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In the Matter of

)
) MUR 4922
Suburban O’Hare 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 Commission’s 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 Commission’s regulations, and a recent judicial opinion upon which they rely heavily in another context.  Their approach undermines not only the Act’s prohibitions on the use of corporate money in federal elections, but also the Act’s disclosure provisions.

 

                 

                                                                    I.  

 

On September 3, 1999, a complaint was filed with the Federal Election Commission alleging the Suburban O’Hare 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 O’Hare 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 O’Hare 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 Counsel’s Report recommended that the Commission find reason to believe SOC violated 441b.  The General Counsel’s Report reasoned SOC News constituted a prohibited corporate expenditure expressly advocating the election of a clearly identified candidate.  The General Counsel’s 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 SOC’s 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 Counsel’s 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 Counsel’s 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 candidate’s 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 Commission’s 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 “Nixon’s 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 Buckley’s 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 O’HARE RUNWAYS, 

                                                      O’HARE EXPANSION

 

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 O’Hare Airport.  Rather, the key vote involved the election of candidates—including federal candidates—who opposed expansion of O’Hare Airport:

 

               On Tuesday, November 3, voters in Suburban O’Hare Commission (SOC)

               communities will have a critical opportunity to decide the future of our

               communities and the related issue of O’Hare expansion—including the

               explosive issue of new runways and major traffic expansion at O’Hare

               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 O’Hare expansion—including the new runways

               and O’Hare 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 O’Hare] problem from getting worse—and solve the current problems—are 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 O’Hare expansion.  He recently single-handedly defeated attempts to add more than 60 new slots at O’Hare.  Congress has announced that next year will be the “Year of Aviation” in Congress.  The debate over expansion of O’Hare 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 candidate’s 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 O’Hare Airport, identified “the related problems of noise, toxic air pollution and safety problems associated with O’Hare 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 O’Hare 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 Court’s 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 Commission’s 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 O’Hare 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 O’Hare 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 O’Hare 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 Commission’s 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 SOC’s 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 Counsel’s 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 candidate’s

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 court’s 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 Buckley’s 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).