In the Matter of |
) | |
) | MUR 4922 |
|
Suburban OHare Commission | ) |
STATEMENT OF REASONS
CHAIRMAN DANNY LEE MCDONALD
COMMISSIONER SCOTT E. THOMAS
At issue in MUR 4922 was whether the
Suburban O Hare Commission (SOC) violated the Federal Election Campaign
Act of 1971, as amended (FECA or the Act) by expressly advocating
the election of federal candidates in a communication it issued just prior to the 1998
general election. Under the Act, corporations
generally are prohibited from making expenditures containing express advocacy. 2 U.S.C. § 441b. Based upon the
Commissions regulations and Supreme Court precedent, the Office of General Counsel
concluded the communication contained express advocacy and constituted a violation of the
Act. We agreed with the legal analysis and
recommendations of the Office of General Counsel.
Commissioners Mason, Smith and Wold,
disagreed, however, and refused to pursue this matter.
In particular, Commissioners Mason and Smith found the communication
contained no express advocacy in spite of indistinguishable Supreme Court precedent, the
plain language of the Commissions regulations, and a recent judicial opinion upon
which they rely heavily in another context. Their
approach undermines not only the Acts prohibitions on the use of corporate money in
federal elections, but also the Acts disclosure provisions.
I.
On September 3, 1999, a complaint was
filed with the Federal Election Commission alleging the Suburban OHare Commission
had violated the Act. The complaint stated
the SOC is a consortium of approximately 15 Illinois municipal corporations
and is publicly funded by quarterly assessments levied upon its member
municipalities and grants from the State of Illinois.
Complaint at 1. The complaint further stated that [o]n or about
October 30, 1998, SOC printed a publication entitled SOC News and
distributed it by mail to numerous registered voters residing in Illinois 6th
Congressional District. Complaint at 1, 2. Alleging SOC News contained
express advocacy, the complaint described how the publication identified
specific problems caused by OHare International Airport for voters, detailed
specific solutions for those problems, and then identified Henry Hyde (a candidate for
election for Illinois 6th Congressional District in the 1998 general
election) as the candidate who supported these solutions.
Complaint at 2. After identifying
Congressman Hyde as a tenacious and aggressive fighter on our behalf on the issues
of OHare expansion, SOC News stated it was essential that we have a
strong and knowledgeable advocate on this issue as our Congressman. Id. At the bottom of most pages, in large bold type,
were the words, VOTE ON NOV. 3. See Attachment to Complaint.
On October 20, 2000, the Office of
General Counsel sent a report to the Commission containing a factual and legal analysis of
the allegations presented in the complaint as well as a response to the complaint received
from the SOC. The General Counsels
Report recommended that the Commission find reason to believe SOC violated § 441b. The General Counsels Report reasoned SOC
News constituted a prohibited corporate expenditure expressly advocating the election of a
clearly identified candidate. The General
Counsels Report also recommended the Commission find reason to believe SOC violated
2 U.S.C. § 441d[1] for failing to place the appropriate
disclaimer on the publication and 2 U.S.C. § 434(c)[2] for failing to file the appropriate
disclosure report with the Commission. Finally,
the Office of General Counsel recommended limited informal discovery to request additional
information regarding SOCs status as a non-profit corporation, the costs associated
with publishing and distributing the SOC News at issue, and the number of newsletters
distributed.
On November 7, 2000, a motion to
adopt the General Counsels recommendations, including the conclusion that SOC News
violated § 441b because it constituted express advocacy, failed to secure the four
affirmative votes needed. 2 U.S.C. §
437g(a)(2). Commissioners Thomas, McDonald
and Sandstrom supported the General Counsels recommendations. Commissioners Mason, Smith, and Wold opposed the
recommendations. The Commission then voted to
close the matter.
II.
Under the Act, corporations and labor
organizations may not make contributions or expenditures from their treasury funds in
connection with federal campaigns. 2 U.S.C.
§ 441b. In Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238
(1986)(FEC v. MCFL), the Supreme
Court interpreted § 441b to mean expenditures for communications not coordinated
with a candidates campaign must constitute express advocacy to be
subject to the § 441b prohibition. As a
result of FEC v. MCFL, independent corporate or labor union
communications that do not contain express advocacy are allowed under the Act. After reviewing the applicable case law, the text
of the Commissions Regulations and the text of the SOC publication, we believe this
publication contains express advocacy because it asks the general public to support and
vote for a specific federal candidate. Accordingly,
we believe SOC violated § 441b when it distributed SOC News just before the 1998 general
election.
