USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1744

NEW HAMPSHIRE RIGHT TO LIFE POLITICAL ACTION COMMITTEE,

Plaintiff, Appellant,

v.

WILLIAM M. GARDNER, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF

STATE OF THE STATE OF NEW HAMPSHIRE, ET AL.,

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Aldrich and Bownes, Senior Circuit Judges.

_____________________

_________________________

James Bopp, Jr. with

_______________

whom Paul R. Scholle, Bopp, Coleson &

_______________ ________________

Bostrom, and Stephen F. Queeney were on brief, for appellant.

_______
__________________

Lucy C. Hodder, Assistant Attorney General, with whom Martin

______________
______
P. Honigberg,
____________

Senior Assistant

Attorney General, was

on brief,

for appellees.

_________________________

November 1, 1996
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

Like

forecasted

hurricanes,

approaching elections invariably

give rise not only

wind but also to feverish preparations.

And, just as the prudent

fisherman

does not

gathering

storm, the sage political activist does not rely on an

unenlightened

trust in

to gusts of

electorate

vicissitudes of the ballot

time

attempts to

chance to save

to

save

box.

her

his boat

candidate

from

Still, government from

circumscribe the

ways

and means

enlightenment to a sometimes truculent public.

to us by virtue of one such restriction:

from the

the

time to

of bringing

This appeal comes

the $1,000 per election

limit that New Hampshire

places on "independent expenditures" in

See
___

political campaign.1

N.H. Rev.

Stat. Ann.

(RSA), tit.

LXIII, ch. 664:5, V; 664:3, I; 664:3, II (Supp. 1995).

In this case the appellant New Hampshire

Right to Life

Political

Action

Committee

constitutionality of

the statutory

course

of

challenges

the New Hampshire limitation,

scheme

denying

(N-PAC)

violates the

requested

First

arguing that

Amendment.2

preliminary

the

In

the

injunction,

the

____________________

1New Hampshire considers independent expenditures to include

expenditures

by

political

"expressly

advocating

the

identified

candidate

which

consultation with

committee

election
are

or

made

any candidate, or any

for

the

defeat
without

purpose

of

of

clearly

cooperation

or

authorized committee or

agent of [any] candidate, and which are not made in concert with,
or

at

the

authorized
Stat. Ann.,
atypical.

request or

suggestion

committee or agent

of,

of [any]

tit. LXIII, ch. 664:2,

See, e.g., Ariz. Rev.
___ ____

XI.

any

candidate, or

candidate."
That

any

N.H. Rev.

definition is not

Stat. Ann., tit. 16,

ch. 6,

16-901(11); Or. Rev. Stat., tit. 23, ch. 260.005(8).

2The

First Amendment applies to states

Fourteenth Amendment.

by operation of the

See 44 Liquormart, Inc. v.

___ ___________________

116 S. Ct. 1495, 1501 n.1 (1996).

Rhode Island,
____________

district court dismissed

that

the

appellant

Because N-PAC

pursues

faces

its wonted

standing

to

mount a

the case

lacked

standing to

credible

activities, we

cap.

Consequently, we

order

dismissal, and,

The court

maintain

threat of

facial

reverse the

because the

the

merits

it

held

action.

prosecution

conclude that

pre-enforcement

statutory

of

sua sponte.

if

it

does have

challenge to

the

district court's

of the

case are

clear,

we strike

down

New Hampshire's

ceiling on

independent

expenditures.

I.
I.

THE STATUTORY SCHEME

THE STATUTORY SCHEME

Understandably perturbed

money

on the

electoral

by

process, New

the corrosive

effect

Hampshire began

campaign finance reform legislation as far back as 1989.

the state

make

legislature capped a political

"independent expenditures"

political

at $1,000

committee

shall

for any or against any candidate

particular

election,

and

office
a

like

in

any candidate.

make

of $1,000
running for

state

amount

in

general election, in support

In 1991

per election.3

independent expenditures in excess

to enact

committee's ability to

relevant statute reads:

No

of

primary
a

state

of or to oppose

The

RSA

664:5,

V.

restriction

on

requires

Secretary

Two

other

independent

statutes

expenditures.

a political committee

of

State

complement

pledging

to file

that

it

the

First,

the

a declaration

"will

not

general

state

with the

exceed

the

____________________

3In

the vocabulary

includes "any organization

of the

statute, a

political committee

of 2 or more persons

to influence elections . . . ."

RSA 664:2, III.

[that attempts]

expenditure limitations allowed under RSA 664:5, V."

I.

Another

committees

that

independent

664:3,

statute

II.

scheme in its

of

State is

have

filed

The

violation

"[o]nly

declaration

those

with

political

respect

of any

of

these

provisions is

to

RSA

See RSA 664:21, V.

___

Hampshire

vests

Attorney General.

charged

election expenditures

enforcement

of

See RSA 664:18.

___

with receiving

and

THE GATHERING STORM

THE GATHERING STORM

See RSA 664:19.

___

this

statutory

The Secretary

examining reports

and notifying the Attorney

suspected improprieties.

II.
II.

that

664:3,

expenditures . . . may make such expenditures."

criminal offense.

New

provides

RSA

of

General of any

N-PAC is a political committee within the contemplation

of RSA

664:2,

Secretary

III and

has

been registered

of State for over a decade.

as such

with

the

The organization's stated

purpose is to "promote the sanctity of human life from conception

to

natural

death."

accomplish this

goal.

