RNC v. FEC (94-1017)

On February 20, 1996, the U.S. Court of Appeals for the District of Columbia Circuit affirmed most of the district court's decision upholding the FEC's "best efforts" regulations. 11 CFR 104.7(b). The only part of the district court's decision that the court of appeals did not affirm was the FEC's requirement that specific language accompany solicitations and follow-up requests for contributor information. The court of appeals found the mandatory language prescribed in the regulation to be misleading and therefore contrary to law.

The challenge to the "best efforts" regulations was filed by the Republican National Committee (RNC), the National Republican Senatorial Committee and the National Republican Congressional Committee.

The "Best Efforts" rules

The Federal Election Campaign Act (the Act) requires political committees to show best efforts to obtain and report the name, address, occupation and employer of any individual who makes contributions of more than $200 in a single year to the committee. 2 U.S.C. §§431(13), 432(i) and 434(b)(3)(A).

In 1994, due to low rates of disclosure of contributor information, the FEC implemented a regulation that defined "best efforts" to obtain contributor information. 11 CFR 104.7(b). This regulation required committees to place the following statement conspicuously on solicitation materials: "Federal law requires political committees to report the name, mailing address, occupation and name of employer for each individual whose contributions aggregate in excess of $200 in a calendar year."

Additionally, this regulation required committees to send a stand-alone, follow-up request for contributor information in instances where the contributor failed to respond to the original request or provided incomplete information. The follow-up request also had to include the statement noted above. Committees were allowed to include an expression of gratitude for the contribution in this follow-up request, but no other extraneous information was permitted.

District court decision

Granting summary judgment to the FEC on July 22, 1994, the U.S. District Court for the District of Columbia rejected the RNC's challenge to the "best efforts" regulations.

The RNC and the other plaintiffs had argued that the "best efforts" requirements violated free speech rights by impermissibly limiting the language and subject matter of solicitations. The court said that the committees' arguments failed because the best efforts regulations are not compulsory but "merely [provide] a 'safe harbor' for any committee that is unable to obtain all of the required information."

In a related argument, the RNC contended that the requirement for a follow-up request would curtail free speech by imposing additional costs on committees, leaving less money for political speech. The RNC claimed that this infringement was not justified by a compelling government interest because compliance with the disclosure requirements had been sufficiently high under the old rules.

Noting that the RNC did not introduce any evidence on the overall level of compliance, the court said that the added costs to the plaintiff committees-estimated at $1.50 to $6.00 per letter-was a "minimal burden" given the strong government interest in disclosure of contributor information. "This information," the court said, "provides an 'essential means' to uncover violations of the FECA [Federal Election Campaign Act], is critical to informing the electorate..., and deters corruption or even the appearance of corruption in the political system."

In another line of argument, the RNC claimed that the revised regulations contradicted legislative intent, citing a statement in a 1979 House committee report that the best efforts provision in the Act (2 U.S.C. §432(i)) did not require committees to make multiple requests for information. Describing the 1979 report as merely one Congressional committee's post-enactment opinion that provided little assistance on how to interpret the intent of Congress in 1976, the court found it insufficient to overturn the FEC's interpretation of best efforts.

Appeals court decision

The legality of a stand-alone, follow-up request

The court of appeals found the FEC's "best efforts" regulations reasonable because nothing in the statute or its legislative history precluded the FEC from requiring committees to make more than one request for contributor information. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

The court also concluded that the regulations were based on a reasoned analysis. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983). The court noted that the FEC was concerned about the number of committees submitting reports with a low rate of complete contributor information. The FEC held a public comment period and drafted 11 CFR 104.7(b) based on the public comments it received. The court concluded, "the Commission's new regulation results from exactly the kind of agency balancing of various policy considerations to which courts should generally defer."

The trouble with the mandatory language

The court did not question the FEC's authority to require specific language on a follow-up request for contributor information. However, the court found that the mandatory language at 11 CFR 104.7(b) was inaccurate and misleading.

The language was inaccurate, the court said, because the Act does not require committees to report full contributor information for each donor; rather, it only requires them to undertake "best efforts" to obtain it. The court found that 11 CFR 104.7(b) had the effect of forbidding a more accurate paraphrasing of the law, such as: "Federal law requires us to use our best efforts to collect the information."

Additionally, the mandatory language was misleading, the court said, because it led readers to infer that federal law required contributors to disclose this information. In fact, neither the Act nor any other federal law requires contributors to do so.

For these reasons, the court ruled that the mandatory language at 11 CFR 104.7(b) was unreasonable and contrary to law.

First Amendment issues

The RNC and the other plaintiffs posed First Amendment issues with regard to both the stand-alone, follow-up notice and the specific mandatory language at 11 CFR 104.7(b). Having invalidated the specific mandatory language on statutory grounds, the court only addressed the constitutional arguments put forth by the RNC with respect to the follow-up notice.

The RNC had argued that the requirement to incur additional costs to send out additional messages was not narrowly tailored to the interests the Supreme Court had identified in Buckley v. Valeo. The court of appeals, however, found that the best efforts provision was essentially a safe harbor for political committees that was added to the Act after the Supreme Court upheld a more stringent and absolute FEC requirement in Buckley. As an optional safe harbor, it was thus less burdensome than the absolute disclosure requirement that had previously been found consistent with the First Amendment.

The court also noted that the stand-alone request was a content-neutral restriction on speech and that the RNC had other avenues, besides the follow-up notice, for communicating with donors. The court found unconvincing the RNC's argument that the follow-up requirement sapped the committee's resources. The court noted that: "Even at the [RNC's] estimate of up to $6 per follow-up request, the cost is only about three percent of a $200 contribution, an amount not likely to inhibit political committees from 'speaking.'"

Source:   FEC Record — April 1996; September 1994. Republican National Committee v. FEC, No. 94-1017 (JHG) (D.D.C. July 22, 1994); No. 94-5248 (D.C. Cir. Feb. 20, 1996).