DENVER (CN) — The state of Wyoming asked a 10th Circuit panel on Wednesday to revive a law requiring the disclosure of donors paying for election ads, which a federal judge threw out as vague.
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 to 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 organization declined to disclose its donors because it didn’t see the ad as any different from the work it conducts outside of election season.
Wyoming Gun Owners paid the state's $500 fine and sued, arguing the law was vague and chilled its freedom of speech. A federal judge agreed in 2021 and enjoined the state from forcing the Wyoming Gun Owners to disclose donors.
Wyoming appealed. The gun owners filed a cross-appeal hoping to keep the law from being applied to anyone.
U.S. Circuit Judge Timothy Tymkovich, a George W. Bush appointee, asked whether the secretary of state had ever issued guidance so organizations would know when to file expenditures and how to break them up.
“They’re guessing what you’re looking for and there’s been no guidance to them or clarity,” Tymkovich said. “Should Wyoming Gun Owners provide a portion of their salaries and office supplies as elections expenditures? Could the secretary ding them under the statute for failure to provide a portion of their director salary as to the radio ad?”
Senior Assistant Attorney General Jim Peters said that depended on the organization’s structure.
“If the organization does not have a practice of earmarking, like Wyoming Gun Owners, then it is the state’s position that all contributions received during that election cycle would go to an electioneering communication,” Peters said.
Although the Wyoming law doesn’t require organizations to specifically earmark expenses for political ads, U.S. Circuit Judge Joel Carson observed that seemed to be the only clear way to follow the law.
“Where we previously said ‘government entities, it’s a good thing if you do this,’ you’re flipping it over and telling them they have to do it, although you’re not telling them they have to do it, if they don’t you’re going to make them allocate a portion of every dollar they receive from the $1 contributions to the $1,000 contributions,” said Carson, a Trump appointee. “Do you agree you’re flipping the responsibility onto them?”
When Peters didn't immediately answer, Carson added with a chuckle, “You may not like my terminology.”
Peters countered it gave organizations flexibility, a term Circuit Judge Jerome Holmes scrutinized.
“You used a word that stuck in my mind: flexibility,” said Holmes, a George W. Bush appointee. “The other side of flexibility is uncertainty. In this area, you’re supposed to minimize uncertainty so that people can speak with some sense of whether they’re going to be fined or not for not disclosing speech.”
Tymkovich asked whether the law could simply be interpreted by common sense.
“I see ‘related to,’ and ‘in context,’ and I think most of us have an intuitive idea of what that means,” he said. “Maybe when you get too many lawyers and too many judges together it suddenly becomes ambiguous and vague.”
On behalf of the gunowners, Endel Kolde of the Institute for Free Speech countered that common sense shouldn’t be relied on to protect a right like free speech.
“The state’s transparency is an extraconstitutional value and the right to speak is a constitutional value, and when vague terms burden speech rights, you’re having an extraconstitutional value collide with a constitutional value,” Kolde said. “It would be our position the constitutional value should take precedence.”
The panel convened at the Byron White Courthouse in downtown Denver under five inches of snow and broadcast the hearing via YouTube. The court did not indicate when or how it would decide the case.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.