N-PAC

works

in

variety of

Among

other stratagems, it

ways

to

supports (or

opposes) various candidates for state office whom it perceives as

endorsing (or denigrating) its

itself

through the

expenditure

views.

N-PAC's support manifests

of funds

for such

purposes as

purchasing advertisements and distributing leaflets.

Over the past decade N-PAC typically has

contributions

that it

receives

on some

form of

spent all the

right-to-life

political advocacy.

The 1996 election followed this well-trodden

path.

N-PAC vowed

Originally,

to make

political expenditures

opposing a certain

candidate in the

candidate

withdrew.

N-PAC then

throw its

support behind a

primary election, but

shifted gears

that

and decided

different candidate who

to

was running

for state office in the primary election.4

Ellen

Dube,

Secretary of State's liaison

state

employee,

functions

with the Attorney General.

as

the

One of

Dube's duties

Attorney

is to report possible violations of RSA 664 to the

General,

investigate

and/or

who

then

makes

prosecute.

the

On

decision

March

president, Barbara Hagan, telephoned Dube.

6,

whether

1996,

to

N-PAC's

Hagan inquired if the

state intended to enforce the statutory limitation on independent

expenditures.

Dube replied that infractions

"would be noticed"

and that the state would commence enforcement actions against any

persons

same

staff.

who violated RSA 664:5, V.

Hagan subsequently posed the

question to Wynn Arnold, a member of the Attorney General's

Arnold advised her that the initiation of an enforcement

action would depend on whether there had been a referral from the

Secretary of State.

He refused to deny that the Attorney General

would enforce RSA 664:5, V.

district

N-PAC

then

court

against

Gardner, and the

verified

limitation

suit

the

in

New

Secretary

alleged

independent

that

it

Hampshire's

of

Attorney General, Jeffrey

complaint

on

filed

State,

William

R. Howard.

intended

expenditures

federal

in the

to

M.

N-PAC's

exceed

1996

the

election

____________________

4The

identity

affiliation, and the

of

the

candidate,

his

or

her

particular office sought are being

confidence pursuant to an agreement between the parties.

party

held in

campaign, that it

feared prosecution if it did

so, and that the

challenged statutory provisions impermissibly burdened

speech rights

and

thereby

ran

afoul of

the

Supreme

holding in Buckley v. Valeo, 424 U.S. 1 (1976) (per

_______
_____

PAC sought a declaratory judgment that

& II on

their face

abridge

its

chill its political

constitutional rights.

restraining the defendants from

its free-

Court's

curiam).

N-

RSA 664:5, V and 664:3, I

expression and

It also

sought

thereby

an order

enforcing these statutes against

it.

Within a

injunction.

week, N-PAC filed a motion

In describing

focused on three sets

the

need

for a preliminary

for this

relief,

of expenditures which it intended

N-PAC

to make

for

the September

10 primary

election:

(1)

its contemplated

purchase of an advertisement endorsing the candidate

edition of

the New

Hampshire Right

to

in the June

Life Committee

(NHRLC)

newsletter (estimated cost:

$900); (2) its planned distribution

at public

state on July

events around the

fliers supporting

$3,000);

and

advertisement

(3)

4 of

roughly 30,000

the candidate (estimated cost:

slightly over

its

in either

proposed

the August

purchase

of

or September

follow-up

issue of

the

NHRLC newsletter (estimated cost not disclosed in the record).

After deposing

Hagan and

expenditures, the defendants informed

not

take any enforcement action

pattern of contacts between

opted

to

support

precluded

learning of

these projected

N-PAC that the state would

because of its

belief that the

N-PAC and the candidate whom

classification

of

the

it had

proposed

expenditures as

XI.

As

"independent" within

what seemed

determination,

to

them

the purview of

logical

RSA 664:2,

corollary

the defendants asserted that in

of

this

the absence of a

threat of enforcement, N-PAC could not claim to have suffered any

cognizable

injury by

operation of

the challenged

statutes and

therefore had no standing to contest their constitutionality.

On June 21, 1996, the district

for a

preliminary injunction.

court denied the motion

In that

same order the

court

relying heavily on the Attorney General's representation that the

specified expenditures, if made, would not engender prosecution

sua sponte dismissed

the action for want

court's

conclusion

view

its

"present[ed]

adjudication

of

that

constitutional

the

instant

of standing.5

N-PAC

lacked

barrier

not

motion but

also

consideration of the merits of the

case."

only

to

In

the

standing

to

the

the court's

As part and parcel of

this determination, the court concluded that N-PAC did not face a

credible threat of

the

prosecution based on the aggregate

$900 expenditure

planned expenditures.

it

had already

made

and the

effect of

other

two

Importantly, the court neither dwelt on N-

PAC's prayer

for declaratory

relief nor

assayed the

threat of

prosecution vis- -vis other potential expenditures.

N-PAC filed this appeal, but it refrained from printing

____________________

5The court considered

the

Attorney

General

and rejected N-PAC's

lacked

the

authority

representations, finding "the representations

the plaintiff to be protected by them."
decision, see
___
express

text infra, we do not

_____

no opinion on

to

make

to be binding

Given the

these

and

basis for our

review this finding, and we

the correctness of

upon which it rests.

contention that

the legal proposition

the fliers or purchasing a second advertisement.

