Gun advocates’ attack on Wyoming donor disclosure law hits bullseye at 10th Circuit

DENVER (CN) — After winning a narrow injunction against a Wyoming election donor disclosure law, a gun rights group received affirmation and a remand for attorneys' fees from the 10th Circuit on Wednesday.

In 2019, the Wyoming Legislature passed a bill requiring organizations disclose donors funding political ads during elections.

In the 2020 primary, Second Amendment advocacy group Wyoming Gun Owners paid $1,229 to run a radio ad asking listeners to support one candidate for state Senate and tell the opponent that “Wyoming gun owners need fighters, not country-club moderates who will stab us in the back the first chance they get.”

The group declined to disclose its donors because it didn’t see the ad as any different from the work it conducted outside of election season, involving mainly — as its name suggests — supporting gun rights. Plus, with a budget that fluctuates between $50,000 and $100,000, the small organization didn’t earmark incoming funds for specific projects, leaving it unable to comply with the state law.

Wyoming Gun Owners paid the state's $500 fine and sued, arguing the law was vague and chilled its freedom of speech. While a federal judge rejected most of the organization’s facial vagueness arguments in 2021, the court found Wyoming’s law was not narrowly tailored enough to pass exacting scrutiny, and enjoined the state from forcing the Wyoming Gun Owners to disclose its donors.

Wyoming appealed. The gun owners filed a cross-appeal. The showdown was held in downtown Denver in January.

In a detailed rundown, the 10th Circuit agreed with the district court on all but two decisions. The appeals panel found the gun owners entitled to seek pre-enforcement relief for email content and gave the green light to pursue attorneys' fees against the state.

In affirming the poor tailoring finding, U.S. Circuit Judge Timothy Tymkovich, pinned the opinion tightly to the structure of the organization commonly referred to as WyGO.

"The regime’s requirement that expenditures for speech ‘related to’ candidate campaigns must be disclosed is void for vagueness — again, as applied to WyGO,” wrote the George W. Bush appointee in a 47-page opinion.

Wyoming Gun Owners had followed the law — in the sense that the law allowed organizations to adopt their own bookkeeping systems — but still ended up in violation when it was unable to untangle which funds and donors contributed to the specific radio ad.

The government’s suggestion to simply disclose all donations from a given election cycle was not built into the law and was likely to lead to oversharing.

"Wyoming owes its citizens precision,” Tymkovich wrote. Quoting the 1963 case NAACP v. Button, he added, “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.”

Chief U.S. Circuit Judge Jerome Holmes, appointed by George W. Bush, signed onto the decision along with Donald Trump-appointed U.S. Circuit Judge Joel Carson.

Wyoming Gun Owners’ attorney, Del Kolde at the Institute for Free Speech in Washington, D.C., lauded the win.

“This is an important decision that implements the Supreme Court’s course correction on the meaning of ‘exacting scrutiny’ from Americans for Prosperity Foundation v. Bonta,” Kolde said via email, referring to the 2021 Supreme Court decision. “Campaign-finance disclosure regimes must be narrowly tailored or they risk being struck down.”

Aaron Dorr, president of Wyoming Gun Owners said former Wyoming Secretary of State Ed Buchanan used the law to unfairly prosecute his organization for its advocacy during the 2020 election. Via email, Dorr said he is "eagerly looking forward to exposing RINOs during the 2024 election cycle."

Senior Assistant Attorney General Jim Peters did not immediately respond to requests for comment.

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