A.
In creating the express advocacy
standard, the Supreme Court in Buckley v. Valeo,
424 U.S. 1 (1976)(Buckley), sought
to draw a distinction between issue advocacy and partisan advocacy focused on a clearly
identified candidate. The Buckley Court upheld as constitutional certain
reporting requirements on expenditures made by individuals and groups that were not candidates or political
committees, 424 U.S. at 80, but expressed concern these reporting provisions might
be applied broadly to communications discussing public issues which also happened to be
campaign issues. To ensure expenditures made for pure issue discussion would
not be reportable under the Act, the Buckley
Court construed these reporting requirements to reach only funds used for
communications that expressly advocate the
election or defeat of a clearly identified candidate.
Id. (emphasis added).
As a result, the Buckley Court explained
the purpose of the express advocacy standard was to limit application of the pertinent
reporting provision to spending that is unambiguously
related to the campaign of a particular federal candidate. 424 U.S. at 80 (emphasis added); see also 424 U.S. at 81 ( Under an express advocacy
standard, the reporting requirements would shed the light of publicity on spending
that is unambiguously campaign related. . .
.)(emphasis added). The Court, however,
provided no definition of what constituted spending that is unambiguously related to
the campaign of a particular federal candidate or unambiguously campaign
related. The Buckley Court only indicated that express advocacy
would include communications containing such obvious campaign-related words or phrases as
vote for, elect, support, cast your ballot
for, Smith for Congress, vote against, defeat,
reject. 424 U.S. at 44 n.52
and at 80 n.108.
In FEC v. MCFL, supra, the Supreme Court clarified the scope of the
express advocacy standard. The Court
indicated a communication could be considered express advocacy even though it lacked the
specific buzzwords or catch phrases listed as examples in Buckley. The
Court explained that express advocacy could be less direct than the examples
listed in Buckley so long as the
essential nature of the communication goes beyond issue discussion to
express electoral advocacy. 479 U.S. at
249.
Similarly, in FEC v. Furgatch, 807 F.2d
857, 863 (9th Cir.), cert. denied, 484 U.S.
850 (1987)(Furgatch), the Ninth
Circuit concluded a communication could constitute express advocacy even though it did not
contain any of the catch phrases listed in Buckley. The court noted the list in Buckley does not exhaust the capacity of the
English language to expressly advocate the election or defeat of a candidate. 807 F.2d at 863.
The court found that speech need not include any of the words listed
in Buckley to be express advocacy under the
Act, 807 F.2d at 864, and that
express advocacy is not strictly limited to communications using certain
key phrases. 807 F.2d at 862. The court indicated such a wooden and mechanical
construction would invite and allow easy circumvention of the Act. Id.
Rather than rely on the inclusion or exclusion of certain magic words
to determine whether a particular communication contained express advocacy, the Furgatch court concluded that for a communication
to be express advocacy under the Act . . . 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. 807 F.2d at 864 (emphasis
added). In defining express
advocacy under this standard, the court considered the following factors:
First, even if it is not presented in
the clearest, most explicit language, speech is express for present purposes
if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed
advocacy if it presents a clear plea for action, and thus speech that is
merely informative is not covered by the Act. Finally,
it must be clear what action is advocated. Speech
cannot be express advocacy . . . when
reasonable minds could differ as to whether it encourages a vote for or against a
candidate or encourages the reader to take some other kind of action.
Id.
On October 5, 1995, the Federal
Election Commission promulgated a regulation designed to provide further guidance on
what types of communications constitute express advocacy of clearly identified
candidates.[3] The Commission promulgated this
regulation
only after a lengthy rulemaking proceeding in which the Commission received literally
thousands of comments.[4] The new regulation, which has been codified
at
11 C.F.R. §
100.22, provides:
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 Nixons 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 (emphasis added). In the Explanation
and Justification to the regulation, the Commission stated that subsection (b) of the
regulation reflected the analysis of Buckleys
express advocacy requirement articulated by the Ninth Circuit in FEC v. Furgatch.[5] The Commission transmitted these regulations to
Congress,[6] and after thirty days
passed without any resolution disapproving the express advocacy rules, the Commission
implemented the regulation.
B.
