Ortiz y Pino v. Oliver: Enforcement Assurances Cannot Narrow Campaign-Fund Spending Bans to Avoid First Amendment Scrutiny

I. Introduction

Case: Ortiz y Pino v. Oliver, No. 25-2016 (10th Cir. Aug. 11, 2026).
Parties: Gerald Ortiz y Pino (former New Mexico state senator; Plaintiff–Appellant) vs. Maggie Toulouse Oliver, in her official capacity as New Mexico Secretary of State (Defendant–Appellee). The New Mexico State Ethics Commission appeared as amicus curiae supporting the Secretary.

The dispute arises from New Mexico’s Campaign Reporting Act (“CRA”), which broadly makes it unlawful for a candidate or agent to spend campaign contributions except for enumerated purposes, including “expenditures of the campaign” and “donations” to 26 U.S.C. § 501(c)(3)-type charities. Ortiz y Pino used campaign funds to make a $200 donation to help a high-school student attend a pre-law summer program, reporting it as a “donation to scholarship fund.” The Secretary of State determined the expenditure violated the CRA and referred the matter to enforcement authorities after Ortiz y Pino refused to replace the donation with non-campaign funds, asserting First Amendment protection for his intended expressive support.

The district court initially enjoined enforcement as to “charitable donations to individuals,” but later granted summary judgment to the Secretary and denied a permanent injunction, relying heavily on an affidavit in which the Secretary asserted she treated any spending that “convey[s] the political viewpoints of a candidate or publiciz[e] their candidacy” as permitted “expenditures of the campaign.” Ortiz y Pino appealed only the district court’s rejection of his facial challenge. His as-applied claims remain pending in the district court.

The Tenth Circuit’s published decision does not decide the CRA’s constitutionality on the merits. Instead, it establishes an important threshold rule: the CRA’s “de facto” ban on donations to non-501(c)(3) organizations and individuals facially implicates First Amendment–protected expressive activity, and courts may not accept nonbinding enforcement “promises” that effectively rewrite statutory text to avoid First Amendment scrutiny.

II. Summary of the Opinion

The Tenth Circuit vacated the district court’s summary judgment order and denial of a permanent injunction and remanded for further proceedings.

• Standing / mootness: Ortiz y Pino had Article III standing, including pre-enforcement standing, and the controversy was not mooted by the passage of time on the 2021 donation because he alleged intent to make similar donations and faced a credible threat of enforcement.
• Facial challenge framing: Although facial challenges are “disfavored,” the parties agreed Ortiz y Pino raised a “traditional” facial challenge (not overbreadth). The court limited its facial analysis to the “universe” of applications actually targeted—CRA’s prohibition on donations to non-501(c)(3) entities and individuals for charitable purposes—rather than to every conceivable CRA application.
• First Amendment threshold: The CRA restriction at issue facially reaches expressive activity because donating money can be expressive, and the district court erred by relying on the Secretary’s affidavit to construe “expenditures of the campaign” as a broad safe harbor for anything conveying political viewpoints or publicizing a candidacy.
• Remand: Because the district court never applied the appropriate First Amendment test (having concluded the Act did not regulate speech), the Tenth Circuit declined to decide the correct level of scrutiny or the statute’s ultimate constitutionality, and instructed the district court to address the facial and as-applied challenges together.

III. Analysis

A. Precedents Cited

1. Article III standing, redressability, and mootness

The court applied modern standing doctrine: TransUnion LLC v. Ramirez (injury, causation, redressability) and Lujan v. Defs. of Wildlife (the canonical three-part test). The Secretary argued redressability failed because invalidating § 1-19-29.1(A)(4) (which permits donations to 501(c)(3)s) would not authorize donations to others. The panel rejected that narrow view by invoking remedial flexibility: Federal Rule of Civil Procedure 54(c) and the breadth of equitable power described in Safe Streets All. v. Hickenlooper (quoting Rizzo v. Goode). The key point is doctrinal: even if a plaintiff’s requested relief is inartfully framed, federal courts may fashion constitutionally necessary equitable relief if a violation is established.

On mootness, the court referenced United States v. Osborn (mootness as a case-or-controversy limit), citing Brown v. Buhman, EEOC v. CollegeAmerica Denver, Inc., and Jordan v. Sosa. While the Secretary argued the 2021 donation dispute was moot due to limitations and non-pursuit by the Ethics Commission, the court relied on pre-enforcement standing principles to avoid resolving the narrow mootness question.

For pre-enforcement standing, the panel applied Susan B. Anthony List v. Driehaus (quoting Babbitt v. United Farm Workers Nat. Union): intent to engage in arguably protected conduct, proscription by statute, and a credible threat of enforcement. The Secretary’s refusal to disavow future referrals was central to finding a live controversy.

