CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Plаintiff-Appellant, v. Mike MOORE, Attorney General, State of Mississippi; Eric Clark, Secretary of State, State of Mississippi, Defendants-Appellees.
No. 00-60779.
United States Court of Appeals, Fifth Circuit.
April 5, 2002.
288 F.3d 187
Tom Hunt Cole, Jr., Eugene C. Stone, Harold Edward Pizzetta, III (argued), Jackson, MS, for Defendants-Appellees.
Todd F. Lang, Phoenix, AZ, Edward B. Foley (argued), The Ohio State University College of Law, Columbus, OH, for all Amici Curiae parties.
Ken Salazar, Denver, CO, for State of Colorado, Amicus Curiae.
Richard Blunenthal, Hartford, CT, for State of Connеcticut, Amicus Curiae.
Robert A. Butterworth, Tallahassee, FL, for State of Florida, Amicus Curiae.
Earl I. Anazi, Honolulu, HI, for State of Hawaii, Amicus Curiae.
Thomas J. Miller, Des Moines, IA, for State of Iowa, Amicus Curiae.
R. Gray Sexton, Baton Rouge, LA, Richard Phillip Ieyoub, Shreveport, LA, for State of Louisiana, Amicus Curiae.
Jeremiah W. Nixon, Jefferson City, MO, for State of Missouri, Amicus Curiae.
Patricia A. Madrid, Santa Fe, NM, for State of New Mexico, Amicus Curiae.
Frankie Sue Del Papa, Carson City, NV, for State of Nevada, Amicus Curiae.
Roy Cooper, Raleigh, NC, for State of North Carolina, Amicus Curiae.
William H. Sorrell, Montpelier, VT, for State of Vermont, Amicus Curiae.
Christine O. Gregoire, Olympia, WA, for State of Washington, Amicus Curiae.
Darrell V. McGraw, Jr., Charleston, WV, for State of West Virginiа, Amicus Curiae.
Robert Sanchez-Ramos, San Juan, PR, for Commonwealth of Puerto Rico, Amicus Curiae.
W.A. Edmondson, Oklahoma City, OK, for State of Oklahoma, Amicus Curiae.
Andrew H. Baida, Sol. Gen., Baltimore, MD, for State of Maryland, Amicus Curiae.
E. GRADY JOLLY, Circuit Judge:
This appeal of a declaratory judgment by the Chamber of Commerce of the United States of America involves the First Amendment and state regulation of political advertisements aired shortly before the election for members of the Mississippi Supreme Court. During the 2000 election season, the Chamber ran four television commercials describing the background and qualifications of candidates seeking positions on the court. The defendant state officials initiated a review of the advertisements to determine whether they were subject to a Mississippi statute that requires the disclosure of “independent expenditures” that “expressly advocate” the election or defeat of a specific candidate. In response, the Chamber sought a declaratory judgment that its advertisements were not subject to the disclosure law. The district court, in a thoughtful and reasoned opinion, held that the advertisements were subject to state regulation because reasonable minds could not differ that the advertisements advocate the election of the specified candidates.
The Supreme Court has held that the First Amendment permits regulation of political advertisements, but only if they expressly advocate the election or defeat of a specific candidate. There is some disagreement, however, concerning the standard to be applied in determining whether a given advertisement contains “express advocacy.” Today we follow most Courts of Appeal that have considered the issue. We hold that a state may regulate a political advertisement only if the advertisement advocates in express terms the election or defeat of a candidate. Applying this rule to the present case, we conclude that the Chamber‘s advertisements do not expressly advocate the election or defeat of a cаndidate. This is true because the advertisements do not contain explicit terms advocating specific electoral action by viewers. As a consequence, the advertisements are not subject to mandatory disclosure requirements for independent campaign expenditures. Accordingly, we reverse the judgment of the district court.