Approximately one week before the 1998 general elections, SOC distributed a
three-page pamphlet entitled SOC News. In
bold text, the headline for this pamphlet read:
TUESDAY - NOVEMBER 3
KEY VOTE ON NEW OHARE RUNWAYS,
Attachment
to Complaint at 1. The pamphlet then made
clear the Key Vote on November 3, 1998, was not on a ballot referendum or some other specific
measure involving OHare Airport. Rather,
the key vote involved the election of candidatesincluding federal
candidateswho opposed expansion of OHare Airport:
On Tuesday, November 3, voters in
Suburban OHare Commission (SOC)
communities will have a critical opportunity to decide the future of our
communities and the related issue of OHare expansionincluding the
explosive issue of new runways and major traffic expansion at OHare
and the increased noise, toxic air pollution and safety concerns that will
result from such expansion.
On November 3, we will elect a new
Governor, a new United States Senator,
a Congressman, and numerous other state
and local officials. The new
Governor, the new United States Senator, and our
Congressman will be key
players in the decisions as to OHare expansionincluding the new runways
and OHare traffic growth being pushed by Chicago.
Id. (emphasis added). The pamphlet made clear that:
Your vote on November 3 for candidates for these offices will decide your
future. Id. (emphasis added).
After stating, [t]he key
officials who can prevent [the OHare] problem from getting worseand solve the
current problemsare the new Governor, the new United States Senator, our Congressman, and state senators and
representatives, the pamphlet specifically identified Congressman Henry Hyde as
someone who could solve the problem:
Congressman Hyde has been a tenacious
and aggressive fighter on our behalf on the issues of OHare expansion. He recently single-handedly defeated attempts to
add more than 60 new slots at OHare. Congress
has announced that next year will be the Year of Aviation in Congress. The debate over expansion of OHare and
construction of a new regional airport will be at the center of the action. It is
essential that we have a strong and knowledgeable advocate on this issue as our
Congressman.
Id. (emphasis added). Written across the bottom of the last two pages of
the pamphlet in bold type were the words:
VOTE ON NOV. 3
Id.
We have no doubt the SOC pamphlet
contains express advocacy as defined by the United States Supreme Court. In FEC v.
MCFL, the Supreme Court considered a newsletter virtually identical to the SOC
pamphlet. The MCFL newsletter
explained the importance of the pro-life issue, urged readers to
vote-pro-life, listed on later pages the candidates views on pro-life
issues, and then used an asterisk to indicate incumbent officeholders who had maintained a
100% pro-life voting record.
479 U.S. at 243-44. The Supreme Court
found the newsletter constituted express advocacy even though it did not contain
magic words such as Vote for Pro-Life Candidate Smith:
The [newsletter] cannot be regarded
as a mere discussion of public issues that by their nature raise the names of certain
politicians. Rather, it provides in effect an explicit directive: vote for these
(named) candidates. The fact that this
message is marginally less direct than Vote for Smith does not change its essential nature.
The [newsletter] goes beyond issue
discussion to electoral advocacy. The
disclaimer of endorsement cannot negate this fact.[7]
479 U.S. at
249 (emphasis added).
Similarly, the SOC pamphlet
goes beyond issue discussion to electoral advocacy. Id. As with the FEC
v. MCFL newsletter, the SOC pamphlet urged voters to vote for a specific candidate who
supported a specific position. More
specifically, just as the FEC v. MCFL newsletter
explained the importance of the pro-life issue and urged voters to vote
pro-life, the SOC pamphlet explained the importance of restricting expansion of
OHare Airport, identified the related problems of noise, toxic air pollution
and safety problems associated with OHare traffic and urged voters to
Vote on Nov. 3. Just as the FEC v. MCFL newsletter identified those candidates
who were right on the pro-life issue, so too the SOC pamphlet specifically identified a
specific candidate as right on the airport expansion issue: Congressman Henry Hyde
has been a tenacious and aggressive fighter on our behalf on the issues of OHare
expansion. Pamphlet at 3. Indeed, the SOC pamphlet goes even further
than the MCFL newsletter when it declares to voters [i]t is essential that we have a
strong and knowledgeable advocate on this issue as our Congressman. Id.
(emphasis added).
The message of the SOC pamphlet is
clear: Vote on November 3. Vote for the candidate who supports our position
on airport expansion. That candidate is
Congressman Henry Hyde. As in FEC v. MCFL, the language used is marginally
less direct than Vote for Smith, but it nonetheless constitutes express
advocacy. The similarity between FEC v. MCFL and the instant matter is unmistakable. We strongly believe if the Commission had
faithfully followed the Supreme Courts decision in FEC v. MCFL, it would have found that the SOC
pamphlet contained express advocacy.[8]
Our conclusion is not changed simply
because the SOC pamphlet does contain some issue discussion. In FEC v.
