National Association for Gun Rights, Inc. v. Mangan et al. - Amicus Brief for the U.S. Supreme Court

Abstract

At issue in National Association for Gun Rights, Inc. v. Mangan, No. 19-767 (U.S..), was whether government may trigger Track 1, political-committee(-like) burdens for a particular organization. Attached is a copyrighted draft — dated June 2, 2020 — of the amicus brief that the author would have filed with the parties' consent — as indicated on page 1, footnote 4 — if the Supreme Court had not denied certiorari on June 1, 2020. 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(-like) burdens. The Ninth Circuit has a different two-track system for state law. Triggering at 54 & n.109. However, the Ninth Circuit should have conformed its law to Supreme Court case law, under which 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.