North Carolina Right to Life, Inc. v. Bartlett

• Citation: 168 F.3d 705
• Decision Date: 17 February 1999
• Docket Number: No. 98-1636,98-1636
• Parties: NORTH CAROLINA RIGHT TO LIFE, INCORPORATED; North Carolina Right To Life Political Action Committee; Barbara Holt, President of North Carolina Right to Life, Incorporated, Plaintiffs-Appellees, v. Gary O. BARTLETT, in his official capacity as Executive Secretary-Director of the State Board of Elections of the State of North Carolina; Steve A. Balog, in his official capacity as District Attorney for North Carolina Prosecutorial District 15A, and as a representative of the class of District Attorneys in the State of North Carolina; Mike Easley, in his official capacity as Attorney General for the State of North Carolina; June K. Youngblood, in her official capacity as a Member of the State Board of Elections; Dorothy Presser, in her official capacity as a Member of the State Board of Elections; Larry Leake, in his official capacity as Chairman of the State Board of Elections; S. Katherine Burnette, in her official capacity as Secretary of the State Board of Elections; Faiger M. Blackwell, in his official capacity as a Member of the State Board of Elections, Defendants-Appellants. North Carolina Alliance For Democracy; American Civil Liberties Union of North Carolina Legal Foundation, Incorporated, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 705

168 F.3d 705

NORTH CAROLINA RIGHT TO LIFE, INCORPORATED; North Carolina Right To Life Political Action Committee; Barbara Holt, President of North Carolina Right to Life, Incorporated Plaintiffs-Appellees, v. Gary O. BARTLETT, in his official capacity as Executive Secretary-Director of the State Board of Elections of the State of North Carolina; Steve A. Balog, in his official capacity as District Attorney for North Carolina Prosecutorial District 15A, and as a representative of the class of District Attorneys in the State of North Carolina Mike Easley, in his official capacity as Attorney General for the State of North Carolina; June K. Youngblood, in her official capacity as a Member of the State Board of Elections; Dorothy Presser, in her official capacity as a Member of the State Board of Elections; Larry Leake, in his official capacity as Chairman of the State Board of Elections; S. Katherine Burnette, in her official capacity as Secretary of the State Board of Elections; Faiger M Blackwell, in his official capacity as a Member of the State Board of Elections, Defendants-Appellants North Carolina Alliance For Democracy; American Civil Liberties Union of North Carolina Legal Foundation, Incorporated, Amici Curiae.

No. 98-1636.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 27, 1998.

Decided Feb. 17, 1999.

ARGUED: Susan Kelly Nichols, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellants. James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellees. ON BRIEF: Michael F. Easley, North Carolina Attorney General, James Peeler Smith, Special Deputy Attorney General, Alexander McC. Peters, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellants. John K. Abegg, Bopp, Coleson & Bostrom, Terre Haute, Indiana; Paul Stam, Jr., Stam, Fordham & Danchi, Apex, North Carolina, for Appellees. James G. Exum, Jr., John J. Korzen, Smith, Helms, Mulliss & Moore, Greensboro, North Carolina; Marta Nelson, Glenn Moramarco, Nancy Northup, Brennan Center for Justice, New York University School of Law, New York, New York, for Amicus Curiae Alliance. Hugh Stevens, Everett, Gaskins, Hancock & Stevens, L.L.P., Raleigh, North Carolina; Deborah K. Ross, American Civil Liberties Union of North Carolina, Raleigh, North Carolina, for Amicus Curiae ACLU.

Before WILKINSON, Chief Judge, and ERVIN and WILKINS, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge ERVIN and Judge WILKINS joined.

OPINION

WILKINSON, Chief Judge:

Appellees North Carolina Right to Life (NCRL), its political action committee, and its president brought suit in federal district court challenging the constitutionality of several provisions of North Carolina election and campaign finance law. The district court found for NCRL on each of its claims. North Carolina Right to Life, Inc. v. Bartlett, 3 F.Supp.2d 675 (E.D.N.C.1998). The State of North Carolina appeals. For the reasons that follow, we affirm in part and reverse in part.

I.

NCRL is a nonprofit corporation operating in the State of North Carolina. NCRL has as a purpose the protection of human life. In furtherance of that purpose, it provides information to the public about abortion and euthanasia. NCRL is not associated with any political candidate, political party, or campaign committee. Nor is one of NCRL's major purposes to nominate, elect, or defeat specific candidates for public office or to pass or defeat ballot measures. In other words, NCRL does not engage in "express advocacy" --advocacy "that in express terms [calls for] the election or defeat of a clearly identified candidate for ... office." Buckley v. Valeo, 424 U.S. 1, 44, 96 S.Ct. 612, 46 L.Ed.2d 659(1976) (per curiam). Rather, NCRL engages in "issue advocacy"--the discussion of issues of public concern, including candidates' positions on those issues--by, among other means, distributing voter guides to the general public. Thus, issue advocacy may influence an election even though it does not expressly advocate the election or defeat of a particular candidate or party. See Virginia Society for Human Life, Inc. v. Caldwell, 152 F.3d 268, 270 (4th Cir.1998).

