend the requisite money under C, they would be required to do that.

[00:09:14] Speaker 04:
I think that there is a decent argument that

[00:09:18] Speaker 04:
because it has to be for a political purpose that Section C adds that aren't for a political purpose shouldn't be covered by.

[00:09:25] Speaker 04:
And that's what I argued before the district court and the district court disagreed with me.

[00:09:31] Speaker 04:
I said that Section C was in conflict with the definition of political purpose.

[00:09:38] Speaker 04:
The district court disagreed with our argument on that and said that no, it can be for a political purpose under C.

[00:09:47] Speaker 04:
even if it doesn't.

[00:09:48] Speaker 02:
Do we have to be deferred to the district court on how to interpret the statute?

[00:09:51] Speaker 02:
I don't think we have any different required in that respect, do we?

[00:09:56] Speaker 04:
I don't think so.

[00:09:57] Speaker 02:
I hope not.

[00:09:58] Speaker 02:
Okay.

[00:10:01] Speaker 02:
So if it's not for the purpose of supporting or opposing a candidate, it's not an independent expenditure, period.

[00:10:09] Speaker 02:
Isn't that correct?

[00:10:12] Speaker 02:
Yes, but if that's so...

[00:10:15] Speaker 02:
I would find it hard to find that something was for a political purpose, an ad was for a political purpose, if there's no possible reasonable interpretation that this is to support a candidate.

[00:10:33] Speaker 04:
I agree with you, and I think that's sort of my point, is that these ads are statutory.

[00:10:39] Speaker 02:
That's a statutory argument.

[00:10:40] Speaker 02:
It has nothing to do with your constitutional arguments.

[00:10:42] Speaker 02:
But I think, well, I shouldn't say it has nothing to do with it.

[00:10:45] Speaker 02:
You might prevail on a statutory ground, and I think you might.

[00:10:49] Speaker 02:
But you're saying that even if it's banned by the statute, you have constitutional arguments.

[00:10:56] Speaker 04:
Well, if it is banned by the statute, then I think we have a constitutional argument.

[00:11:00] Speaker 04:
But if it's not for a political purpose, then I don't think it applies.

[00:11:05] Speaker 04:
But the defendant says that it applies to us.

[00:11:09] Speaker 04:
Rio Grande Foundation's speech is chilled either way because they're not going to spend the money to put these ads when they think that they're going to be subject to the statute.

[00:11:20] Speaker 04:
And so they have to bring it before this court so that they can speak without having to worry about being subject to the statute.

[00:11:29] Speaker 04:
If the statute doesn't apply to them, then I think that there should be an order from this court explaining that

[00:11:38] Speaker 04:
speech that is not for a political purpose is not covered by the independent expenditure.

[00:11:46] Speaker 02:
Let me get to the constitutional issue.

[00:11:47] Speaker 02:
I didn't expect to spend as much time in the preliminary part.

[00:11:52] Speaker 02:
As I read Citizens United, purpose is not necessary to have a constitutional disclosure requirement.

[00:12:00] Speaker 02:
In Citizens United, I'm paraphrasing and you can correct me if I'm

[00:12:05] Speaker 02:
I thought the one rationale for allowing expenditure disclosures, independent expenditure disclosures, was that the public has a right to know who's saying something about a candidate in the time just before the election.

[00:12:27] Speaker 02:
It has nothing to do with whether the person is saying something about the candidate for a political purpose.

[00:12:35] Speaker 02:
It said that, and that, as I read Citizens United, was the only rationale given to support the constitutionality of the disclosure requirement.

[00:12:47] Speaker 02:
And am I misreading Citizens United?

[00:12:50] Speaker 04:
I think maybe reading into it, I would say, because Citizens United dealt with an as-applied challenge to a specific ad.

[00:13:02] Speaker 04:
The ad was for Hillary the movie.

[00:13:04] Speaker 04:
And the Supreme Court in Citizens United said that it was very clear that that ad was pejorative against Senator Clinton's campaign for president.

