Federal Election Com'n v. Massachusetts Citizens for Life, Inc., 84-1719

• Citation: 769 F.2d 13
• Decision Date: 31 July 1985
• Docket Number: No. 84-1719,84-1719
• Parties: , 12 Media L. Rep. 1041 FEDERAL ELECTION COMMISSION, Plaintiff, Appellant, v. MASSACHUSETTS CITIZENS FOR LIFE, INC., Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 13

769 F.2d 13

54 USLW 2103, 12 Media L. Rep. 1041

FEDERAL ELECTION COMMISSION, Plaintiff, Appellant, v. MASSACHUSETTS CITIZENS FOR LIFE, INC., Defendant, Appellee.

No. 84-1719.

United States Court of Appeals First Circuit.

Argued April 2, 1985.

Decided July 31, 1985.

Richard B. Bader, Asst. Gen. Counsel, Washington, D.C., with whom Charles N. Steele, Gen. Counsel, Lisa E. Klein, Washington, D.C., and Carol A. Laham were on brief for appellant.

Francis H. Fox, Boston, Mass., with whom E. Susan Garsh, Alexandra Leake, Robin A. Driskel and Bingham, Dana & Gould, Boston, Mass., were on brief for appellee.

James O'Connell, Sally O'Connell & Fitch, Boston, Mass., Jack C. Landau, Jane E. Kirtley, Washington, D.C., Harry L. Baumann, Steven A. Bookshester, J. Laurent Scharff, Pierson, Ball & Dowd, Washington, D.C., Richard N. Winfield and Rogers & Wells, New York City, were on brief for The Reporters Committee for Freedom of the Press, Nat. Ass'n of Broadcasters, Radio-Television News Directors Ass'n and Associated Press Managing Editors, amici curiae.

James J. Featherstone and Santarelli & Bond, Washington, D.C., on brief for National Rifle Ass'n of America, amicus curiae.

Marjorie Heins, Boston, Mass., and Elaine Millar, on brief for the Civil Liberties Union of Massachusetts, amicus curiae.

Joseph D. Alviani and Marcia Drake Seeler, New England Legal Foundation, Boston, Mass., on brief for Home Builders Assn. of Massachusetts, amicus curiae.

Before BREYER, Circuit Judge, ROSENN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

ROSENN, Circuit Judge.

In an effort to curb misuse of corporate funds and preserve integrity in the federal election process, Congress enacted a series of laws prohibiting corporate expenditures and contributions to political campaigns. This appeal presents the question of whether the current statute, codified at 2 U.S.C. Sec. 441b (1982), prohibits the publication by a non-profit ideological organization of a Special Election Edition containing the voting records of federal candidates on a particular issue of interest to the organization's members and whether such a prohibition may be constitutionally applied in the instant case. The United States District Court for the District of Massachusetts held that the publication was not covered by the statute, and that, in the alternative, prohibition of the publication would violate the organization's first amendment rights, 589 F.Supp. 646 (D.C.Mass.1984). The plaintiff Federal Election Commission (FEC) appealed. We affirm.

I.

The defendant Massachusetts Citizens for Life, Inc. (MCFL) is a Massachusetts non-profit, non-membership corporation, organized "[t]o foster respect for human life and to defend the right to life of all human beings, born and unborn, through education, political and other forms of activities."

Despite its legal status as a non-membership corporation, the organization claimed three classes of "members" in 1978: "dues paying members" who contributed $15.00 per year to the organization; "contributing members" who contributed money to the organization in amounts less than $15.00 per year; and "non-contributing members" who neither paid dues nor contributed money but who had indicated somehow their support for the organization's goals.

For several years, MCFL published a newsletter at somewhat irregular intervals. ¹ "Dues-paying and contributing members" automatically received the MCFL newsletter by mail, as did "non-contributing members" when funds were available. The May 1978 newsletter was mailed to 2,109 people; the mailing list for the October 1978 newsletter contained 3,119 names. The MCFL newsletter typically contained information about MCFL activities, solicitations for volunteers and contributions, material on political, administrative, judicial, and legislative developments, and appeals to members to contact legislators and express their support of the anti-abortion position.

