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

On July 30, 2008, The Real Truth About Obama (RTAO/ the plaintiff), Inc., a nonprofit "527" corporation, filed a complaint in the U.S. District Court for the Eastern District of Virginia challenging the constitutionality of three provisions of FEC regulations and an FEC "enforcement policy."

The complaint alleges that certain provisions of Commission regulations are unconstitutionally overbroad, void for vagueness, contrary to law and in violation of the First and Fifth Amendments. The plaintiff further alleges that the provisions in question exceed the FEC's statutory authority and have a chilling effect on their speech. Regulations in question include those related to express advocacy, funds received in response to solicitations and the Commission's implementation of the Supreme Court's decision in Wisconsin Right to Life, along with the Commission's "enforcement policy" on political committee status. The suit was filed against the FEC and the United States Department of Justice, the entity charged with criminal enforcement of the federal laws at issue.

Background

RTAO is a nonstock, nonprofit corporation in Richmond, Virginia, registered with the IRS under 26 U.S.C. §527. RTAO is not a federally registered political committee and claims that it does not engage in express advocacy or make contributions to political candidates. According to RTAO, the organization's primary purpose is to educate voters and engage in get-out-the-vote drives, along with other activities that are consistent with Section 527 of the Internal Revenue Code.

RTAO intends to engage in certain activities in the current election cycle that it claims will educate the public about Senator Barack Obama's policy positions, including the creation of a web site, digital postcards and audio ads for radio broadcast and web site posting. The organization intends to fund its efforts by sending written communications to potential donors that describe the organization and upcoming projects. RTAO intends to raise more than $1,000 and to disburse more than $1,000 to broadcast audio ads and place them on the web site.

RTAO claims that it is chilled from proceeding with its intended activities because it believes that it will be deemed a political committee by the FEC and subject to FEC and DOJ investigations and possible enforcement actions that may result in civil and criminal penalties.

Complaint

The Federal Election Campaign Act (the Act) and Commission regulations define a "political committee" as any group or association that receives more than $1,000 in "contributions" or makes more than $1,000 in "expenditures" during a calendar year. Groups or associations that meet this definition must follow the Act's limitations, prohibitions and reporting requirements. 11 CFR 100.5.

Expressly Advocating. An "expenditure" includes, among other things, funds spent for a communication that "expressly advocates" the election or defeat of a clearly identified federal candidate. 11 CFR 100.22. A communication can be considered express advocacy either by use of certain explicit words of advocacy of election or defeat or by the only "reasonable interpretation test." 11 CFR 100.22. Under the reasonable interpretation test, a communication is considered to expressly advocate when, taken as a whole and with limited reference to external events, such as the proximity of the election, the communication can only be interpreted by a reasonable person as advocating the election or defeat of a candidate. 11 CFR 100.22(b). RTAO asks the court to find the "reasonable purpose test" for the definition of "express advocacy" unconstitutionally vague and overbroad and in excess of the FEC's statutory authority.

Donations to "Support" or "Oppose." "Contributions" include, among other things, funds received in response to a solicitation that indicates that any portion of the funds received will be used to support or oppose the election of a clearly identified federal candidate. 11 CFR 100.57(a). RTAO asks the court to find this provision unconstitutionally vague and overbroad under the First and Fifth Amendments because the organization claims that "'support' and 'oppose' are undefined, go beyond express advocacy and are unconstitutionally vague."

"Major Purpose Test." A group or association that crosses the $1,000 contribution or expenditure threshold will only be deemed a political committee if its "major purpose" is to engage in federal campaign activity. RTAO claims that the FEC set forth an enforcement policy regarding PAC status in a policy statement,(1) and that this enforcement policy is "based on an ad hoc, case-by-case, analysis of vague and impermissible factors applied to undefined facts derived through broad-ranging, intrusive, and burdensome investigations ... that, in themselves, can often shut down an organization, without adequate bright lines to protect issue advocacy in this core First Amendment area." RTAO asks the court to find this "enforcement policy" unconstitutionally vague and overbroad and in excess of the FEC's statutory authority.

Electioneering Communications. Under FEC regulations, a corporation or labor organization can make certain electioneering communications so long as the communication can be reasonably interpreted as something other than an appeal to vote for or against a clearly identified candidate. 11 CFR 114.15. This provision is part of the revised electioneering communications regulations that were promulgated to implement the Supreme Court's decision in FEC v. Wisconsin Right to Life, Inc. The Court found that WRTL's ads in question could reasonably be interpreted as something other than an appeal to vote for or against a specific federal candidate and, as such, did not constitute the functional equivalent of express advocacy. The Court noted that the ads' content lacked "indicia of express advocacy" because they made no mention of "an election, candidacy, political party, or challenger ... and [took no] position on a candidate's character, qualifications, or fitness for office." The Commission subsequently promulgated regulations that include a test to determine whether an ad can reasonably be interpreted as something other than an appeal to vote for or against a clearly identified candidate. 11 CFR 114.15. RTAO claims that this regulation exceeds any permissible construction of the Court's decision and is unconstitutionally vague and overbroad and in excess of the FEC's statutory authority.

Relief

The plaintiff seeks a declaration that the challenged regulations and "enforcement policy" are void and set aside. In addition, RTAO seeks a preliminary and permanent injunction enjoining the FEC and DOJ from enforcing these rules and "enforcement policy."