MCFL, the Supreme Court recognized a communication might well contain both issue
discussion and express advocacy. The Court
found, however, the MCFL newsletter cannot be regarded as a mere discussion of
public issues that by their nature raise the names of certain politicians and that
it went beyond issue discussion to express advocacy. 479 U.S. at 249.
As a result, the Court concluded the newsletter falls squarely within
§ 441b. Id. Similarly,
even though the SOC pamphlet contained both issue discussion and express advocacy, it
still falls squarely within § 441b.
Id.
The SOC pamphlet also constitutes
express advocacy under the Commissions Regulations which are based, in part, upon
the FEC v. MCFL decision. The Regulations define expressly advocating as
meaning any communication that uses phrases such as. . . vote Pro-Life
or vote Pro-Choice accompanied by a listing of clearly identified candidates
described as Pro-Life or Pro-Choice. 11
C.F.R. § 100.22(a). As described above, the
SOC publication fits within this definition of express advocacy. The SOC pamphlet plainly urged voters to
Vote on Nov. 3 for those candidates who opposed expansion of OHare
Airport. The pamphlet then clearly identified
Henry Hyde as the congressional candidate who has been a tenacious and aggressive
fighter on our behalf on the issues of OHare expansion. Attachment to Complaint at 3.
Finally, the SOC pamphlet constitutes
express advocacy under the recent district court opinion in FEC v. Christian Coalition, 52 F.Supp.2d 45
(D.D.C. 1999). At issue in that case was a
mailing which included a cover letter and a scorecard.
The cover letter stated, in part:
The Primary elections are here! On Tuesday, July 19, Georgians will nominate
Democratic and or Republican candidates for the Offices of: Governor, Lt. Governor,
Insurance Commissioner, Congress, Public Service Commissioner and the State Legislature. To help you prepare for your trip to the voting
booth, we have enclosed a complementary voter ID card.
This personalized card lists your congressional district and your State
House and State Senate districts. We have
also enclosed a Congressional Scorecard which you may take to the voting booth. The only incumbent Congressman who has a Primary
election is Congressman Newt Gingrich a Christian Coalition 100 percenter. Make sure that you save this scorecard for November, however, because all other
Congressmen are opposed in the General Election.
52 F.Supp at
58. After specifically discussing FEC v. MCFL and describing it as the leading
decision applying the express advocacy test, 45 F.Supp. 2d at 59, the
district court concluded the unmistakable meaning of the letter is that because Newt
Gingrich has voted as the Coalition would have wanted him to on every vote the Coalition
considered significant, the reader should vote for him in the primary election. 52
F.Supp. at 65. The court found that
[w]hile marginally less direct than saying Vote for Newt Gingrich, the
letter in effect is explicit that the reader should take with him to the voting booth the
knowledge that Speaker Gingrich was a Christian Coalition 100 percenter and
therefore the reader should vote for him. Id.
Likewise, the unmistakable
meaning of the SOC pamphlet is clear. Because
Henry Hyde has supported the efforts of the SOC, the reader should vote for him on
Nov. 3. While marginally less
direct than saying Vote for Hyde, the SOC pamphlet in effect
is explicit that Congressman Hyde has been a tenacious and aggressive fighter on our
behalf, that [y]our vote on November 3 will determine the future of
OHare expansion and that the reader should Vote on Nov. 3. Certainly, if the mailing in Christian Coalition constituted express advocacy,
so too should the SOC pamphlet.
Commissioners Mason, Smith and Wold
embraced the reasoning of Christian Coalition as
a basis for their drafting of the Commissions new coordination
regulations. See 65 Fed. Reg. at 6138 (Dec. 6, 2000)(The
Commission is promulgating new rules at 11 CFR 100.23 that define the term coordinated
general public political communication. They
generally follow the standard articulated by the United States District Court for the
District of Columbia in the Christian Coalition
decision.). Yet, they appear to ignore
the rationale of Christian Coalition and its
reliance on FEC v. MCFL when it comes to the issue of express
advocacy. Their vote in the instant matter clearly is inconsistent with the rationale of Christian Coalition.
It now appears their use of that case was selective and they used only
those portions of the opinion with which they agreed and discarded those portions of the
opinion with which they disagreed.[9]
III.