III.
III.

STANDARD OF REVIEW
STANDARD OF REVIEW

We

the

review standing

plaintiff's factual allegations to

material and

construing those

reasonable inferences

Warth
_____

determinations de

novo, crediting

the extent that they are

alleged facts, together

with the

therefrom, in favor of the plaintiff.

See
___

v. Seldin, 422 U.S. 490, 501 (1975); Benjamin v. Aroostook

______
________
_________

Medical Ctr., Inc.,

___________________

57 F.3d

101, 104

(1st Cir.

States v. AVX Corp., 962 F.2d 108, 114 (1st

______
__________

as here,

of review

dismissal is ordered sua sponte,

does not vary, but

1995); United
______

Cir. 1992).

Where,

the ultimate standard

the court of appeals

must take an

extra

step,

scrutinizing

certain that the plaintiff

best foot forward.

See,
___

the

proceedings

carefully

make

has had a fair opportunity to put its

e.g., Carparts Distribution Ctr., Inc.

____ _________________________________

v. Automotive Wholesaler's Ass'n of New Eng., Inc., 37

________________________________________________

15 (1st Cir.

to

1994); Preterm, Inc. v. Dukakis, 591

_____________
_______

F.3d 12,

F.2d 121, 134

(1st Cir.), cert. denied, 441 U.S. 952 (1979).

_____ ______

IV.
IV.

STANDING
STANDING

Standing

case,

is a

question in

every

federal

determining the power of the court to entertain the suit."

Warth, 422 U.S. at 498.

_____

to

"threshold

After all, "[i]f a party lacks standing

bring a matter before the court, the court lacks jurisdiction

to decide the merits of

the underlying case."

AVX, 962
___

F.2d at

113.

Curiously,

important for

the

doctrine of

federal courts,

standing,

remains a morass

though vitally

of imprecision.

The Justices once termed

scope," Flast v. Cohen,

_____
_____

it "a concept of uncertain

392 U.S. 83, 95

meaning and

(1968), and a

quarter-

century later we acknowledged that, even after so many years, the

"ingredients

of standing

are .

. .

not easily

susceptible to

concrete definitions or mechanical application." AVX, 962 F.2d at

___

113.

In the absence

of any hard-and-fast

guidelines on which federal courts seemingly

test, we

limn those

agree and then move

to a more particularized discussion of the cases that provide the

best analogies for the present

with prudential concerns, we

the

standing

issue

in this

situation.

After dealing briefly

apply these distilled principles to

case.

Finally,

we address

the

possibility that the case is moot.

A
A

Standing

requirements

and

involves

prudential

"a

blend

of

constitutional

considerations."

Valley Forge
_____________

Christian Coll. v. Americans United for Separation of Church and

_______________
______________________________________________

State, 454 U.S.

_____

464, 471 (1982).

stem from the admonition

to

III.

of

decide "cases"

The

constitutional requisites

that a federal court is

and "controversies."

See U.S.
___

Not every dispute is a case or controversy.

a disagreement, however sharp

empowered only

Const., Art.

"The presence

and acrimonious it

may be, is

insufficient by itself to meet Art. III's requirements."

v.

Charles, 476 U.S.

_______

hurdle, the

show

party who invokes

that (1) he

threatened

54, 62 (1986).

To clear

a federal court's

or she personally has

Diamond
_______

the Article III

authority must

suffered some actual or

injury as a result of the challenged conduct; (2) the

injury can fairly

likely

See
___

be traced to that conduct;

and (3) the injury

will be redressed by a favorable decision from the court.

Valley Forge,
_____________

DiStefano,
_________

454

U.S.

at

472;

4 F.3d 26, 36 (1st Cir. 1993).

Vote Choice, Inc.

___________________

v.

The complaining party

must satisfy this test throughout the litigation, not just at the

moment when the complaint is filed.

U.S. 452, 459 n.10 (1974).

See Steffel v. Thompson, 415

___ _______
________

The second

legitimately

in

and

issue

third

here.

prongs

To

suffered a cognizable injury at all

soon

return

the

injury can

threatened enforcement

is also redressable

declaration that

proper

in this

are

the

extent

test

are

not

that N-PAC

has

a matter to

be traced

action:

to the

when

existence and

That injury

a plaintiff seeks

officials

charged

the

with

See Diamond, 476 U.S. at 57 n.2;

___ _______

473 U.S. 159, 165-66 (1985).

dispositive inquiry

which we shall

statute is unconstitutional,

the government

administering and enforcing it.

Kentucky v. Graham,
________
______

the

the

of the challenged statutes.

a particular

defendants

of

here involves

the test's

Consequently,

first prong:

the existence vel non of an actual or threatened injury.

___ ___

This inquiry is

applies with

party

special force

launches a

always case-specific, and

in this instance.

pre-enforcement

provides for criminal penalties and

challenge to

that truism

When, as

now, a

a statute

claims that the statute,

that

on

its face, abridges First Amendment rights, two potential injuries

must be considered.

First, there is the injury which attends the

threat of enforcement.

As the Court has repeatedly explained, it

10

is

not necessary

that

a person

expose

herself to

arrest

or

prosecution under a statute in order to challenge that statute in

a federal court.

442 U.S. 289, 298

Arkansas,
________

rule

See Babbitt v. United Farm Workers Nat'l Union,

___ _______
_______________________________

(1979); Steffel, 415 U.S. at

_______

393 U.S. 97 (1968).

is straightforward:

The rationale that underlies this

a credible threat of present or future

prosecution itself works an

standing, even if

459; Epperson v.
________

injury that is sufficient

there is no history of past

to confer

enforcement.