2. Appellate jurisdiction and standards of review

Because the as-applied claims remained pending, the panel addressed interlocutory jurisdiction. It invoked Dupree v. Younger (final judgment rule), but held jurisdiction existed under 28 U.S.C. § 1292(a)(1) for orders denying injunctive relief, citing Petrella v. Brownback and Tri-State Generation & Transmission Ass'n, Inc. v. Shoshone River Power, Inc.. It explained that summary judgment was reviewable because it was “inextricably intertwined” with denial of a permanent injunction, citing Vittoria North America, L.L.C. v. Euro-Asia Imports Inc. (quoting Law v. Nat'l Collegiate Athletic Ass'n).

On standards: de novo for summary judgment (citing EagleMed LLC v. Cox and United States v. Hartshorn), abuse of discretion for permanent injunction (citing United States v. Jenks), with embedded legal errors reviewed de novo (citing Davilla v. Enable Midstream Partners L.P., Wyoming v. U.S. Dep't of Agric., and United States v. Wells with references to United States v. Barrett, United States v. Todd, United States v. Giles).

3. Facial challenges: traditional vs. overbreadth, and “partial facial” framing

The opinion’s most practically important doctrinal move is its approach to “traditional” facial challenges. It quoted Moody v. NetChoice, LLC describing the general facial standard (with references to United States v. Salerno and Wash. State Grange v. Wash. State Republican Party) and the distinct First Amendment overbreadth doctrine (citing United States v. Hansen and Ams. for Prosperity Found. v. Bonta). Although the district court treated the case as overbreadth, the parties agreed it should be treated as a “traditional” facial challenge on appeal.

Crucially, the panel rejected the Secretary’s attempt to defeat the facial claim by pointing to plainly valid CRA applications (e.g., home improvement expenses). The court instead relied on United States v. Sup. Ct. of N.M. (quoting John Doe No. 1 v. Reed) to treat the challenge as facial but limited to the “universe of applications” actually targeted. It supported that approach with a cross-circuit set of cases: Showtime Entm't, LLC v. Town of Mendon, Catholic Leadership Coal. of Tex. v. Reisman, Disc. Tobacco City & Lottery, Inc. v. United States, and Am. Fed'n of State, Cty. & Mun. Emps. Council 79.

The panel then explained how it understands Salerno: not as a rigid “test,” but as describing the result after applying the proper constitutional standard—again citing United States v. Sup. Ct. of N.M. and Doe v. City of Albuquerque, with a scholarly reference to Marc E. Isserles, Overcoming Overbreadth: Facial Challenges & the Valid Rule Requirement, and the Supreme Court’s treatment of facial review in City of Los Angeles v. Patel.

4. First Amendment coverage: expressive conduct and donations

The panel grounded First Amendment applicability in Free Speech Coalition, Inc. v. Paxton, and reaffirmed that the First Amendment extends beyond words to “expressive conduct” under Texas v. Johnson. It framed the threshold inquiry—whether the law reaches expressive activity—through Evans v. Sandy City (citing Cornelius v. NAACP Legal Def. & Educ. Fund., Inc.).

On donations as expressive, the panel cited:

• Buckley v. Valeo (contributions as “symbolic expression of support”);
• Cornelius v. NAACP Legal Def. & Educ. Fund., Inc. (charitable contributions can function as a “general expression of support”);
• Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc. (donation selection can convey a message about supported organizations).

The court also rejected the idea that only “political” speech matters, citing Connick v. Myers (quoting United Mine Workers v. Ill. State Bar Ass'n) and United States v. United Foods, Inc..

5. Limiting constructions, prosecutorial discretion, and constitutional avoidance

The district court relied on the Secretary’s affidavit as a limiting construction. The panel acknowledged that limiting constructions can matter, citing Ward v. Rock Against Racism (quoting Hoffman Ests. v. Flipside, Hoffman Ests., Inc.) and related authorities (City of Lakewood v. Plain Dealer Publ'g Co., United States v. Grace, Grayned v. City of Rockford, Poulos v. New Hampshire).

But it drew a hard line from United States v. Stevens: courts cannot rely on “faith in government representations of prosecutorial restraint” to “rewrite” a law. In the panel’s view, treating “expenditures of the campaign” as a content-based safe harbor (“political viewpoints” / “publicize their candidacy”) would be rewriting, not interpreting—especially where New Mexico’s implementing regulations define campaign expenditures by their relationship to campaign obligations, not by viewpoint or publicity content.

In a footnote, the panel also rejected constitutional avoidance for two independent reasons, citing F.C.C. v. Fox Television Stations, Inc. and Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council: (1) the statute was not “readily susceptible” to the Secretary’s narrowing reading (citing Stevens and Reno v. Am. Civ. Liberties Union), and (2) even the proffered reading still implicates the First Amendment and thus would not avoid serious constitutional doubts.

6. Remand and appellate restraint

The panel relied on Singleton v. Wulff to avoid deciding issues not passed on below (namely, which First Amendment test applies and whether the CRA survives). It also cited Citizens United v. Federal Elec. Comm'n and Texas v. Johnson to emphasize that the facial/as-applied distinction is not mechanically controlling and that consolidating both theories in the district court can better tailor any remedy.

