THE REAL TRUTH ABOUT ABORTION, INC., f/k/a The Real Truth About Obama, Inc., Plaintiff-Appellant, v. FEDERAL ELECTION COMMISSION; United States Department of Justice, Defendants-Appellees.
No. 11-1760
United States Court of Appeals, Fourth Circuit
Decided: June 12, 2012
Argued: March 21, 2012. Democracy 21; The Campaign Legal Center, Amici Supporting Appellees.
MOTION GRANTED
ARGUED: James Bopp, Jr., The Bopp Law Firm, Terre Haute, Indiana, for Appellant. Adav Noti, Federal Election Commission, Washington, D.C., for Appellees. ON BRIEF: Michael Boos, Law Office of Michael Boos, Fairfax, Virginia; Richard E. Coleson, Kaylan L. Phillips, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellant. Anthony Herman, General Counsel, David Kolker, Associate
Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge GREGORY and Judge FLOYD joined.
OPINION
NIEMEYER, Circuit Judge:
The Real Truth About Abortion, Inc. (formerly known as The Real Truth About Obama, Inc.), a Virginia non-profit corporation organized under
On cross-motions for summary judgment, the district court found both the regulation and the policy constitutional. And, applying the “exacting scrutiny” standard applicable to disclosure provisions, we affirm.
I
Real Truth was organized on July 24, 2008, as an “issue-adversary ‘527’ organization” under
Within a few days of its incorporation, Real Truth commenced this action challenging three of the Commission‘s regulations implementing the Federal Election Campaign Act (“FECA“)—
Real Truth‘s as-applied challenge was mounted in the context of two radio advertisements it intended to air concerning then-candidate Obama‘s positions on abortion. The first ad, entitled “Change,” states:
(Woman‘s voice): Just what is the real truth about Democrat Barack Obama‘s position on abortion?
(Actor‘s voice mimicking Obama‘s voice) Change. Here is how I would change America ... about abortion:
- Make taxpayers pay for all 1.2 million abortions performed in America each year
- Make sure that minor girls’ abortions are kept secret from their parents
- Make partial-birth abortion legal
- Give Planned Parenthood lots more money to support abortion
- Change current federal and state laws so that babies who survive abortions will die soon after they are born
- Appoint more liberal Justices on the U.S. Supreme Court
One thing I would not change about America is abortion on demand, for any reason, at any time during pregnancy, as many times as a woman wants one.
(Woman‘s voice). Now you know the real truth about Obama‘s position on abortion. Is this the change you can believe in?
The second ad, entitled “Survivor,” reads:
(Nurse) The abortion was supposed to kill him, but he was born alive. I couldn‘t bear to follow hospital policy and leave him on a cold counter to die, so I held and rocked him for 45 minutes until he took his last breath.
(Male voice) As an Illinois Democrat State Senator, Barack Obama voted three times to deny lifesaving medical treatment to living, breathing babies who survive abortions. For four years, Obama has tried to cover-up his horrendous votes by saying the bills didn‘t have clarifying language he favored. Obama has been lying. Illinois documents from the very committee Obama chaired show he voted against the bill that did contain the clarifying language he says he favors. Obama‘s callousness in denying lifesaving treatment to tiny babies who survive abortions reveals a lack of character and compassion that should give everyone pause.
Real Truth alleged that it planned to spend over $1,000 to air these advertisements during the 60-day period immediately before the 2008 general election and that some of this money would be raised through the circulation of a fundraising letter soliciting contributions to “get the word out” regarding then-Senator Obama‘s views on abortion. In its complaint, it expressed the fear that these expenditures might be construed as “independent expenditures” under
Real Truth sought a preliminary injunction enjoining enforcement of the challenged regulations and policy against its “intended activities” and against others similarly situated, and the district court denied Real Truth‘s motion. On appeal, we affirmed the district court‘s denial of the injunction, applying the preliminary injunction standard announced in Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and holding that Real Truth had not carried its burden of showing a likelihood of success, as well as showing the other requirements for a preliminary injunction. Real Truth About Obama v. Fed. Election Comm‘n, 575 F.3d 342, 351-52 (4th Cir.2009). Real Truth filed a petition for a writ of certiorari in the Supreme Court.
