Clifton v. Federal Election Com'n, Civil No. 96-66-P-H.

• Decision Date: 20 May 1996
• Docket Number: Civil No. 96-66-P-H.
• Parties: Robin CLIFTON and Maine Right to Life Committee, Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant.
• Court: U.S. District Court — District of Maine

927 F. Supp. 493

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

Civil No. 96-66-P-H.

United States District Court, D. Maine.

May 20, 1996.

Daniel M. Snow, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, ME, James Bopp, Jr., Paul R. Scholle, Bopp, Coleson & Bostrom, Terre Haute, IN, for plaintiffs.

Steven Hershkowitz, Lawrence M. Noble, Richard B. Bader, Robert J. Bonham, Federal Election Commission, Washington, DC, for defendant.

MEMORANDUM DECISION

HORNBY, District Judge.

This is the third lawsuit brought by the Maine Right to Life Committee ("MRLC") against the Federal Election Commission ("FEC"). The other plaintiff is Robin Clifton, not a member of the MRLC, but an individual who receives and reads their publications. This time the MRLC challenges the FEC's new regulations (effective March 13, 1996) restricting contact or coordination between a corporation and a candidate when the corporation publishes candidate voting records or voter guides. 11 C.F.R. § 114.4(c)(4) & (5). In light of the upcoming June primary, the case has been expedited, the motions for temporary and preliminary injunctive relief have been consolidated into the hearing on the merits and the case is submitted on a stipulated record. The plaintiffs have now waived their initial request for injunctive relief because of the early availability of declaratory relief. I heard oral argument on May 10, 1996, and received supplemental briefs on May 15, 1996. These are my findings of fact and conclusions of law. See Fed.R.Civ.P. 52.

FACTS

The material facts about the MRLC have not changed appreciably since my decisions in Faucher v. FEC, 743 F.Supp. 64 (D.Me. 1990), and Maine Right to Life Committee v. FEC, 914 F.Supp. 8 (D.Me.1996) ("MRLC"). The MRLC is a nonprofit membership corporation exempt from federal income tax under Internal Revenue Code § 501(c)(4). It has approximately 2,000 members. The MRLC engages in various educational, social action and political activities in order to further its stated goals of "restoring protection to the right to life for unborn children, educating the public on the issue of abortion and promoting the sanctity of all innocent life." See Stipulation of Facts ¶ 5. It accepts donations from business corporations into its general fund. From that fund it publishes quarterly newsletters, voter guides and congressional voting records on pro-life issues. (MRLC also operates a separate segregated fund pursuant to 2 U.S.C. § 441b(2)(C), the activities of which are not involved in this challenge.)

In Faucher, I set forth the basis for my authority to review a challenge to the legality of FEC regulations under the Administrative Procedure Act, 5 U.S.C. § 706(2)(C). 743 F.Supp. at 67-68. In MRLC, I set forth the reasons why the MRLC need not obtain an advisory opinion from the FEC before seeking declaratory relief and explained the deference ordinarily to be accorded FEC interpretations unless the United States Supreme Court has spoken. 914 F.Supp. at 10, 12-13. Those previous analyses apply here and need not be repeated. I turn therefore to the merits.

THE DISPUTE

The controversy here involves corporate publication of voting records and voter guides. The regulations in question¹ impose explicit restrictions on the publication of voting records and voter guides by corporations and labor unions.

Specifically, for publication of voting records, not only is express advocacy of the election or defeat of a clearly identified candidate or candidates forbidden (both sides agree that this is consistent with Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) ("MCFL"), but in addition the FEC demands that even in the absence of such express advocacy "the 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). The term "coordinated" is undefined.

The constraints on voter guide preparation are more severe. In addition to the acceptable prohibition of express advocacy of election or defeat of a clearly identified candidate or candidates, the FEC requires a corporation or union publishing a voter guide without any such advocacy to make a choice nevertheless: either (1) have no contact at all with any candidate or committee in preparing the guide — in that event the only other restriction is that at least two candidates be covered in the guide, 11 C.F.R. § 114.4(c)(5)(i); or (2) have contact, but only through written questions and written responses — in that event the voter guide must give each candidate the same prominence and substantially the same space for response, must contain no "electioneering message" (undefined but apparently not the same as "express advocacy," see FEC v. Colorado Republican Fed. Campaign Comm., 59 F.3d 1015, 1023 n. 10 (10th Cir.1995), cert. granted, ___ U.S. ___, 116 S.Ct. 689, 133 L.Ed.2d 594 (1996)), and must not score or rate the candidates' responses "in such a way as to convey an electioneering message." 11 C.F.R. § 114.4(c)(5)(ii)(A), (C)-(E).

