Faucher v. Federal Election Com'n
| Decision Date | 29 June 1990 |
| Docket Number | Civ. No. 90-0112-B. |
| Parties | Sandra FAUCHER and Maine Right to Life Committee, Inc., Plaintiffs, v. FEDERAL ELECTION COMMISSION and Richard Thornburgh, Defendants. |
| Court | U.S. District Court — District of Maine |
COPYRIGHT MATERIAL OMITTED
James Bopp Jr., Richard E. Coleson, Brames, McCormick, Bopp & Abel, Terre Haute, Ind., Bryan Dench, Skelton, Taintor & Abbott, Auburn, Me., for plaintiffs.
Robert Bonham, Richard Bader, Office of General Counsel, Federal Election Com'n, Washington, D.C., David Collins, Asst. U.S. Atty., Portland, Me., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In 1985, Faucher and the Maine Right to Life Committee (MRLC) sued the Federal Election Commission (FEC) and the United States Attorney General in this Court, challenging FEC regulations governing the publication of voter guides by corporations. That suit was stayed pending the outcome of a United States Supreme Court decision ultimately handed down in 1986. FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986). On February 24, 1989, the lawsuit was dismissed on the ground that the plaintiffs needed first to obtain an FEC advisory opinion on the legality of any proposed publication. 708 F.Supp. 9 (D.Me.1989). The plaintiffs sought such an advisory opinion on May 15, 1989. The FEC requested additional information, which the plaintiffs provided on October 24, 1989. The FEC then issued its advisory opinion February 14, 1990, finding the plaintiffs' proposed publication illegal because (a) MRLC has a policy of accepting contributions from corporations and has, in fact, accepted such contributions, thus distinguishing its circumstances from the publication permitted by the Supreme Court in FEC v. Massachusetts Citizens for Life; and (b) MRLC's proposed publication does not meet the factors contained in the Commission's regulations permitting nonpartisan voter guides, inasmuch as the proposed publication suggests that the MRLC does favor a position, specifically a pro-life position.
The plaintiffs filed the current lawsuit against the same defendants on April 12, 1990. They filed an application for preliminary injunction on May 23, 1990. A telephone scheduling conference was held with counsel on May 25, 1990. The FEC and Attorney General filed their motions to dismiss on June 1, 1990. A hearing on the application for preliminary injunction was held on June 4, 1990. At that time all parties agreed to stipulate to the record before the Court, and the trial of the action on the merits was advanced and consolidated with the hearing on the application for preliminary injunction. See Fed.R.Civ.P. 65(a)(2).
Maine Right to Life Committee, Inc., is a nonprofit membership corporation exempt from federal income tax under Internal Revenue Code § 501(c)(4). MRLC has approximately 1,800 members. Sandra Faucher is a member of the Board of Directors. MRLC is not affiliated with any political party or campaign committee, but is an ideological organization whose purpose is to promote the sanctity of human life, both born and unborn, and educate the public on pro-life issues. MRLC does not engage in business activities other than the raising of funds to carry out the corporation's expressed purposes. It has established a separate segregated fund designated as the Maine Right to Life Committee Political Action Committee (PAC).
Over the years, MRLC has received non-PAC contributions from corporations or businesses as follows:
Government/Business Total non-PAC
Contributions Contributions
1984 $ 365 $ 31,879.71
1985 87 48,614.68
1986 175 69,286.78
1987 393 74,321.31
1988 285 66,607.46
1989 470 70,999.25
MRLC has no written policy regarding the acceptance of corporate or business contributions. MRLC publishes a bi-monthly newsletter using its general and education funds, but not its PAC funds.
