FEC v. Public Citizen, Inc.

On October 10, 2001, the U.S. Court of Appeals for the Eleventh Circuit ruled that Public Citizen, Inc., and its separate segregated fund, Public Citizen's Fund for a Clean Congress (the Fund), violated 2 U.S.C. §441d(a) by failing to include a disclaimer stating that their independent expenditures had not been authorized by any candidate or candidate's committee. This ruling reversed the decision on this issue by the U.S. District Court for the Northern District of Georgia, which had granted summary judgment to the defendants in September 1999.

Background

Public Citizen, Inc. (Public Citizen) is an incorporated, nonprofit membership organization. It created the Fund in 1992. The Fund, in turn, sponsored several communications that opposed Newt Gingrich in the 1992 primary for Georgia 's Sixth Congressional District: a television ad, a direct mailing and a series of flyers-all of which urged voters to "Boot Newt" in the upcoming primary.

District court decision

On September 15, 1999, the U.S. District Court for the Northern District of Georgia, Atlanta Division, dismissed an enforcement case brought by the Federal Election Commission against Public Citizen and the Fund.

The Commission had alleged that the Fund had violated 2 U.S.C. §441b by making excessive in-kind contributions to Herman Clark, a 1992 primary opponent of former Representative Newt Gingrich. The Commission maintained that the contributions resulted from the fact that the Fund had coordinated several expenditures, made in opposition to Mr. Gingrich, with the Clark campaign. The court ruled that the expenditures were permissible independent expenditures-not coordinated expenditures.

The court also ruled in favor of the Fund on eight other charges brought against it, including charges that, in some or all cases, it failed to:

• Report expenditures as contributions;
• Indicate, in disclaimers, whether its television advertisement and flyers were authorized by a candidate;
• Inform contributors about the political purpose of the fund;
• Inform contributors of their right to refuse to contribute without reprisal; and
• Inform contributors that a checklist for donations, reading "$20, $40, $50, OTHER," was merely a suggestion.

Coordination

The FEC alleged that the expenditures against Mr. Gingrich, totaling $59,200, were not independent expenditures but, rather, were coordinated expenditures, which resulted in excessive contributions on behalf of Mr. Gingrich's opponent, Mr. Clark. 2 U.S.C. §441a(a)(1)(A).

The Act defines independent expenditure as an expenditure which expressly advocates the election or defeat of a clearly identified candidate and which is not made in concert with, or at the request or suggestion of, the candidate or the campaign. 2 U.S.C. §431(17).

FEC regulations elaborate on this definition. They add the following presumption:

"An expenditure will be presumed to be so made [in cooperation with the campaign] when it is based on information about the candidate's plans, projects, or needs provided to the expending person by the candidate, or by the candidate's agents with a view toward having an expenditure made." 11 CFR 109.1(b)(4)(i)(A).

The Commission had argued that repeated contacts between the Fund and representatives of Mr. Clark's campaign constituted coordination. The court disagreed.

The court held that, "even construed most favorably for the FEC," the evidence did not support the allegation that the expenditures by the Fund were coordinated with the Clark campaign. Coordination, the court stated, implies "some measure of collaboration beyond a mere inquiry as to the position taken by a candidate on an issue." [1]

The court ruled that, because the expenditures had not been coordinated with the Clark campaign, the Fund did not need to report them as contributions.

Disclaimers

The FEC alleged that the Fund failed to include the disclaimer required by 2 U.S.C. §441d(a) in the "Boot Newt" television advertisement or in the "Boot Newt" flyers.

The statute states that, whenever a person makes an independent expenditure (see definition above), the communication must disclose both the name of the person who paid for the communication and the fact that the communication was not authorized by the candidate or his/her committee.

Although the Clark campaign identified who paid for the ads, it did not include a disclaimer stating whether or not the communications had been authorized by a candidate.

Based on a 6th Circuit decision,[2] the court found that the disclaimer requirement was broader than necessary to achieve the government's interests in notifying the public of the source of campaign funds, in preventing actual and perceived corruption in the political process, and in creating a recordkeeping method to detect violations of the Act's contribution limitations-interests identified by the Supreme Court in Buckley v. Valeo. The court stated that the disclaimer used by the Fund, which stated that the ads were paid for by the Fund, was sufficient to accomplish all three of the government's objectives. The additional requirement that the disclaimer identify whether the communication was authorized by any candidate or candidate's committee, the court said, violated the Fund's First Amendment rights.

Special fundraising notices by corporations and labor organizations

The FEC alleged that the Fund's solicitation letters failed to make adequate disclosures required by the Act. First, two letters violated 2 U.S.C. §441b(b)(3)(B) and 11 CFR 114.5(a)(3) by failing to inform solicitees of the political purposes of the Fund. One solicitation stated that the Fund planned to vote out targeted incumbents by using "everything-T.V., radio, door-to-door canvassing-to let their constituents know what their members of Congress have been up to for the past few years." In another solicitation, the Fund asked for solicitees' help "to tackle nine other House members." The court stated that it was uncertain how the Fund could have been more explicit in stating the political purpose of their solicitation, and concluded that the letter did not violate 2 U.S.C. §441b(b)(3)(B).

Additionally, the FEC alleged that both letters violated 2 U.S.C. §441b(b)(3)(C) and 11 CFR 114.5(a)(4) by failing to inform solicitees of their right to refuse to contribute to the Fund without reprisal. The court dismissed this charge, stating that the purpose of the notice was "to prevent organizations with economic leverage over employees or members from using that leverage to coerce involuntary donations." It was nonsensical, the court stated, for Public Citizen, a purely voluntary, nonprofit membership organization, to include such a disclaimer since it controlled no benefits that could be denied to its individual members.

Lastly, the FEC alleged that the Fund violated 2 U.S.C. §441b(b)(3)(C) and 11 CFR 114.5(a)(2), which requires that, when a corporation suggests a contribution guideline in a solicitation for its separate segregated fund, the solicitees must be informed that the guidelines are merely suggestions and that solicitees are free to contribute more or less than the suggested amount. The court found that the Fund's solicitation included an alternative called "other," making it clear to the solicitee that the listed amounts were suggestions only. Therefore, the court stated, the letter was not violative of the Act.

Appeals court decision

The FEC appealed this case to the U.S. Court of Appeals for the Eleventh Circuit. On appeal, the FEC argued that 2 U.S.C. §441d(a) served the governmental interest in protecting the integrity of the electoral process by immediately informing the voters whether a political advertisement was attributable to a candidate or to other persons, including the candidate's supporters. The appeals court agreed and ruled that the statute was narrowly tailored to serve the stated governmental interest because it applied only to candidate elections and was limited to communications that expressly advocated the election or defeat of a clearly identified candidate. As a result, the court found that the disclaimer requirements in 2 U.S.C. §441d(a) did not "impermissibly infringe on Public Citizen's First Amendment rights to free speech."

The appeals court vacated the district court's grant of summary judgment for Public Citizen and remanded the case to the district court to grant summary judgment to the FEC on its §441d(a) claims and to determine appropriate relief for the violations.

FOOTNOTES:

[1] Clifton v. Federal Election Commission, 114, F.3d 1309, 1311 (1st Cir. 1997), citing Buckley v. Valeo, 424 U.S. 1, 46-47 and n.53 96 S.Ct. 612, 647-48 and n. 53 46 L.Ed.2d 659 (1976).
[2] Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 647-48 (6th Cir. 1997).268 F.3d 1283.

Source:   FEC Record —November 1999 and December 2001. 64 F. Supp. 2d 1327(N. D. Ga. 1999)