National Association for Gun Rights, Inc. v. Mangan et al. - Amicus Brief for the Ninth Circuit

Abstract

At issue in National Association for Gun Rights, Inc. v. Mangan, No. 18-35010 (9th Cir.), is whether government may trigger Track 1, political-committee(-like) burdens for a particular organization. Attached is a copyrighted draft of an amicus brief that the author would file with the parties' consent, as indicated on page 1, footnote 4. The Supreme Court has applied constitutional scrutiny and established the two-track system under which government may regulate — i.e., require disclosure of — political speech. E.g., Buckley v. Valeo, 424 U.S. 1, 63-64, 79-82 (1976) (per curiam); Randy Elf, The Constitutionality of State Law Triggering Burdens on Political Speech and the Current Circuit Splits, 29 Regent U.L. Rev. 35, 35-37 & nn.1-12 (2016) (“Triggering”). This action does not address Track 2, non-political-committee disclosure requirements. Instead, this action addresses law triggering Track 1, political-committee burdens. The Ninth Circuit has a different two-track system for state law. Triggering at 54 & n.109. However, the record does not support Defendants-Appellees Jeff Mangan, Tim Fox, or Leo Gallagher’s (“Montana’s”) prevailing under this Ninth Circuit law. Alternatively, Ninth Circuit law is distinguishable. Montana law is worse than unconstitutional Wisconsin law that Ninth Circuit law — in upholding law triggering Track 1 burdens — distinguishes. Therefore, Plaintiff-Appellant National Association for Gun Rights, Inc. (“NAGR”) prevails under this part of Ninth Circuit law. Alternatively, the Ninth Circuit should conform its law to Supreme Court case law, under which NAGR prevails: Government may trigger Track 1 burdens only for “organizations” that are “under the control of” candidates in their capacities as candidates, or for “organizations” having “the major purpose” under Buckley, 424 U.S. at 79; Triggering at 48 & n.84, and engaging in more than small-scale speech, Sampson v. Buescher, 625 F.3d 1247, 1249, 1251, 1261 (10th Cir. 2010); Triggering at 62-64 & nn.153-54. Moreover, “the appeal-to-vote test — once known as the ‘functional equivalent of express advocacy’ — no longer affects whether government may ban, otherwise limit, or regulate speech, and the appeal-to-vote test is vague. It has no place in law.” Triggering at 77. The last page of the attached copyrighted draft is a newspaper column by the author. It summarizes Triggering and is cited in Triggering at 85 n.278.