Right to Life Dutchess County v. Fed. Elect. Com`N

• Decision Date: 01 June 1998
• Docket Number: No. 97 CIV. 2614(SHS).,97 CIV. 2614(SHS).
• Citation: 6 F.Supp.2d 248
• Parties: RIGHT TO LIFE OF DUTCHESS COUNTY, INC., Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.
• Court: U.S. District Court — Southern District of New York

6 F.Supp.2d 248

RIGHT TO LIFE OF DUTCHESS COUNTY, INC., Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.

No. 97 CIV. 2614(SHS).

United States District Court, S.D. New York.

June 1, 1998.

Paul R. Scholle, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiff.

William S. Shackelford, Federal Election Commission, Washington, DC, for Defendant.

OPINION

STEIN, District Judge.

The issue for resolution is whether a Federal Election Commission ("FEC") regulation, which defines the scope of the prohibition on corporate "express advocacy" of the election or defeat of candidates for federal office, is consistent with the strictures imposed by the United States Supreme Court to avoid impinging on rights of expression protected by the First Amendment. This Court finds that the regulation is impermissibly overbroad in light of the Supreme Court holdings in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) ("MCFL").

Specifically, the FEC regulation, which is set forth at 11 C.F.R. § 100.22(b), defines the term "expressly advocating" for purposes of the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 431 et seq. ("FECA"). In this action, plaintiff Right to Life of Dutchess County, Inc. ("RLDC") seeks (1) a declaratory judgment that the FEC's definition of "express advocacy" is invalid either because it is unconstitutionally overbroad in that it prohibits protected First Amendment speech, or because it is unconstitutionally vague and, thus, violative of the Fifth Amendment's due process guarantee, and (2) an injunction prohibiting the FEC from enforcing the regulation. The parties have moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons that follow, plaintiff's motion is granted, defendant's motion is denied, 11 C.F.R § 100.22(b) is declared invalid, and the FEC is enjoined from enforcing 11 C.F.R. § 100.22(b).

I. Background

A. The challenged regulation

Federal election law bars "any corporation whatever" from making expenditures "in connection with" any presidential or congressional election. See 2 U.S.C. § 441b(a). While the statutory prohibition is extremely broad on its face, First Amendment concerns have led the Supreme Court to limit its reach to prohibit solely the "express advocacy" of the election or defeat of a clearly identified candidate or candidates. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); MCFL, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986).

More specifically, the Supreme Court has found that corporate expenditures for political communications violate 2 U.S.C. § 441b(a) only where the communications employ "express" or "explicit" words of advocacy, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," or "reject." See MCFL, 479 U.S. at 249, 107 S.Ct. 616 (quoting Buckley v. Valeo, 424 U.S. at 44 n. 52, 96 S.Ct. 612); see also Buckley v. Valeo 424 U.S. at 80 n. 108, 96 S.Ct. 612. Lower courts, with the notable exception of the United States Court of Appeals for the Ninth Circuit, have adhered to that narrow, bright-line reading of the "express advocacy" standard. See FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir.1980) (en banc) ("CLITRIM") (section 441d "clearly establish[es] that, contrary to the position of the FEC, the words `expressly advocating,' mean exactly what they say"); FEC v. Survival Educ. Fund, Inc., No. 89 Civ. 0347, 1992 WL 42220, *3, 1994 U.S. Dist. LEXIS 210, *6 (S.D.N.Y.), aff'd in part and rev'd in part on alt. grounds, 65 F.3d 285 (2d Cir.1995). See also FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1051-53 (4th Cir.1997); Maine Right to Life Comm., Inc. v. FEC, 914 F.Supp. 8, 13 (D.Me.), aff'd, 98 F.3d 1 (1st Cir.1996); Faucher v. FEC, 928 F.2d 468 (1st Cir.1991). But see FEC v. Furgatch, 807 F.2d 857, 862-63 (9th Cir.1987) (making "more comprehensive" Buckley's definition of "express advocacy" to include speech that, "when read as a whole, and with limited reference to external events, [is] susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate").

