National Right to Life Political Action v. Lamb

• Decision Date: 09 April 2002
• Docket Number: No. 00-04200-CV-C-5.,00-04200-CV-C-5.
• Citation: 202 F.Supp.2d 995
• Parties: NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE, et al., Plaintiffs, v. Charles G. LAMB, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

202 F.Supp.2d 995

NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE, et al., Plaintiffs, v. Charles G. LAMB, et al., Defendants.

No. 00-04200-CV-C-5.

United States District Court, W.D. Missouri, Central Division.

April 9, 2002.

COPYRIGHT MATERIAL OMITTED

James Bopp, Jr., Terre Haute, IN, Justin David Bristol, Terre Haute, IN, Dewey L. Crepeau, Columbia, MO, Randy Elf, Bopp, Coleson & Bostrom, Terre Haute, IN, for plaintiffs.

Joel E. Anderson, Paul R. Maguffee, Atty. General's Office, Jefferson City, MO, for defendants.

ORDER

LAUGHREY, District Judge.

Pending before the Court are the parties' cross motions for summary judgment. The parties have agreed that there are no factual issues in dispute and the cross motions can be decided as a matter of law. Having reviewed the record and the arguments of the parties, the Court grants the Defendants' Motion for Summary Judgment, as it relates to Count VII of Plaintiffs' Complaint. Plaintiffs' remaining claims are dismissed because they are not justiciable.

I. Factual Background

Plaintiff National Right to Life Committee, Inc. ("NRLC") is a national, not-for-profit corporation, which is incorporated in Washington, D.C. NRLC is not associated with any political party or campaign committee, and membership is not based on political party affiliation. See Plaintiffs' Complaint at ¶ 5. Plaintiff National Right to Life Political Action Committee ("NRLPAC") is an internal political action committee established by NRLC. See Plaintiffs' Complaint at ¶ 6. Plaintiff Amarie Natividad is Treasurer of NRLPAC, and she resides in McLean, Virginia.

NRLC's principal financial resources are derived from donations. See Answers to Defendants' First Interrogatories at 6. NRLC occasionally donates money to candidates or candidate committees. [Plaintiffs' Statement of Facts, ¶ 6]. However, making donations to candidates or their committees or expressly advocating the election of identified candidates is not the major purpose of NRLC. See Plaintiffs' Complaint at ¶ 15. Such activities are primarily carried out by NRLPAC. See Plaintiffs' Complaint at ¶ 20. NRLC does engage in issue advocacy, in part, by distributing voter guides to identify pro-life candidates. [Plaintiffs' Complaint at ¶ 14]. According to NRLC, these voter guides do not contain express advocacy as that term has been defined in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), but are intended to influence voters.

In the weeks leading up to the November 7, 2000, Missouri gubernatorial election, neither NRLC nor NRLPAC intended to make expenditures with respect to any Missouri state election. NRLPAC however, had been actively engaged in the United States Senate race in Missouri where NRLPAC had been advocating the defeat of Governor Carnahan and the reelection of Senator Ashcroft. When Governor Carnahan was killed in a plane crash on October 16, 2000, NRLPAC decided to reallocate its resources to make expenditures to expressly advocate the election of Jim Talent or the defeat of Bob Holden for Missouri governor. NRLPAC printed new political communications and intended to distribute these communications beginning October 17, 2000, 21 days prior to the November 7th elections and one day following the death of Governor Carnahan. See Plaintiffs' Complaint at ¶ 32 and Exhibit C to Plaintiffs' Motion for Summary Judgment. These communications expressly advocated the election of Jim Talent for Missouri governor and would have cost in excess of $1,500 to print and distribute. See Plaintiffs' Complaint at ¶ 26.

Because NRLPAC was shifting gears from a national election to a state election, it contacted the Missouri Ethics Commission (MEC) about its intended independent expenditure.¹ According to NRLPAC, a person at MEC named "Mike" told NRLPAC that "it was not possible for NRLPAC to make any independent expenditures with respect to the Missouri gubernatorial race in November 2000, because of two separate provisions of Missouri law. Mike explained that Missouri law prohibited NRLPAC from making any independent expenditures respecting a Missouri election within thirty (30) days prior to such election." See Tobias Affidavit, Exhibit J to Plaintiffs' Suggestions in Opposition to Defendants' Motion for Summary Judgment and in Reply to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment.