[00:13:17] Speaker 04:
And so in that case, I think if it was, say, subject to New Mexico's statute, it would fit into that Section B because it's susceptible to no other reasonable interpretation.

[00:13:31] Speaker 02:
in finding the application of the statute, constitutional in that case, that the public has a right to know about anyone who's expressing support or opposition to a candidate in the brief time before the election.

[00:13:47] Speaker 02:
But it didn't.

[00:13:49] Speaker 02:
And we take their dicta really seriously in the lower courts.

[00:13:54] Speaker 02:
And it sure seems to me that it's saying this statute is

[00:14:01] Speaker 02:
constitutional because it has the proper purpose of educating the public about what is said about a candidate in the short time before the election.

[00:14:13] Speaker 02:
And that would seem to foreclose your argument.

[00:14:17] Speaker 02:
Tell me what I'm missing here.

[00:14:19] Speaker 04:
I think there's a few reasons.

[00:14:20] Speaker 04:
One is the Supreme Court and Citizens United, when they address disclaimer and disclosure requirements, they address the disclaimer requirements first.

[00:14:31] Speaker 04:
And the argument that they made for why the disclaimer requirements were constitutional was because they said that the voters had a right to know the arguments being made about the candidate or whoever.

[00:14:49] Speaker 04:
And applying that to the disclosure requirements, if it's not an appeal to support or oppose a candidate, there's not an argument being made to the voters.

[00:14:58] Speaker 04:
So that rationale doesn't apply.

[00:15:01] Speaker 04:
A couple of other reasons that Citizens United is distinguishable.

[00:15:07] Speaker 04:
One is both Citizens United and this court's decision in Independence Institute, I see my time's up.

[00:15:16] Speaker 04:
Should I finish my point?

[00:15:18] Speaker 04:
Both of those cases were decided before the Supreme Court's decision in Americans for Prosperity versus Bonta.

[00:15:25] Speaker 04:
In that case, the Supreme Court added a narrow tailoring requirement to the exacting scrutiny.

[00:15:31] Speaker 04:
Neither Citizens United nor Independence Institute applied the narrow tailoring analysis.

[00:15:40] Speaker 04:
And I think in this case, applying the narrow tailoring analysis makes a difference because if you remove section C3 from the Act, you still can achieve the government's informational interest because it will cover express and implied ads that are seeking to support or oppose a candidate.

[00:16:00] Speaker 04:
And that covers what the government's interest is.

[00:16:04] Speaker 04:
I'll stop.

[00:16:04] Speaker 01:
Well, actually, don't stop.

[00:16:07] Speaker 01:
Let me just ask you.

[00:16:09] Speaker 01:
I don't think you've ever gotten your actual argument on that constitutionality out.

[00:16:14] Speaker 01:
So maybe let me try.

[00:16:17] Speaker 01:
So A is express advocacy.

[00:16:20] Speaker 01:
B is implicit advocacy.

[00:16:23] Speaker 01:
And that's all that you can regulate under the Constitution.

[00:16:27] Speaker 01:
Is that what you're arguing?

[00:16:30] Speaker 04:
In this context, yes.

[00:16:34] Speaker 04:
because it doesn't support the government's interest under the exacting scrutiny analysis because section C3 adds just the way that the statute is structured is different from the way that the statutes in Citizens United and Independence Institute were structured.

[00:16:53] Speaker 04:
In this case, in Independence Institute, this court said that it was difficult to find a principle to distinguish between speech that

[00:17:02] Speaker 04:
essentially express or implied advocacy and it's not.

[00:17:06] Speaker 04:
In this case, the statute actually does that work for you because it sets for three categories of speech, two of which are expressed or implied and the third of which is just speech that mentions a candidate.

[00:17:19] Speaker 04:
In Independence Institute, in those statutes, they didn't do that, they just applied to what they called electioneering communications

[00:17:28] Speaker 04:
And that just, there was no distinction between express or implied advocacy.

