Clifton v. Federal Election Com'n

• Decision Date: 04 December 1996
• Docket Number: No. 96-1812,96-1812
• Citation: 114 F.3d 1309
• Parties: Robin CLIFTON and Maine Right to Life Committee, Inc., Plaintiffs, Appellees, v. FEDERAL ELECTION COMMISSION, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1309

114 F.3d 1309

65 USLW 2821

Robin CLIFTON and Maine Right to Life Committee, Inc., Plaintiffs, Appellees, v. FEDERAL ELECTION COMMISSION, Defendant, Appellant.

No. 96-1812.

United States Court of Appeals, First Circuit.

Heard Dec. 4, 1996.

Decided June 6, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 8, 1997.

David Kolker, Washington, DC, with whom Lawrence M. Noble and Richard B. Bader were on brief, for appellant.

James Bopp, Jr., Terre Haute, IN, with whom Paul R. Scholle, Bopp, Coleson & Bostrom, Terre Haute, IN, Daniel M. Snow and Pierce Atwood, Portland, ME, were on brief, for appellees.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

The plaintiff Maine Right to Life Committee ("Maine Committee") brought this action in the district court to challenge the validity of new regulations of the Federal Election Commission ("FEC"). The Maine Committee is a nonprofit membership corporation, exempt under the Internal Revenue Code, which engages in various activities in opposition to abortion. It accepts donations from other corporations for its general fund.

Among its activities thus funded is the publication of voter guides describing the position of congressional candidates on "pro-life" issues and the publication of congressional voting records on the same issues. Its coplaintiff Robin Clifton is a recipient and reader of these publications. The FEC regulations, effective March 13, 1996, purport to regulate voter guides and voting records in several different respects pertinent here.

Voting records. The new FEC regulation on voting records not only prohibits corporations and unions from expressly advocating the election or defeat of particular identified candidates--a restriction not challenged by the plaintiffs--but also provides that even without such advocacy "[t]he decision on content and the distribution of voting records shall not be coordinated with any candidate, group of candidates or political party." 11 C.F.R. § 114.4(c)(4). "Coordination" is not defined.

Voter guides. Along with the restriction on express advocacy, the regulation on voter guides provides that either a corporation or union publishing a guide must have no contact at all with any candidate or political committee regarding the preparation, contents and distribution of the voter guide or, if there is such contact, (1) it must be only through written questions and written responses, (2) each candidate must be given the same prominence and space in the guide, and (3) there must be no "electioneering message" conveyed by any scoring or rating system used, or otherwise. 11 C.F.R. § 114.4(c)(5).

The district court granted a declaratory judgment holding the regulations just described, apart from the ban on express advocacy, "invalid as not authorized" by the Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq. ("the Act"), "because they restrict issue advocacy in connection with expenditures." Clifton v. FEC, 927 F.Supp. 493, 500 (D.Me.1996). Some of the district court's reasoning is directed to the statute, and some to a right of corporate "issue advocacy" set forth in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986).

We begin with the statute, partly because of the district court's reliance on it and partly because of the general precept against deciding constitutional issues unless necessary. The provision of the Act on which the FEC relies for authority is 2 U.S.C. § 441b. In pertinent part it prohibits any corporation or union from making "a contribution or expenditure in connection with any" federal presidential or congressional election or primary. The Act does permit limited activities of this kind from "segregated" funds that are heavily regulated and are typically known as political action committees (PACs). See Massachusetts Citizens, 479 U.S. at 253-54, 107 S.Ct. at 625-26.

In Massachusetts Citizens, the Supreme Court held that section 441b prohibits corporate and union contributions but, as to expenditures other than contributions, the Court narrowly construed the statutory ban as limited to "express advocacy" of the election or defeat of a candidate. Id. at 249, 107 S.Ct. at 623. Thus, as glossed by the Supreme Court to avoid "overbreadth," id. at 248, 107 S.Ct. at 622-23, the statute does not prevent corporations and unions from engaging in issue advocacy including publication of the records and positions of federal election candidates.

Previously, the FEC adopted a regulation under the same section that required voter guides to be "nonpartisan": they could describe the candidates' positions but could not express the organization's opinion on the issues presented. This court held the new limitation to be a straightforward restriction on issue advocacy and therefore beyond the scope of the statute as construed by the Supreme Court. Faucher v. FEC, 928 F.2d 468, 471 (1st Cir.), cert. denied, 502 U.S. 820, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991).

