There is tension in the law between robust protections for speech, particularly speech about issues of public import, and the ever-increasing donor disclosure demands under campaign finance laws. NTUF’s Taxpayer Defense Center, joined by People United For Privacy, filed an amici curiae (“friends of the court”) brief to urge the Supreme Court to take the Rio Grande Foundation’s challenge to New Mexico’s burdensome and dangerous donor disclosure laws.
New Mexico treats speech about ballot issues the same as speech about political candidates. A group merely speaking about a ballot issue close-in-time to the election would have to register as a political committee. Such registration triggers burdensome disclosure requirements, including the source of funding for the nonprofit. The Rio Grande Foundation challenged that law, since Rio Grande runs a ballot guide discussing the votes of state lawmakers. Under New Mexico law, the Foundation’s donors would have to be disclosed if it produced that ballot guide, exposing its supporters to opportunities for threats, harassment, and political retaliation. But the Tenth Circuit upheld New Mexico’s law against the Rio Grande Foundation’s planned ballot guide.
Ballot guides are important tools used by nonprofits nationwide to educate the public about issues. NTU, for example, often issues ballot guides. These are comprehensive, sometimes going into the hundreds of pages. NTU has been doing these guides for decades. The ballot guides could not be confused with a campaign ad. Instead, they’re informational and help people understand more about a complex topic.
In our brief, we tell the Court that the New Mexico law was upheld on shaky ground. Indeed, of the three judges on the panel, the decision was really 1-1-1 between a majority opinion, a concurrence that functions as a dubitante opinion (meaning the judge thinks the law compels an answer they think is wrong but cannot change), and a forceful dissent. The lead opinion gutted important Supreme Court doctrine and wrongly upheld New Mexico’s law—all the while creating a “circuit split” on the application of the “major purpose” test. It also failed to properly apply the Supreme Court’s doctrine on reviewing donor disclosure laws under “exacting scrutiny”—which was just reaffirmed by the Court this term, citing NTUF’s briefing in that case.
Circuit splits are where the U.S. Courts of Appeals for different areas of the country have very different rulings, creating confusion in the law. In this instance, the Tenth Circuit (based in Denver and covering mostly the Rocky Mountain West) split from the Fourth Circuit (East Coast, Maryland down to South Carolina), the Eighth Circuit (the prairie states from North Dakota down to Arkansas), and the Ninth Circuit (the Pacific Coast states). The Supreme Court tries to resolve these circuit splits when they endanger fundamental rights, such as the Freedom of Speech, and when they create havoc in how people understand how the law works.
The Tenth Circuit’s decision in Rio Grande Foundation gutted an important Supreme Court test called the “major purpose” test. This test from Buckley v. Valeo holds that campaign finance regulation and disclosure requirements should “only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.” When nonprofits are simply talking about issues, they do not have the “major purpose” of politics.
But, New Mexico claims, and the Tenth Circuit upheld, that there is an informational interest about who is speaking about candidates and ballot measures before an election. But what is said is just as important as that it is said. Informational speech should not be regulated as if it were express advocacy (“vote for,” “vote against,” etc.), merely because it talks about things on the ballot. The Tenth Circuit upheld New Mexico’s regulating any mention of ballot issues in the state, if done close to an election, as if it is all political. That means that New Mexico treats the nonprofit Rio Grande Foundation as if it were a campaign committee, even though its major purpose is not politics at all.
The Tenth Circuit decision also applied an imprecise version of this Court’s test of exacting scrutiny on a question of national importance. The Tenth Circuit panel decision only vaguely points to a temporal window and an opt-out provision for donors to ban the use of their funds (and thus the attendant donor disclosure) for political purposes. But the window is set at 60 days before an election, while the ballot itself need not be set until 70 days before the election. This gives a nonprofit only 10 days to issue a ballot guide without becoming a regulated political committee in the state. It’s impossible for a nonprofit to educate the people and comply with the law without having its donors disclosed. Likewise the opt-out provision is a look back to the beginning of the election cycle, meaning that donors must often give 22 months’ notice that they wish to opt-out.
The reach of the decision from the Tenth Circuit is sweeping. It breaks with Tenth Circuit precedent and creates a circuit split. And it mangled the application of the Supreme Court’s exacting scrutiny test for donor list demands. Combined, these reasons suggest that this case is a good vehicle for the Supreme Court to clarify the line between freedom of speech and regulation of speech through donor disclosure.
The Supreme Court recently called for a response from New Mexico, and so briefing on the case will continue. The case is Rio Grande Foundation v. Toulouse Oliver, U.S. No. 25-1248.