[00:17:35] Speaker 04:
And so I think that makes a difference.

[00:17:38] Speaker 04:
It is also notable that in both of those cases,

[00:17:43] Speaker 04:
Those electioneering communications didn't apply just to independent expenditures.

[00:17:48] Speaker 04:
They applied to any communications.

[00:17:50] Speaker 04:
Well, not any communications because there are limits on the communications, but all communications regardless of who they were made by.

[00:17:56] Speaker 04:
And I think that makes a difference because if it's an ad that just mentions a candidate, but it's either coordinated with a campaign or by a campaign, I think there it makes sense to say that that is actually

[00:18:12] Speaker 04:
maybe implied advocacy because it's from a candidate who might be opposed or in support of another candidate, whereas here they're just independent expenditures.

[00:18:22] Speaker 04:
So they're not coordinated with a candidate or campaign, and they're not by a candidate or campaign.

[00:18:29] Speaker 04:
So it's just a third party speaking who happens to mention a candidate.

[00:18:34] Speaker 04:
So I think that makes a distinction between this case and those two cases as well.

[00:18:41] Speaker 02:
This is important.

[00:18:44] Speaker 03:
Thank you.

[00:18:45] Speaker 03:
To what I think may be housekeeping questions.

[00:18:47] Speaker 03:
One is you mentioned exacting scrutiny I think twice here today.

[00:18:50] Speaker 03:
Your brief you argued we should apply strict scrutiny.

[00:18:53] Speaker 03:
I think you said just to preserve that argument.

[00:18:55] Speaker 03:
So do you agree that Supreme Court precedent, including Bonta, requires that we apply exacting scrutiny here?

[00:19:02] Speaker 04:
I do agree, but I think the Supreme Court should apply strict scrutiny.

[00:19:08] Speaker 04:
You can take that up with that.

[00:19:09] Speaker 04:
I will, but I will say it's because the Supreme Court says that political speech is the most important speech, and also in Reed versus Town of Gilbert, it said that content-based restrictions on speech are per se unconstitutional.

[00:19:24] Speaker 04:
And in that case, there was a sign, and it treated political speech, the political signs, more favorably than a directional sign.

[00:19:33] Speaker 04:
It's very weird to say that if it was the opposite, that that would not have gotten strict scrutiny if it treated a directional sign more favorably than a political sign that should not get strict scrutiny.

[00:19:43] Speaker 04:
And that's essentially what we're saying here.

[00:19:45] Speaker 04:
I think that's strange.

[00:19:46] Speaker 04:
So I do preserve that argument for the Supreme Court.

[00:19:49] Speaker 03:
Understood.

[00:19:49] Speaker 03:
And second question is, because this is a facial challenge, who has the burden here?

[00:19:55] Speaker 04:
Well, I think we have the burden, but I think that it's pretty clear that

[00:20:00] Speaker 04:
all of the, in fact, the reason that this is different than Citizens United and Independence Institute is because the statute differentiates between these three categories of speech, every instance of the speech in section C3 will not actually either be express or implicit advocacy.

[00:20:24] Speaker 04:
So they're all just mentioning

[00:20:27] Speaker 04:
a candidate or ballot question, but not advocating for or against them, either expressly or implicitly.

[00:20:33] Speaker 04:
So there, I think it makes it easier to show that in all of the iterations of that speech, that it would be unconstitutional.

[00:20:46] Speaker 02:
Thank you, counsel.

[00:20:47] Speaker 04:
Thank you.

[00:20:55] Speaker 02:
Ms.

[00:20:56] Speaker 02:
Vanegas?

[00:21:07] Speaker 00:
May it please the court.

[00:21:08] Speaker 00:
My name is Ellen Vanegas on behalf of the New Mexico Secretary of State, Maggie Toulouse Oliver.

[00:21:14] Speaker 00:
This case is about whether a special interest group can override the state of New Mexico's efforts at election transparency.

