Becker v. Federal Election Com'n
| Decision Date | 01 September 2000 |
| Docket Number | No. Civ.A. 00-11192-PBS.,Civ.A. 00-11192-PBS. |
| Citation | 112 F.Supp.2d 172 |
| Parties | Heidi BECKER, Medea Benjamin, Phil Donahue, Mark Dunlea, Anne Goeke, Elizabeth Horton Scheff, Ralph Nader, James O'Keefe, Susan Sarandon, Nader 2000 Primary Committee, Inc., Association of State Green Parties and Green Party USA, Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Scott P. Lewis, Palmer & Dodge, Boston, MA, John C. Bonifaz, National Voting Rights Institute, Boston, MA, for Heidi Becker, plaintiff.
Erin K. Monaghan, Federal Election Commission, Washington, DC, for Federal Election Commission, defendant.
John S. Stadler, Nixon Peabody, Boston, MA, Lewis K. Loss, Ross, Dixon & Bell, L.L.P., Washington, DC, Stacey L. McGraw, Ross, Dixon & Bell, L.L.P., Washington, DC, for Commission on Presidential Debates "CPD", interested party.
Plaintiff Ralph Nader is the nominee of a third party, called the Green Party, for President of the United States. Nader together with several individuals and organizations supporting his campaign,1 brings this action challenging twenty-year-old regulations adopted by the Federal Election Commission ("FEC"), found at 11 C.F.R. §§ 110.13(a)(1) and 114.4(f)(1) and (3) ("the Debate Regulations"). Arguing that these Debate Regulations permit corporations to make contributions and expenditures to sponsor federal candidate debates in violation of the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 431 et seq., they seek a preliminary injunction to enjoin the FEC from implementing the Debate Regulations. The complaint also asks the Court to order the FEC to enforce the prohibition against the use of corporate money in the staging of federal candidate debates. The first scheduled presidential debate is October 3, 2000.
The FEC has moved to dismiss the complaint for lack of jurisdiction on the following grounds: 1) that its administrative procedures, 2 U.S.C. § 437g, are the exclusive remedy for complaints about violations of the FECA, and that the judicial review section of the Administrative Procedure Act, 5 U.S.C. § 706, is inapplicable; 2) that plaintiffs failed to exhaust their administrative remedies by petitioning the Commission for a rule making on the Debate Regulations; and 3) that none of the twelve plaintiffs can demonstrate Article III standing.
The Commission on Presidential Debates ("CPD"), a nonprofit corporation which sponsored presidential and vice-presidential debates in 1988, 1992, and 1996, has filed a brief as amicus curiae. The CPD is the sponsor of the October 3 debate. According to the complaint, the CPD has solicited millions of dollars from for-profit corporations to help stage the presidential debates. On January 6, 2000, it announced that Anheuser-Busch will serve as one of the national financial sponsors for its 2000 presidential debates, as well as the sole sponsor for the debate scheduled for October 17, 2000 in St. Louis, Missouri. The CPD argues that the Debate Regulations are necessary to protect the First Amendment rights of private debate sponsors; that plaintiffs have failed to demonstrate wide-spread "influence and corruption" by corporations in CPD decision-making that would amount to irreparable harm; and that the public has a strong interest in having the debates go forward.
After hearing, and review of the submissions, the Court DENIES both motions. Although Mr. Nader and the Green Party have standing, the Court concludes that the Debate Regulations are not contrary to law.
The FECA makes it unlawful for any corporation2 "to make a contribution or expenditure in connection with any election" for federal office. 2 U.S.C. § 441b(a). For purposes of § 441b, the statute defines the term "contribution or expenditure" to include "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 election" to federal office. Id. § 441b(2). However, it excludes from the definition: (1) communications "on any subject" by a corporation to its stockholders and executive or administrative personnel and their families; (2) "nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive or administrative personnel and their families"; and (3) "the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes." Id. §§ 441b(b)(2)(A)-(C).