Nevertheless, the FEC has historically been reluctant to limit its enforcement activities to "express advocacy," as that phrase has been interpreted by the Supreme Court, and has only recently drafted language to define the term.¹ According to the FEC regulation at issue:

Expressly advocating means any communication that —

(a) Uses phrases such as "vote for the President," "re-elect your Congressman," "support the Democratic nominee," "cast your ballot for the Republican challenger for U.S. Senate in Georgia," "Smith for Congress," "Bill McKay in '94," "vote Pro-Life" or "vote Pro-Choice," accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-Choice, "vote against Old Hickory," "defeat" accompanied by a picture of one or more candidate(s), "reject the incumbent," or communications of campaign slogan(s) or individual word(s), which in context can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc. which say "Nixon's the One," "Carter '76," "Reagan/Bush" or "Mondale!"; or

(b) When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because—

(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and

(2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.

11 C.F.R. § 100.22. Plaintiffs do not dispute that subpart (a) of the regulation is consistent with the language that the Supreme Court used to describe the permissible scope of the statutory prohibition in Buckley v. Valeo and MCFL. Plaintiffs do, however, seek to invalidate subpart (b), which both parties agree tracks the language employed by the Ninth Circuit in FEC v. Furgatch. See Maine Right to Life Comm., Inc. v. FEC, 914 F.Supp. at 10-11 (describing the origin of subpart (b)).

B. Plaintiff's proposed communications

RLDC is a New York not for profit corporation of approximately 1500 members founded to advocate what it characterizes as its pro-life position on issues such as abortion and euthanasia. It is not affiliated with any political party, candidate or campaign committee. To achieve its purpose, RLDC frequently communicates its views to the general public via, among other means, newsletters, voting guides, letters to the editor, editorials, press releases and public statements. These communications frequently refer to candidates for federal office and include discussions of their positions on various issues of concern to the organization. (Decl. of Helen Westover, ¶¶ 2, 7, 11).

For example, RLDC's August, 1996 edition of its newsletter, entitled Right to Life, contains a "SURVEY OF CANDIDATES in the REPUBLICAN CONGRESSIONAL PRIMARY ELECTION (September 10th, 1996)." (Aug.1996 Right to Life Newsletter, appended to Westover Decl. as Exh. A, at 4). The survey is, in essence, a "voting guide" which sets forth in tabular form the positions on ten pro-life issues of candidates for the Republican nomination for New York's 19th and 26th Congressional Districts. The positions of incumbents are based on their votes in the House of Representatives. The characterizations of challengers' positions are based on the answers given to questions relating to each of the topics.

There is little disputing the fact that these publications are timed to influence voters when they go to the polls. Illustrative is the September 10, 1996 Right to Life newsletter, which states: "Unfortunately ... Congresswoman Sue Kelly not only voted against the ban on partial-birth abortions, but more recently voted to permit local funding of abortions in Washington, D.C...." (Id. at 8). At the time of publication, Congresswoman Kelly was a candidate for nomination for the Republican Party in her re-election bid. The newsletter was dated the same day as the primary election.

RLDC makes plain its intention to continue to produce and distribute what it terms "issue advocacy communications" to the general public, especially in the lead-up to the 1998 federal primary and general elections in September and November, respectively. Specifically, RLDC intends to publish multiple editions of its newsletter prior to the 1998 federal elections, and to identify clearly persons who are likely candidates for federal office and to comment favorably or unfavorably on their positions, qualifications and voting records, if any. (Westover Decl. ¶ 29-31).

Plaintiff contends that its proposed communications are protected by the First Amendment pursuant to the definition of "express advocacy" set forth by the United States Supreme Court in Buckley v. Valeo and MCFL but would violate the FEC's express advocacy regulation, 11 C.F.R. § 100.22(b). Plaintiff contends further that the threat of FEC enforcement in New York is palpable, given the FEC's past enforcement efforts against corporations for allegedly making expenditures for "express advocacy" communications. That threat, plaintiff claims, has chilled its free expression on issues of public concern and has resulted in self-censorship. Plaintiffs seek relief from this Court to remove the threat of FEC action enforcing its definition of "express advocacy." (See Westover Decl. ¶¶ 34-38).

C. Procedural history

Shortly after filing the complaint in this action, the FEC successfully moved to stay the...