[00:21:21] Speaker 00:
Specifically, the case involves the state's requirements for limited disclosure for funding sources of political advertisements, which the statute at issue refers to as independent expenditures.

[00:21:33] Speaker 00:
RGF has chosen to bring a facial challenge to the disclosure regime, taking part with one definition of the independent expenditure section.

[00:21:43] Speaker 00:
And I think that definition bears repeating in full here.

[00:21:47] Speaker 00:
It applies to an advertisement that refers to a clearly identified candidate or ballot question and is published and disseminated to the relevant electorate in New Mexico within 30 days before the primary election or 60 days before the general election at which the candidate or ballot question is on the ballot.

[00:22:07] Speaker 00:
Now, the Supreme Court recently reiterated that facial challenges, even in the First Amendment context, are hard to win.

[00:22:15] Speaker 00:
and RGF doesn't meet its heavy burden to show there are any unconstitutional applications of the statute here that would outweigh the constitutional applications.

[00:22:25] Speaker 00:
In fact, on this record, RGF hasn't shown that there are any unconstitutional applications of the statute because its arguments are premised on asking the court to draw a line that courts have consistently refused to draw.

[00:22:38] Speaker 00:
Include.

[00:22:41] Speaker 02:
Can we start again with what the statute means?

[00:22:45] Speaker 02:
because apparently the district court read the statute differently from what I think it clearly says and apparently the district court interpreted the way you do.

[00:22:56] Speaker 02:
So I want to understand if you read the statute, understand how you read the statute.

[00:23:06] Speaker 02:
So to be an independent expenditure, it has to have it in political purpose.

[00:23:12] Speaker 02:
Do you agree with that?

[00:23:14] Speaker 00:
Correct.

[00:23:15] Speaker 02:
So it has to be for the purpose or support of, in this context, the nomination or election of a candidate.

[00:23:23] Speaker 02:
You agree it has to be?

[00:23:25] Speaker 00:
Yes.

[00:23:25] Speaker 00:
The expenditure, yes.

[00:23:29] Speaker 02:
How do you read 3B?

[00:23:30] Speaker 02:
I read it as saying that the advertisement has to be disclosed.

[00:23:43] Speaker 02:
can only be interpreted as appealing to vote for or against the candidate.

[00:23:50] Speaker 02:
Not that it could reasonably.

[00:23:52] Speaker 02:
If there are reasonable, if you could reasonably read the advertisement both ways, for example, what probably would be the case for what Rio Grande wants to do, which is just list candidates and gives them a rating.

[00:24:09] Speaker 02:
Do you think it comes under 3B?

[00:24:11] Speaker 00:
Your Honor, I don't think, first of all, I do read 3B how you are, that it has no other reasonable interpretation other than an appeal to vote.

[00:24:20] Speaker 00:
And I think the Freedom Index highlights why the temporal components in Section 3C are so important here.

[00:24:29] Speaker 00:
If I were to receive a copy of the Freedom Index in the mail six months before an election,

[00:24:34] Speaker 00:
I might not view the only reasonable interpretation as an appeal to vote.

[00:24:39] Speaker 00:
I think that answer could change within the temporal limitations identified in Section 3C.

[00:24:46] Speaker 00:
And I think that is a good example of why the categories, they're not as

[00:24:55] Speaker 00:
you know, as exclusive as RGF contends, and given the temporal aspects of Section 3C, a communication could be interpreted differently, closer in time to the election.

[00:25:08] Speaker 03:
I read your response to say the Freedom Index fell under 3B, is that right?

[00:25:14] Speaker 00:
I believe the parties agreed below that the Freedom Index fell under 3C.

[00:25:20] Speaker 03:
Okay, so.

[00:25:22] Speaker 00:
And again, Your Honor, I think

[00:25:25] Speaker 00:
I think maybe at some points in time it would fall under 3B, but at any given time, I don't believe it would always fall under 3B.

[00:25:33] Speaker 03:
So it's not the green and the red, go versus stop, vote for this person, go and stop, don't vote for this person.

