Faucher v. FEDERAL ELECTION COM'N

• Decision Date: 24 February 1989
• Docket Number: Civ. No. 85-0244-B.
• Citation: 708 F. Supp. 9
• Parties: Sandra FAUCHER and Maine Right to Life Committee, Inc., Plaintiffs, v. FEDERAL ELECTION COMMISSION and Richard Thornburgh, in his capacity as Attorney General of the United States, Defendants.
• Court: U.S. District Court — District of Maine

708 F. Supp. 9

Sandra FAUCHER and Maine Right to Life Committee, Inc., Plaintiffs, v. FEDERAL ELECTION COMMISSION and Richard Thornburgh, in his capacity as Attorney General of the United States, Defendants.

Civ. No. 85-0244-B.

United States District Court, D. Maine.

February 24, 1989.

James Bopp, Jr., Eric M. Abel, Brames, Bopp, Haynes & Abel, Terre Haute, Ind., Bryan Dench, Skelton, Taintor, Abbott & Orestis, Lewiston, Me., for plaintiffs.

James McCarthy, Asst. U.S. Atty., Bangor, Me., Sandra M. Schraibman, Karen Stewart, Dept. of Justice, Civ. Div., Lisa E. Klein, Charles N. Steele, Ivan Rivera, Office of the General Counsel, Federal Election Com'n, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL

CYR, Chief Judge.

Procedural History

Sandra Faucher and the Maine Right to Life Committee, Inc. MRLC demand declaratory and injunctive relief against the Federal Election Commission FEC and the Attorney General of the United States. Plaintiffs challenge an FEC regulation governing corporate dissemination of voter guides, see 11 C.F.R. § 114.4(b)(5) (1988), on the grounds that the regulation is unconstitutionally vague, violates the Equal Protection Clause of the Fifth Amendment to the United States Constitution and exceeds the statutory authority vested in the FEC under section 441b,¹ 2 U.S.C. § 441b (1982), of the Federal Election Campaign Act the Act.

These proceedings were stayed pending determination of the constitutionality of section 441b in Federal Election Commission v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986). Defendants move to dismiss on the ground that the present action implicates no justiciable case or controversy, inasmuch as all claims are unripe for Article III adjudication.

The United States Magistrate recommends dismissal. Plaintiffs object to the recommended disposition.

Facts

MRLC, a nonprofit organization incorporated under the laws of the State of Maine, is exempted from federal income taxation by title 26 United States Code, section 501(c)(3)-(4). Plaintiff Faucher is a member of the Board of Directors of MRLC and is an adult citizen eligible to vote in elections for the Office of President of the United States. MRLC is not associated with any political candidate, campaign committee or political party. Rather, MRLC is an ideological organization whose purpose is to "educate the public on issues relating to abortion ... and to promote the sanctity of all innocent life." Complaint, at ¶ 7. MRLC has established the Maine Right to Life Political Action Committee, a separate and distinct segregated fund which makes contributions to candidates for federal and state elective office. Complaint, at ¶ 9.

Using funds from its general treasury, MRLC publishes a bi-monthly newsletter, which is distributed to members and is available to the general public. The May/June (1984) and September/October (1984) editions of the newsletter included "voter guides" containing candidate responses to MRLC questionnaires. MRLC intends to publish voter guides substantially similar to those published in 1984, but fears that the planned voter guides may not meet FEC standards for voter guides distributed by a corporation. See 11 C.F.R. 114.4(b)(5). MRLC asserts that the wording of certain questions could be viewed as advocating positions on particular issues and that the voter guide may contain editorial opinion on abortion issues. Neither plaintiff has requested an FEC advisory opinion.

Statutory Framework

The Act governs the funding of campaigns for federal elective office, including the "contribution" and "expenditure" of corporate funds in connection with a federal election. Under the Act 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, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section.

