Federal Election Com'n v. Survival Educ. Fund, Inc.

• Decision Date: 12 September 1995
• Docket Number: No. 431,D,431
• Citation: 65 F.3d 285
• Parties: FEDERAL ELECTION COMMISSION, Plaintiff-Counterdefendant-Appellant, v. SURVIVAL EDUCATION FUND, INC., and National Mobilization for Survival, Inc., Defendants-Counterclaimants-Appellees. ocket 94-6080.
• Court: U.S. Court of Appeals — Second Circuit

Page 285

65 F.3d 285

FEDERAL ELECTION COMMISSION, Plaintiff-Counterdefendant-Appellant, v. SURVIVAL EDUCATION FUND, INC., and National Mobilization for

Survival, Inc., Defendants-Counterclaimants-Appellees.

No. 431, Docket 94-6080.

United States Court of Appeals,

Second Circuit.

Argued Nov. 17, 1994.

Decided Sept. 12, 1995.

Richard B. Bader, Associate General Counsel, Federal Election Commission, Washington, DC (Lawrence M. Noble, General Counsel, Vivien Clair, Staff Attorney, of counsel) for plaintiff-counterdefendant-appellant Federal Election Commission.

Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York City (Catherine Samuels, Schulte, Roth, & Zabel, of counsel) for defendants-counterclaimants-appellees Survival Mobilization Fund, Inc. and National Mobilization for Survival, Inc.

Before: OAKES, ALTIMARI, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

The major campaigns of the 1984 presidential election ended long ago, but some regulatory skirmishes remain to be fought in the election's aftermath. On January 17, 1989, the Federal Election Commission ("FEC") filed a civil law enforcement action against Survival Education Fund, Inc. ("SEF") and National Mobilization for Survival, Inc. ("NMS"). The FEC alleges first that SEF in 1984 violated a provision of the Federal Election Campaign Act ("FECA") prohibiting any corporation from using general treasury funds for express advocacy of the election or defeat of a clearly identified candidate for federal office, 2 U.S.C. Sec. 441b(a). ¹ Second, the FEC contends that in 1984 SEF and NMS violated another FECA provision that requires any public mailing expressly advocating defeat or election of a candidate or soliciting a contribution to disclose who paid for the mailing and whether it was authorized by a candidate or his political committee, 2 U.S.C. Sec. 441d(a). All parties moved for summary judgment. The district court (Thomas P. Griesa, Chief Judge ) awarded summary judgment to SEF and NMS. The FEC appeals from that order.

I. BACKGROUND

SEF is (and was at the time of the contested mailing) a nonprofit corporation organized under the laws of Massachusetts. Its articles of organization, filed in 1978, state the corporation's purposes in relevant part as "produc[ing] and disseminat[ing] on a free or low-cost basis educational information to the public regarding nuclear energy, alternative sources of energy, arms control and disarmament, military technology, and human services allocations." NMS was founded in 1977 as an unincorporated association engaging in public discussion and advocacy on similar issues. It became a New York nonprofit corporation in 1988 and ceased operations in 1992.

From February, 1982, to December, 1985, NMS conducted a direct mail campaign to promote its views to the public. SEF and NMS jointly financed the mailing at issue in this case and sent it out to nearly 31,000 members of the general public between July 23 and 27, 1984. SEF paid its share of the costs out of its general corporate treasury funds.

That mailing included a cover letter signed by Dr. Benjamin Spock and a two-page enclosure. The cover letter (with underlining in the original) read in its entirety:

DEAR FRIEND:

I NEED YOUR HELP.

IT IS URGENT FOR YOU TO FILL OUT THE ENCLOSED SURVEY AND RESPOND TO THIS MESSAGE AS SOON AS POSSIBLE ... AS A PERSONAL FAVOR TO ME, AND FOR THE FUTURE OF OUR COUNTRY.

AS THE NOVEMBER PRESIDENTIAL ELECTION APPROACHES, NATIONAL MOBILIZATION FOR SURVIVAL NEEDS TO KNOW YOUR OPINIONS ON WHETHER FOUR MORE YEARS OF THE REAGAN ADMINISTRATION'S MILITARY, FOREIGN, AND DOMESTIC POLICIES WILL DESTROY ALL HOPE FOR NUCLEAR DISARMAMENT, PEACE ABROAD, AND ECONOMIC JUSTICE HERE AT HOME.

MILLIONS OF AMERICANS--NOT JUST YOU AND ME--ARE BEGINNING TO BELIEVE THAT WE CANNOT ALLOW THAT TO HAPPEN. YOUR VIEWS ON THE ENCLOSED SURVEY WILL HELP US UNDERSTAND AND ARTICULATE THE DEEP FEARS OF THE AMERICAN PEOPLE THAT A SECOND REAGAN TERM WILL BRING NEW AND UNCHECKED NUCLEAR ARMS ESCALATION ... AN ALL-OUT U.S. WAR IN CENTRAL AMERICA ... AND EVEN MORE LIFE-THREATENING CUTS IN HUMAN SERVICES.

THIS SURVEY IS PART OF NATIONAL MOBILIZATION'S CONCERTED GRASSROOTS EFFORT, WORKING WITH OTHER ORGANIZATIONS, TO EDUCATE AMERICANS WHO WILL BE VOTING IN NOVEMBER TO VOTE PEACE IN '84, THROUGH VOTER REGISTRATION AND CITIZENSHIP-AWARENESS CAMPAIGNS AMONG HUNDREDS OF LOCAL GROUPS ACROSS THE COUNTRY.