[00:25:39] Speaker 03:
It's the timing element that may put it between B and C?

[00:25:42] Speaker 00:
I think it's a combination of things.

[00:25:46] Speaker 00:
Individuals look at communications differently that they receive in the mail and evaluate them differently, depending on whether there's an election in the near future.

[00:25:55] Speaker 00:
So even with the rating, receiving that communication far away from an election, it may be viewed differently.

[00:26:03] Speaker 03:
What if the Rio Grande Foundation sent out a mail alert to Mexican voters 30 days before an election that said, reminder, election day is this date?

[00:26:13] Speaker 03:
here are the candidates running for this office, and that was all.

[00:26:16] Speaker 03:
They were sort of equally presented.

[00:26:19] Speaker 03:
Would that fall under the 3C and require disclosure?

[00:26:22] Speaker 00:
Your Honor, there is an exemption under the advertisement definition in the statute that exempts things that qualify as nonpartisan voter guides.

[00:26:32] Speaker 00:
So if that qualified as a nonpartisan voting guide, then it would not fall under.

[00:26:36] Speaker 03:
So I guess that's really what I think we're trying to get at is, what is the distinction here?

[00:26:40] Speaker 03:
Because as Judge Hartz mentioned,

[00:26:42] Speaker 03:
One could read Citizens United, in our case, applying it in an independent institute to say it's not required that it have a political purpose because the state has an interest within a certain timeframe of requiring disclosure of who's funding any communications about candidates.

[00:27:01] Speaker 03:
First of all, do you agree with that premise?

[00:27:04] Speaker 00:
That the ad doesn't need to have a political purpose?

[00:27:07] Speaker 03:
Not under the statute, but we could read Citizens United that way.

[00:27:11] Speaker 00:
Correct.

[00:27:11] Speaker 03:
Okay.

[00:27:12] Speaker 03:
And so the statute seems to do more than perhaps is required.

[00:27:15] Speaker 03:
And so ads like this that may fit into another exemption, another part of the statute, just trying to figure out for where the boundaries are.

[00:27:25] Speaker 03:
Like what work does 3C do at all is what I'm trying to figure out.

[00:27:30] Speaker 00:
Sure.

[00:27:30] Speaker 00:
I think 3C serves to capture communications that are not so express as to amount to express advocacy, but are more subtle in their messaging and could contain a level of implied advocacy.

[00:27:48] Speaker 00:
And I think

[00:27:51] Speaker 00:
With RGF's argument, they're sort of downplaying the informational interest that the state has and the information that is important to voters to assess.

[00:28:00] Speaker 00:
So for example, if a voter was sent a communication that

[00:28:07] Speaker 00:
spoke favorably about a new ballot measure or just said this ballot measure will help our community, something broad like that, but didn't expressly advocate voting yes or no on the ballot measure.

[00:28:18] Speaker 00:
A voter still has an interest in knowing who funds that because it could be that

[00:28:25] Speaker 00:
that all of the funding is coming from out of state, or it could be that a majority of the funding is coming from a corporation that might be benefiting from the tax.

[00:28:34] Speaker 00:
That kind of information is helpful in evaluating the message.

[00:28:41] Speaker 02:
Would you say that's helpful?

[00:28:42] Speaker 02:
But all it does is mean we're making ad hominem arguments, which is what everybody does in politics these days.

[00:28:49] Speaker 02:
Do you think that's really so helpful?

[00:28:51] Speaker 02:
Don't you think it'd be good if we actually addressed issues instead of who's supporting it?

[00:28:57] Speaker 00:
I think both are important, Your Honor, and I agree.

[00:29:00] Speaker 00:
If we could just really stick to the issues, that would really be an ideal situation.

[00:29:04] Speaker 02:
But unfortunately, that's... But that's the voter's only interest in knowing who's paying for this ad is ad hominem analysis.

