Virginia Society for Human Life v. Federal Elect., CIV.A. 3:99CV559.

• Decision Date: 04 January 2000
• Docket Number: No. CIV.A. 3:99CV559.,CIV.A. 3:99CV559.
• Citation: 83 F.Supp.2d 668
• Parties: VIRGINIA SOCIETY FOR HUMAN LIFE, INC., Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

83 F.Supp.2d 668

VIRGINIA SOCIETY FOR HUMAN LIFE, INC., Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.

No. CIV.A. 3:99CV559.

United States District Court, E.D. Virginia, Richmond Division.

January 4, 2000.

John Lyons Marshall, Jr., McSweeney, Burtch & Crump, Patrick Michael McSweeney, McSweeney, Burtch And Crump, Richmond, James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN, for Virginia Society for Human Life, Inc., plaintiff.

Stephen E. Hershkowitz, Federal Election Commission, Lawrence M. Noble, Federal Election Commission, Richard B. Bader, Federal Election Commission, Office of General Counsel, Washington, DC, for Federal Election Commission, defendant.

MEMORANDUM OPINION

SPENCER, District Judge.

THIS MATTER is before the Court on cross-Motions for Summary Judgment and a Motion to Dismiss. For the reasons discussed below,

1. the Motion for Summary Judgment brought by Plaintiff VIRGINIA SOCIETY FOR HUMAN LIFE, INC. (herein "VSHL") is GRANTED;

2. the Motion for Summary Judgment brought by Defendant FEDERAL ELECTION COMMISSION (herein "FEC") is DENIED;

3. the Motion to Dismiss brought by the FEC is DENIED.

The FEC is hereby ENJOINED from enforcing 11 C.F.R. § 100.22(b) against the VSHL or against any other party in the United States of America.

I. Background

The VSHL is a non-profit, tax-exempt Virginia corporation established "to educate the general public on issues relating to the protection of individual human life regardless of stage of development or state of dependency, and to promote the pro-life cause however possible within the bounds of the law." (Compl. ¶ 7.). To further these objectives, the VSHL undertakes a variety of public relations measures in both election years and non-election years, all of which are funded by the VSHL treasury. (Id. ¶¶ 9, 10.). While the VSHL has no formal policy regarding corporate donations to its treasury, it has accepted donations from corporations in the past and anticipates doing so in the future. (Id. ¶ 8.). The VSHL is not associated with any political party, candidate or campaign committee, nor does it coordinate its public relations activities with any political party, candidate or campaign committee. (Id. ¶¶ 5, 9.). The VSHL reports that it plans to distribute "voter guides" in connection with the upcoming federal election cycle. (Id. ¶ 12.). These voter guides "will not contain any express or explicit words of advocacy of the nomination, election, or defeat of any candidate. The voter guides will tabulate candidates' positions on abortion-related issues ...." (Id. ¶ 13.). The VSHL acknowledges that a recipient of a voter guide could reasonably discern the VSHL's preferences as to the election or defeat of a particular candidate, but it insists that the voter guides will not call expressly for "a vote for or against any candidate"; the voter guides will simply outline the VSHL's stance on various issues relating to abortion. (Id. ¶¶ 14-15.). While the VSHL does not state in the Complaint where it intends to distribute these voter guides, it notes in subsequent pleadings that it has never decided to distribute them only within the Fourth Circuit; the VSHL also plans to purchase radio advertising which might be heard by persons residing outside of the Fourth Circuit. (Pl.'s Resp. to Mot. to Dismiss §§ I, I(A).).

The FEC is an independent agency created by the Federal Election Campaign Act (herein the "FECA"), 2 U.S.C. §§ 431 et seq. The FECA prohibits corporations from making "expenditure[s] in connection with any [federal] election ...." 2 U.S.C. § 441b(a). The Supreme Court has interpreted this prohibition to bar only that corporate spending which contains express or explicit words of candidate advocacy. See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986); Buckley v. Valeo, 424 U.S. 1, 44, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). On October 5, 1995, the FEC promulgated 11 C.F.R. § 100.22(b) pursuant to its statutory duty to enforce the FECA. (Compl. ¶ 6.). Subsection (b) (herein the "regulation") supplements § 100.22(a), which sets forth a number of activities held by the FEC to constitute "express advocacy" (and thus subject to regulation by the FEC if conducted by a corporation):

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!"

(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(a)-(b) (emphasis original). The regulation was challenged immediately in several federal courts, which have held uniformly that the regulation (and/or the analysis underlying the regulation) is unconstitutional. The VSHL filed a Petition for Rulemaking on January 11, 1999, asking the FEC to repeal the regulation. (Compl. ¶¶ 28, 41.). Although it solicited comments as to whether the regulation should be repealed, the FEC declined to do so by a 3-to-3 vote of the Commissioners. (Id. ¶ 42.). The VSHL filed the instant Complaint on August 9, 1999. The Complaint prays for a judgment

(a) declaring [the regulation] to be unconstitutionally overbroad, void-for-vagueness and contrary to law on the grounds that it violates the First and Fifth Amendments to the Constitution of the United States and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, and that it exceeds the [FEC's]statutory authority under [FECA]; (b) overturning the FEC's failure to act on VSHL's petition for rulemaking in which VSHL petitioned the FEC to repeal the regulation; (c) setting aside the regulation under 5 U.S.C. § 706; and (d) permanently enjoining the [FEC] from enforcing the FECA based on the regulation and from relying on or citing the regulation as legal authority in any future enforcement action.

(Id. ¶ 2.). The VSHL brought its Motion for Summary Judgment on October 6, 1999. The FEC brought a Motion to Dismiss on October 12, 1999, and a cross-Motion for Summary Judgment on October 22, 1999.

II. Standards of Review

A. Motions for Summary Judgment

A motion for summary judgment lies only where "there is no genuine issue as to any material fact" and where the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). The Court must view the facts and the inferences drawn therefrom in the light most favorable to the party opposing the motion. Ballinger v. North Carolina Agr. Extension Serv., 815 F.2d 1001, 1004 (4th Cir.), cert. denied, 484 U.S. 897, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987). While viewing the facts in such a manner, the Court looks to the affidavits or other specific facts to determine whether a triable issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). According to the Fourth Circuit,

In determining whether summary judgment may be granted, the district court must perform a dual inquiry into the genuineness and materiality of any purported factual issues. Whether an issue is genuine calls for an examination of the entire record then before the court in the form of pleadings, depositions, answers to interrogatories, admissions on file and affidavits, under Rule 56(c) and (e) .... Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice. A trial, after all, is not an entitlement. It exists to resolve what reasonable minds would recognize as real factual disputes.

Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985) (emphasis original). Finally, summary judgment is not appropriate if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

B. Motions to Dismiss

A plaintiff bears the burden of proving that the federal district court has subject matter jurisdiction over his or her claim; this burden does not shift when defendants challenge the assertion of jurisdiction by a federal district court. Materson v. Stokes, 166 F.R.D. 368, 370 (E.D.Va.1996). The non-movant has the burden of alleging and proving subject matter jurisdiction upon the filing of a motion to dismiss for lack of such jurisdiction. Marks v. U.S. Social Sec. Admin., 906 F.Supp. 1017, 1020 (E.D.Va.1995). The function of motions to dismiss is to test the law governing claims, not the facts which support them. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Spell v. McDaniel, 591 F.Supp. 1090 (E.D.N.C. 1984). The Court should not dismiss any count unless it appears beyond a doubt that the plaintiff could not recover...