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Federal Election Commission | United States of America

FEC v. AFSCME

Summary

On May 14, 1979, the U.S. District Court for the District of Columbia dismissed a suit which the FEC had filed against the American Federation of State, County and Municipal Employees (AFSCME). In that action, it was alleged that AFSCME had violated the disclosure requirements of 2 U.S.C. §431(f)(4)(C) by failing to report $983.73 it had spent to publish and circulate a political poster to its members immediately prior to the 1976 general election. The poster in question depicted, in caricature, President Gerald Ford, wearing a lapel button with the words "Pardon Me," and embracing former President Richard Nixon. The poster contained a quote taken from a speech given by Ford as Vice President: "I can say from the bottom of my heart the President of the United States is innocent and he is right."

The Act specifically excludes from the definition of the term "expenditure" any communication made by a membership organization or a corporation to its members or stockholders, but requires that the costs directly attributable to communications expressly advocating the election or defeat of a clearly identified candidate must be reported to the Commission if they exceed $2,000 per election (2 U.S.C. §431(9)(b)(iii)).[1] AFSCME had reported "communications costs" of approximately $40,000 in connection with the 1976 general election, including approximately $23,000 directly attributable to expressly advocating the election of Jimmy Carter.

The court found that, although the Nixon-Ford poster did pertain to a clearly identified candidate and may have tended to influence voting, it did not contain an "express advocacy" of election or defeat within the narrow definition given to that term in Buckley v. Valeo. Additionally, the court held that, as a communication concerning a public issue widely debated during the 1976 campaign, the poster is typical of the political speech which is protected from regulation. Accordingly, the court dismissed the action for failure to allege a violation.

FOOTNOTE:

[1] Prior to the 1979 amendments to the FECA, this statute was §431(f)(4)(C).

Source: FEC Record— July 1979. FEC v. American Federation of State, County and Municipal Employees, 471 F. Supp. 315 (D.D.C. 1979).

This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public.

The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.