Virginia Society for Human Life v. Fed. Election Comm'n

Decision Date26 February 2001
Docket NumberNo. 00-1332,No. 00-1252,00-1252,00-1332
Citation263 F.3d 379
CourtU.S. Court of Appeals — Fourth Circuit

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge. (CA-99-559)

[Copyrighted Material Omitted] COUNSEL ARGUED: David Brett Kolker, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellant. James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Appellee. ON BRIEF: Lawrence M. Noble, General Counsel, Richard B. Bader, Associate General Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellant. James R. Mason, III, BOPP, COLESON & BOSTROM, Terre Haute, Indiana; VIRGINIA SOCIETY FOR HUMAN LIFE, Richmond, Virginia, for Appellee.

Before WILLIAMS and MICHAEL, Circuit Judges, and Cynthia H. HALL, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Michael wrote the opinion, in which Judge Williams and Senior Judge Hall joined.


MICHAEL, Circuit Judge:

The Virginia Society for Human Life, Inc. (VSHL) sued the Federal Election Commission (FEC), seeking a declaration that 11 C.F.R. S 100.22(b), a regulation defining "express advocacy" for purposes of the Federal Election Campaign Act (FECA), is unconstitutional. VSHL also sought an injunction prohibiting the FEC from enforcing the regulation and an order directing the FEC to open a rulemaking to consider repeal of the regulation. The district court ruled in favor of VSHL, holding that the regulation is unconstitutional and enjoining the FEC from enforcing the regulation against VSHL or any other party in the United States. On appeal the FEC raises standing and ripeness arguments, which we reject because VSHL faces a credible threat of prosecution under the regulation. On the merits of VSHL's claim, we hold that the regulation is unconstitutional because it is not limited to communications that contain express words of advocacy as required by Buckley v. Valeo, 424 U.S. 1 (1976). However, the nationwide injunction, preventing the FEC from enforcing the regulation against all parties in the United States, is too broad. The injunction will be limited to barring the FEC from proceeding against VSHL. Last of all, we reject VSHL's cross-appeal for an order requiring the FEC to initiate rulemaking to consider repeal of the regulation. Our holding that the regulation is unconstitutional and the injunction that we have authorized give VSHL complete relief.


VSHL is a Virginia-based nonprofit corporation established "to promote the pro-life cause." VSHL spends money from its treasury for communications to the public that promote its views. As the 2000 federal elections were approaching, VSHL was interested in spending money on communications it regarded as "issue advocacy." In particular, VSHL planned to distribute "voter guides," which would indicate federal candidates' positions and VSHL's own position on particular abortion-related issues. VSHL also planned to produce radio advertisements that would air one week before the election. These ads would compare the records and positions of the candidates for President and U.S. Senator for Virginia on issues relating to abortion. VSHL wanted to target Virginia residents in the northern Virginia metropolitan area. In order to reach this audience, VSHL intended to place the ads on at least one radio station whose broadcast was received by listeners in the District of Columbia. The radio station selected would be located either in northern Virginia or in the District.

On January 6, 1999, VSHL submitted a petition for rulemaking to the FEC, requesting that it repeal 11 C.F.R. S 100.22(b), which defines "express advocacy" for purposes of the corporate expenditure prohibitions found in FECA. VSHL claimed that because S 100.22(b)'s definition of "express advocacy" was overly broad, some of the group's planned issue advocacy communications might constitute improper election expenditures. VSHL noted that the regulation had already been struck down in the First Circuit and the Southern District of New York. The FEC should repeal the regulation, VSHL urged, so that groups distributing nationwide messages would not be judged by different rules in different locales. On February 3, 1999, the FEC published a notice in the Federal Register informing the public of VSHL's petition and opening a month-long comment period. See Rulemaking Petition: Definition of "Express Advocacy"; Notice of Availability, 64 Fed. Reg. 5200 (Feb. 3, 1999). Seven individuals or organizations submitted comments, five in favor of the petition and two in opposition. On April 29, 1999, the FEC voted 33 on two motions involving VSHL's petition. The first 3-3 vote came on a motion to adopt the General Counsel's recommendation that the Commission decline to open a rulemaking. The second split vote came on a motion to direct the General Counsel to initiate a rulemaking. Because neither motion received an affirmative vote of four Commissioners as required by 2 U.S.C. S 437c(c), the FEC announced that it was taking no further action on VSHL's petition. See 64 Fed. Reg. 27478 (May 20, 1999).

