FEC v. Central Long Island Tax Reform Immediately Committee

On February 2, 1980, the U.S. Court of Appeals for the Second Circuit remanded FEC v. Central Long Island Tax Reform Immediately et al. to the District Court for the Eastern District of New York with an order to dismiss the suit.

The FEC originally filed the suit on August 1, 1978, alleging that violations of the Act occurred when the Central Long Island Tax Reform Immediately Committee (CLITRIM) published a pamphlet for general circulation in October 1976 at a cost of more than $100. The FEC claimed that, in publishing and distributing the pamphlet, defendants violated the following provisions of the Act:

• 2 U.S.C. §434(e), which requires any "person...who makes...independent expenditures expressly advocating the election or defeat of a clearly identified candidate" in an amount exceeding $100 in any calendar year to report such costs to the FEC; and
• 2 U.S.C. §441d, which requires any person who "makes an expenditure for the purpose of financing a communication expressly advocating the election or defeat of a clearly identified candidate" to state in the communication whether it is authorized by a candidate, his authorized political committees or their agents or any other unauthorized person.

In its motion to dismiss the case, CLITRIM argued that, in its Buckley v. Valeo decision, the Supreme Court had specifically mandated that the Act be amended to regulate only expenditures or communications by persons "expressly advocating the election or defeat of a clearly identified candidate." Buckley v. Valeo, 424 U.S. 1, 43 (1976). Further, "express advocacy" must include at least one of the phrases suggested by the Court in Buckley: "'vote for', 'elect', 'support', 'cast your ballot for', 'Smith for Congress', 'Vote Against', 'defeat', 'reject.'" (424 U.S. 1 (1976) at 52). CLITRIM pointed out that the TRIM Bulletin did not contain any of the terms of "express advocacy" spelled out in Buckley.

Responding to this argument in one of its reply briefs filed with the court of appeals, the FEC maintained that the CLITRIM/National TRIM bulletin was not merely an informational or educational compilation of Congressional voting records. The bulletin discussed TRIM's position on the issue of high taxes and big government, identified federal candidates, critiqued their position on the issue of high taxes and big government and urged the voter to vote with TRIM. The Commission interpreted these communications as "express advocacy" communications within the meaning of 2 U.S.C. §434(e) and as construed by the Supreme Court in Buckley, 424 U.S. at 44, n. 52.

In reaching its decision to dismiss the case, the court of appeals concluded that the CLITRIM Bulletin did not "expressly advocate" the election or defeat of a candidate within the meaning of 2 U.S.C. §§434(e) and 441d. Since, as interpreted by the court, these provisions of the Act did not apply to defendants' conduct, the court concluded the constitutional issues raised by defendants in the case would not represent a case ripe for consideration by the court.

On February 25, 1980, National TRIM and John W. Robbins, intervenor in the case, petitioned the court of appeals for a rehearing. Defendants sought injunctive relief from FEC enforcement proceedings brought against local TRIM committees which were not affected by the court's February 2 order to dismiss the case. On March 5, 1980, the petition for rehearing was denied by the court of appeals.

Source: FEC Record —April 1980. FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir. 1980) (en banc).

Appeals Court Documents (2nd Circuit)

Related documents:

• Reply Brief for Plaintiff FEC (10/25/1979)
• Reply Brief Submitted by Defendants Edward Cozzette and CLITRIM (10/25/1979)
• Brief for Plaintiff FEC (10/08/1979)
• Brief for Defendants Edward Cozzette and CLITRIM (10/08/1979)
• Brief for Defendant-Counterclaimant Tax Reform Immediately and Intervenor John W. Robbins