See
___

Doe v. Bolton, 410 U.S. 179, 188 (1973).

___
______

The second

Amendment context.

when the plaintiff is

type of

In such

injury

is peculiar

cases, an actual

to the

First

injury can

exist

chilled from exercising her right

to free

expression or

forgoes expression

consequences.

See
___

Wilson v. Stocker,
______
_______

situations

the

censorship.

Meese v.
_____

in order to

Keene, 481
_____

U.S. 465,

819 F.2d 943, 946 (10th Cir.

vice of

the statute

See Virginia
___ ________

is

avoid enforcement

473 (1987);

1987).

its pull

In such

toward self-

v. American Booksellers Ass'n, Inc.,

_________________________________

484 U.S. 383, 393 (1988).

Of course, these two

Both

hinge

on

the existence

types of injury are interrelated.

of

challenged law will be enforced.

it poses a

classic dilemma

engage in the expressive

to

for an

credible

threat that

If such a threat exists,

affected party:

the

then

either

to

activity, thus courting prosecution, or

succumb to the threat, thus forgoing free expression.

Either

injury

is

prosecution

justiciable.

looms,

Conversely, if

the chill

is

no credible

insufficient

threat of

to sustain

the

11

burden

she may

not

that Article III imposes.

be prosecuted for

A party's subjective fear that

engaging in expressive

activity will

be held to constitute an injury for standing purposes unless

that fear is

objectively reasonable.

See Laird
___ _____

v. Tatum,
_____

408

U.S. 1,

13-14 (1972); Chamber of Commerce v. FEC, 69

____________________
___

603-04

1486,

(D.C. Cir. 1995); see also

___ ____

F.3d 600,

ACLU v. Florida Bar, 999 F.2d

____
___________

1492 (11th Cir. 1993) (noting that when the claimed injury

is one

of self-censorship, the likelihood

becomes an important factor in

than merely

a subjective

long as a credible

standing

to

of enforcement action

determining whether there is more

chill).

The

bottom line is

threat of prosecution exists, a

mount a

constitutionality of

pre-enforcement

statute

challenge

on the

basis

that, as

litigant has

to the

that

facial

her

First

common

existence

can be

Amendment rights arguably are being trammelled.

Because

denominator

resolved

of

the

threat

both types

of

in a single inquiry.

of

prosecution

injury, their

is

The contours of that inquiry are

well-defined.

In

pre-enforcement challenge

to

carrying criminal penalties, standing exists when "the

has

alleged

an

intention to

arguably affected

by

[the]

statute,

prosecution."

in

plaintiff

course of

conduct

with a constitutional interest, but proscribed

and

there

exists

Babbitt, 442 U.S. at 298.

_______

the Babbitt framework fit

_______

that

engage

statute

credible

threat

of

The first two-thirds of

this case snugly.

The

record reveals

N-PAC intends to engage in political expenditures of a type

protected under the First Amendment, see Buckley, 424 U.S. at 14,
___ _______

12

and New Hampshire's statutory scheme restricts N-PAC's freedom to

make

those expenditures.

whether

the third prong

Thus,

the bone of

contention here is

of the Babbitt framework

_______

fits.

In the

next section, we gnaw upon that bone.

B
B

While bright lines grow faint in

the area of standing,

we believe that a discussion of pertinent caselaw illuminates the

path to appropriate

resolution of

this appeal.

We begin

with

bedrock:

"The

enforce a

law and private

that

of

conflict

between state

officials empowered

parties subject to

to

prosecution under

law is a classic `case' or `controversy' within the meaning

Art.

III."

Diamond,
_______

476 U.S.

at

64.

To

establish the

conflict needed to animate this principle, however,

show that her

fear of

prosecution is "not

a party must

imaginary or

wholly

speculative." Babbitt, 442 U.S. at 302.

_______

This standard

threat of prosecution"

how readily

statute

is quite forgiving.

one can meet it.

that

during consumer

the statute's

encapsulated in

criminalized

the phrase

Babbitt illustrates
_______

There, the plaintiffs

certain

deceptive

publicity campaigns and sought

unconstitutionality.

Id. at
___

"credible

attacked a

statements

made

a declaration of

301.

Although

the

defendants noted that no criminal penalties had

ever been levied

under the statute and argued that none might ever be imposed, the

Court found a credible

threat of prosecution.

It

observed that

the plaintiffs had engaged in consumer publicity campaigns in the

13

past

and that

activities in

they

the

professed

future.

an

Id.
___

intent

to

engage

in

such

Since

"the

State

has

not

disavowed

any

intention

of

invoking

the

criminal

provision against [violators]," the plaintiffs were

some

reason in fearing prosecution

for violation of

specified forms of consumer publicity."

held that a

class consisting of

abortions

had standing

Georgia's

statutes

that

no physician

to

restricting

"ha[d]

prosecution, for violation

188.

The

Doe Court
___

challenge

"not without

the ban on

Id. at 302.
___

Other cases set a similarly low threshold.

Justices

penalty

In Doe, the
___

doctors who performed

the constitutionality

the procedure,

been prosecuted,

notwithstanding

or threatened

of the . . . statutes."

distinguished Poe v.
___

of

with

410 U.S. at

Ullman, 367 U.S.