I
In November 2000, four of the nine positions on the Mississippi Supreme Court were up for election. Less than one month before the election, the Chamber ran four thirty-second television advertisements, each extolling the virtues of a different candidate running for a position on the court. The advertisements featured three incumbents (former Chief Justice Lenore Prather, Justice Kay Cobb, and Justice James Smith) and one challenger (Judge Keith Starrett). The advertisements identified the candidate and described in general terms the candidate‘s judicial philosophy, background, qualifications, and other positive qualities. For example, the advertisements emphasized the candidates’ “common sense” and their interest in protecting “victims’ rights.”1
The election process for positions оn the Mississippi Supreme Court is governed by Mississippi‘s election laws, which include regulations requiring reporting and disclosure of “independent expenditures” on candidates’ campaigns. See
The district court adopted a test first articulated by the Ninth Circuit in Fed. Election Comm‘n v. Furgatch, 807 F.2d 857 (9th Cir. 1987). It held that the advertisements were “express advocacy” because, in the context of the ongoing election campaign, no reasonable viewer would construe the advertisements as anything but a directive to vote for the featured candidates—notwithstanding that the advertisements’ express words did not call for action on the part of the voter. The district court specifically found that the advertisements “clearly champion[ ] the election of a particular candidate” and “contain no true discussion of issues.” It thus held that the Chamber‘s advertisements could be subject to state campaign regulations without offending the First Amendment. The Chamber now appeals.
II
Because the Chamber‘s challenge to Mississippi‘s mandatory disclosure statute follows a well-worn path, we begin with a brief discussion of the applicable caselaw. Our review of the Supreme Court decisions in this area leads us to the conclusion that mandatory disclosure provisions like that in the Mississippi statute apply only to communications containing words that explicitly advocate the election or defeat of a particular candidate. Because the advertisements at issue here do not contain such express advocacy, we conclude that the First Amendment protects these advertisements from governmental regulation.
A
Although the states, like the federal government, have authority to regulate elections and election campaigns, the Supreme Court has held that the First Amendment constrains the government‘s power to compel the disclosure of independent contributions and expenditures, just as it constrains the government‘s power to regulate the amount of money that a person or group can contribute to or spend on
In Buckley, candidates and political donors challenged the constitutionality of a federal election statute that imposed limits on individual campaign contributions, expenditures by candidates, and independent expenditures “relative to” specific candidates. Most relevant to our decision today, the Court also reviewed a provision of the statute requiring “[e]very person (other than a political committee or candidate) who makes contributions or expenditures” aggregating over $100 in a calendar year “other than by contribution to a political committee or candidate” to file a statement with the [Federal Election] Commission. Buckley, 424 U.S. at 74-75 (quoting
To ensure that the mandatory disclosure provision in the federal statute did not encroach on protected political speech by individuals and groups, the Court held that the provision must be narrowly construed to be consistent with the First Amendment. Id. at 80. Accordingly, the Court interpreted the provision to “apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.”4 Id. at 44. In a footnote, the Court then provided examples of terms of express advocacy: “‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘votе against,’ ‘defeat,’ ‘reject.‘” Id. at 44 n.52.
In Fed. Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 243, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986) (”MCFL“), the Court applied the “express advocacy” standard to a newsletter that encouraged readers to “Vote Pro-Life” and listed the names of “pro-life” candidates in the election. Observing that the “express advocacy” standard is designed “to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons,” the Court held that the newsletter contained “[j]ust such an exhortation.” Id. The Court reasoned that an explicit directive to vote
In reviewing the application and constitutionality of various state and federal election regulations, most Courts of Appeal have adopted the view that, under Buckley and MCFL, the government may regulate only those communications containing explicit words advocating the election or defeat of a particular candidate.5 These courts rely primarily on Buckley‘s emphasis on (1) the need for a bright-line rule demarcating the government‘s authority to regulate speech and (2) the neеd to ensure that regulation does not impinge on protected issue advocacy.6
The sole departure from this bright-line approach among our sister circuits came in Fed. Election Comm‘n v. Furgatch, 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850, 108 S. Ct. 151, 98 L. Ed. 2d 106 (1987).7
We conclude that speech need not include any of the words listed in Buckley to be express advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate.
Id. at 864. The court further elaborated:
First, even if it is not presented in the clearest, most explicit language, speech is “express” for present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed “advocacy” if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally, it must be clear what action is advocated. Speech cannot be “express advocacy of the election or defeat of a clearly identified candidate” when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action.