The MRLC is unwilling to submit to these restrictions, except for the prohibition on express advocacy of the election or defeat of a clearly identified candidate. The MRLC publishes voting records and voter guides from time to time with funds from its general treasury and wishes to do so in connection with Maine's upcoming June primary election. It wants, for example, to be able to contact a candidate or campaign office directly and orally seek explanation of particular votes or statements and, if it chooses to communicate in writing, not be limited by the space, prominence and other relevant regulatory requirements. It maintains that the new restrictions exceed the FEC's statutory power as construed by the United States Supreme Court and that the very existence of these restrictions chills the MRLC's exercise of its First Amendment rights.

The FEC contends that its new regulations are within its power. The FEC finds authorization for its regulations in the Federal Election Campaign Act of 1971 ("FECA"), prohibiting "any corporation whatever" from making "a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative ... are to be voted for, or in connection with any primary election ... held to select candidates for any of the foregoing offices...." 2 U.S.C. § 441b(a). Publication of the voting records and voter guides will concededly require the spending of money by the MRLC.

I observed in MRLC that because of the First Amendment the United States Supreme Court explicitly has narrowed FECA's very broad prohibition against corporate election-related spending to a prohibition on spending involving express advocacy of the election or defeat of a clearly identified candidate or candidates. 914 F.Supp. at 9; see MCFL, 479 U.S. at 249, 107 S.Ct. at 623, 93 L.Ed.2d at 551; see also Buckley, 424 U.S. at 80, 96 S.Ct. at 663, 46 L.Ed.2d at 723. The Court has ruled that spending for issue advocacy, on the other hand, cannot be stopped. See MCFL, id. This distinction between issue advocacy and express advocacy of the election or defeat of a clearly identified candidate or candidates has been a continuing source of dissension between the MRLC and the FEC.

This case, however, presents a new twist. In MCFL, the Supreme Court struck down expenditure limitations except in cases of express advocacy but, as it had done in Buckley, generally approved the limits imposed on contributions to candidates. 479 U.S. at 259-60, 107 S.Ct. at 628-29, 93 L.Ed.2d at 557-58. The FEC argues that its new regulations are designed to deal with corporate expenditures that have been coordinated with the candidates or their campaign offices and that such coordination makes them "contributions" not subject to the First Amendment concerns of Buckley and MCFL. 60 Fed. Reg. 64,260, 64,260 (Dec. 14, 1995) ("New language has been added to 11 CFR 114.2, 114.3 and 114.4 to address the question of when coordination between a candidate and a corporation or labor organization will cause an activity to become a prohibited contribution.")² Indeed, at oral argument, the FEC's counsel asserted that the new regulations are defended only on the ground that the activity in question can properly be interpreted as a contribution, not an expenditure. The MRLC disagrees with this "contribution" characterization and argues that this is just one more attempt by the FEC to avoid the Buckley and MCFL holdings that restricted its authority over issue advocacy.

ANALYSIS

Contributions to a candidate from a corporation's or union's general treasury funds can constitutionally be prohibited. That much is straightforward, for the governmental interests in preventing corruption or the appearance of corruption outweigh the First Amendment interests at stake. Buckley, 424 U.S. at 47, 96 S.Ct. at 648, 46 L.Ed.2d at 704; MCFL, 479 U.S. at 260, 107 S.Ct. at 629, 93 L.Ed.2d at 557-58; FEC v. National Conservative Political Action Comm., 470 U.S. 480, 496-98, 105 S.Ct. 1459, 1468-69, 84 L.Ed.2d 455, 469-70 (1985) ("NCPAC"). It is equally clear after Buckley and MCFL that corporate expenditures in connection with a federal election or primary cannot constitutionally be limited except when they are devoted to express advocacy of the election or defeat of a particular candidate or candidates. Faucher v. FEC, 928 F.2d 468, 470 (1st Cir.), cert. denied, 502 U.S. 820, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991); see also MRLC, 914 F.Supp. at 9. In other words, spending on issue advocacy — the only form of advocacy the Maine Right to Life Committee proposes to engage in here — cannot be limited. Id. The question is, what happens when a corporation...