In periods prior to elections, MCFL published "Special Election Editions." In September 1978 it printed 100,000 copies of a publication captioned "Special Election Edition" with headlines reading EVERYTHING YOU NEED TO VOTE PRO-LIFE. The publication contained no masthead identifying it as a special edition of the MCFL newsletter. The MCFL logo did appear at the top of the publication, and the words "Volume 5, No. 3, 1978" appear to have been handwritten in below the logo by someone on the copy supplied to the court by the FEC.

The publication contained the voting records on abortion-related issues of many candidates for federal and state offices. It included at least two exhortations to "vote pro-life" and the statement that "No pro-life candidate can win in November without your vote in September." The publication contained photographs only of those candidates who were considered "pro-life." At the back of the publication, beside the exhortation "Vote Pro-Life," MCFL printed a disclaimer stating "This special election edition does not represent an endorsement of any particular candidate."

Shortly thereafter, MCFL printed and distributed 20,000 copies of a Complimentary Partial Special Election Edition, apparently for the purpose of correcting minor errors in the earlier edition. This edition did not contain a volume and number designation below the MCFL logo.

Copies of the two Special Election Editions were distributed to 5,985 MCFL contributors and 50,674 non-contributors. MCFL also sent copies to local chapters, presumably for distribution to their members, and mailed copies to individuals who requested them. The FEC contends that the rest of the copies were left in public areas for general distribution. ²

MCFL spent a total of $9,812.76 from its general treasury on the two publications. The FEC found probable cause to believe that MCFL violated 2 U.S.C. Sec. 441b(a) by printing the flyers and distributing them to the general public. When conciliation proved unsuccessful, the FEC filed a complaint pursuant to 2 U.S.C. Sec. 437g(a)(6)(A) (1982), seeking a civil penalty and such other relief as the court deemed appropriate.

The parties filed cross-motions for summary judgment, and the court granted summary judgment for MCFL, holding that the two publications did not fit within the meaning of "expenditure" as the term is used in 2 U.S.C. Sec. 441b(b)(2) (1982). It also held that the publications were exempted from the prohibition against expenditures by 2 U.S.C. Sec. 431(9)(B)(i) (1982), which exempts "any news story, commentary, or editorial distributed through the facilities of any ... newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate."

The court also concluded that if section 441b were applied to prohibit MCFL's expenditures in connection with the publication in question, the statute would be unconstitutional, violating the organization's rights of freedom of speech, press, and association.

II.

Section 441b(a) provides in part:

Sec. 441b. Contributions or expenditures by national banks, corporations, or labor organizations.

(a) It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office ...

(Emphasis added.) Section 441b(b)(2) provides that the term "contribution or expenditure" shall include

any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election....

2 U.S.C. Sec. 441b(b)(2) (emphasis added). This section refers to election expenditures by corporations, which the Act prohibits, except if such expenditures are made from separate segregated funds.

The general definitions section of the Federal Election Campaign Act contains a broader definition of expenditure which "includes"

any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office....

2 U.S.C. Sec. 431(9)(A)(i) (1982) (emphasis added). This section would seem to apply to the entire Act, including the provisions relating to disclosure by political and campaign committees and to limitations on individual expenditures.

Before the district court and on appeal, the FEC contended that the broader definition set forth in section 431(9)(A)(i) should control in the instant case. Even if the section 441b definition only were to be applied, the FEC argues, the use of the word "include" indicates congressional intent that other activities besides payments to a candidate may be considered contributions or expenditures. The district court, however, concluded that the section 441b(b)(2) definition was intended to be exclusive, because in the court's view, the following provision amounted to an adoption in the general definition section solely of the section 441b(b)(2) definition:

(B) The term "expenditure" does not include--

(v) any payment made or obligation incurred by a corporation or a labor organization which, under section 441b(b) of this title, would not constitute an expenditure by such corporation or labor organization.

2 U.S.C. Sec. 431(9)(B)(v).

On appeal, the FEC contends that section 431 does not adopt the narrower section 441b definition and that the broader section 431 definition should apply to corporate expenditures.

The presence of the word "include" in section 441b leaves open the possibility that "contribution or...