[00:29:14] Speaker 00:
The Supreme Court and other courts have also... I'm agreeing with you.

[00:29:20] Speaker 02:
I'm not... No one seems to agree with me on this point, but I just thought I'd raise that if you're going to say that's a good reason.

[00:29:27] Speaker 02:
I wanted to challenge that.

[00:29:29] Speaker 00:
Okay, understood, Your Honor.

[00:29:30] Speaker 00:
Yes, I think the courts have recognized sort of a value to voters in what weight to place on the message, and some of that does come from knowing who's behind the message, which could conceivably distract from the issues.

[00:29:45] Speaker 03:
But here... I'm sorry, if the contours, though, of what is caption or 3C seem to me from what you have presented here today,

[00:29:56] Speaker 03:
are somewhat unknown, then how is the CRA here distinguishable from the Wyoming law that we analyze in Wyoming gun owners?

[00:30:09] Speaker 00:
We don't have an argument here, like in Wyoming gun owners, that the statute is vague.

[00:30:14] Speaker 00:
There's no vagueness challenge.

[00:30:18] Speaker 00:
When considering exacting scrutiny, we also have to examine the burdens of disclosure vis-a-vis the state's interests.

[00:30:25] Speaker 00:
And we don't have any arguments from RGF about the burden themselves, the disclosure requirements being unclear.

[00:30:31] Speaker 00:
onerous or hard to understand.

[00:30:34] Speaker 00:
It's just an argument about what type of communications the state may lawfully regulate.

[00:30:40] Speaker 00:
In the section three definition, it closely tracks the federal definition of electioneering communication and other states' disclosure laws as well.

[00:30:50] Speaker 02:
So I think regardless of... It tracks except for, it makes the statute requires a political purpose.

[00:30:57] Speaker 02:
These other statutes don't require that, isn't that correct?

[00:31:00] Speaker 00:
That's true.

[00:31:01] Speaker 00:
The New Mexico statute requires that the expenditure be made for a political purpose, which doesn't necessarily require that the ad itself be assessed as to whether it has a political purpose.

[00:31:14] Speaker 00:
And I think there could be some room for improvement with the wording of the statute, but

[00:31:21] Speaker 00:
The provisions can be read in harmony here.

[00:31:23] Speaker 00:
I think it's pretty clear what the legislature is intending to regulate by section three, given that it tracks the disclosure regimes of many other governments.

[00:31:35] Speaker 02:
How did the district court interpret 3B?

[00:31:42] Speaker 02:
The opposing council suggested that the district court said,

[00:31:47] Speaker 02:
the advertisement could be reasonably interpreted as supporting or opposing a candidate than if it's within 3B.

[00:31:56] Speaker 02:
Is that how the district court interpreted it?

[00:31:58] Speaker 00:
I don't believe so, Your Honor.

[00:31:59] Speaker 00:
I believe the district court interpreted it as we proposed in our briefing, which is that 3B has to be so expressed that there's no other reasonable interpretation but as an appeal to vote.

[00:32:11] Speaker 00:
And then the district court found that there's some room there between no other reasonable interpretation and then a possible reasonable interpretation of advocacy.

[00:32:24] Speaker 03:
Counsel, I'm sorry.

[00:32:25] Speaker 03:
You said some moment ago that

[00:32:27] Speaker 03:
kind of trip me up a little bit about the, there's no evaluation of the ads themselves, whether or not the disclosure is triggered, it's really the expenditure, so if it's made with the intent for a political purpose, but how is that ever determined?

[00:32:44] Speaker 03:
Maybe I just misheard you.

[00:32:46] Speaker 00:
I was identifying that the statute itself requires that the expenditure be for a political purpose, so it's not the ad

[00:32:56] Speaker 00:
that is subject to a political purpose interpretation.

[00:33:00] Speaker 00:
And so our position would be that these provisions can be read in harmony and that listing the types of advertisements will be covered.

[00:33:12] Speaker 00:
The legislature is indicating what it sees as, like when money would be spent for a political purpose by spending large amounts of money on those advertisements.

