Federal Election Com'n v. Christian Coalition
| Decision Date | 02 August 1999 |
| Docket Number | No. CIV. A. 96-1781(JHG).,CIV. A. 96-1781(JHG). |
| Citation | 52 F.Supp.2d 45 |
| Parties | FEDERAL ELECTION COMMISSION, Plaintiff, v. The CHRISTIAN COALITION, Defendant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James Bopp, Jr., Heidi K. Meyer, Paul Scholle, Bopp, Coleson & Bostrom, Terre Haute, IN, Frank Myers Northam, Alan Page Dye, Webster, Chamberlain, & Bean, Washington, DC, for Christian Coalition.
Bobby Roy Burchfield, Thomas Overton Barnett, Covington & Burling, Washington, DC, for George Bush, Dan Quayle, Bush-Quayle `92 Primary Committee, Robert M. Teeter, Mary J. Matalin, Charles R. Black, Jr.
Anthony Joseph Coppolino, U.S. Dept. of Justice, Washington, DC, for Archivist of U.S, National Archives & Records Admin.
Michael B. Trister, Lichtman, Trister, Singer & Ross, Washington, DC, for AFL-CIO, American Civil Liberties Union, amicus.
Joseph William Koegel, Jr., Steptoe & Johnson, L.L.P., Washington, DC, for Christian Broadcasting Network, Inc., movant.
This enforcement action was brought by the Federal Election Commission ("FEC" or "Commission") alleging that the Christian Coalition ("the Coalition") violated federal campaign finance laws during congressional elections in 1990, 1992 and 1994, and the presidential election in 1992. The Coalition is a corporation, and this case presents two novel issues concerning restrictions on corporate campaign-related activity.
Federal campaign finance law prohibits corporations and labor unions from using general treasury funds to make contributions — in cash or in kind — to a candidate for federal office.1 But corporations and unions can make independent expenditures that are related to a federal election campaign so long as those expenditures are not for communications that expressly advocate the election or defeat of a clearly identified candidate for federal office.
The first issue is one of first impression in this Circuit and has created a moderate division of opinion among other Circuits. The question presented is whether "express advocacy" by corporations and labor organizations is limited to communications that use specified phrases, such as "vote for Smith" or "support Robinson," or whether a more substantive inquiry into the clearly intended effect of a communication is permissible. The FEC advocates a substantive inquiry and alleges that the Coalition used general corporate funds to expressly advocate the election or defeat of certain candidates through a speech made by the Coalition's then-Executive Director, Ralph Reed, and by certain of the Coalition's direct-mail communications.
The second novel issue relates to how an in-kind campaign contribution is to be defined. According to the FEC, the Coalition spent considerable general corporate funds in coordination with the election campaigns of certain Republican candidates and the National Republican Senatorial Committee — the FEC refers to this spending as "coordinated expenditures" — to produce and distribute millions of "voter guides," and "Congressional Scorecards" comparing candidates' or incumbents' positions on certain issues. Although these materials made clear which candidates the Coalition preferred, the FEC acknowledges that most of the voter guides did not expressly advocate the election or defeat of any particular candidate. The FEC's theory is not that the election materials themselves violated the "express advocacy" limitation on independent corporate expenditures but that the Coalition's extensive consultations with the campaign staff of certain candidates regarding the distribution of its voter guides and other materials turned otherwise permissible campaign-related materials into illegal in-kind campaign contributions.
The FEC and the Coalition each have filed a motion for summary judgment. Giving new meaning to the saying "politics makes strange bedfellows," the Coalition's position regarding "coordinated expenditures" is supported by amici, the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") and the American Civil Liberties Union ("ACLU"). Having considered all the briefs, oral argument, and the entire record in this matter, the Court will grant both motions in part and deny both motions in part. The FEC is entitled to a civil penalty for the Coalition's express advocacy of House Speaker Newt Gingrich's reelection in 1994 and for the Coalition having provided the senatorial campaign of Oliver North with a valuable mailing list. The FEC is not entitled to injunctive relief. Three issues are left to be determined: (1) the fair market value of the mailing list; (2) whether the Coalition coordinated its selection of issues on its 1994 Virginia senatorial voter guide with Oliver North's campaign; and (3) the amount of civil penalty to which the FEC is entitled. While the Court rejects some of the Coalition's legal contentions, in all other respects, judgment is in favor of the Coalition.
