Real Truth About Abortion, Inc. v. Fed. Election Comm'n

• Decision Date: 12 June 2012
• Docket Number: No. 11–1760.,11–1760.
• Citation: 681 F.3d 544
• Parties: THE REAL TRUTH ABOUT ABORTION, INC., f/k/a The Real Truth About Obama, Inc., Plaintiff–Appellant, v. FEDERAL ELECTION COMMISSION; United States Department of Justice, Defendants–Appellees. Democracy 21; The Campaign Legal Center, Amici Supporting Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

681 F.3d 544

THE REAL TRUTH ABOUT ABORTION, INC., f/k/a The Real Truth About Obama, Inc., Plaintiff–Appellant,

v. FEDERAL ELECTION COMMISSION; United States Department of Justice, Defendants–Appellees.Democracy 21; The Campaign Legal Center, Amici Supporting Appellees.

No. 11–1760.

United States Court of Appeals, Fourth Circuit.

Argued: March 21, 2012.

Decided: June 12, 2012.

ARGUED:James Bopp, Jr., The Bopp Law Firm, Terre Haute, Indiana, for Appellant. Adav Noti, Federal Election Commission, Washington, D.C., for Appellees. ON BRIEF:Michael Boos, Law Office of Michael Boos, Fairfax, Virginia; Richard E. Coleson, Kaylan L. Phillips, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellant. Anthony Herman, General Counsel, David Kolker, Associate General Counsel, Harry J. Summers, Assistant General Counsel, Federal Election Commission, Washington, D.C.; Neil H. MacBride, United States Attorney, Alexandria, Virginia; Tony West, Assistant Attorney General, Michael S. Raab, Daniel Tenny, United States Department of Justice, Washington, D.C., for Appellees. Fred Wertheimer, Democracy 21, Washington, D.C.; Donald J. Simon, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C.; J. Gerald Hebert, Tara Malloy, Paul S. Ryan, The Campaign Legal Center, Washington, D.C., for Amici Supporting Appellees.

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge GREGORY and Judge FLOYD joined.

OPINION

NIEMEYER, Circuit Judge:

The Real Truth About Abortion, Inc. (formerly known as The Real Truth About Obama, Inc.), a Virginia non-profit corporation organized under § 527 of the Internal Revenue Code to provide “accurate and truthful information about the public policy positions of Senator Barack Obama,” commenced this action against the Federal Election Commission and the Department of Justice, contending that it was “chilled” from posting information about then-Senator Obama because of the vagueness of a Commission regulation and a Commission policy relating to whether Real Truth has to make disclosures or is a “political committee” (commonly referred to as a political action committee or PAC). Real Truth asserts that it is not subject to regulation but fears the Commission could take steps to regulate it because of the vagueness of 11 C.F.R. § 100.22(b) and the policy of the Commission to determine whether an organization is a PAC by applying the “major purpose” test on a case-by-case basis, as published at 72 Fed.Reg. 5595 (Feb. 7, 2007). It alleges that the regulation and policy are unconstitutionally broad and vague, both facially and as applied to it, in violation of the First and Fifth Amendments.

On cross-motions for summary judgment, the district court found both the regulation and the policy constitutional. And, applying the “exacting scrutiny” standard applicable to disclosure provisions, we affirm.

I

Real Truth was organized on July 24, 2008, as an “issue-adversary ‘527’ organization” under § 527 of the Internal Revenue Code. In its IRS filing, Real Truth stated that its purpose was to provide truthful information about the public positions taken by Senator Barack Obama but that it would not “expressly advocate the election or defeat” of any political candidate or “make any contribution” to a candidate.

Within a few days of its incorporation, Real Truth commenced this action challenging three of the Commission's regulations implementing the Federal Election Campaign Act (“FECA”)—11 C.F.R. § 100.22(b) (defining when a communication expressly advocates the election or defeat of a clearly identified candidate); 11 C.F.R. § 100.57(a) (defining contributions for certain purposes under FECA); and 11 C.F.R. § 114.15 (regulating the use of corporate or union funds for “electioneering communications”). In addition, Real Truth challenged the Commission's policy of determining PAC status by using a “major purpose” test on a case-by-case basis. It asserted that these regulations and the policy were unconstitutional, facially and as applied, in that they were overbroad and vague, in violation of the First and Fifth Amendments to the Constitution.

Real Truth's as-applied challenge was mounted in the context of two radio advertisements it intended to air concerning then-candidate Obama's positions on abortion. The first ad, entitled “Change,” states:

(Woman's voice): Just what is the real truth about Democrat Barack Obama's position on abortion?