Id.8 Although the Ninth Circuit‘s approach does not stray far from other articulations of the “express advocacy” standard, it does introduce two elements not present in the limited inquiry endorsed by the other circuits: (1) “limited reference” to the context of the communication and (2) reference to whether “reasonable minds” could differ about the meaning of the communication.
These aspects of the Ninth Circuit‘s approach in Furgatch were essentially rejected by courts that adopted the bright-line rule requiring explicit words directing viewers to vote for or against a particular candidate. For example, in Virginia Society for Human Life, Inc. v. Fed. Election Comm‘n, 263 F.3d 379, 392 (4th Cir. 2001), the Fourth Circuit found a federal regulation unconstitutionally overbroad because it defined express advocacy as a communication that, when taken as a whole, “could only be interpreted by a reasonаble person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).” The court held that “[t]he regulation goes too far because it shifts the determination of what is ‘express advocacy’ away from the words ‘in and of themselves’ to ‘the unpredictability of audience interpretation.‘” Id. at 392. The Eighth Circuit reached a similar conclusion when it found that an election regulation defining express advocacy according to “what reasonable people or reasonable minds would understand by the communication” was unconstitutional because the regulation “does not require express words of advocacy.” Iowa Right to Life, 187 F.3d at 969.
We agree that the Furgatch test is toо vague and reaches too broad an array of speech to be consistent with the First Amendment as interpreted in Buckley and MCFL.9 Instead, we iterate that the lan-
We must admit, as the Furgatch Court correctly observed, that this nаrrow interpretation of “express advocacy” undoubtedly allows individuals and organizations to circumvent electoral regulations simply by omitting from their communications the genre of words and phrases that convey the same meaning as the words listed in Buckley. This observation, however, does not affect our reading of Buckley. Indeed, the Buckley Court recognized, for example, that confining the federal limitation on expenditures in this manner “undermines the limitation‘s effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or office-holder.” Buckley, 424 U.S. at 45, 96 S. Ct. 612. The Court‘s overriding concern, however, was that a statute with an ambiguous scope would chill political discourse:
“[T]he supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.”
Id. at 43, 96 S. Ct. 612 (quoting Thomas v. Collins, 323 U.S. 516, 535, 65 S. Ct. 315, 89 L. Ed. 430 (1945)). To avoid this result, the Court emphasized the need for a clear line between regulated and unregulated speech under the statute. The Court adopted an “express advocacy” standard focusing on the explicit language of the communication because “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application.” Id. at 42, 96 S. Ct. 612.10
In sum, we believe that a narrow interpretation of “express advocacy” is faithful to the language and spirit of Buckley and MCFL. It clearly avoids the pitfalls of making application of the First Amendment dependent on the understanding of the reasonable person under the circumstances.11 Accordingly, we hold that a
B
We now turn to apply these principles to this case. The Mississippi election statute at issue here provides that each person who makes aggregate “independent expenditures” of more than $200 during a calendar year must file a report with the state disclosing the amount and source of the expenditure and a statement that the expenditure was not made in cooperation with a candidate. See
There is no question that the Chamber‘s advertisements do not contain any of the phrases that Buckley cites as examples of “express advocacy.” Nor do the advertisements contain other explicit words advocating the election of the featured candidates or exhorting viewers to take specific electoral action during the elеctions. Indeed, the advertisements do not refer at all to the impending elections.
Amici nevertheless argue that the Chamber‘s advertisements are express advocacy because their “express content, when considered as a whole, unambiguously constitutes an endorsement of a particular candidate for public office.” Observing that neither Buckley nor MCFL requires “succinct advocacy,” amici argue that the advertisements’ references to positive attributes of specific candidates are sufficient to bring the advertisements within the scope of the statute—despite the absence of explicit words directing viewers to take a specific action.12 The State and amiсi also point out that the advertisements presented only favorable information about the candidates. Because the “essential nature” of each advertisement is an endorsement of the named candidate, amici contend that the advertisements may be subjected to disclosure requirements without offending the First Amendment.