THE CAMPAIGN IS KICKING OFF IN DALLAS. BY THE TIME YOU READ THIS, OUR HIGHLY VISIBLE PRESENCE AT THE REPUBLICAN PARTY'S NOMINATING CONVENTION--MAJOR PROTEST EVENTS INVOLVING THOUSANDS OF WOMEN AND MEN FROM ACROSS THE COUNTRY--MAY WELL BE OVER.

BUT DALLAS IS ONLY THE BEGINNING. WE'RE GOING TO BE HOLDING ANTI-NUCLEAR DEMONSTRATIONS AND VIGILS, CONFRONTING CANDIDATES ON MILITARY-NUCLEAR ISSUES, ORGANIZING POOR AND MINORITY VOTER REGISTRATION DRIVES, AND DRAMATIZING THE SUFFERING OF THE VICTIMS OF REAGANOMICS RIGHT UP TO ELECTION DAY, NOVEMBER 6TH.

FUNDS ARE URGENTLY NEEDED TO HELP DEFRAY THE ENORMOUS COST OF MOUNTING, ORGANIZING, PUBLICIZING AND COORDINATING THIS NATIONWIDE EFFORT. ALL THAT MILLIONS OF AMERICANS NEED ARE THE FACTS WE CAN PROVIDE TO DETERMINE FOR THEMSELVES WHAT DANGERS AWAIT OUR NATION UNDER FOUR MORE YEARS OF REAGAN LEADERSHIP.

YOUR RESPONSES TO THE ENCLOSED SURVEY WILL TELL US WHAT POLITICALLY-AND-SOCIALLY AWARE AMERICANS ARE THINKING AS NOVEMBER'S CRUCIAL DECISION DAY DRAWS NEAR AND

YOUR SPECIAL ELECTION-YEAR CONTRIBUTION WILL HELP US COMMUNICATE YOUR VIEWS TO HUNDREDS OF THOUSANDS OF MEMBERS OF THE VOTING PUBLIC, LETTING THEM KNOW WHY RONALD REAGAN AND HIS ANTI-PEOPLE POLICIES MUST BE STOPPED.

SO, PLEASE, RETURN YOUR SURVEY AND YOUR CHECK IMMEDIATELY. ANYTHING YOU CAN GIVE AT THIS TIME--$50, $100, $25, $500, $1,000, $2,500 OR MORE--WILL HELP US REACH MORE PEOPLE, AND INCREASE THE EFFECTIVENESS OF OUR ELECTION-YEAR WORK.

THANK YOU FOR YOUR DEEP DEDICATION AND COMMITMENT.

BENJAMIN SPOCK, M.D.

The enclosure had a headline banner in bold type that read: HELP US SPREAD THE WORD: VOTE PEACE IN '84.

In the upper right-hand corner of the first page of the enclosure was a solicitation for contributions that read, "YES, Americans who will be voting in November need to know the facts about how four more years of Reagan leadership will affect our nation and the world. Here is my contribution ... to help bring the message of nuclear disarmament, nonintervention, and economic justice to the voting public between now and November 1." The rest of the enclosure posed eight questions as part of a "1984 ELECTION SURVEY[;] RONALD REAGAN: FOUR MORE YEARS?" The questions solicited the views of the recipients on the effect of a second Reagan term on nuclear armaments, U.S. intervention in Central America, and the status of the poor and minorities in this country.

On the cross-motions for summary judgment, the district court held that this mailing, and another not the subject of this appeal, violated neither 2 U.S.C. Sec. 441b(a) nor 2 U.S.C. Sec. 441d(a)(3). The district court noted that the Supreme Court had narrowed Sec. 441b(a), which by its terms prohibits the use of general corporate treasury funds "in connection" with a federal election, 2 U.S.C. Sec. 441b(a), to reach

"only communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 248-49 [107 S.Ct. 616, 623, 93 L.Ed.2d 539] (1986) ("MCFL "), quoting Buckley v. Valeo, 424 U.S. 1, 80 [96 S.Ct. 612, 664, 46 L.Ed.2d 659] (1976). This means the use of express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot," "Smith for Congress," "vote against," "defeat," "reject." MCFL at 249 .

Federal Election Comm'n v. Survival Educ. Fund, No. 89 Civ. 0347, 1994 WL 9658, at * 3 (S.D.N.Y. Jan. 12, 1994) (citations omitted). Noting that the " 'express advocacy' " requirement is intended to " 'distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons,' " id. (quoting Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249, 107 S.Ct. 616, 623, 93 L.Ed.2d 539 (1986) ("MCFL ")), the district court held that the SEF/NMS mailing "fell short of expressly advocating how the readers should vote in the coming presidential election." Id. Therefore, it granted summary judgment to the defendants on the FEC's Sec. 441b(a) claim. Id. Since, in its view, no express advocacy occurred in the mailing, the district court also granted summary judgment to defendants on the FEC's claim that SEF and NMS failed to comply with the disclosure requirements of 2 U.S.C. Sec. 441d(a)(3). The FEC appeals from the district court's judgment dismissing both claims. We review a grant of summary judgment de novo. Himes v. Shalala, 999 F.2d 684, 688 (2d Cir.1993).

II. DISCUSSION

A. The FEC's Claim Under 2 U.S.C. Sec. 441b

Section 316 of FECA, 2 U.S.C. Sec. 441b, makes it unlawful "for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any" federal election. 2 U.S.C. Sec. 441b(a). The term "contribution or expenditure" includes "any direct or indirect payment distribution, loan, advance, deposit, or gift of money, or any services, or anything of value ... to any candidate, campaign committee, or political party or organization, in connection with" any federal election. Id. Sec. 441b(b)(2). The statute exempts three types of expenditures: (A) communications by a corporation to its stockholders, executive or administrative personnel, or their families, or by a labor organization to its members, on any subject; (B) nonpartisan voter registration and participation campaigns directed at those same persons; and (C) "the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political...