The FEC is the independent agency of the United States government with exclusive primary jurisdiction over the administration, interpretation and civil enforcement of the Federal Election Campaign Act ("FECA"), 2 U.S.C. §§ 431-455. The FEC is authorized to institute investigations of possible violations of the Act and has exclusive jurisdiction to initiate civil actions in the United States district courts to obtain judicial enforcement of the Act. Id. §§ 437c(b)(1), 437d(e).
The Christian Coalition was and is a corporation incorporated under the laws of the Commonwealth of Virginia which transacts business in the District of Columbia. The Coalition had its roots in the unsuccessful 1988 presidential campaign of Marion G. "Pat" Robertson ("Robertson"). Robertson was and is well known as the host of the "700 Club" television program, which during the relevant periods herein aired on Robertson's Christian Broadcasting Network ("CBN"). In the aftermath of the election Robertson sought to create an organization that would provide a voice in the public arena for Christians and other "people of faith." Robertson discussed his interest in creating such an organization with Ralph E. Reed, Jr. ("Reed") at a dinner given by Students for America during President Bush's 1989 inauguration.2 Reed submitted a proposal to Robertson and a meeting was held in the fall of 1989 with Reed, Robertson, and various other participants, many of whom were supporters of Robertson's 1988 presidential campaign. The Coalition was formed soon thereafter.
The Coalition's Articles of Incorporation were signed on October 2, 1989. Robertson is the corporation's Chairman of the Board and former President. The Coalition is a nonprofit, non-stock corporation financed by voluntary contributions obtained through fund raising and telemarketing activities. The Coalition has five stated purposes: (1) to represent Christians before local councils, state legislatures and the United States Congress; (2) to train Christians for effective political action; (3) to inform Christians of timely issues and legislation; (4) to speak out in the public arena and the media; (5) to protest anti-Christian bigotry and defend the legal rights of Christians. See CC Ex. 11 at 2-302—306, 314.3
Reed served as the Executive Director of the Coalition from October 2, 1989 until June 11, 1997. Reed also joined the Board of Directors in 1994. As Executive Director, Reed supervised the day-to-day operations of the Coalition and formulated policy for legislative projects. Reed was responsible for fund raising activities and publications, press communications, and various other supervisory tasks. The voter guides, congressional scorecards and training sessions were all the brainchild of Reed.
The Coalition began as a centralized, national organization, but five regional directors, working under the supervision of a national field director, were soon hired and assigned to establish separate state affiliates. There are currently Coalition affiliates in every state except Utah. Each state affiliate is a separate corporation and each has a written affiliation agreement with the Coalition. The affiliation agreements contain guidelines requiring the state affiliates to answer to the Coalition on certain matters. The affiliates generally conduct their own affairs, however, on matters not covered by the written agreement. Funding is provided to the state affiliates from the Coalition's state project fund, which receives 15 percent of the Coalition's direct mail revenue.
Some of the alleged FECA violations at issue in this case involve actions by the Coalition's state affiliates. The Coalition asserted that it could not be held responsible for the affiliates' actions because they were separate corporate entities. However, because the Coalition was unable to meet its discovery obligations with respect to information about Coalition-affiliate relations, the Coalition stipulated, for purposes of this action, that it
controls and is legally responsible for its state/and or local affiliates' activities regarding, referring or relating to (i) all voter identification activities, get-out-the-vote activities, and voter guide preparation and distribution activities for federal elections held in 1990, 1992 and 1994, and (ii) all other correspondence and communications that use the term "Christian Coalition" with the general public and/or with candidates for federal office and for federal elections held in 1990, 1992 and 1994, (iii) except for specific actions by officials or agents of state affiliates that the Christian Coalition shows to have been ultra vires.
Stipulation for Partial Dismissal ¶ 5.
The Coalition conducts many activities to...
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