[00:33:24] Speaker 00:
And to the extent there is any conflict within the statute itself, I agree with Judge Hart's, what you had brought up, that this would be a statutory issue and not a First Amendment violation.

[00:33:37] Speaker 02:
Well, I think I was saying how we interpret it.

[00:33:40] Speaker 00:
Well, again.

[00:33:41] Speaker 02:
It's our constitutional analysis.

[00:33:44] Speaker 00:
That's correct, Your Honor.

[00:33:46] Speaker 00:
But again, we don't have any argument here that the statute is vague or that there's

[00:33:52] Speaker 00:
RGF doesn't understand what's required of them.

[00:33:54] Speaker 00:
They just don't want to comply with the disclosure requirements.

[00:34:00] Speaker 01:
Council, can I ask you to define what you think a state can regulate in terms of speech?

[00:34:09] Speaker 01:
What's the outer rim of your authority?

[00:34:14] Speaker 00:
I think that

[00:34:15] Speaker 00:
The outer bounds would just be what is covered in our statute here.

[00:34:21] Speaker 00:
And it's very similar to what is commonly called electioneering communication.

[00:34:27] Speaker 00:
So it's something that mentions a candidate or ballot issue in the days before an election and is also disseminated to the relevant electorate.

[00:34:36] Speaker 01:
So anything that mentions a candidate before an election

[00:34:41] Speaker 01:
you can regulate.

[00:34:43] Speaker 01:
That's how you're defining it?

[00:34:45] Speaker 00:
Almost anything.

[00:34:46] Speaker 00:
There are some exceptions which are listed in the definition of advertisement.

[00:34:51] Speaker 00:
And so, for instance, communication solely to the members of a group.

[00:34:56] Speaker 00:
Those are exempted.

[00:34:58] Speaker 00:
Nonpartisan voter guides, as I mentioned before, there's newspaper editorial exemption.

[00:35:05] Speaker 00:
So those types of things are not included in that.

[00:35:08] Speaker 02:
You say regulate.

[00:35:10] Speaker 02:
You're just talking about, I hope you're not endorsing regulation other than disclosure of funding.

[00:35:18] Speaker 00:
No, Your Honor, sorry.

[00:35:19] Speaker 00:
I'm just, this case is limited to the disclosure requirements.

[00:35:23] Speaker 00:
So when I say regulate, I'm thinking about disclosure requirements.

[00:35:30] Speaker 03:
Council, same question I asked to Rio Grande about burdens.

[00:35:36] Speaker 03:
Do you agree with their response here?

[00:35:38] Speaker 03:
I mean, this is a facial challenge, which typically they would have the burden, but we're also talking about, you know, they've raised a constitutional challenge on this disclosure requirement.

[00:35:46] Speaker 03:
So how do you see the burdens here?

[00:35:48] Speaker 00:
So the state has the burden to prove exacting scrutiny, but RGF does have the burden in this facial challenge.

[00:35:56] Speaker 00:
And that brings me to a point I wanted to raise about RGF's asserted burdens, which again, don't talk about the actual disclosure requirements, but are based on

[00:36:06] Speaker 00:
I see my time is up.

[00:36:09] Speaker 00:
They're based on the asserted CHILD First Amendment rights.

[00:36:13] Speaker 00:
But when talking about burdens, even though we have a facial challenge, we're once again back in sort of as applied territory where all RGF has shown is one declaration about its own

[00:36:24] Speaker 00:
situation and that declaration was from 2020 it's the same thing they showed for standing and years later we don't have any additional evidence to show any burden on RGF or any other groups in New Mexico.

[00:36:37] Speaker 02:
Thank you counsel.

[00:36:41] Speaker 00:
Thank you.

[00:36:42] Speaker 02:
I think appellate leave went over time as I recall.

[00:36:48] Speaker 02:
Cases submitted.

[00:36:49] Speaker 02:
Counselor excused.