Federal Election Com'n v. Colorado Republican Federal Campaign Committee

• Decision Date: 23 June 1995
• Docket Number: 93-1434,Nos. 93-1433,s. 93-1433
• Citation: 59 F.3d 1015
• Parties: FEDERAL ELECTION COMMISSION, Plaintiff/Counter-Defendant/Appellee/Cross-Appellant, v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, Douglas Jones, Defendants/Counter- Claimants/Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1015

59 F.3d 1015

FEDERAL ELECTION COMMISSION Plaintiff/Counter-Defendant/Appellee/Cross-Appellant, v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, Douglas Jones Defendants/Counter- Claimants/Appellants/Cross-Appellees.

Nos. 93-1433, 93-1434.

United States Court of Appeals Tenth Circuit.

June 23, 1995.

Rehearing Denied Sept. 6, 1995.

Jan Witold Baran (Thomas W. Kirby, Carol A. Laham and Lee E. Goodman, also of Wiley, Rein & Fielding, Washington, DC, with him on the briefs) for the Colorado Republican Federal Campaign Committee and Douglas L. Jones.

Richard B. Bader, Associate Gen. Counsel (Lawrence M. Noble, Gen. Counsel, and Rita A. Reimer, Atty., also of Federal Election Com'n, Washington, DC, with him on the briefs) for the Federal Election Com'n.

Before HENRY and LOGAN, Circuit Judges, and REED, District Judge. ^*

LOGAN, Circuit Judge.

The Federal Election Commission (FEC) appeals from the dismissal on the merits of its underlying suit filed against the Colorado Republican Federal Campaign Committee and its treasurer, Douglas L. Jones (collectively the Committee) alleging violations of the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. Secs. 431-442. The Committee cross-appeals from the dismissal as moot of its counterclaim challenging the constitutionality of the FECA expenditure limitations. We hold that the Committee expenditures at issue did violate the coordinated expenditure limitation in 2 U.S.C. Sec. 441a(d)(3). We also reach the constitutional issue and hold that Sec. 441a(d)(3) does not violate the Committee's First Amendment rights.

This action stems from the 1986 United States senatorial campaign in Colorado, and pre-election spending by the Committee. In January 1986, then-Congressman Timothy E. Wirth had registered with the FEC as a candidate for the Democratic nomination for the U.S. Senate. Several months later, but before either political party had nominated senatorial candidates, the Committee spent $15,000 for a radio advertisement directed at Wirth's announced candidacy ("Wirth Facts # 1"). ¹ This spending prompted the Colorado Democratic Party's administrative complaint with the FEC alleging that it was an "expenditure in connection with" the general election campaign of a candidate for federal office in violation of the spending limits set out in FECA Sec. 441a(d)(3).

The FEC made a probable cause determination that the Committee violated the FECA. When the parties were unable to reach a settlement the FEC filed suit. The FEC alleged that the Committee failed to report the amount spent on the anti-Wirth publicity as an "expenditure in connection with" the general election campaign, in violation of FECA Secs. 434(b)(4)(H)(iv), 434(b)(6)(B)(iv), and 441a(f). The Committee counterclaimed, alleging that the FECA was an unconstitutional infringement on its First Amendment rights. In ruling on the parties' cross motions for summary judgment, the district court dismissed the underlying action after finding no FECA violation, and dismissed the counterclaim as mooted by its merits ruling. These appeals followed.

I

We first address whether the district court correctly concluded that the Committee did not violate the FECA. We review de novo a district court's grant of summary judgment using the same legal standards as the district court. Clark v. Haas Group, Inc., 953 F.2d 1235, 1237 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 98, 121 L.Ed.2d 58 (1992).

A

The FECA regulates contributions made to federal candidates and political parties, and expenditures made by persons and political committees. It also imposes recordkeeping and reporting requirements. The Committee acknowledges that it is subject to the FECA as a federally registered committee of the Colorado Republican Party.

The statute limits monetary contributions and expenditures by state and national political party committees as follows:

(d) Expenditures by national committee, State committee, or subordinate committee of State committee in connection with general election campaign of candidates for Federal office

(1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.

