The Real Truth About Abortion (f/k/a Real Truth About Obama, Inc.) v. FEC and U.S. Department of Justice (Appeals Court ruling)

On June 12, 2012, the United States Court of Appeals for the Fourth Circuit upheld Federal Election Commission legal definitions and policies regarding the disclosure of certain information by the nonprofit The Real Truth About Abortion (RTAA) – formerly known as The Real Truth About Obama, Inc.

RTAA asserted the Commission’s definition of “express advocacy” and approach to determining whether a group is a “political committee” under the Federal Election Campaign Act (Act) were vague, overbroad, and violated the First and Fifth Amendments to the Constitution. However, the court’s three-judge panel stated the Commission’s definition of express advocacy is consistent with relevant Supreme Court decisions, and the Commission’s political committee determinations represent “a sensible approach” that “does not unlawfully deter protected speech.”

Background

RTAA, a nonprofit “527” corporation, challenged the constitutionality of several regulations that it believed would require the group to register as a political committee and disclose its fundraising and spending practices for political advertisements.

RTAA argued that the Commission was overly broad and vague in its definition of “expressly advocating” in 11 CFR 100.22(b) as well as its approach to determining whether an organization qualifies as a “political committee” under the Act (“political committee status”). See 2 U.S.C. §431(4).

It also challenged the application of these regulations and the methodology as they apply to two RTAA radio ads mentioning then-Senator Barack Obama. During the 2008 presidential campaign, RTAA planned to disburse over $1,000 to air the two ads, which might have brought RTAA within the statutory definition of “political committee.”

Fourth Circuit Court of Appeals decision

Express advocacy. The court held that the Commission’s definition of “express advocacy” is consistent with the Supreme Court’s opinion in FEC v. Wisconsin Right to Life, Inc. In that opinion, the Justices held that a communication susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate is the "functional equivalent of express advocacy."

The Appeals Court determined that the Commission’s regulation, which requires that “reasonable minds [cannot] differ” about an advertisement’s message, was similar to the standard from Wisconsin Right to Life.

The court determined that the constitutionality of 11 CFR 100.22(b) was not called into question by the decision in Citizens United v. FEC. It further noted that the Commission’s regulation “does not restrain speech; it only implicates the requirement for disclosing specified information.”

Political committee status. The Act defines a "political committee" as any "committee, club, association, or other group of persons" that makes more than $1,000 in political expenditures or receives more than $1,000 in contributions during a calendar year. 2 U.S.C. § 431(4)(a). In Buckley v. Valeo, the Supreme Court limited the application of this definition to groups whose “major purpose” is the nomination or election of candidates.

Following Buckley, the Commission adopted a method of determining a group’s “major purpose” on a case-by-case basis, by examining, for example, a group’s political activities, such as spending on a particular electoral or issue-advocacy campaign, and the group’s public statements and documents.

The court ruled that the Commission’s methodology was “a sensible approach to determining whether an organization qualifies for PAC status.” The decision also states that the Commission’s approach is constitutional because its “multi-factor, major-purpose test is consistent with Supreme Court precedent and does not unlawfully deter protected speech.”

“We conclude that the Commission had good and legal reasons for taking the approach it did,” the court’s opinion states. “The determination of whether the election or defeat of federal candidates for office is the major purpose of an organization, and not simply a major purpose, is inherently a comparative task, and in most instances it will require weighing the importance of some of a group’s activities against others.”

U.S. District Court for Appeals for the Fourth Circuit: 11-1760.

Resources:

• The Real Truth About Abortion (f/k/a Real Truth About Obama, Inc.) v. FEC and U.S. Department of Justice  litigation page