NCRL created North Carolina Right to Life Political Action Committee (NCRLPAC) to engage in express advocacy consistent with NCRL's views. NCRLPAC, therefore, does have as a primary purpose supporting or opposing specific candidates and political parties. Toward that end, NCRLPAC contributes money to the campaigns of candidates with whom it agrees and makes "independent expenditures" --expenditures made independently of candidates that finance an express call for their election or defeat--to support them. NCRL's president, Barbara Holt, oversees the operations of both NCRL and NCRLPAC. Holt is also a registered lobbyist in the State of North Carolina.

While preparing for North Carolina's 1996 general election, NCRL became concerned that some of the activities in which it wished to engage might violate North Carolina's election law. Specifically, NCRL worried that it might be considered a "political committee" under North Carolina law if it were to distribute its voter guide. N.C.Gen.Stat. § 163-278.6(14). If NCRL were a political committee, it would need to register as such, keep detailed accounts of its expenditures and contributions, and regularly file organizational and financial reports with the State. Id. §§ 163-278.7(b), .8, .9, .11. If NCRL failed to satisfy these requirements, its officers would be subject to criminal penalties. Id. §§ 163-278.27, .34.

In addition, NCRL was concerned that, by publishing its voter guide, it might violate the provision prohibiting corporations from making any contributions or expenditures for a "political purpose," id.ss 163-269, -278.19, which the statute defines as any attempt to "influence an election," id. § 163-278.6(16). Were the State to determine that NCRL's voter guide was for a political purpose, NCRL's officers would be similarly subject to criminal penalties. Id. §§ 163-269, -278.19(c).

To determine whether it would violate these provisions by distributing a voter guide, NCRL twice wrote to Yvonne Southerland, Chief Deputy Director of the State Board of Elections, to request her opinion. Along with each letter, NCRL sent a sample voter guide. The first sample guide inadvertently contained a one-page candidate endorsement list--i.e., express advocacy--prepared by NCRL-PAC. Southerland informed NCRL that the distribution of this voter guide would violate the State's prohibition against corporate expenditures for a political purpose. Southerland also stated more generally that any expenditure for a political purpose would make NCRL a political committee. Realizing that its first sample voter guide accidentally contained NCRLPAC's express advocacy, NCRL sent a second letter to Southerland and attached a voter guide without any candidate endorsements. In this second letter, NCRL asked only whether the distribution of this second guide would violate North Carolina's prohibition against corporate expenditures for a political purpose. Southerland again answered affirmatively.

NCRL, NCRLPAC, and Holt then brought suit in federal district court challenging several provisions of North Carolina's election law. They named as defendants the members of the State Board of Elections, the State Attorney General, and the district attorney for the prosecutorial district in which Holt lives. First, NCRL challenged North Carolina's definition of political committee on the ground that it includes entities that engage in issue advocacy only. Id. § 163-278.6(14). Second, it challenged the State's total ban on corporate expenditures for a political purpose because it prohibits NCRL from engaging in both issue advocacy and express advocacy. Id. §§ 163-269, -278.6(16), -278.19. Third, NCRLPAC and Holt challenged the provision prohibiting lobbyists, and the political committees that employ them, from contributing to members and candidates for the General Assembly and Council of State while the General Assembly is in session. Id. § 163-278.13B(c). They also challenged the provision prohibiting members and candidates for the General Assembly and Council of State from soliciting contributions from lobbyists and the political committees that employ them. Id. § 163-278.13B(b). Finally, NCRLPAC objected to North Carolina's requirement that all political committees provide prospective donors with the name of the candidate for whom the money will be used. Id. § 163-278.20(a). On each of their claims, NCRL, NCRLPAC, and Holt sought declaratory and injunctive relief.

With respect to North Carolina's definition of political committee, the district court declared section 163-278.6(14) to be unconstitutional because it defines as political committees those entities that engage in issue advocacy as well as express advocacy. NCRL, 3 F.Supp.2d at 679-80. With regard to North Carolina's ban on corporate contributions and expenditures, the district court declared it to be unconstitutional because it prohibits all corporations, including non-profits, from making expenditures for a political purpose. Id. at 681. As to North Carolina's prohibition on lobbyists and the political committees that employ them contributing to candidates and incumbents during the General Assembly session, the district court declared section 163-278.13B unconstitutional as an undue burden on Holt's and NCRLPAC's First Amendment rights. Id. at 682. Finally, with respect to North Carolina's requirement that political committees alert donors of the use to which their donation will be put, the district court granted NCRLPAC a declaratory judgment that it need only alert prospective donors of its name and need not tell them for whom the money will be used. Id. at 677....