Exacting Scrutiny “With Teeth” for Donor-Disclosure: Dissent Argues General-Fund Disclosure in New Mexico’s CRA Is Not Narrowly Tailored

Case: Rio Grande Foundation v. Oliver (10th Cir. Dec. 30, 2025) — Order denying rehearing en banc; dissent by Judge Eid, joined by Judge Tymkovich.
Context: En banc rehearing denied; the panel decision remains controlling circuit precedent, while the dissent frames a competing view of how “narrow tailoring” operates under exacting scrutiny for compelled donor disclosure.

1. Introduction

This matter arises from a First Amendment challenge to New Mexico’s Campaign Reporting Act (“CRA”), specifically a provision requiring public disclosure of certain donors’ names and addresses when their funds are used to pay for advertisements mentioning a candidate or ballot question close to an election. The plaintiff-appellant, Rio Grande Foundation (“RGF”), asserted that compelled disclosure would chill constitutionally protected speech and association by deterring donors—especially given alleged risks of harassment and retaliation. The defendant-appellee is Maggie Toulouse Oliver, in her official capacity as New Mexico Secretary of State.

The key issue presented in the en banc petition was not whether disclosure can ever be required, but whether the CRA’s particular disclosure regime is sufficiently narrowly tailored under the Supreme Court’s “exacting scrutiny” framework governing compelled disclosure burdens on First Amendment rights.

2. Summary of the Opinion

Because the court denied en banc rehearing, the operative merits ruling remains the panel decision cited within the dissent: Rio Grande Found. v. Oliver, 154 F.4th 1213 (10th Cir. 2025). Judge Eid’s dissent does not change the judgment; instead, it articulates why, in her view, the panel’s approach dilutes the “narrow tailoring” requirement and permits overbroad donor-disclosure regimes to survive exacting scrutiny.

3. Analysis

A. Precedents Cited

Judge Eid’s dissent grounds its critique in a line of Supreme Court and Tenth Circuit precedent recognizing both the constitutional value of anonymous political advocacy and the doctrinal demands of “exacting scrutiny” in compelled-disclosure cases.

• McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)
  Cited for the core proposition that anonymous political speech is constitutionally protected and historically rooted. The dissent uses McIntyre to emphasize anonymity as part of an “honorable tradition of advocacy and of dissent,” and to connect modern doctrine to founding-era practice (including Thomas, J.’s originalist concurrence).
• Talley v. California, 362 U.S. 60 (1960)
  Used to underscore that anonymity can be essential for “persecuted groups and sects” to criticize government—supporting the dissent’s view that disclosure can suppress speech when fear of reprisal is realistic.
• Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)
  Invoked for the related right of association. The dissent treats compelled disclosure as functionally deterring association by undermining the formation and maintenance of advocacy organizations.
• Citizens United v. FEC, 558 U.S. 310 (2010)
  Cited for the informational-interest framework and for the recognition (in Thomas, J.’s separate writing) that disclosure can enable retaliation. The dissent uses this to rebut any assumption that disclosure burdens are merely theoretical.
• Ams. for Prosperity Found. v. Bonta, 594 U.S. 595 (2021)
  This is the dissent’s doctrinal centerpiece. It is cited for (1) applying “exacting scrutiny” to donor disclosure and (2) clarifying that exacting scrutiny requires narrow tailoring—not necessarily the least restrictive means, but a genuine fit that avoids sweeping in protected activity unnecessarily. The dissent also relies on Bonta for the idea that modern data aggregation increases retaliation risks.
• Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 2016)
  Cited for the standard formulation: a “substantial relation” between disclosure and a “sufficiently important interest,” drawing from Citizens United. The dissent uses it to frame exacting scrutiny as a two-part inquiry that includes narrow tailoring.
• Rio Grande Found. v. Oliver, 154 F.4th 1213 (10th Cir. 2025)
  The dissent critiques the panel majority’s treatment of narrow tailoring, particularly the majority’s reliance on the proposition that exacting scrutiny does not demand the least restrictive means, and its characterization of the law as focused on donors “certain to be aware” of political purpose.
• Wyo. Gun Owners v. Gray, 83 F.4th 1224 (10th Cir. 2023)
  Used as an in-circuit comparator emphasizing that limiting disclosure to “donors who have specifically earmarked their contributions” can “help[] render [a] statute’s scope sufficiently tailored.” For the dissent, Wyo. Gun Owners is an example of a narrower alternative that also better serves the informational interest.

B. Legal Reasoning

The dissent’s reasoning proceeds in three steps: (1) identify the constitutional interest (anonymous speech and association), (2) state the governing test (exacting scrutiny with meaningful narrow tailoring), and (3) apply that test to the CRA’s design features the dissent views as overinclusive.

1) Anonymous speech and associational deterrence.
Judge Eid frames anonymity not as a marginal preference, but as a First Amendment-protected condition that enables participation—especially for minority or unpopular viewpoints. The dissent treats donor disclosure as a practical mechanism for chilling speech: donors may reduce or cease giving if their identities and addresses must be published.