We think it is clear that the examples of express advocacy listed in the Buckley footnote are illustrative rather
The state emphasizes that the Chamber‘s advertisements aired on the eve of the elections for the supreme court and were virtually identical to the candidates’ own advertisements—except that they omitted the phrase “vote for [the featured candidate],” which appeared at the end of the candidates’ advertisements. The state contends that these facts, viewed together with the content of the Chamber‘s advertisements, supports its position that the advertisements constitute express advocacy. Indeed, amici argue that the advertisements “make no sense except in the context of an election campaign.” We do not necessarily gainsay this observation.
As the above discussion makes clear, however, these contextual factors are irrelevant to our determination whether the advertisements contain express advocacy. The Court in MCFL did not rely on the factual context in which the communication was made in determining whether it contained express advocacy.14 Instead, it held that courts reviewing a communication may consider the logical relationship between an express term advocating specific electoral action and the names of candidates clearly identified in the communication. We therefore do not believe that MCFL retreatеd from the requirement that express advocacy must contain explicit words advocating electoral action. See MCFL, 479 U.S. at 249, 107 S. Ct. 616 (noting that Buckley concluded that “a finding of ‘express advocacy’ depended upon the use of language such as ‘vote for,’ ‘elect,’ ‘support,’ etc.“). In any event, even under the test articulated in Furgatch, the timing of the advertisements (or other contextual factors) cannot transform general informational statements about candidates into a call for specific electoral action. See Furgatch, 807 F.2d at 864 (“[S]peech may only be termed ‘advocacy’ if it presents a clear plea for action, and thus speech that
Amici also suggest that statements in the advertisements like “Lenore Prather—A fair and independent voice for Mississippi” are only “marginally less direct” than “Smith for Congress,” which is listed among the examples of express advocacy in Buckley. Because neither phrase includes a verb like “vote” or “elect,” amici reason that both phrases depend on their context to convey meaning. We find this argument unpersuasive because the two phrases are not synonymous: The first connects a name to a positive character trait while the second connects a name to an elected office. As we noted above, favorable statements about a candidate do not constitute express advocacy, even if the statements amount to an endorsement of the candidate.15 Even assuming that the phrases were roughly equivalent, “Smith for Congress” has an accepted meaning that does not vary with context. In contrast, the meaning of the phrases in the advertisements could conceivably mean “vote for Candidate X” only when considered in the context of an event extraneous to the four corners of the advertisement. Because such contextual factors are irrelevant to our inquiry, the meaning of phrases such as “Judge Keith Starrett—a common sense justice” is at best ambiguous—unless matters outside the advertisement are taken into account—and cannot constitute express advocacy.
Finally, the State suggests that, even if the content of the advertisements does not expressly advocate the election of the featured candidates, the web site referenced in the commercials (www.LitigationFairness.org) did so because it included a page directing viewers to two of the candidates’ campaign web sites under the heading “Mississippi Candidate Information.” The State argues that we must consider this form of indirect advocacy in determining whether the advertisements themselves are express advocacy. However, the LitigationFаirness.org site did not itself contain any statements advocating the election or defeat of candidates. As a result, we find that the connection between the advertisements and the candidates’ official sites is simply too tenuous to make the advertisements “express advocacy.”
Because the Chamber‘s advertisements do not contain explicit words exhorting viewers to take specific electoral action for or against the featured candidates, we hold that the advertisements do not constitute “express advocacy” under the bright line approach adopted above.16 As a consequence, the district erred in holding that the advertisements are subject to mandatory disclosure under the Mississippi election statute.
III
We recognize that the result we reach in this case may be counterintuitive to a com-
REVERSED and REMANDED for entry of judgment.
E. GRADY JOLLY
UNITED STATES CIRCUIT JUDGE
Notes
Lenore Prather—Chief Justice of Mississippi‘s Supreme Court.
Lenore Prather—Using common sense principles to uphold the law.
Lenore Prather. A fair and independent voice for Mississippi.
Lenore Prather—Putting victims rights ahead of criminals and protecting our Supreme Court from the influence of special interests.
The first woman appointed to Mississippi‘s Supreme Court, Lenore Prather has 35 years experience on the bench.