On August 9, 1999, VSHL sued the FEC in federal court in eastern Virginia seeking declaratory and injunctive relief. VSHL sought a declaration that the FEC's failure to act on VSHL's petition was contrary to law and that 11 C.F.R. S 100.22(b) is unconstitutional. In addition, VSHL requested an injunction ordering the FEC to grant its petition for rulemaking and prohibiting the FEC from bringing an enforcement action under 11 C.F.R. S 100.22(b). On September 22, 1999, six weeks after VSHL sued, the FEC voted 6-0 to adopt a policy that 11 C.F.R. S 100.22(b) would not be enforced in the First or Fourth Circuits because the regulation "has been found invalid" by the First Circuit and "has in effect been found invalid" by the Fourth Circuit. (emphasis added). Based on this expression of policy, the FEC moved to dismiss VSHL's complaint for lack of subject matter jurisdiction on the ground that VSHL had no standing to sue. The district court denied the motion, reasoning that VSHL's activities extend beyond the Fourth Circuit, that private citizens can initiate FECA enforcement, and that the FEC's nonbinding policy vote does not dissipate the chill created by the existence of the regulation. Next, the parties filed cross-motions for summary judgment. In ruling on these motions the district court held that the regulation ran afoul of the First Amendment because it regulates issue advocacy, not just express advocacy. In addition, the district court enjoined the FEC "from enforcing 11 C.F.R. [S] 100.22(b) against the VSHL or against any other party in the United States of America." The court, however, declined to order the FEC to open a rulemaking to repeal the regulation. The FEC appeals the ruling on standing and the scope of the injunction. VSHL cross-appeals on the rulemaking issue.


The issues in this appeal are better understood with a review of the case law leading up to and following the promulgation in 1995 of 11 C.F.R. S 100.22. Our starting point is Buckley v. Valeo, 424 U.S. 1 (1976), where the Supreme Court first introduced the concept of "express advocacy." The constitutionality of various provisions of FECA were at issue in Buckley. One of these provisions was 2 U.S.C. S 434(e), which required that "[e]very person (other than a political committee or candidate) who makes contributions or expenditures, other than by contribution to a political committee or candidate, in an aggregate amount in excess of $100 within a calendar year shall file with the supervisory officer a statement containing the information required by [this] section." Federal Election Campaign Act of 1971, Pub. L. No. 92-225, S 305, 86 Stat. 3, 16 (amended 1974). "Contribution" and "expenditure" were defined in S 431(e)(1) and (f)(1) as using money or other things of value "for the purpose of influencing the nomination for election, or election, of any person to Federal office." S 301, 86 Stat. at 11-12.

The Buckley Court limited S 434(e) "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." 424 U.S. at 80 (footnote omitted). In other words, the communications had to contain "express words of advocacy of election or defeat, such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,'`vote against,' `defeat,' `reject.'" Id. at 80 n.108 (citing id. at 44 n.52). This limitation ensured that Congress was only regulating "spending that is unambiguously related to the campaign of a particular federal candidate" and not regulating "issue discussion and advocacy of a political result." Id. at 79-80. After adopting this construction of S 434(e), the Court upheld the provision against a constitutional attack, reasoning that it "bears a sufficient relationship to a substantial government interest," that is, "furthering First Amendment values by opening the basic processes of our federal election system to public view." Id. at 80, 82.

Congress amended FECA in 1976. See Pub. L. No. 94-283, 90 Stat. 475. One of the 1976 provisions prohibits corporations from making "a contribution or expenditure in connection with any [federal] election" if the contribution or expenditure comes out of the corporation's general treasury. 2 U.S.C. S 441b(a). In FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), the Supreme Court used the principles it had laid out in...

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