Federal Election Com'n v. MASS. CITIZENS

• Decision Date: 29 June 1984
• Docket Number: Civ. A. No. 82-609-G.
• Citation: 589 F. Supp. 646
• Parties: FEDERAL ELECTION COMMISSION, Plaintiff, v. MASSACHUSETTS CITIZENS FOR LIFE, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

589 F. Supp. 646

FEDERAL ELECTION COMMISSION, Plaintiff, v. MASSACHUSETTS CITIZENS FOR LIFE, INC., Defendant.

Civ. A. No. 82-609-G.

United States District Court, D. Massachusetts.

June 29, 1984.

R. Lee Andersen, Charles N. Steele, Gen. Counsel, Federal Election Com'n, Washington, D.C., for plaintiff.

Francis H. Fox, Alexandra Leake, Bingham, Dana & Gould, Joseph D. Alviani, New England Legal Foundation, Boston, Mass., for defendant.

OPINION

GARRITY, District Judge.

This is an enforcement proceeding by the Federal Election Commission (FEC) seeking to invoke the provisions of § 441b of the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 441b, against the defendant Massachusetts Citizens for Life, Inc. (MCFL) for having made expenditures of corporate funds¹ in connection with the 1978 election of Massachusetts candidates for federal office. Jurisdiction rests upon 28 U.S.C. § 1345 and 2 U.S.C. § 437g(a)(6)(A).² Cross-motions for summary judgment were filed by the parties on a record consisting of affidavits, answers to interrogatories and a notice to admit facts and depositions. Exhaustive legal memoranda, which incidentally discussed many subissues and side issues and contingent issues and alternative grounds not reached in this opinion, were filed before and subsequent to oral argument.

I

The facts are essentially undisputed. The defendant is a Massachusetts corporation formed in January 1973 for the following purpose:

To foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political and other forms of activities and in addition to engage in any other lawful act or activity for which corporations may be organized under Chapter 180 of the general Laws of the Commonwealth of Massachusetts.

In September 1978 MCFL published an eight-page "Special Election Edition" of the MCFL newsletter and mailed it to 58,025 persons. The defendant expended from its general treasury funds $475 to prepare the edition, $2100 to print it and $6800 for mailing. Some minor errors in the voting records of three candidates were discovered and, later in the month, a revised partial edition was printed at a cost of $492 for 20,000 copies. MCFL's total expenditure for the two printings and distributions was $9812.

The first-page headline of the editions read, "EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE". The editions listed all candidates in an upcoming September 19, 1978 primary election for Congress, state Governor and state legislature and reported their positions on three pro-life issues: a "constitutional human life amendment", legislation to prohibit the use of tax funds for abortions, and legislation to provide positive alternatives to abortion. The positions of incumbents were derived from their voting records and of non-incumbents from their answers to questionnaires. The editions urged that recipients "vote pro-life" and carried photographs only of congressional and gubernatorial candidates whose records or promises met with MCFL approval. However, the text also stated, "This special election edition does not represent an endorsement of any particular candidate" and FEC has not contended that the publication constituted express advocacy for any of the candidates.

II

Before entering the thicket of statutes and regulations governing federal elections, some preliminary observations may be in order. First, this is probably a case of first impression. To the best of our knowledge plaintiff has not heretofore sought to invoke the provisions of § 441b³ against a noncommercial corporation for making expenditures in connection with either a primary or final election to federal office. Judicial interpretations of § 441b or its predecessor are found in criminal cases, e.g., United States v. Chestnut, S.D. N.Y.1975, 394 F.Supp. 581, civil actions for enforcement of administrative subpoenas, e.g., FEC v. Long Island Tax Reform Immediately Committee (TRIM), 2 Cir.1980, 616 F.2d 45, or pursuant to the disclosure and reporting provisions of other sections of the Federal Election Campaign Act, e.g., FEC v. American Federation of State, County and Municipal Employees, D.C. D.C.1979, 471 F.Supp. 315, or in cases concerning campaign contributions, e.g., FEC v. National Right to Work Committee (NRWC), 1982, 459 U.S. 197, 103 S.Ct. 552, 74 L.Ed.2d 364.⁴ Civil penalties and contempt adjudications are among the sanctions now provided in § 437g for violations of § 441b. The complaint in the instant case seeks a civil penalty of $5,000.