2) Exacting scrutiny includes narrow tailoring that has “real teeth.”
Relying on Ams. for Prosperity Found. v. Bonta, the dissent emphasizes that the “not least restrictive means” formulation is not a license for broad disclosure. Rather, the state must still show a close fit—capturing what is necessary to serve a sufficiently important interest while avoiding unnecessary burdens on protected speech.

3) Why the dissent sees the CRA as insufficiently tailored.
The dissent identifies multiple tailoring failures:

• Temporal overbreadth via the “election cycle.”
  The CRA’s “election cycle” is described as a two-year period, beginning January 1 following the last general election. In the dissent’s view, this means a “sufficiently large” general-fund donation made up to twenty-two months before the next general election may later be disclosed if the organization runs an ad near an election—sweeping in donors far removed from any imminent electoral advocacy and generating weak informational value.
• General-fund donors treated the same as ad-specific donors.
  The dissent argues the CRA requires disclosure of both (a) donors who specifically fund the particular advertisement and (b) donors who gave to a general fund that might, at some later point, be used for such ads. Treating these categories identically allegedly distorts the informational signal by obscuring which donors actually drove a particular message.
• Opt-out is ineffective when future uses are unpredictable.
  The dissent suggests donors cannot realistically predict whether a nonprofit will later engage in covered advertising (and, as noted in the dissent’s footnote, the statutory reach allegedly includes ads “that could be reasonably interpreted as having or not having a political purpose,” increasing uncertainty). As a result, an opt-out does not cure overbreadth because it presumes foresight that many donors do not have.
• Less intrusive alternative: earmarking-only disclosure.
  Drawing on Wyo. Gun Owners v. Gray and Bonta’s “less intrusive alternatives” language, the dissent argues New Mexico could advance an informational interest by requiring disclosure only for donors who earmark contributions for the particular political communication—burdening less speech while producing a clearer picture of influence.

Bottom line in the dissent: By compelling disclosure of certain general-fund donors, Section (3)(c) allegedly “casts far too wide a net,” unnecessarily chilling protected speech and association and failing the narrow-tailoring prong required by Ams. for Prosperity Found. v. Bonta.

C. Impact

Although the order itself simply denies en banc rehearing, the dissent illuminates fault lines likely to shape future compelled-disclosure litigation in the Tenth Circuit and beyond:

• Scope design in campaign-finance disclosure laws. Legislatures and regulators will face heightened scrutiny (at least in litigants’ framing) when disclosure regimes sweep in general-fund donors, use long lookback periods, or rely on donor “awareness” assumptions rather than objective earmarking.
• Litigation strategy and evidentiary focus. The dissent foregrounds retaliation risk, modern data aggregation, and donor deterrence. Future challenges may emphasize record development on chilling effects, harassment history, and whether informational interests are actually advanced (or diluted) by mass general-fund disclosure.
• Doctrinal pressure on “narrow tailoring” under exacting scrutiny. The dissent frames a more demanding view of tailoring: not “some effort,” but a demonstrable fit and a response to less intrusive alternatives. That framing may influence future panel decisions, dissents, or Supreme Court review—especially in cases involving nonprofit advocacy.

4. Complex Concepts Simplified

• Anonymous speech: The right to speak without identifying yourself. The dissent treats this as especially important in politics, where identification can invite retaliation.
• Compelled disclosure: A law requiring publication of donor identities (here, names and addresses) tied to certain political advertising.
• Exacting scrutiny: A demanding constitutional standard used for disclosure laws. It generally asks: (1) is there a substantial relation between disclosure and an important government interest, and (2) is the disclosure requirement narrowly tailored to that interest?
• Narrow tailoring (not least restrictive means): The government does not have to choose the absolute least burdensome option, but it must avoid unnecessarily sweeping in protected activity; the fit between means and ends must be tight enough to justify the burden.
• General-fund vs. earmarked donations: A general-fund donation supports an organization’s overall operations; an earmarked donation is specifically directed to fund a particular communication or expenditure. The dissent argues earmarking better tracks actual influence over a given ad.
• En banc rehearing: Reconsideration by all active judges of the circuit. Denial means the panel decision stands, even if some judges believe it conflicts with precedent or involves exceptionally important issues.

5. Conclusion

The Tenth Circuit’s order denies en banc rehearing, leaving intact the panel’s upholding of New Mexico’s CRA disclosure requirements as applied in Rio Grande Found. v. Oliver. Judge Eid’s dissent, however, offers a sharply articulated warning: compelled donor disclosure implicates a historically grounded right to anonymous advocacy and must be evaluated under exacting scrutiny with meaningful narrow tailoring, as emphasized in Ams. for Prosperity Found. v. Bonta.

The dissent’s central contribution is its insistence that disclosure regimes sweeping in general-fund donors—especially over long election-cycle windows—risk chilling speech while providing muddled informational value, and that an earmarking-based alternative may better satisfy constitutional tailoring demands. Whether future panels, other circuits, or the Supreme Court adopt that stricter conception of tailoring remains the key question the dissent tees up for ongoing campaign-finance and nonprofit-disclosure litigation.