NRLPAC contends that § 130.049² prevented it from making its independent expenditure because it prohibits out-of-state committees from making any independent expenditure within 30 days of a Missouri state election. See Plaintiffs' Complaint ¶ 34, and Plaintiffs' Motion for Summary Judgment, Statement of Facts ¶ 10. According to NRLPAC, the other statute which created an obstacle to its intended independent expenditure was § 130.011(10). That statute defines a "continuing committee". "Continuing committees" are analogous to a political action committee at the federal level and are subject to several reporting and registration requirements. [Exhibit D to Plaintiffs' Motion for Summary Judgment]. Also See §§ 130.021, 130.031, 130.032, 130.036, 103.041, 130.046, 130.049, 130.050, 130.058, 130.072 and 130.081 (1997). Section 130.011 requires a "continuing committee" to register with the MEC at least 30 days before the election. After reviewing § 130.011(10), NRLPAC concluded that because there were only 21 days left before the election, it could not register with the MEC within 30 days of the election.

After NRLPAC concluded that it could not make an independent expenditure within 30 days of the election, NRLC considered its options. Like NRLPAC, it believed it would be prohibited from making an independent expenditure within 30 days of the election because of § 130.049 and § 130.011(10). Having concluded that it could not make an independent expenditure, NRLC decided to change the language of its communication, omitting any explicit terms advocating the election or defeat of candidates in the Missouri gubernatorial race. In other words, NRLC converted the "express advocacy ads" to "issue ads."³ However, NRLC was still concerned about the application of § 130.011(10) to "issue advocacy." NRLC thought Missouri's definition of a "continuing committee" in § 130.011(10) might not meet the "bright line" test adopted in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In an effort to determine whether Missouri followed a bright line test, NRLC's attorney wrote to Michael Reid, Director of Compliance at MEC. NRLC's lawyer asked Mr. Reid to initial his approval of a specific legal interpretation of Missouri law or to provide an alternative interpretation. [Exhibit F, Suggestions in Support of Plaintiffs' Motion for Summary Judgment]. Plaintiffs' lawyer also gave certain "examples" of the kind of political communications that his clients "usually engage in" and asked Mr. Reid to indicate whether "such communications" would make NRLC subject to regulation as a "continuing committee" under Missouri law or to provide a separate explanation of Missouri law.

Mr. Reid responded as follows:

In response to your faxed letter of October 27, 2000, the Missouri Ethics Commission has not given a "bright line" on expressed advocacy dealing with political advertisements and speech. The Commission determines on a case by case basis whether or not advertisements or speech urges voters to vote for or against an issue or a candidate. Your asking for my opinion on whether or not certain statements are a political advocacy cannot be answered. A statement taken out of context cannot be judged. It would be inappropriate for me to make any qualified statements concerning your communications. [Exhibit G, Plaintiffs' Suggestions in Support of Plaintiffs' Motion for Summary Judgment].

The MEC authorizes issuance of opinions only pursuant to its authority under § 105.955.16, and makes decisions to issue opinions only by affirmative vote of four members taken in official meeting. § 105.955.6. The Commission has not delegated or attempted to delegate any authority to issue opinions to any member of its staff, including the Director of Compliance. Lamb Affidavit, ¶ 5, Exhibit 1 to Defendants' Motion for Summary Judgment. In the past, when "continuing committees" have violated the deadlines set by § 130.011(10) by failing to file a statement of organization 30 days before an election, the MEC has entered agreements with treasurers of those committees for the payment of fees pursuant to MEC's authority under § 105.961.4(6). Lamb Affidavit, ¶ 13, Exhibit 1 to Defendants' Motion for Summary Judgment. At no time prior to this lawsuit, or since, has NRLC or NRLPAC sought an interpretation of the Missouri Election Law from the MEC pursuant to § 105.955.16, nor did they seek a temporary restraining order or take any other legal actions until the day of the election, November 7, 2000.

On the day of the 2000 election, NRLPAC and NRLC filed this suit challenging the constitutionality of an array of Missouri campaign finance laws. They seek to have these statutes struck down as facially unconstitutional, or alternatively, as applied to them. They seek a declaratory judgment to that effect and permanent injunctive relief. See Plaintiffs' Complaint VI. Request for Relief.

II. Plaintiffs' Claims

Count One. NRLPAC and NRLC request the Court to find unconstitutional the requirement of § 130.011(10), that a "continuing committee" must register and file a disclosure report with the MEC at least 30 days prior to an election.

Count Two. NRLPAC and NRLC request the Court to find unconstitutional the requirement of § 130.049, that an "out-of-state committee" is precluded from making expenditures for communications with respect to Missouri elections within 30 days prior to such elections.

Count Three. NRLC and NRLPAC request the Court to find unconstitutional § 130.049, that an "out-of-state committee" is precluded from making expenditures for...