. . . . .

(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds--

(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of--

(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or (ii) $20,000.

2 U.S.C. Sec. 441a(d)(1) and (3). A state political party committee may assign to a designated agent (including a national party committee) the right to make the expenditures the state party could have made. See FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 41-43, 102 S.Ct. 38, 46-48, 70 L.Ed.2d 23 (1981) (DSCC ). Here the Committee expended funds on the anti-Wirth publicity after assigning to the National Republican Senatorial Committee the authority to make all of the expenditures--$103,248--it was allowed under Sec. 441a(d)(3) for the 1986 U.S. Senate election. See I Jt.App. 4, 14; II id. 473. The Committee did not report the $15,000 anti-Wirth publicity expense under 2 U.S.C. Sec. 434(b)(4)(H)(iv), ² instead characterizing it as an expense for "Voter Information to Colorado Voters--Advertising." II App. 478, p A. The narrow issue is whether the anti-Wirth publicity expense was an "expenditure in connection with the general election campaign" pursuant to Sec. 441a(d)(3) and should have been reported accordingly. If so, the Committee exceeded the Sec. 441a(d)(3) monetary ceiling.

As relevant here, the FECA addresses two types of campaign expenditures: independent and coordinated. ³ A coordinated expenditure is one made "in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate." Buckley v. Valeo, 424 U.S. 1, 47 n. 53, 96 S.Ct. 612, 648 n. 53, 46 L.Ed.2d 659 (1976). See also 11 C.F.R. Sec. 110.7(b)(4). Because political parties are considered incapable of making independent expenditures, the district court correctly found that the anti-Wirth publicity expense was a coordinated expenditure. See DSCC, 454 U.S. at 29 n. 1, 102 S.Ct. at 41 n. 1. If that spending was an "expenditure[ ] in connection with" the campaign it was subject to the monetary limitations at Sec. 441a(d). Id. The district court concluded that the Committee's coordinated expenditure on the anti-Wirth publicity was not made in connection with the 1986 Colorado senatorial campaign, and therefore was not subject to the Sec. 441a(d)(3) limits.

B

The FECA does not clearly manifest the meaning Congress intended to attach to the "expenditures in connection with" language in Sec. 441a(d)(3). Acknowledging that there were no controlling or persuasive cases interpreting that section, the district court relied upon FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL ), and its interpretation of FECA Sec. 441b. Section 441b ⁴ restricts the contributions and expenditures of national banks, corporations, or labor organizations. The Supreme Court in MCFL considered whether Massachusetts Citizens for Life, Inc., a nonprofit, nonstock corporation, by financing a newsletter urging voter support for identified pro-life candidates, violated the "independent spending" limitations in Sec. 441b. Id. at 241, 107 S.Ct. at 619. Interpreting the term "expenditure in connection with any election" the Court held that the expenditure "must constitute 'express advocacy' in order to be subject to the prohibition of Sec. 441b." Id. at 249, 107 S.Ct. at 623.

MCFL relied upon the Buckley opinion's interpretation of a limitation on independent expenditures "relative to" a clearly identifiable candidate. To avoid invalidating on vagueness grounds what was then FECA Sec. 608(e)(1), the Buckley Court held the term encompassed only "expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Buckley, 424 U.S. at 44, 96 S.Ct. at 646-47. The opinion clarified in a footnote that this construction would restrict the application to "communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.' " Id. n. 52. MCFL adopted the same definition, referencing the same footnote, for purposes of Sec. 441b's independent spending limitation. 479 U.S. at 249, 107 S.Ct. at 623.

The district court, noting the identity of the "expenditures in connection with" language in Sec. 441b and in Sec. 441a(d)(3), concluded that the anti-Wirth publicity was not express advocacy and therefore not governed by the Sec. 441a(d)(3) limitations. The district court relied in part on a common law rule of statutory construction that identical words used in different sections of the same statute generally should be given the same meaning. However, the Supreme Court has also stated that "the presumption readily yields to the controlling force of the circumstance that words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in...