In response to Faucher, the FEC has issued the voter guide regulation at issue in the present case and has chosen a different tack. Instead of claiming any direct authority to regulate issue advocacy--a claim rejected by Massachusetts Citizens and Faucher--the FEC defends its new regulations as defining, or at least enforcing, section 441b's prohibition on contributions. It reasons that a voting record or voter guide publication that fails to comply with its regulation is either a contribution or can be banned in the interests of preventing prohibited contributions.

The claim that noncomplying publications are therefore contributions is untenable. The Supreme Court has said, in discussing related statutory provisions, that expenditures directed by or "coordinated" with the candidate could be treated as contributions, see Buckley v. Valeo, 424 U.S. 1, 46, 96 S.Ct. 612, 647-48, 46 L.Ed.2d 659 (1976); but "coordination" in this context implied some measure of collaboration beyond a mere inquiry as to the position taken by a candidate on an issue. Id. at 46-47 & n. 53, 96 S.Ct. at 647-48 & n. 53; see also Colorado Republican Fed. Campaign Comm. v. FEC, --- U.S. ----, ----, 116 S.Ct. 2309, 2319, 135 L.Ed.2d 795 (1996) (opinion of Breyer, J.).

On its face, the FEC's voter guide regulation bars non-written contact not merely regarding the preparation and distribution of voter guides, but also regarding their contents. 11 C.F.R. § 114.4(c)(5)(i), (ii)(A). Thus, the regulation expressly prohibits a simple oral inquiry by the Maine Committee as to a candidate's position; and the district court tells us that the FEC's counsel admitted at oral argument that the FEC similarly interprets its ban on "coordination" of voting record publications. 927 F.Supp. at 498. The FEC can construe terms but it cannot rewrite the dictionary and classify a simple inquiry as a contribution. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 198-99, 96 S.Ct. 1375, 1383-84, 47 L.Ed.2d 668 (1976); cf. Colorado Republican, --- U.S. at ----, ---- - ----, 116 S.Ct. at 2319, 2321-22 (opinions of Breyer, J., and Kennedy, J.).

But if ordinary standards of agency power are applied, the FEC has a stronger claim--constitutional limitations aside--that it can on prophylactic grounds ban oral contacts for voting records and voter guides, and perhaps require similar amounts of coverage of candidates in voter guides. True, not all oral contacts or different allocations of space will involve collaboration with the candidate. But some will, and the FEC's restrictions may reduce the risk of collaboration by making it easier to detect and less effective where it occurs.

Normally an agency with rulemaking power has a measure of latitude where it is dealing with the regulated entity (here, corporations and unions) and where the rule is reasonably designed to achieve the statute's goal (here, to prohibit certain types of contributions). The FEC has such rulemaking power. 2 U.S.C. § 437d(a)(8); Buckley, 424 U.S. at 110, 96 S.Ct. at 678. Agencies often are allowed through rulemaking to regulate beyond the express substantive directives of the statute, so long as the statute is not contradicted. See Mourning v. Family Publications Serv., 411 U.S. 356, 369-71, 93 S.Ct. 1652, 1660-62, 36 L.Ed.2d 318 (1973); United States v. Southwestern Cable Co., 392 U.S. 157, 177-78, 88 S.Ct. 1994, 2005-06, 20 L.Ed.2d 1001 (1968); Alexander v. Trustees of Boston Univ., 766 F.2d 630, 636-38 (1st Cir.1985).

We think it is thus not altogether easy to avoid approaching the question whether what the FEC is doing is constitutional. True, one could say that it is regulating issue advocacy while claiming to regulate contributions. But in a sense the FEC is doing both at the same time; and the statute, it should be noted, does not itself forbid reasonable regulation of contributions that happens also to burden issue advocacy. As a statutory matter, the Act simply stops short of prohibiting issue advocacy. Massachusetts Citizens, 479 U.S. at 249, 107 S.Ct. at 623; Faucher, 928 F.2d at 471.

Turning then to constitutional issues, we face at the outset the claim of the Maine Committee that it has a constitutional right of issue advocacy that is unreasonably burdened by the regulations here at issue. In Massachusetts Citizens, the Supreme Court not only narrowed section 441b by construction but also recognized a First Amendment right to issue advocacy, on behalf of a nonprofit corporation fairly similar to the Maine Committee, that extends to the publication of voter guides. 479 U.S. at 263, 107 S.Ct. at 630-31.

The difficulty is that in that same case, the Supreme Court stressed as "essential" the fact that the anti-abortion group there involved did not accept contributions from business corporations or unions. Id. at 264, 107 S.Ct. at 631. This was important to the Court because it had previously sustained...