The newsletter, containing educational articles and news of local chapter activities, is mailed to all dues-paying members of MRLC and handed out to members of the public in schools, churches and elsewhere. Before an election, MRLC conducts a candidate survey to ascertain federal and state candidates' positions on prolife issues. The survey responses are published in the newsletter. The November 1988 issue of the newsletter was entitled "November Election Issue 1988!" The subheading was "Federal & State Candidate Surveys Enclosed — Take-along Issue for Election Day!" The front page featured pictures of George Bush and Michael Dukakis with copy concerning the positions of the presidential and vice-presidential candidates and the respective party platforms on pro-life issues. The second, third and fourth pages featured the questionnaire and the candidates' responses. The newsletter stated:
Please recheck your candidate's survey, even if you already received our primary survey issue. The fall polling pulled in some new respondents, and those who did not respond at all need to be contacted by pro-life constituents so that their positions can be determined. It is vital that your local candidate hear from you on this issue. Please look this survey over carefully, contact your local candidates, and call the MRLC office to report your results!
(emphasis original). The newsletter also stated, "The publication of the MRLC November Election Candidate Survey does not represent an endorsement of any candidate(s) by MRLC."
MRLC plans to publish newsletter issues for the 1990 Maine election and primary "substantially similar" to the November 1988 voter guide.1
The plaintiffs seek a declaratory judgment that the FEC's voter guide regulations are beyond the authority of the FEC and unconstitutionally vague; a declaratory judgment that the MRLC's proposed 1990 publications are permissible under the Federal Election Campaign Act of 1971 as interpreted by the United States Supreme Court; and an injunction against the defendants to prevent them from enforcing the regulations against the plaintiffs' 1990 publications. The plaintiffs also seek attorneys' fees and costs.
The defendants have moved to dismiss the action for lack of jurisdiction, failure to state a claim upon which relief can be granted and the inappropriateness of equitable relief.
A federal court has authority to review a challenge to the legality of federal agency regulations under the Administrative Procedure Act (APA) under certain circumstances. Specifically, final agency action for which there is no other adequate remedy in a court is subject to judicial review. 5 U.S.C. § 704. Parties who are "adversely affected or aggrieved by agency action" may seek that review. 5 U.S.C. § 702. Here, the FEC's promulgation of regulations is final agency action. Cf. Sherwin v. Secretary of Health & Human Services, 685 F.2d 1, 4-5 (1st Cir.1982). The plaintiffs are aggrieved persons because MRLC is a nonprofit corporation that has published and seeks to continue publishing voter guides that take a position on issues such as abortion, and the FEC has promulgated specific regulations that directly affect what the plaintiffs2 may say in their voter guides. Specifically, the regulations restrict organizations such as MRLC from taking a position on the issue in their voter guides. Compliance with those regulations, which the plaintiffs assert to be illegal, thus directly affects their activities. The United States Supreme Court has declared that judicial review is presumed to be available under the APA "absent some clear and convincing evidence of legislative intent to preclude review." Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230 n. 4, 106 S.Ct. 2860, 2866 n. 4, 92 L.Ed.2d 166 (1986). I find no such clear and convincing evidence in the FEC statute, either explicit or implicit in the statutory structure. It is true that the statute provides for conciliation when the FEC determines that a violation has occurred, 2 U.S.C. § 437g, and that it provides an unusual form of judicial review when the statute itself is challenged as unconstitutional, 2 U.S.C. § 437h (). The statute also specifically provides for judicial review when a complainant is dissatisfied with an FEC decision that no illegality has occurred. 2 U.S.C. § 437g(a)(8)(A). Although these factors, with others, lead me later to conclude that this controversy is not appropriate for declaratory and injunctive relief with respect to the proposed 1990 publications, there is not enough in this statutory structure to persuade me that Congress intended to preclude ordinary APA judicial review of the validity of the regulations. Accordingly, I have authority under 5 U.S.C. § 706(2)(C), to determine whether those regulations exceed the FEC's authority. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 139-48, 87 S.Ct. 1507, 1510-15, 18 L.Ed.2d 681 (1967).3
The statutory basis for the regulations in question is 2 U.S.C. section 441b(a). It prohibits "any corporation whatever" from making "a contribution or expenditure in connection with any election at which ... a Senator or Representative ... is to be voted for, or in connection with any primary election ... held to select candidates for any of the foregoing offices. ..." On its face, this language directly prohibits a corporation like MRLC from making any expenditures to publish its voter guides in connection with the 1990 elections.4 I am satisfied, however, that under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), as construed in FEC v. Massachusetts Citizens for Life, 479...
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