2 U.S.C. § 441b(a) (emphasis added).

The term "contribution" includes "any gift, subscription, loan, advance or deposit of money or anything of value made by any person for the purpose of influencing any election for federal office...." 2 U.S.C. § 431(8)(A)(i). The term "expenditure" 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. § 431(9)(A)(i). However, "news stories, commentaries or editorials distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication" are not expenditures regulated by the Act, unless "the facilities are owned or controlled by any political party, political committee or candidate." 2 U.S.C. § 431(9)(B)(i).

Under certain circumstances corporations are permitted to distribute material relating to federal elections. See generally 11 C.F.R. § 114.4. A corporation may prepare and distribute nonpartisan voter guides containing candidate responses to questions concerning their positions on particular issues. 11 C.F.R. § 114.4(b)(5). A voter guide is considered nonpartisan if:

(A) The questions are directed to all of the candidates for a particular seat or office, giving the candidates equal time to respond, except that in the case of Presidential and Vice Presidential candidates the questions may be directed only to those candidates seeking the nomination of a major party or to those appearing on the general election ballot in enough States to win a majority of the electoral votes;

(B) The voter guide reprints verbatim the responses of each candidate to whom questions were sent, without any additional comment, editing, or emphasis, although the sponsoring organization may impose limitations on the number of words per response when the questions are initially sent to the candidates for their comments;

(C) The wording of the questions presented does not suggest or favor any position on the issues covered;

(D) The voter guide expresses no editorial opinion concerning the issues presented nor does it indicate any support for or opposition to any candidate or political party;

(E) The sponsor may ask each candidate to provide biographical information such as education, employment positions, offices held, and community involvement and may impose a limitation on the number of words per submission;

(F) The voter guide is made available to the general public in the geographic area in which the sponsoring organization normally operates.

11 C.F.R. § 114.4(b)(5)(i)(A)-(F).

Nonprofit corporations exempt from taxation under title 26 United States Code, section 501(c)(3), (4), and which do not "support, endorse or approve candidates or political parties," need not comply with the criteria for nonpartisan voter guides so long as the voter guide does not favor a candidate or political party. 11 C.F.R. § 114.4(b)(5)(ii). Once a tax-exempt corporation establishes a separate political action committee, the FEC "concludes" that the corporation "supports, endorses, or opposes candidates or political parties," and any voter guide distributed by the corporation must comply with the criteria for nonpartisan voter guides. FEC Advisory Opinion 1984-17, at 5 (June 29, 1984).

The FEC was established under the 1974 Amendments to the Act. It has "extensive rulemaking and adjudicative powers." Buckley v. Valeo, 424 U.S. 1, 110, 96 S.Ct. 612, 678, 46 L.Ed.2d 659 (1976) (per curium). Under section 437d(a)(8), it is empowered to make such rules "as are necessary to carry out the provisions of the Act." Id. The FEC is authorized also to "formulate general policy with respect to the administration of the Act." 2 U.S.C. § 437c(b).

In addition to general policymaking, the FEC is empowered to issue advisory opinions concerning specific applications of the Act and its regulations. 2 U.S.C. § 437(d). Advisory opinions "shall" be rendered "not later than 60 days" after a written request. 2 U.S.C. § 437f(a) (emphasis added). Advisory Opinions may be relied upon by

(A) any person involved in the specific transaction or activity with respect to which such advisory opinion is rendered; and

(B) any person involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion is rendered.

(2) Notwithstanding any other provisions of law, any person who relies upon any provision or finding of an advisory opinion in accordance with the provisions of paragraph (1) and who acts in good faith in accordance with the provisions and findings of such advisory opinion shall not, as a result of any such act, be subject to any sanction provided by this Act or by chapter 95 or chapter 96 of Title 26.

2 U.S.C. § 437f(c)(1)-(2).

The Act contains "complex administrative and judicial review provisions." California Medical Association v. Federal Election Commission, 453 U.S. 182, 187, 101 S.Ct. 2712, 2717, 69 L.Ed.2d 567 (1981); s...