The general definition section of the FECA contains definitions of "contribution" and "expenditure." Both terms include any gift, loan, deposit, or advance of money or "anything of value ... for the purpose of influencing any election for Federal office." Id. §§ 431(8)(A)(i), 431(9)(A)(i). These definitions exclude "any payment made or obligation incurred by a corporation or labor union which, under § 441 b(b) of this title, would not constitute an expenditure by such corporation or labor organization." Id. §§ 431(8)(B)(vi), 431(9)(B)(v).
Of great significance to this dispute, the general definition of "expenditure" also excludes "nonpartisan activity designed to encourage individuals to vote or to register to vote." Id. § 431(9)(B)(ii).
The FEC provided a helpful legislative history. Amendments to the Act in 1974 exempted "nonpartisan activity designed to encourage individuals to vote or to register to vote" from the Act's general definition of "expenditure." Id. § 431(9)(B)(ii). In 1976, Congress incorporated into the Act the long-standing prohibition of corporate contributions and expenditures that had been in 18 U.S.C. § 610. Congress included a provision exempting from the definition of "contribution or expenditure" "nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive or administrative personnel and their families, or by a labor organization aimed at its members and their families." Id. § 441b(b)(2)(B).
Recognizing that these amendments, "which were added to the law at different times, overlap in that both make exceptions to the term `expenditure' for internal communications and for nonpartisan registration and get-out-the-vote activity," the Conferees explained how they intended this provision to work with the exemption from the general definition of "expenditure" for "nonpartisan activity designed to encourage individuals to vote or to register to vote," id. § 431(9)(B)(ii):
The conferees' intent with regard to the interrelationship between sections [2 U.S.C 431(9)(B)(ii) ] and [2 U.S.c. 441b(b)(2)(B) ] which permit such activities as assisting eligible voters to register and get to the polls, so long as these services are made available without regard to the voter's political preference, is the following: these provisions should be read together to permit corporations both to take part in nonpartisan registration and get-out-the-vote activities that are not restricted to stockholders and executive or administrative personnel, if such activities are jointly sponsored by the corporation and an organization that does not endorse candidates and are conducted by that organization; and to permit corporations, on their own, to engage in such activities restricted to executive or administrative personnel and stockholders and their families. The same rule, of course, applies to labor organizations.
H.R.Rep. No. 94-1057, at 63-64 (1976), quoted in FEC, Explanation and Justification, Funding and Sponsorship of Federal Candidate Debates, 44 Fed.Reg. 76,734, 76,735 (1979) ("1979 Explanation").
In 1979, Congress also added exceptions to the general statutory definitions of "contribution" and "expenditure" that exempt "any payment made or obligation incurred by a corporation in a labor organization which, under section 441b(b), would not constitute an expenditure by such corporation or labor organization." 2 U.S.C. § 431(8)(B)(vi) and 431(9)(B)(v).
In 1979, the FEC addressed the funding and sponsorship of candidate debates in a rule making. Pursuant to its statutory authority to "formulate policy with respect to" the Act, id. § 437c(b)(1), the FEC determined that "[c]andidate debates stimulate voter interest and hence encourage individuals to register to vote or to vote," and concluded that "permitting corporations and labor organizations to donate funds to nonprofit nonpartisan organizations for [debate] staging is consistent with congressional intent and policy under sections 431(f)(4)(B) and 441b(b)(2)(B)." 1979 Explanation, 44 Fed.Reg. at 76,736.
The FEC explained:
The educational purposes of nonpartisan public candidate debates is similar to the purpose underlying nonpartisan voter registration and get-out-the-vote campaigns. Unlike single candidate appearances, nonpartisan debates are designed to educate and inform voters rather than to influence the nomination or election of a particular candidate. Hence, funds received and expended [by certain nonprofit organizations] to defray costs incurred in sponsoring nonpartisan public debates are not considered contributions or expenditures under the Act.
Pursuant to a 1980 rule making,3 the FEC issued the so-called "Safe Harbor" Debate Regulations interpreting § 441b to permit certain organizations to stage and finance political debates among candidates for federal office. These Debate Regulations, which were revised in early 1996, set eligibility requirements for entities that may stage debates among candidates for any federal office, and requirements for the structure and selection of participants in candidate debates by such organizations. See 11 C.F.R. § 110.13.
A debate-staging organization must be a nonprofit organization that "do[es] not endorse, support or oppose political...
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