______

497

(1961), in which standing had been denied, on the ground that Poe
___

involved

more

a hoary statute that had led to only one prosecution in

than

eighty years.

"Georgia's

recent and not moribund."

obscenity

pre-enforcement

statute.

plaintiffs

recently

contrast, is

Doe, 410 U.S. at 188.

___

American Booksellers
_____________________

involved

statute, in

is of

facial

like

tenor.

challenge

to

That

case

Virginia

The Court rejected the state's plea that the

had sued

prematurely (the

statute having

enacted and not yet having taken effect).

reasoned that the law

been only

The Justices

was "aimed directly" at entities

like the

plaintiffs, who would either have to "take significant and costly

compliance measures

Booksellers,
___________

484

or

risk criminal

U.S. at

392.

Since

prosecution."

"[t]he State

American
________

ha[d] not

14

suggested that the newly

booksellers had

[would] be

standing

id.
___

enacted law will not be

"an actual

and well-founded

enforced against them."

fear that

Id. at 393.
___

the law

They thus had

to mount a pre-enforcement facial challenge to it.

In reaching this conclusion,

that the

enforced," the

"danger of this

the Court took pains

statute is, in

large measure,

See
___

to note

one of

self-censorship" and

termed self-censorship "a harm

realized even without an actual prosecution."

Federal

appellate

courts

Chamber of Commerce the D.C.

____________________

facial challenge

to

despite the fact that

the rule and

echo these

Election

the FEC was

there was

Id.
___

holdings.

Circuit found standing

a Federal

that can be

Commission

to mount a

regulation

split on the advisability

no present danger

In

of enforcement.

of

The

court explained that a credible threat of prosecution nonetheless

existed because

nothing "prevents the Commission

from enforcing

its rule at any time with, perhaps, another change of mind of one

of the

Commissioners."

which bears

69

F.3d at 603.

a family resemblance to

Circuit held that

when a

Similarly, in Wilson,
______

the case at

state statute chills

bar, the Tenth

the exercise

of

First Amendment rights, standing

charged

with enforcement

enforcement action

exists even though the official

responsibilities

has

against the plaintiff and

intend to take any such action.

The preceding

to

taken

any

does not presently

819 F.2d at 946-47.

cases make clear that

pre-enforcement challenges

not

recently enacted

when dealing with

(or, at

least,

non-moribund) statutes that facially restrict expressive activity

15

by the class to which the plaintiff belongs, courts will assume a

credible

threat

of prosecution

in

the

absence of

compelling

contrary evidence.

C
C

Of

dimensions,

course,

"the doctrine

concerns regarding

962 F.2d at

meet

certain additional

114.

to

of standing also

To

complaint must

protected by the

addition

its

constitutional

embraces prudential

the proper exercise of federal jurisdiction."

AVX,
___

First, the

in

satisfy these concerns,

criteria.

"fall

law invoked."

We mention

within the

Allen
_____

a suit must

three of

zone of

them.

interests

v. Wright, 468 U.S.

______

737,

751

(1984).

plaintiff

Next, under

ordinarily

interests,

and

the

"must

cannot rest

rights or interests of

Third, the suit

principle

assert

his claim

shared

representative

to

and

branches."

most

jus tertii,
___ ______

legal

rights

relief on

Warth, 422
_____

more than

wide public significance which amount

pervasively

his own

third parties."

must present

of

the

and

the legal

U.S. at 499.

"abstract questions

of

to generalized grievances,

appropriately

Valley
Forge,
______________

addressed

in

the

454

at

475

U.S.

(citations and internal quotation marks omitted).

In

the

satisfies the

First, its

advocacy; it

circumstances

of

this

case,

prudential prerequisites for a

complaint implicates

N-PAC

readily

grant of standing.

basic political

expression and

thus falls comfortably within the zone of interests

protected by the First Amendment.

own legal rights, as the

Second, N-PAC is asserting its

statute takes direct aim at a

class of

16

entities (political

committees) to which it belongs.

PAC's

with

disagreement

political

grievance.

expenditures

New

Hampshire's

is

cap

sufficiently

on

Third, N-

independent

particularized

D
D

In

this case, therefore, standing depends upon whether

N-PAC faces a

credible threat

of prosecution.

To answer

this

question, we must first place the matter into better perspective.

In

injunctive

its complaint

relief.

Because

certain expenditures in

securing a

those

it

sought

outlays in

June, it focused its

the proper

on these

district court

expenditures,

it

would make

initial efforts on

would permit it

time frame.

and

to make

The

defendants also

expenditures, eventually

representing to

that the

them to be "independent"

both declaratory

projected that

preliminary injunction that

concentrated

the

N-PAC

Attorney General did

under RSA 664:2, XI, and

even if made, would not

not consider

therefore the

trigger RSA 664:5, V.

In

its ruling on

the motion for preliminary

injunctive relief, the

lower court correctly focused on this point.

But then the court went beyond the scope of the pending

motion, deemed

dispositive

of

hand.

positions of

held."

the initial expenditures

of the entire case,

In

preliminary

the treatment of

and dismissed the complaint out

doing

so, the

court erred.

injunction

is

to

"preserve

a trial

on the

the

to be

simply

parties until

University of Texas v.
____________________

17

Camenisch,
_________

The purpose

the

relative

merits can

451 U.S.

of a

be

390, 395

(1981).

or

Because a

denied on

differ

business

preliminary injunction is customarily granted

the basis

markedly

for a

of procedures

from those

and considerations

that apply

district court

preliminary injunction stage.

at

to enter

See id.
___ ___

trial, it

is risky

final judgment

This case

that

at the

bears witness

to that admonition.

