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Right to Life of Dutchess County, Inc. v. FEC


On June 1, 1998, the U.S. District Court for the Southern District of New York determined that the Commission's regulation at 11 CFR 100.22(b), which defines "express advocacy," violates the First Amendment and enjoined the FEC from enforcing it. The court found that the regulation is "unconstitutionally overbroad" and beyond the scope of the Commission's statute limiting corporate contributions.

On July 20, 1998, the court granted the FEC's motion to clarify that its June ruling enjoined the FEC only from enforcing 11 CFR 100.22(b) against Right to Life of Dutchess County, Inc.


Right to Life of Dutchess County, Inc., (RLDC) is a not-for-profit, membership corporation that advocates pro-life positions. RLDC said it does not intervene in political campaigns on behalf of or in opposition to any candidate for public office; nor does it support or oppose federal candidates. However, the group intended, especially in the lead-up to the federal primary and general elections, to produce and distribute communications to the general public-using newsletters, voter guides, fliers and other methods-that would comment favorably or unfavorably on the positions, qualifications and voting records (if applicable) of candidates running in 1998 primary and general elections. The court said there was little dispute that these publications were timed to influence voters when they went to the polls. RLDC contended that its proposed communications are permissible under the definition of "express advocacy" set forth in Buckley v. Valeo and Massachusetts Citizens for Life v. FEC (MCFL), but would violate 11 CFR 100.22(b).[1]

In MCFL, the Supreme Court held that the Federal Election Campaign Act's ban on corporate independent expenditures only applies when the money is used to "expressly advocate" the election or defeat of a clearly identified candidate for federal office. The Buckley decision lists examples of phrases that constitute express advocacy: "vote for," "elect," "support," "vote against," "defeat," "reject." These examples are codified in subsection (a) of 11 CFR 100.22. However, in subsection (b), the Commission further defines express advocacy as a communication that, when taken as a whole and with limited reference to external events (such as proximity to an election), can only be interpreted by a reasonable person as unambiguously advocating the election or defeat of a clearly identified candidate. This definition tracks the language of the U.S. Court of Appeals for the Ninth Circuit in FEC v. Furgatch.[2]

RLDC stated that its proposed communications would not contain any of the phrases listed in Buckley and that it intended to pay for them with corporate funds. The group contended that the threat of FEC enforcement action against it for exercising what it considers its constitutional rights has chilled the First Amendment guarantee of free expression.

District court decision

As a preliminary step, the court found that RLDC had standing to litigate this case. The court said that, in cases involving possible limits on First Amendment rights, a credible threat of prosecution is sufficient injury to confer standing.

The court held that the Commission's regulation is constitutionally invalid because it "encompasses substantially more communication than is permissible" under 2 U.S.C. §441b, as narrowed by the Supreme Court in Buckley and MCFL. It stated that the Supreme Court requirement of express or explicit words of advocacy (of the election or defeat of a candidate) is necessary to avoid prohibitions on "issue advocacy," which is not regulated by the FEC and is protected by the First Amendment. The court also enjoined the FEC from enforcing part (b) of the regulation.

The court dismissed the Commission's argument that RLDC could not bring a facial challenge against 11 CFR 100.22(b) and instead had to wait until it had actually been injured by the regulation. The court stated that a facial challenge may be brought when (1) a statute or regulation is substantially overbroad and (2) there is a realistic danger that the statute or regulation will significantly chill protected speech.

The court also rejected RLDC's argument that the New York district court was bound by the decision from the First Circuit appellate court in Maine Right to Life Committee, Inc., v. FEC, [3] which found 11 CFR 100.22(b) to be unconstitutional. It is a well-settled principle in federal court that a decision in one circuit is not binding on federal courts in another circuit.


[1] Buckley v. Valeo, 424 U.S. 1 (1976) and Massachusetts Citizens for Life v. FEC, 479 U.S. 238 (1986).

[2] Furgatch v. FEC, 807 F.2d 857, (9th Cir. 1987).

[3] Maine Right to Life Committee, Inc., v. FEC, 98 F.3d 1 (1st Cir. 1996) (per curiam).

Source:   FEC RecordSeptember 1998; and July 1998. Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp.2d 248 (S.D.N.Y. June 1, 1998).