Secondly, the facial constitutionality of § 441b is not an open question. The compelling government interest in preserving the integrity and appearance of integrity of federal elections that underlies the regulation of campaign contributions and expenditures has been long established, at least since United States v. Automobile Workers, 1957, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563. The constitutionality of the FECA was explored in depth in the "watershed case" of Buckley v. Valeo, 1976, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, in which the opinions per curiam and of the individual Justices exceeded 200 pages. Likewise, the precious First Amendment interests here involved need simply to be recognized, not explicated. We subscribe to Judge Sweet's statement in FEC v. Weinsten, S.D.N.Y.1978, 462 F.Supp. 243, 249:

For this court to elaborate on the nature of free speech would be presumptuous in view of the exhaustive literature in this field and the opinions already referred to.

The derivation and relationship between First Amendment freedoms and democracy's dependence upon honest and apparently honest elections have been described in numerous scholarly articles, e.g., Corporate and Labor Union Activity in Federal Elections: "Active Electioneering" as a Constitutional Standard, 49 Geo.Wash.L.Rev. 761 (1981), and decisions, e.g., United States v. Chestnut, supra at 588-591, Common Cause v. Schmitt, D.C.D.C.1980, 512 F.Supp. 489, 493-500.

Thirdly, in ruling upon the parties' cross-motions for summary judgment we are mindful of the "basic principle that .... If a court can decide a case on non-constitutional grounds, it should not stray into the field on constitutional analysis." FEC v. TRIM, supra at 51-52. See also the classic exposition of this principle in United States v. Automobile Workers, supra 352 U.S. at 590-592, 77 S.Ct. at 540-542. This does not mean, however, that the statute can be construed without awareness of the impact of plaintiff's interpretation of § 441b on the defendant's freedoms of speech and association. First Amendment interests permeate the issues of statutory construction here presented, and Congress will not be presumed to have been insensitive to them.

III

Section 441b(b)(2) provides the applicable definition⁵ of "expenditure", as follows:

For purposes of this section ... the term "contribution or expenditure" shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value ... to any candidate, campaign committee, or political party or organization, in connection with any federal election....

Section 441b thus outlaws indirect payments or gifts of anything of value to any candidate, campaign committee or political party or organization. Was defendant's publication of the Special Election Editions intended by Congress to be such a payment or gift? We think not. The publication was uninvited by any candidate and uncoordinated with any campaign.⁶ When competing candidates were on the same side of the abortion issue, it did not suggest a preference. To the extent that it was distributed beyond defendant's membership, it probably lessened rather than enhanced the prospects of election of candidates subscribing to defendants' platform which, according to public opinion polls, is opposed by most citizens. It listed the positions of hundreds of candidates on a single political issue, without however expressly advocating the election or defeat of any particular candidate or belittling the importance of other election issues. The publication cost less than $10,000 and nearly 500 candidates were surveyed, an alleged "expenditure" of about $20 per candidate. If the space in the editions devoted to candidates for federal office be segregated from the rest, the cost of the papers was about $4,000 for 50 candidates, or $80 per — in either case, hardly the sort of "large" expenditures, repeatedly referred to in Buckley v. Valeo, supra, or "indirect contributions" which the 1947 amendment to the Federal Corrupt Practices Act was aimed at. See United States v. CIO, 1948, 335 U.S. 106, 115, 122, 68 S.Ct. 1349, 1357, 92 L.Ed. 1849.

IV

We also hold that the tabloids in question were not expenditures prohibited by § 441b because they were "news story, commentary, or editorial distributed through the facilities of any ... periodical publication" and hence exempted from the definition of expenditure by the 1974 amendments to FECA, found now in 2 U.S.C. § 431(9)(B)(i) (before 1980 at § 431(f)(4)(A)).⁷ They listed the voting records of incumbents on three legislative proposals pertaining to abortions and reported the responses to questionnaires regarding these proposals received from nonincumbent candidates; and urged readers to vote pro-life. In our opinion, the compilation of voting records and questionnaire responses was news, probably not available elsewhere; and the call to vote pro-life, in conjunction, incidentally, with a quotation from Thomas Jefferson, was editorial.

The closer question is whether the special election editions were "periodical publications"⁸ within the meaning of the statutory exemption. We find that they were. First, they were similar in newsprint, sheet form, size and format to the "MCFL Newsletter" that the defendant published relatively regularly, subject only to the availability of sufficient funds, for...