The Real Truth About Obama, Inc. v. FEC and U.S. Department of Justice (District court)

On June 16, 2011, the U.S. District Court for the Eastern District of Virginia granted summary judgment in favor of the Commission and denied The Real Truth About Obama’s (RTAO’s) motions for preliminary injunction and summary judgment in this case. RTAO challenges the constitutionality of the Commission regulation defining “express advocacy” at 11 CFR 100.22(b) and the Commission’s approach to determining when an organization becomes a “political committee” under the Federal Election Campaign Act (Act).

Background

On July 30, 2008, RTAO sued the Commission and the U.S. Department of Justice, challenging the constitutionality of several FEC regulations, including 11 CFR 100.22(b), as well as the FEC’s approach to determining whether an organization qualifies as a “political committee” under the Act (“political committee status”). See 2 U.S.C. §431(4). Along with raising facial challenges to the regulations and political committee status methodology, RTAO challenged the application of the regulations and the methodology to two RTAO radio ads mentioning then-Senator Barack Obama. During the 2008 presidential campaign, RTAO planned to disburse over $1,000 to air the two ads, which might have brought RTAO within the statutory definition of “political committee.” 

RTAO argued that the Commission’s regulation at 11 CFR 100.22(b), which provides a definition of “expressly advocacating,” was overbroad and vague. RTAO also argued that the Commission’s approach to determining political committee status on a case-by-case basis was overbroad and vague. In  Buckley v. Valeo, 424 U.S. 1, 79 (1976), the Supreme Court limited the application of the Act’s political committee provisions to organizations “under the control of a candidate” or “the major purpose of which is the nomination or election of a candidate.” The Commission’s current approach to determining political committee status considers several factors, such as the organization’s level of spending on federal campaigns, public statements and fundraising appeals when determining whether an organization’s “major purpose” is the election or defeat of federal candidates.

The District Court denied RTAO’s motions for preliminary injunctions and issued an opinion on September 24, 2008, and the Fourth Circuit Court of Appeals affirmed that decision. RTAO filed a petition for a writ of certiorari with the Supreme Court in December 2009. In January 2010, the Supreme Court held unconstitutional the Act’s restrictions on corporate financing of independent expenditures and electioneering communications in Citizens United v. FEC, 130 S. Ct. 876 (2010). On April 26, 2010, the Supreme Court vacated the Fourth Circuit’s judgment in this case and remanded the case for further consideration in light of the decision in Citizens United and the Solicitor General’s suggestion of mootness.

Upon remand, RTAO moved for a preliminary injunction and for summary judgment in its challenges to 11 CFR 100.22(b) and the Commission’s approach to determining political committee status. The Commission and the Department of Justice opposed RTAO’s motions and moved for summary judgment. 

District court decision

Express advocacy. The court held that the Commission’s regulationat 11 CFR 100.22(b) defining express advocacy is consistent with the Supreme Court’s opinion in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). In that opinion, the Supreme Court had upheld the constitutionality of the Act’s financing restrictions on electioneering communications as applied to communications that are the ”functional equivalent of express advocacy,” which the Court defined as communications that are subject to “no reasonable interpretation” other than as an appeal to vote for or against a candidate. The district court determined that the regulation at 11 CFR 100.22(b), which requires that “reasonable minds [cannot] differ” about an advertisement’s message, was similar to the standard from Wisconsin Right to Life. The district court further determined that the interpretation of 100.22(b) was not altered by the decision in Citizens United, and that had the Commission deemed both RTAO ads to be express advocacy under 100.22(b), that application would not have been unconstitutional.

Political committee status. The court denied RTAO’s challenge to the Commission’s approach to determining political committee status. The court stated that the Commission undertakes a “fact-intensive, case-by-case adjudication to determine whether a group’s major purpose” is the election or defeat of federal candidates, including examining whether the group spends money extensively on campaign activities such as canvassing or phone banks. The court noted that the Commission also examines the organization’s public statements, fundraising appeals and personal meetings.

The court agreed with the Commission that determining an organization’s “major purpose” is an “inherently comparative task and requires consideration of the full range of an organization’s activities.” Furthermore, the court held that RTAO had not shown that the Commission’s approach had harmed RTAO’s ability to speak, nor had Citizens United altered the constitutionality of the Commission’s approach to political committee status. The district court accordingly granted summary judgment in favor of the Commission and the Department of Justice and rejected RTAO’s challenges to both 11 CFR 100.22(b) and the Commission’s approach to determining political committee status.

U.S. District Court for the Eastern District of Virginia: 3:08-cv-00483-JRS.