In grafting a sua sponte dismissal onto the denial of a

motion

for

preliminary

effectively denied N-PAC any

and

arguments for

injunction,

the

district

court

opportunity to develop its evidence

declaratory

relief.

More importantly,

the

court confused

the threat of enforcement

to the
initial expenditures
_______________________________

enforcement that

standing to

seek

had

to

with

the

be considered

a declaration

unconstitutional on its face.

that

which existed relative

________

in

broader

threat

ruling

on

the statutory

In this case, the

of

N-PAC's

scheme

is

distinction is

crucial.

The

district court may or may not have been correct in

determining

that

the

representations

removed any

danger of prosecution for

made

by the

the specific expenditures

that N-PAC sought to make in the summer of 1996.

5.

the

See
___

But N-PAC's standing for purposes of the suit

preliminary injunction

reference

to

those

cannot

expenditures.

defendants

as opposed to

be determined

Given

supra note
_____

the fact

solely with

that

the

district

court

dismissed

the

action

sua

sponte,

we

must

scrutinize the entire record to see what it reveals about N-PAC's

standing

to secure

declaratory relief.

The

record adequately

18

evinces

that N-PAC is an

make political

decade, and

organization whose very

expenditures.

it intends to

It has

do so in

done so

the future.

purpose is to

for more than

Indeed, N-PAC

typically spends

advocacy,

and

arguably fall

all

its

the

money that

outlays,

within the

past

it

and

statutory

raises

on

prospective,

definition of

political

at

least

"independent

expenditures."

It is,

some

point find

therefore, highly

itself either

takes direct aim at its customary

censor

(i.e.,

expressive

withhold

in violation

fear

of a

will at

statute that

conduct or be forced to

expenditures

activity) for

circumstances,

probable that N-PAC

of the

earmarked

for

consequences.

self-

funding

In

such

a pre-enforcement facial challenge to a statute's

constitutionality is

entirely appropriate

convincingly demonstrate

unless the state

can

that the statute is moribund or that it

simply will not be enforced.

New Hampshire has

failed to make such a

showing here.

As the record reflects,

an official in the Secretary

of State's

office told N-PAC's president that RSA 664:5, V would be enforced

and that violations would not escape notice.

A representative of

the

the possibility

Attorney

enforcement.

defendants

Indeed,

General refused

As

late as

vouchsafed

the defendants

the

have

664:5, V, but their defense

to

oral

disclaim

argument

in

constitutionality

not only

refused

this court,

of

the

19

the

statute.

to disavow

of it indicates that they will

day enforce it.

of

RSA

some

To sum up, there is more than enough in this record

show

that

the

conjectural,

threat

but, rather,

confer standing

to

enacted statute.

challenge

the

of

prosecution

that it

launch

Hence,

future

is

is sufficiently

a facial

challenge

to

we conclude that N-PAC has

constitutionality

of New

Hampshire's

not

to

wholly

credible to

recently

standing to

statutory

scheme.

This conclusion

is bolstered

by a

factual comparison

between this case and cases in which the Supreme Court

standing.

As

has found

in Babbitt, 442 U.S. at 301-02, the plaintiff here

_______

has in

the past and intends

likely proscribed by

at 188, the

in the future to

a challenged statute.

statute in question

is not a

engage in conduct

As

in Doe, 410 U.S.

___

dead letter, and

the

defendants have not disclaimed any intention ever

to enforce it.

As in American Booksellers,
____________________

plaintiff must

either risk

at it

484 U.S. at 393, the

criminal prosecution under a

or engage in self-censorship.

statute aimed directly

Finally, as was the case in

Doe, 410 U.S. at 188, the lack of past prosecutions is irrelevant

___

given the statute's recent origin.

Our holding finds additional support in a well-reasoned

decision

of the Eleventh Circuit. In that case, the plaintiff, a

candidate for elected judicial

challenge to a provision

office, brought a First Amendment

of the canons of judicial

conduct that

he believed would proscribe

make.

See
___

ACLU, 999
____

a campaign speech that he

F.2d at

charged with enforcement

1488.

wished to

The defendants

(persons

of the canons) responded that

the rule

20

did not apply

to the plaintiff's

that the rule

itself was

proposed speech, but

constitutional.

In

insisted

finding that

the

plaintiff had standing

and that

the defendants'

representation

did not render the issue moot, Judge Kravitch wrote:

[I]t

would be

defendants]

an

were

anomalous result
permitted to

if [the

(1) maintain

that Canon 7(B)(1)(a)

is constitutional

enforceable

if [the

another

and yet,
judicial

plaintiff's]

enforcement review,
court

saying,

plaintiff] or

candidate

position

were

to

`Canon

to

2) again

in

[the

seek

pre-

come

into

7(B)(1)(a)

apply to that proposed speech.'

itself,

and

does

not

This process

aside from the canons and the rules,

is enough to chill speech.

Id. at 1495.6
___

These words have clear pertinence here.

E
E

Because

the 1996

must address a final

mootness.

A "case

primary election

has been

held, we

issue pertaining to justiciability, namely,

is moot

when

the issues

presented are

no

longer `live' or the

in the outcome."

parties lack a legally

cognizable interest

Powell v. McCormack, 395 U.S.