(Actor's voice mimicking Obama's voice) Change. Here is how I would change America ... about abortion:

• Make taxpayers pay for all 1.2 million abortions performed in America each year

• Make sure that minor girls' abortions are kept secret from their parents

• Make partial-birth abortion legal

• Give Planned Parenthood lots more money to support abortion

• Change current federal and state laws so that babies who survive abortions will die soon after they are born

• Appoint more liberal Justices on the U.S. Supreme Court

One thing I would not change about America is abortion on demand, for any reason, at any time during pregnancy, as many times as a woman wants one.

(Woman's voice). Now you know the real truth about Obama's position on abortion. Is this the change you can believe in?

The second ad, entitled “Survivor,” reads:

(Nurse) The abortion was supposed to kill him, but he was born alive. I couldn't bear to follow hospital policy and leave him on a cold counter to die, so I held and rocked him for 45 minutes until he took his last breath.

(Male voice) As an Illinois Democrat State Senator, Barack Obama voted three times to deny lifesaving medical treatment to living, breathing babies who survive abortions. For four years, Obama has tried to cover-up his horrendous votes by saying the bills didn't have clarifying language he favored. Obama has been lying. Illinois documents from the very committee Obama chaired show he voted against the bill that did contain the clarifying language he says he favors.

Obama's callousness in denying lifesaving treatment to tiny babies who survive abortions reveals a lack of character and compassion that should give everyone pause.

Real Truth alleged that it planned to spend over $1,000 to air these advertisements during the 60–day period immediately before the 2008 general election and that some of this money would be raised through the circulation of a fundraising letter soliciting contributions to “get the word out” regarding then-Senator Obama's views on abortion. In its complaint, it expressed the fear that these expenditures might be construed as “independent expenditures” under 2 U.S.C. § 431(17) and 11 C.F.R. § 100.22(b), subjecting it to disclosure requirements and potentially making it a PAC subject to further regulation.

Real Truth sought a preliminary injunction enjoining enforcement of the challenged regulations and policy against its “intended activities” and against others similarly situated, and the district court denied Real Truth's motion. On appeal, we affirmed the district court's denial of the injunction, applying the preliminary injunction standard announced in Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and holding that Real Truth had not carried its burden of showing a likelihood of success, as well as showing the other requirements for a preliminary injunction. Real Truth About Obama v. Fed. Election Comm'n, 575 F.3d 342, 351–52 (4th Cir.2009). Real Truth filed a petition for a writ of certiorari in the Supreme Court.

While Real Truth's petition for a writ of certiorari was pending, the Supreme Court decided Citizens United v. Federal Election Commission, –––U.S. ––––, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), striking down, on First Amendment grounds, a provision of the Bipartisan Campaign Reform Act (“BCRA”) banning corporations and labor unions from using their general treasury funds for electioneering communications. Based on its decision, the Court granted Real Truth's petition for certiorari, vacated this court's judgment, and remanded the case for further consideration. Real Truth About Obama, Inc. v. Fed. Election Comm'n, ––– U.S. ––––, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010).

Also in the interim, the D.C. Circuit decided EMILY's List v. Federal Election Commission, 581 F.3d 1 (D.C.Cir.2009), which struck down certain aspects of 11 C.F.R. § 100.57, also the subject of Real Truth's challenge in this court, leading the Commission to announce that it would cease enforcement of that regulation.

On remand from the Supreme Court, we reissued the portions of our original decision “stating the facts and articulating the standard for the issuance of preliminary injunctions” and remanded the remaining issues to the district court for reconsideration in light of the Supreme Court's decision in Citizens United.Real Truth About Obama, Inc. v. Fed. Election Comm'n, 607 F.3d 355 (4th Cir.2010) (per curiam).

On remand, the parties agreed that Real Truth's challenges to 11 C.F.R. § 114.15 and 11 C.F.R. § 100.57 had become moot. And on Real Truth's remaining challenges, the district court granted summary judgment to the Commission and the Department of Justice, holding that 11 C.F.R. § 100.22(b) and the Commission's case-by-case policy for determining whether an organization was a PAC were constitutional, both facially and as applied to Real Truth. More particularly, the court found that § 100.22(b) was consistent with the “appeal-to-vote” test articulated in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007), and that the Commission was entitled to use a multifactor approach on a case-by-case basis for determining PAC status because “ascertaining an organization's single major purpose is an inherently comparative task and requires consideration of the full range of an organization's activities.” Real Truth About...