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On September 17, 2001, the U.S. Court of Appeals for the Fourth Circuit upheld a district court decision that 11 CFR 100.22(b) is unconstitutional. The regulation defines "express advocacy" as a communication that, when taken as a whole and with limited reference to external events (such as proximity to an election), can only be interpreted by a reasonable person as unambiguously advocating the election or defeat of a clearly identified candidate.1
The appeals court, however, found that the district court's injunction, which prohibited the FEC from enforcing the regulation against any party throughout the country, was too broad. Instead, the appeals court limited the injunction to bar the FEC from enforcing the regulation against the Virginia Society for Human Life, Inc. (VSHL). The appeals court also rejected the VSHL's cross-appeal, which asked the court to require the FEC to repeal the regulation. The appeals court found that ruling 11 CFR 100.22(b) unconstitutional and barring the FEC from enforcing the regulation against Plaintiffs gave the VSHL complete relief.
The VSHL is a nonprofit, tax-exempt membership corporation, which accepts corporate contributions. The group had planned to distribute voter guides to the general public in connection with the 2000 federal election cycle. The guides outlined the VSHL's stance on abortion-related issues and tabulated candidates' positions on these issues. The VSHL also planned to produce radio advertisements that would compare the positions of the candidates for President and U.S. Senator for Virginia on abortion-related issues. The VSHL planned to run these ads in Northern Virginia or the District of Columbia one week before the election.
On January 6, 1999, the VSHL submitted a petition for rulemaking to the FEC, requesting that it repeal 11 CFR 100.22(b). The VSHL argued that the definition of "express advocacy" was overly broad, and, thus, some of its planned activities might constitute prohibited corporate expenditures. See 2 U.S.C. §441b. The Commission did not vote to open a rulemaking. On August 9, 1999, the VSHL asked the U.S. District Court for the Eastern District of Virginia, Richmond Division, to require the FEC to act on its petition and to prohibit the Commission from enforcing 11 CFR 100.22(b).
On January 4, 2000, the district court issued an injunction prohibiting the FEC from enforcing 11 CFR 100.22(b) "against the VSHL or against any other party in the United States of America." Relying on Buckley v. Valeo, the district court concluded that the regulation at 100.22(b) was unconstitutional. The district court said that the Buckley court defined express advocacy as "communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." The court found that by allowing the FEC to regulate advocacy based upon the understanding of the audience rather than the actual message of the advocate, the regulation at 100.22(b) failed the Buckley test. Moreover, the district court concluded, the regulation empowered the FEC to regulate issue advocacy, which was "clearly forbidden by Buckley."
On appeal, the FEC argued that the VSHL lacked standing to sue. The FEC maintained that, because it had adopted a policy of not enforcing 11 CFR 100.22(b) in the Fourth Circuit, the VSHL faced no credible threat of prosecution. The FEC also argued that the case was not appropriately timed for judicial intervention because the VSHL's allegations about its planned activities were not sufficiently concrete.
The appeals court, however, held that the VSHL had standing and that its allegations created a controversy that was concrete enough for the court to address. First, the court found that the VSHL faced a threat of prosecution, despite the FEC's policy in the Fourth Circuit. The FEC's policy statement was only recorded in FEC meeting minutes, which "do not carry the binding force of law." If sitting Commissioners were to change their minds, or new Commissioners were to disagree with the policy, the court reasoned, then the FEC could again enforce the regulation in the Fourth Circuit. Moreover, some of the VSHL's planned activity could occur outside of the Fourth Circuit where it would not be protected even if the policy remained in place. Similarly, the court found that the case was ripe for judicial decision because the VSHL could not have engaged in its planned activities-nor could it engage in similar activities in the future-without the threat of penalty.
The appeals court, relying on Buckley, agreed with the district court that the regulation violates the First Amendment and is unconstitutional because it "shifts the focus of the express advocacy determination away from the words themselves to the overall impressions of the hypothetical, reasonable listener or viewer."
The FEC argued that a too narrow reading of the express advocacy requirement would allow corporations and unions to circumvent, with "little more than careful diction," the Federal Election Campaign Act's prohibitions against corporate expenditures. 2 U.S.C. §441b. The appeals court, however, stated that it was bound by previous Supreme Court decisions and that a broader reading of "express advocacy" must come "from an imaginative Congress or from further review from the Supreme Court."
The appeals court found that the district court abused its discretion by issuing a nationwide injunction against the FEC's enforcement of the regulation. The appeals court found that a nationwide injunction:
The appeals court concluded that the injunction to bar the Commission from enforcing the regulation must be limited to protect only the VSHL anywhere in the country.
The appeals court rejected the VSHL's request that it order the FEC to open a rulemaking to consider the repeal of 11 CFR 100.22(b). The court found it had given the VSHL complete relief by ruling the regulation unconstitutional and authorizing an injunction that prohibited the FEC from enforcing the regulation against the VSHL.
The appeals court remanded the case to the district court in order to have the injunction amended so that its protection is limited to the VSHL.
1 The FEC adopted the regulation at 11 CFR 100.22(b) based on its reading of the Ninth Circuit's decision in FEC v. Furgatch, in which the court concluded that "speech need not include any of the words listed in Buckley [v. Valeo, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," etc.] to be express advocacy under the [Federal Election Campaign] Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate."263 F.3d 379.