______
_________

486, 496 (1969).

In our judgment, this case is not moot.

____________________

6The

defendants tell

decision in Graham v.
______

us

that ACLU
____

(1994).

distinguishable on two bases.

set ACLU apart as

____
continued

to

maintain
See
___

defendants,

ACLU,
____

as in

id.
___

that

the

at

500.

argue that

defendants there

concluded that
would enforce

Here,

of

rule

was

course,

the

New Hampshire's
Second

there was

499-500.

ACLU,
____

an accurate statement

statutory

and more salient

no chance

the challenged rule

See id. at
___ ___

is not

the defendants

underlying

particular plaintiff.
and it

Graham
______

First, the Graham court itself

______

scheme passes constitutional muster.

Graham court
______

the

Cir. 1993),

We do not agree.

involving a situation in which

constitutional.

the

undermined by

Butterworth, 5 F.3d 496 (11th

___________

cert. denied, 114 S. Ct. 2136

_____ ______
is

is

that the

against the

That was not true in

as applied

to this

case.

21

This conclusion stands

place,

N-PAC seeks

planned expenditures

facial

not

but also a

constitutionality

affects expenditures

elections.

only an

that

of the

on two pillars.

In the

first

injunction permitting

certain

declaratory judgment as

to the

statute.

N-PAC may

The latter

choose to

make in

prayer

future
______

As to declaratory relief, then, the case is not moot.

See,
___

e.g., Allende v. Shultz,

____ _______
______

1988) (holding

that, where

845 F.2d 1111,

1114-15 (1st Cir.

the plaintiffs sought

a declaratory

judgment condemning the government's visa policy, the granting of

one

visa did not moot the case,

as the government still had not

disavowed its general policy).

In the

second place, cases

challenging statutes

touch upon the electoral process are sui generis.

___ _______

insufficient

the

time to resolve

election is

Supreme

Court

within the

though

even a promptly

actually held.

has tended

exception to

capable of

to

Mindful

treat such

repetition,

may evade

There often is

filed case before

of that

pitfall, the

challenges

the mootness doctrine

that

as coming

for cases

review.

See,
___

that,

e.g.,
____

Democratic Party v.
_________________

Wisconsin, 450 U.S.

_________

107, 115

n.13 (1981);

First Nat'l Bank v. Bellotti, 435 U.S. 765, 774 (1978); Storer v.
________________
________
______

Brown, 415 U.S. 724, 737 n.8 (1974).

_____

To fall

[must be] in

within this exception, "the

its duration too short to

challenged action

be fully litigated prior

to its cessation or expiration," and there must be "a `reasonable

expectation'

controversy

or

`demonstrated

will recur

involving

22

probability'

the same

that

the

same

complaining party."

Murphy
______

v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (citations

____

omitted).

The instant case passes the Murphy test.

______

As events to

date demonstrate, challenges to election spending laws can rarely

be

fully resolved before the election itself is over.

N-PAC's resolve that it will continue to

are arguably prohibited

by RSA

Moreover,

make expenditures which

664:5, V leads

to a

reasonable

expectancy that N-PAC will again find itself in the same quandary

involving

moot.

1496.

the same

statutory scheme.

See Vote Choice, 4 F.3d

___ ____________

Hence,

at 37 n.12;

the case

ACLU, 999
____

is not

F.2d at

V.
V.

THE MERITS
THE MERITS

Having

action,

we

proceedings.

must

confirmed

now

decide

standing to

whether

to

maintain

remand

for

this

further

When a trial court resolves a matter on a threshold

ground and the appellate

remand for

N-PAC's

court reverses, the usual praxis

consideration of the

merits.

is to

See, e.g., In re Two

___ ____ __________

Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire
_________________________________________________________________

Litig.,
______

994 F.2d 956, 968-69 (1st Cir. 1993); Rivera-Gomez v. de

____________
__

Castro, 843 F.2d 631, 634-35 (1st Cir. 1988).

______

Like most rules,

however, this one admits of exceptions. Where the merits comprise

purely

susceptible

legal

issue,

reviewable

of determination

de

novo

without additional

on

appeal

and

factfinding, a

remand ordinarily will serve no useful purpose. See, e.g., United

___

____

______

States v. Pierro, 32 F.3d 611, 622 (1st Cir. 1994), cert. denied,
______
______
_____ ______

115 S.

(1st

Ct. 919 (1995); Cohen

_____

Cir.

v. Brown Univ., 991

___________

F.2d 888, 904

1993); Societe Des Produits Nestle, S.A. v.

_____________________________________

Casa
____

23

Helvetia, Inc., 982

_______________

F.2d 633, 642

(1st Cir.

1992).

So it is

here.

Accordingly, we reach the merits of N-PAC's constitutional

challenge.

Buckley
_______

asseverated

that

controls our analysis.

several

sections

of

Campaign Act (the FEC Act), 2 U.S.C.

610 (1995), violated their

things,

There, the plaintiffs

the

Federal

Election

431-55, 18 U.S.C.

First Amendment rights.

591-

Among other

they challenged a statutory cap ($1,000 per year) on the

"independent expenditures" that individuals and groups could make

"relative to a clearly identified candidate."

at 7.

Buckley, 424
_______

U.S.

In evaluating the constitutionality of this provision, the

Supreme

Court

expenditure

the most

first

established

limitations, the Court said,

frame

of

reference:

"operate in an area of

fundamental First Amendment activities.