B. Legal Reasoning

1. Define the target of review narrowly but legitimately. The court treated Ortiz y Pino’s claim as “facial” because it challenged the law’s application beyond a single enforcement episode, but “as applied” in the sense that it targeted only one subset of statutory applications (donations to non-501(c)(3) organizations and individuals for charitable purposes). This avoided the Secretary’s rhetorical move of pointing to plainly valid CRA prohibitions unrelated to speech and insisting they doom the facial challenge.
2. Recognize expressive content in donations and charitable support. The panel accepted that money can be used as expression and association; the opinion’s key contribution is that charitable-style disbursements of campaign funds can be expressive even when not “political” in the narrow sense.
3. Reject enforcement affidavits as de facto statutory amendments. The court examined the New Mexico Administrative Code definitions and reasoned that “expenditures of the campaign” are defined by their nexus to campaign duties and non-personal-use criteria, not by whether the spending communicates a viewpoint. Because the affidavit’s interpretation was untethered to the CRA’s text and implementing rules, accepting it would amount to rewriting the statute—impermissible under United States v. Stevens.
4. Restore First Amendment scrutiny to the analysis. Once the court concluded the CRA restriction reaches expressive activity, the district court’s speech-free analysis could not stand. The panel therefore vacated and remanded so the district court could (a) choose the appropriate First Amendment framework and (b) apply it to the challenged prohibition, while also considering the still-pending as-applied claims.

C. Impact

Although the Tenth Circuit did not announce the final level of scrutiny or the ultimate constitutionality of New Mexico’s restrictions, the decision has immediate doctrinal and practical consequences:

• First Amendment “coverage” is difficult to avoid in campaign-funds regulation. States often defend “personal use” and post-campaign spending limits as non-speech regulation. Ortiz y Pino signals that when the prohibited transaction plausibly functions as expression or association (including charitable support), courts must treat it as speech-implicating and proceed to substantive scrutiny rather than disposing of the case at the threshold.
• Agencies cannot save statutes with litigation-only narrowing promises. The opinion strengthens a rule of law principle: prosecutors and regulators cannot eliminate constitutional problems by asserting they will enforce a statute narrowly when the text and regulatory definitions do not support that narrowing. This matters beyond elections law—any regulatory scheme where agencies offer “we won’t enforce it that way” assurances is now more vulnerable in the Tenth Circuit if the assurance effectively rewrites the law.
• Encourages “partial facial” framing in constitutional litigation. The court’s reliance on United States v. Sup. Ct. of N.M. reinforces a litigation pathway: a plaintiff may mount a facial challenge to a defined slice of applications, preventing defendants from defeating the challenge by citing unrelated, plainly valid applications.
• Remedial flexibility may broaden available relief. By emphasizing Rule 54(c) and equitable breadth, the court reduced the risk that plaintiffs lose standing because they did not request the “perfect” severability remedy. That may be especially important in election statutes drafted as broad prohibitions with enumerated exceptions.

IV. Complex Concepts Simplified

Traditional facial challenge vs. First Amendment overbreadth

A “traditional” facial challenge asks whether a law is unconstitutional in all (relevant) applications or lacks a legitimate sweep (Moody v. NetChoice, LLC; United States v. Salerno; Wash. State Grange v. Wash. State Republican Party). “Overbreadth” is a First Amendment-specific doctrine allowing a law to be invalidated if a substantial number of its applications are unconstitutional relative to its legitimate scope (United States v. Hansen).

“Facial” but limited to a subset of applications

Courts can analyze a law “facially” while focusing only on the portion of the law’s real-world reach that the plaintiff actually challenges—here, the alleged “de facto” ban on charitable donations to non-501(c)(3) entities and individuals—rather than every imaginable application of the entire statute (United States v. Sup. Ct. of N.M.).

Expressive conduct

The First Amendment can protect actions, not just words, when the action communicates something—like donating money to signal support or alignment (Texas v. Johnson; Buckley v. Valeo; Cornelius v. NAACP Legal Def. & Educ. Fund., Inc.).

Limiting construction vs. rewriting a statute

Courts may consider authoritative, text-grounded narrowing interpretations (Ward v. Rock Against Racism), but they cannot accept government assurances that effectively amend the statute’s meaning to avoid constitutional scrutiny (United States v. Stevens).

Pre-enforcement standing

A person can sue before being prosecuted if they intend to engage in arguably protected conduct, the law arguably forbids it, and there is a credible threat of enforcement (Susan B. Anthony List v. Driehaus).

V. Conclusion

Ortiz y Pino v. Oliver is a significant procedural-and-threshold First Amendment decision in campaign-finance regulation. The Tenth Circuit held that New Mexico’s CRA restriction on donating campaign funds to non-501(c)(3) organizations and individuals facially implicates expressive activity, and that courts may not rely on an enforcement official’s litigation affidavit to transform “expenditures of the campaign” into a broad, content-based safe harbor untethered to statutory and regulatory text. By vacating and remanding, the court positioned the district court to apply the appropriate First Amendment test and to address facial and as-applied theories together, with remedial flexibility commensurate with the constitutional issues at stake.