Federal Election Com'n v. Furgatch

• Citation: 807 F.2d 857
• Decision Date: 09 January 1987
• Docket Number: No. 85-5524,85-5524
• Parties: FEDERAL ELECTION COMMISSION, Plaintiff-Appellant, v. Harvey FURGATCH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 857

807 F.2d 857

55 USLW 2388

FEDERAL ELECTION COMMISSION, Plaintiff-Appellant, v. Harvey FURGATCH, Defendant-Appellee.

No. 85-5524.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 1986.

Decided Jan. 9, 1987.

Richard Bader, Asst. Gen. Counsel, Charles N. Steele, Gen. Counsel, Carol A. Latham, Atty., Federal Election Com'n, Washington, D.C., for plaintiff-appellant.

H. Richard Mayberry, Jr., Jonathan I. Epstein, Stephen M. Griffin, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN and FARRIS, Circuit Judges and SOLOMON, ^* District Judge.

FARRIS, Circuit Judge:

Under the Federal Election Campaign Act, a political advertisement which "expressly advocates" either the election or defeat of a candidate must be reported to the Federal Election Commission. We must decide whether in this case reporting was required and if so whether the Act meets constitutional demands.

No right of expression is more important to our participatory democracy than political speech. One of the most delicate tasks of First Amendment jurisprudence is to determine the scope of political speech and its permissible regulation. This appeal requires us to resolve the conflict between a citizen's right to speak without burden and society's interest in ensuring a fair and representative forum of debate by identifying the financial sources of particular kinds of speech.

I.

On October 28, 1980, one week prior to the 1980 presidential election, the New York Times published a full page advertisement captioned "Don't let him do it," placed and paid for by Harvey Furgatch. The advertisement read:

DON'T LET HIM DO IT.

The President of the United States continues degrading the electoral process and lessening the prestige of the office.

It was evident months ago when his running mate outrageously suggested Ted Kennedy was unpatriotic. The President remained silent.

And we let him.

It continued when the President himself accused Ronald Reagan of being unpatriotic.

And we let him do it again.

In recent weeks, Carter has tried to buy entire cities, the steel industry, the auto industry, and others with public funds.

We are letting him do it.

He continues to cultivate the fears, not the hopes, of the voting public by suggesting the choice is between "peace and war," "black or white," "north or south," and "Jew vs. Christian." His meanness of spirit is divisive and reckless McCarthyism at its worst. And from a man who once asked, "Why Not the Best?"

It is an attempt to hide his own record, or lack of it. If he succeeds the country will be burdened with four more years of incoherencies, ineptness and illusion, as he leaves a legacy of low-level campaigning.

DON'T LET HIM DO IT.

On November 1, 1980, three days before the election, Furgatch placed the same advertisement in The Boston Globe. Unlike the first advertisement, which stated that it was paid for by Furgatch and was "[n]ot authorized by any candidate," the second advertisement omitted the disclaimer. The two advertisements cost Furgatch approximately $25,000.

On March 25, 1983, the Federal Election Commission brought suit against Furgatch under the Federal Election Campaign Act, 2 U.S.C. Sec. 437g(a)(6)(A). ¹ The FEC sought a civil penalty and an injunction against further violation of the Act. It alleged that Furgatch violated 2 U.S.C. Sec. 434(c) ² by failing to report his expenditures and 2 U.S.C. Sec. 441d ³ by failing to include a disclaimer in The Boston Globe advertisement. Furgatch moved for dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court orally granted the motion to dismiss and on December 10, 1984 entered its final order. It concluded that the advertisement was not an "independent expenditure" within the meaning of the statute because it did not "expressly advocate" the defeat of Jimmy Carter. The court did not rule on the constitutional issues raised by Furgatch.

The FEC timely appealed. This court has jurisdiction under 28 U.S.C. Sec. 1291 and 2 U.S.C. Sec. 437g(a)(9). We review de novo a dismissal under rule 12(b)(6). Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986).

II.