Discussion of

public issues

and debate on the qualifications of candidates are

integral to the operation of the system of government established

by our Constitution."

Id. at 14.
___

Public debate about candidates, the Court continued, is

often fueled by money.

"restriction on

on political

the amount of money a

audience reached."

political

As a consequence,

any

person or group can spend

expression by restricting

the depth of their

expenditures

at 19.

communication during a campaign necessarily reduces

the quantity of

discussed,

See id.
___ ___

Id.
___

therefore

speech.

exploration, and the

The FEC Act's

represented a

See id.
___ ___

the number of

In the

ceiling on

substantial

issues

size of the

independent

restraint on

Court's evocative metaphor,

24

"[b]eing free to engage in unlimited political expression subject

to

a ceiling

on expenditures

is like

being free

to

drive an

automobile as far and as often as one desires on a single tank of

gasoline."

Id. at n.18.
___

Having described the depth of the restriction involved,

the Buckley Court proceeded

_______

to find that the government

had not

advanced a sufficiently compelling interest to warrant the severe

First

Amendment incursions

principal government

the

political

independent

candidate.

idea that

process

or

could

by

cooperation

See id.
___ ___

with the

interest asserted

expenditures,

consultation

associated

not

at 45-47.

avoiding

justify

definition,

between

The

proviso.

the

were

The

corruption of

the

cap because

made

without

contributor

and the

Court likewise rejected

the

expenditure limitations served a governmental interest

in equalizing the ability of various groups to affect the outcome

of

elections.

"The

First

governmental abridgement of

made

to

Amendment's

free expression

depend on

a person's

public discussion."

Id. at 49.
___

financial

protection

against

cannot properly

ability to

be

engage in

Under

Amendment.

The

Buckley,
_______

RSA

New Hampshire

664:5,

precisely the

insults

statute limits the

independent expenditures that the

and the New Hampshire

First

same kind

of

FEC Act attempted to regulate,

law purports to cap those

same level ($1,000)

the

as the FEC

expenditures at

Act set.7

To be

____________________

7We do

not consider the

distinction between the

FEC Act's

$1,000 annual limit and New Hampshire's $1,000 per election limit
to

be

of

constitutional

consequence,

25

especially

since

most

sure, the price

changes

of political

notice that political campaigns are much more expensive

now than

television and

was

decided

two

position.

the

judicial

Buckley
_______

the state's

but

We take

when

work against

expression has changed

decades

ago.

newspaper advertisements has

The

price

ballooned, as

of

have

the costs associated with printing and distributing leaflets.

To

illustrate the point, N-PAC's plan to distribute 30,000 fliers at

various

public events

would have

judgment,

severely

held around

required that it spend

this

single

RSA 664:5,

example

V restricts

the state

on July

4, 1996,

in excess of $3,000.

makes

painfully

political speech.

In our

apparent

The

how

First

Amendment does not tolerate such drastic limitations of protected

political advocacy.8

Our

limitation

on

determination

independent

necessarily leads us

that

the

$1,000

expenditures

to invalidate

is

per

election

unconstitutional

not only RSA

664:5, V,

but

also those portions of RSA 664:3, I & II which complement it. See
___

supra Part
_____

I.

One

cannot be compelled

to state that

one will

comply with an unconstitutional statute. Accordingly, neither the

declaration requirement contained in RSA

664:3, I nor RSA 664:3,

____________________

elected state officials in New Hampshire serve two-year terms.

8At oral

argument, counsel

Hampshire's particular
which places heavy
of spending limits,
interest

in curbing

system

for the

state argued

of campaign

finance

emphasis on candidates'
creates a

uniquely compelling

to carve out an

regulation,

voluntary acceptance

independent expenditures.

argument would require us

that New

governmental

Accepting this

unwarranted exception

to

a settled

constitutional rule.

organization's

right

to

We

unfettered

decline to

political

do so.

An

expression

and

advocacy is just as substantial within New Hampshire as without.

26

II's

proviso

conditioning

the

expenditures on

the filing

of a

committee

observe

will

enforceable.

See Perry
___ _____

New

making

of

any
___

independent

declaration pledging

Hampshire's

$1,000

v. Sindermann, 408 U.S. 593,

__________

that the

ceiling

is

597 (1972)

(explaining

that, in the area of free speech, government may not

indirectly deny, through

unconstitutional conditions, that which

it cannot directly prohibit).

VI.
VI.

CONCLUSION
CONCLUSION

We

credible

summarize

threat that

succinctly.

N-PAC

New Hampshire will

has

established

enforce against

it in

future elections a statutory scheme that the state believes to be

constitutional.

penalties

and

Amendment.

We

Moreover,

suppress core

the

statutes

activity

therefore conclude

actual injury and, consequently,

protected

that N-PAC

violates

the

limitation

First

on

independent

Amendment,

criminal

by the

First

has suffered

an

we reverse the district court's

dismissal of this case for lack of standing.

Hampshire's

contain

RSA

Moreover, since New

expenditures

664:5,

is

plainly

facially

unconstitutional,

extent

that

unenforceable.

and RSA

they

command

On

remand,

664:3, I

fealty

and RSA

to

the district

appropriate decree.

Reversed and remanded.

Reversed and remanded.
_____________________

27

RSA

664:3, II,

664:5,

court shall

to the

V,

are

enter an