National Association for Gun Rights, Inc. v. Mangan - Draft of Supp. 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 May 25, 2026 — of the supplemental 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 Court has applied constitutional scrutiny and established the two-track system under which government may regulate—i.e., require disclosure of—political speech. 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”), available at https://ssrn.com/abstract=5283417.

This action addresses not Track 2, non-political-committee disclosure requirements but law triggering Track 1, political-committee(-like) burdens.

Government may trigger such 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.

One method of determining the Buckley major purpose asks whether an organization devotes the majority of its spending to contributions to, or independent expenditures—properly understood, Triggering at 36 n.9, 61 n.150, 67 & nn.168-71—for, candidates or ballot measures. Id. at 60-61 & nn.147-50.

Under Buckley/Sampson, no other contributions or independent spending count toward permitting government to trigger Track 1 burdens. E.g., id. (addressing Buckley). This excludes Montana electioneering communications. This also excludes the appeal-to-vote test. Id. at 60 n.148, 70 & n.184.

Indeed, “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.” Id. at 77.