Federal Election Com'n v. Christian Action Network, Inc.

• Decision Date: 07 April 1997
• Docket Number: No. 95-2600,95-2600
• Citation: 110 F.3d 1049
• Parties: FEDERAL ELECTION COMMISSION, Plaintiff-Appellant, v. CHRISTIAN ACTION NETWORK, INCORPORATED; Martin Mawyer, Defendants-Appellees. Democratic National Committee; American Civil Liberties Union of Virginia, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1049

110 F.3d 1049

FEDERAL ELECTION COMMISSION, Plaintiff-Appellant, v. CHRISTIAN ACTION NETWORK, INCORPORATED; Martin Mawyer Defendants-Appellees Democratic National Committee; American Civil Liberties Union of Virginia, Amici Curiae.

No. 95-2600.

United States Court of Appeals,Fourth Circuit.

Argued Nov. 29, 1996.

Decided April 7, 1997.

Lawrence M. Noble, General Counsel, Richard B. Bader, Associate General Counsel, David Brett Kolker, Federal Election Commission, Washington, D.C., for Plaintiff-Appellant. David William T. Carroll, II, Columbus, OH; Frank M. Northam, Webster, Chamberlain & Bean, Washington, D.C., for Appellees. Stephen B. Pershing, Legal Director, American Civil Liberties Union Foundation of Virginia, Richmond, VA, for Amicus Curiae ACLU. Joseph E. Sandler, General Counsel, Democratic National Committee, Washington, D.C.; Donald B. Verrilli, Paul M. Smith, Washington, D.C.; Daniel H. Bromberg, Washington, D.C., for Amicus Curiae Committee.

Before RUSSELL and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Fees and other expenses awarded and case remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge RUSSELL and Senior Judge CHAPMAN joined.

OPINION

LUTTIG, Circuit Judge:

The Supreme Court of the United States held in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and reaffirmed in FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986), that corporate expenditures for political communications violate 2 U.S.C. § 441b(a) only if the communications employ "explicit words," "express words," or "language" advocating the election or defeat of a specifically identified candidate for public office. In the underlying litigation, the Federal Election Commission advanced the position that the Christian Action Network violated section 441b(a) through corporate expenditures for a commercial in which the following text was read by a narrator:

Bill Clinton's vision for America includes job quotas for homosexuals, giving homosexuals special civil rights, allowing homosexuals in the armed forces. Al Gore supports homosexual couples' adopting children and becoming foster parents. Is this your vision for a better America? For more information on traditional family values, contact the Christian Action Network.

Although conceding that the Christian Action Network's advertisements did not employ "explicit words," "express words," or "language" advocating the election or defeat of a particular candidate for public office, the FEC nonetheless contended that the Network's expenditures for these advertisements violated section 441b(a) because the advertisements "unmistakably" "expressly advocated" the defeat of then-Governor Clinton in the presidential election of 1992, through the superimposition of selected imagery, film footage, and music, over the nonprescriptive background language.

On the authority of Buckley v. Valeo and FEC v. Massachusetts Citizens For Life ("MCFL "), the district court dismissed the FEC's action against the Network for failure to state a claim upon which relief could be granted, holding that, as "issue advocacy intended to inform the public about political issues germane to the 1992 presidential election," the advertisements were "fully protected as 'political speech' under the First Amendment." Federal Election Commission v. Christian Action Network, 894 F.Supp. 946, 948 (W.D.Va.1995). In so holding, the district court refused the FEC's invitation to examine the "meaning behind the images" which appear in the Network's television commercial. ¹ Id. at 958. We, in turn, summarily affirmed on the reasoning of the district court, characterizing the interpretation advanced by the Commission as "unsupportable." Federal Election Commission v. Christian Action Network, 92 F.3d 1178, 1996 WL 431996 (4th Cir.1996) (per curiam) (adopting district court opinion, 894 F.Supp. at 959). Before us now is a request by the Network, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, for fees and costs incurred in connection with the FEC's prosecution and appeal of this matter. Because the position taken by the FEC in this litigation was foreclosed by clear, well-established Supreme Court caselaw, and it is apparent from the Commission's selective quotation from and citation to those authorities that the agency was so aware, we conclude that the Commission's position, if not assumed in bad faith, was at least not "substantially justified" within the meaning of 28 U.S.C. § 2412(d)(1)(A), and therefore that the Christian Action Network is entitled to the requested fees and costs under the Equal Access to Justice Act. ²

I.