Individuals who make independent expenditures totalling more than $250 must file a statement with the FEC. 2 U.S.C. Sec. 434(c). The Federal Election Campaign Act defines an "independent expenditure" as "an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate...." 2 U.S.C. Sec. 431(17). The Supreme Court has previously passed upon the constitutionality of the Act's disclosure requirements in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

The disclosure provisions for independent expenditures were originally written more broadly, to cover any expenditures made "for the purpose of ... influencing" the nomination or election of candidates for federal office. Reviewing section 434(e) (the forerunner to the provisions before us) in Buckley, the Supreme Court held that any restriction on political speech--even restrictions that are far from absolute--can have a chilling effect on speech. "In its effort to be all-inclusive, ... the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties and fear of incurring those sanctions may deter those who seek to exercise protected First Amendment rights." 424 U.S. at 76-77, 96 S.Ct. at 662.

The Court reasoned that Congress may place restrictions on the freedom of expression for legitimate reasons, but that those restrictions must be minimal, and closely tailored to avoid overreaching or vagueness. Id. at 78-82, 96 S.Ct. at 663-64. Consequently, the Court was obliged to construe the words of section 434(e) no more broadly than was absolutely necessary to serve the purposes of the Act, to avoid stifling speech that does not fit neatly in the category of election advertising. Id. at 78, 96 S.Ct. at 663. The Court was particularly insistent that a clear distinction be made between "issue discussion," which strongly implicates the First Amendment, and the candidate-oriented speech that is the focus of the Campaign Act. Id. at 79, 96 S.Ct. at 663.

The Court concluded that the only expenditures covered by the disclosure provisions were funds used for communications that "expressly advocate the election or defeat of a clearly identified candidate." Id. It gave examples, in a footnote, of words of express advocacy, including "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," and "reject." See id. at 80, n. 108, 96 S.Ct. at 664 n. 108 (incorporating by reference id. at 44, n. 52, 96 S.Ct. at 647 n. 52). Congress' later revision of the Act, now before us, directly adopted the "express advocacy" standard of Buckley into sections 431(17) and 441d. See H.R.Rep. No. 1057, 94th Cong., 2d Sess. 38 (1976), U.S.Code Cong. & Admin.News 1976, p. 929, reprinted in Legislative History of the Federal Election Campaign Act Amendments of 1976, 1032 (GPO 1977). That standard is designed to limit the coverage of the disclosure provision "precisely to that spending that is unambiguously related to the campaign of a particular federal candidate." Buckley, 424 U.S. at 80, 96 S.Ct. at 663.

We must apply sections 434(c) and 441d consistently with the constitutional requirements set out in Buckley.

III.

The FEC argues that Furgatch's advertisement expressly advocates the defeat of Jimmy Carter and therefore is an independent expenditure which must be reported to the FEC. The examples of express advocacy contained in the Buckley opinion (i.e., "vote for," "support," etc.), the FEC argues, merely provide guidelines for determining what constitutes "express advocacy." Whether those words are contained in the advertisement is not determinative. The test is whether or not the advertisement contains a message advocating the defeat of a political candidate. Furgatch's advertisement, the FEC contends, contains an unequivocal message that Carter must not "succeed" in "burden[ing]" the country with "four more years" of his allegedly harmful leadership.

The FEC further argues that the advertisement is, in the words of the Supreme Court, "unambiguously related to the campaign of a particular federal candidate." Buckley, 424 U.S. at 80, 96 S.Ct. at 663. Nothing more, it contends, is required to place this advertisement under coverage of the Act. The FEC grounds this argument on the Court's effort in Buckley to distinguish between speech that pertains only to candidates and their campaigns and speech revolving around political issues in general. The FEC argues that because the advertisement discusses Carter, the candidate, rather than the political issues, Furgatch must report the expenditure.

Furgatch responds that the mere raising of any question on this issue demonstrates that it is not express advocacy. We would not be debating the meaning of the advertisement, he contends, if it were express. He argues that the words "don't let him do it" do not expressly call for Carter's defeat at the polls but an end to his "attempt to hide his own record, or lack of it." The advertisement, according to Furgatch, is merely a warning that Carter will be re-elected if the public allows him to continue to use "low-level campaign tactics."

As the district court noted, whether the advertisement expressly advocates the defeat of Jimmy Carter is a very close call. We have not had occasion to consider the scope of the Act before now. Few other courts of appeals have dealt with the issue.

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