Nearly two centuries ago, Chief
Justice John Marshall wrote that it is for Article III judges to consider constitutional
disputes and say what the law is. Marbury v. Madison,
5 U.S. 137, 177 (1803). In FEC v. MCFL, the United States Supreme Court made
clear that a communication could be considered express advocacy even though it was
marginally less direct than Vote for Smith. 479 U.S. at 249.
Specifically, the Court found that a newsletter which urged voters to support
candidates who agreed with a certain position, and then identified those candidates by
name, constituted express advocacy. This is
exactly what happened in MUR 4922. The SOC
pamphlet urged voters to vote on election day, argued it was essential to have an official
who supported SOCs position on the issue of airport expansion, and then identified
that candidate as Henry Hyde. As in FEC v. MCFL, such activity falls squarely
within § 441b. 479 U.S. at 249-50.
FEC
v. MCFL is directly on point with the allegations raised in MUR 4922.[10]
As Commissioners, we cannot allow our own notions of constitutional law or
good policy overrule direct Supreme Court precedent.
Applying FEC v. MCFL to this
matter, we voted to approve the General Counsels recommendations in MUR 4922.
_______________
________________________________
Date
Danny Lee McDonald
Chairman
_______________
________________________________
Date
Scott E. Thomas
Commissioner
[1] In pertinent part, § 441d provides:
(a) Whenever any person makes an expenditure for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate, or solicits any contribution through any broadcasting station, newspaper, magazine, outdoor advertising facility, direct mailing, or any other type of general public political advertising, such communication
. . . .
(3) if not authorized by a candidate, an authorized political committee of a candidate, or
its agents, shall clearly state the name of the person who paid for the communication
and state that the communication is not authorized by any candidate or candidates
committee.
[2] Section 434(c)(1) provides: Every person (other than a political committee) who makes independent expenditures in aggregate amount or value in excess of $250 during a calendar year shall file a statement containing the information required under subsection (b)(3)(A) of this section for all contributions received by such person. See also § 434(c)(2), (3); 11 C.F.R. §§ 109.2 and 114.10(e)(2).
[3] 60 Fed. Reg. 52,069 (1995).
[4] 60 Fed. Reg. 35,292 (1995).
[5] See 60 Fed. Reg. 35,292, 35,295 (1995) discussing 807 F.2d 857, cert. denied, 484 U.S. 850 (l987).
[6] See 2 U.S.C. §438(d).
[7] The SOC pamphlet claimed that SOC is non-partisan and does not endorse any particular candidate. Pamphlet at 1. As FEC v. MCFL indicated, however, the disclaimer of endorsement cannot negate an expression of express advocacy. 479 U.S. at 249.
[8] Commissioners Mason, Smith and Wold asserted that FEC v. MCFL does not apply to the SOC communication. Commissioner Wold, however, indicated express advocacy may be present under 11 C.F.R. § 100.22(b), but the district courts order in Virginia Society for Human Life, Inc. v. Federal Election Commission, 83 F.Supp.2d 668 (E.D. Va. 2000)--a matter now on appeal--precludes the Commission from even making a reason-to-believe finding under that provision. Subsection (b) of the Regulation reflects the analysis of Buckleys express advocacy requirements articulated by the Ninth Circuit in FEC v. Furgatch, supra. See Explanation and Justification, 60 Fed. Reg. 35,292, 35,295 (1995). Although we agree that the SOC pamphlet may be viewed as containing express advocacy under subsection (b), we also think subsection (a) and the FEC v. MCFL analysis are more directly on point.
[9] During Commission discussions regarding MUR 4922, questions were raised about the extent of the violation, i.e., how many pamphlets were mailed and at what cost, and whether SOC may qualify for a so-called FEC v. MCFL exemption. See FEC v. MCFL, 479 U.S. at 264; 11 C.F.R. § 114.10. We believe it would have been preferable to find reason to believe and investigate these questions, as our colleagues recently have insisted upon in other matters, rather than make unfounded assumptions about the cost of the mailings and the corporate purposes of SOC.
[10] Unfortunately, this is not the first time the Commission has failed to find express advocacy in obvious circumstances. For other examples of Commission splits on express advocacy, see MUR 4204 (Americans for Tax Reform); MUR 3678 (Clyde Evans); MUR 3616 (Nita Lowey for Congress); MUR 3376 (Gerry Studds for Congress Committee); MURs 3167/3176 (Christian Coalition); and MUR 3162 (Citizens for Informed Voting in the Commonwealth).