FEC v. NOW

On May 11, 1989, the U.S. District Court for the District of Columbia issued a memorandum opinion granting the defendant's motion for summary judgment in FEC v. National Organization for Women (NOW). The court found that the election law's prohibitions against corporate political expenditures did not apply to a series of direct mailings sent as part of a NOW membership drive because the materials did not contain express advocacy.

Background

The agency filed suit against NOW, a nonprofit corporation, in August 1987 after failing to reach a conciliation agreement with the organization in a compliance matter generated by a 1984 complaint from the National Conservative Political Action Committee.

The FEC charged that three direct mailings sent by NOW during the 1984 election cycle contained communications connected with several U.S. Senate elections. The letters mentioned several Senators who were running for reelection in 1984, including Jesse Helms and Strom Thurmond. Although NOW had established a separate segregated fund for political activities, the expenditures for the mailings were made with money from its general treasury. The FEC charged that these expenditures constituted violations of 2 U.S.C. §441b, which prohibits all corporations from making expenditures in connection with federal elections.

District court decision

In finding that now's financing of the preparation and distribution of the letters in question with money from its corporate treasury did not constitute a violation of the election law, the court primarily addressed the issue of express advocacy.

Citing the Supreme Court's 1986 ruling in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), the court reasoned that section 441b's prohibition against expenditures made in connection with federal elections did not broaden the general definition of expenditure given in section 431(9)(a)(i) of the Act, i.e., disbursements, gifts and other types of payments made for the purpose of influencing federal elections. The court determined that section 441b's prohibition against expenditures made in connection with federal elections could only be interpreted as prohibiting expenditures made for the purpose of influencing federal elections. Further citing MCFL and other Supreme Court decisions, the district court concluded that this interpretation of the definition of "expenditure required that the communication expressly advocate the election or defeat of a candidate. Express advocacy, in the court's view, had to include an explicit and unambiguous reference to a candidate, as well as a clear exhortation to vote for or against that candidate. Using this interpretation of express advocacy based on MCFL, the appeals court ruling in FEC v. Furgatch, and other decisions the court found that now's letters did not contain any language that expressly advocated the election or defeat of any candidate.

The court found that the central purpose of each of the mailings was apparently to expand the organization's membership, not to tell recipients how to vote. While the letters named some Senators who were candidates, they also mentioned some who were not running for reelection in 1984. Moreover, Senators were named mainly in the context of their opposition to causes embraced by now. The letters called for a variety of actions by the recipients in support of the organization and its causes. Such actions included, for example, communicating support for the equal rights amendment to the recipients' own Senators, and making contributions to now. The letters failed to expressly tell the reader to go to the polls and vote against particular candidates. Since the letters were suggestive of several plausible meanings...now's letters fail the express advocacy test proposed by the ninth circuit in Furgatch. The district court added that, since the actual distribution of the letters was conducted by an outside direct mail contractor that did not inform now of where the mailings would be sent, NOW clearly lacked the intent to influence any particular senatorial election.

The court decided that the now mailings constituted discussion of political issues, protected by the first amendment, rather than an attempt to influence the election or defeat of any candidates because the letters did not contain express advocacy.

The FEC appealed the decision. In October 1991, however, following the supreme court's denial of the Commission's petition for a writ of certiorari in Faucher v. FEC, the commission filed a motion to dismiss the appeal. The U.S. Court of Appeals for the District of Columbia Circuit granted the motion on October 11, 1991.

Source:   FEC Record — November 1991; July 1989. FEC v. NOW, 713 F. Supp. 428 (D.D.C. 1989), appeal dismissed (D.C. Cir. Oct. 11, 1991).