On October 4, 2012, the U.S. District Court for the Eastern District of Virginia issued its Memorandum Opinion and Order in Hispanic Leadership Fund, Inc. v. FEC. The court found that three of the Hispanic Leadership Fund’s (HLF) five proposed advertisements reference a clearly identified federal candidate and are thus electioneering communications. The court also found that the electioneering communications provisions of the Federal Election Campaign Act (the Act) are not unconstitutional as applied to HLF’s proposed advertisements.
Under the Act and Commission regulations, an electioneering communication is any broadcast, cable or satellite communication that 1) references a clearly identified candidate for federal office; 2) is publicly distributed within certain time periods before an election; and 3) is targeted to the relevant electorate. 2 U.S.C. §434(f)(3)(A)(i); 11 CFR 100.29(a). A candidate is “clearly identified” if the candidate’s name, nickname, photograph, or drawing appears in the communication, or the identity of the candidate is otherwise apparent through an “unambiguous reference” such as “the President,” “your Congressman,” or “the incumbent,” or through an unambiguous reference to his or her status as a candidate such as “the Democratic presidential nominee” or “the Republican candidate for Senate in the State of Georgia.” 11 CFR 100.29(b)(2). See also 2 U.S.C. §431(18); 11 CFR 100.17.
On April 18, 2012, American Future Fund (AFF) sought an advisory opinion asking whether eight proposed television advertisements referenced “clearly identified federal candidate[s]” under the Act. Although the Commission rendered a decision on three of the advertisements, it was unable to approve a response by four affirmative votes regarding the remaining advertisements, which used terms such as “this Administration,” and “the White House” (with visual depictions of the White House), and included an unidentified audio clip of President Obama’s voice. (See AO 2012-19.)
On August 10, 2012, HLF filed a complaint inthe U.S. District Court for the Eastern District of Virginia. HLF wanted to produce advertisements similar to those proposed by AFF, but alleged that the advertisements were not produced due to the FEC’s “failure to correctly apply [the Act] and controlling precedent” to the five advertisements in the AFF advisory opinion. HLF stated that its proposed advertisements referred to “the administration” or “this administration;” used the phrase “the White House” or contained images of the White House; or contained an audio clip of President Obama’s voice without any other reference to the President. HLF claimed that its proposed advertisements were not electioneering communications because they did not reference a clearly identified federal candidate.
Analysis and decision
Regarding whether or not HLF’s advertisements referenced a clearly identified federal candidate under the Act, HLF argued that the court should adopt a non-context-specific standard that asked whether the terms in the advertisements were explicit and unambiguous without regard to the context of the term’s usage. However, the court rejected this argument as contrary to the Act and concluded that it must “look both to the context of the reference as well as to the meaning of the reference itself.” The court determined that the ordinary meaning of the statutory phrase “apparent by unambiguous reference” is that “the identity of the federal candidate would be apparent, i.e., clear to a reasonable, objective person viewing the advertisement in the context of the reference.”
In applying its context-specific standard, the district court found that three of the advertisements referred to clearly identified candidates and were thus electioneering communications. Within the context of an advertisement about national executive branch policy, the court found that the terms “the White House” and “the Administration,” along with references to the policies and actions of the President and images of the White House, were unambiguous references to a clearly identified federal candidate because they could only be reasonably understood to refer to the current President. It also found that an advertisement that referred to “the parents of government run healthcare” together with a textual reference to “the White House” was also a clear reference to President Obama.
In contrast, the court found that the advertisement that included an unidentified audio clip of President Obama was not an electioneering communication. The court concluded that since there were no other references to the President in the advertisement and because the voice was unidentified, an objective listener may not recognize the voice as President Obama’s. The court also concluded that an advertisement that directed viewers to call “the White House” to express their opinions about oil supply policy without any other reference to President Obama was not an electioneering communication.
Finally, the court rejected HLF’s as-applied challenges to the Act’s electioneering communication disclosure provisions ruling that the challenges erroneously allege a misapplication of the statute when three of the advertisements were, in fact, electioneering communications. The court denied HLF’s request for an injunction and declared that the electioneering provisions at 2 U.S.C § 434 are constitutional as-applied to HLF’s proposed advertisements.
The full text of the court’s Memorandum Opinion and Order may be found at: https://transition.fec.gov/law/litigation/hlf_dcva_opinion.pdf; https://transition.fec.gov/law/litigation/hlf_dcva_order.pdf.
U.S. District Court for the Eastern District of Virginia: Case 1:12cv893.
- Hispanic Leadership Fund v. FEC litigation page