A.

In Buckley v. Valeo, in order to eliminate what otherwise would have been the unconstitutional overbreadth of the Federal Election Campaign Act of 1971, as amended in 1974, the Supreme Court interpreted the statutory phrase "relative to," see 18 U.S.C. § 608(e)(1) (repealed in 1976), ³ so that the section would only prohibit corporate expenditures for "express advocacy"--"communications that include explicit words of advocacy of election or defeat of a candidate," id. at 43, 96 S.Ct. at 646 (emphasis added), or "communications containing express words of advocacy of election or defeat," id. at 44 n. 52, 96 S.Ct. at 647 n. 52 (emphasis added). See also id. at 80 n. 108, 96 S.Ct. at 664 n. 108. That is, the Court held that the Federal Election Campaign Act could be applied consistently with the First Amendment only if it were limited to expenditures for communications that literally include words which in and of themselves advocate the election or defeat of a candidate. The Court even provided an illustrative list of the kinds of "express words of advocacy" the use of which in corporately-funded communications could violate section 608(e)(1):

This construction [of section 608(e)(1) ] would restrict the application of [the provision] to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."

Id. at 44 n. 52, 96 S.Ct. at 647 n. 52.

The Court adopted the bright-line limitation that it did in Buckley in order to protect our cherished right to political speech free from government censorship. Recognizing that "the distinction between discussions of issues and candidates [on the one hand] and advocacy of election or defeat of candidates [on the other] may often dissolve in practical application," id. at 42, 96 S.Ct. at 646, the Court concluded, plain and simple, that absent the bright-line limitation, the distinction between issue discussion (in the context of electoral politics) and candidate advocacy would be sufficiently indistinct that the right of citizens to engage in the vigorous discussion of issues of public interest without fear of official reprisal would be intolerably chilled. Thus, the Court reasoned:

[W]hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.

Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.

Id. at 43, 96 S.Ct. at 646 (quoting Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 325, 89 L.Ed. 430 (1945)). The Court opted for the clear, categorical limitation, that only expenditures for communications using explicit words of candidate advocacy are prohibited, so that citizen participants in the political processes would not have their core First Amendment rights to political speech burdened by apprehensions that their advocacy of issues might later be interpreted by the government as, instead, advocacy of election result. See Buckley at 43, 96 S.Ct. at 646 ("The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate.") (emphasis added). The Court could have drawn the line between permissible and impermissible expenditures differently, but a different line would have come at the cost of expanded regulatory authority in a sphere where government regulation, if it is to be permitted at all, must be viewed with the utmost suspicion--a cost the Court had no difficulty concluding was too high for the incremental additional "benefits" that would be obtained by vesting broader power in the government, and in particular in the FEC.

The Court's commitment to a limited role for the government in the regulation of corporate political expenditures, and specifically its commitment to an interpretation of the Constitution that permits the prohibition only of corporate political communications that employ express words of advocacy, was reaffirmed a full decade after Buckley, in MCFL. There, the Court interpreted section 441b of the Federal Election Campaign Act, 2 U.S.C. § 441b(a), "the more intrusive provision" of the Act, see MCFL, 479 U.S. at 249, 107 S.Ct. at 623, which prohibits corporations from using treasury funds to make any "contribution or expenditure in connection with" any federal election. Observing that Buckley's rationale, that the divide between discussion of issues and candidates and election advocacy is so obscure as to require a prophylactic definition in order to give the widest berth to First Amendment...