While Real Truth‘s petition for a writ of certiorari was pending, the Supreme Court decided Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), striking down, on First Amendment grounds, a provision of the Bipartisan Campaign Reform Act (“BCRA“) banning corporations and labor unions from using their general treasury funds for electioneering communications. Based on its decision, the Court granted Real Truth‘s petition for certiorari, vacated this court‘s judgment, and remanded the case for further consideration. Real Truth About Obama, Inc. v. Fed. Election Comm‘n, 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010).
Also in the interim, the D.C. Circuit decided EMILY‘s List v. Federal Election Commission, 581 F.3d 1 (D.C.Cir.2009), which struck down certain aspects of
On remand from the Supreme Court, we reissued the portions of our original decision “stating the facts and articulating the standard for the issuance of preliminary injunctions” and remanded the remaining issues to the district court for reconsideration in light of the Supreme Court‘s decision in Citizens United. Real Truth About Obama, Inc. v. Fed. Election Comm‘n, 607 F.3d 355 (4th Cir.2010) (per curiam).
On remand, the parties agreed that Real Truth‘s challenges to
From the district court‘s judgment, dated June 16, 2011, Real Truth filed this appeal.
II
At the outset, we address Real Truth‘s contention that, in reviewing the Commission‘s regulation and policy, we should apply the strict scrutiny standard. Real Truth argues that the regulation and policy place onerous burdens on speech similar to the burdens to which the Supreme Court applied strict scrutiny in Citizens United, 130 S.Ct. at 898 (finding that
The Commission contends instead that because the challenged regulation and policy only implicate disclosure requirements and do not restrict either campaign activities or speech, we should apply the less stringent “exacting scrutiny” standard. Under this standard, the government must demonstrate only a “substantial relation” between the disclosure requirement and “sufficiently important government interest.”1 Citizens United, 130 S.Ct. at 914 (internal quotation marks omitted).
Regulation 100.22(b), which Real Truth challenges as too broad and vague, implements the statutory definition of “independent expenditure,”
Such disclosure and organizational requirements, however, are not as burdensome on speech as are limits imposed on campaign activities or limits imposed on contributions to and expenditures by cam-
Real Truth‘s reliance on the Court‘s application of strict scrutiny in Citizens United is misplaced. In its brief, Real Truth repeatedly notes the Citizens United majority‘s reference to “onerous” burdens on PAC speech, which would ordinarily be subject to strict scrutiny. While it is true that the Court used the word “onerous” in describing certain PAC-style obligations and restrictions, it did so in a context significantly different from the one facing Real Truth. The regulation invalidated in Citizens United,
Disclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities and do not prevent anyone from speaking. The Court has subjected these requirements to exacting scrutiny, which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.
Citizens United, 130 S.Ct. at 914 (internal quotation marks and citations omitted).
In sum, we conclude that even after Citizens United, it remains the law that provisions imposing disclosure obligations are reviewed under the intermediate scrutiny level of “exacting scrutiny.” See Doe v. Reed, 561 U.S. 186, 130 S.Ct. 2811, 2818, 177 L.Ed.2d 493 (2010) (applying exacting scrutiny to disclosure law relating to ballot referenda); SpeechNow.org, 599 F.3d at 696 (applying exacting scrutiny to PAC disclosure obligations under FECA); Nat‘l Org. for Marriage v. McKee, 649 F.3d 34, 55-57 (1st Cir.2011) (applying exacting scrutiny to PAC disclosure obligations under state law). We will accordingly review the Commission‘s regulation
III
Turning to the challenge of
Regulation 100.22 defines “expressly advocating” as the term is used in
Expressly advocating means any communication that—
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(b) When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because—
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
(2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.
A
Real Truth first challenges
Later, in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007), the Chief Justice‘s controlling opinion further elaborated on the meaning of McConnell‘s “functional equivalent” test. The Chief Justice held that where an “ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” it could be regulated in the same manner as express advocacy. Wisconsin Right to Life, 551 U.S. at 470. The Chief Justice explicitly rejected the argument, raised by Justice Scalia‘s concurring opinion, that the only permissible test for express advocacy is a magic words test:
Justice Scalia concludes that “[i]f a permissible test short of the magic-words test existed, Buckley would surely have adopted it.” We are not so sure. The question in Buckley was how a particular statutory provision could be construed to avoid vagueness concerns, not what the constitutional standard for clarity was in the abstract, divorced from specific statutory language. Buckley‘s intermediate step of statutory construction on the way to its constitutional holding does not dictate a constitutional test. The Buckley Court‘s “express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law.”
Id. at 474 n. 7 (internal quotation marks and citations omitted).
Contrary to Real Truth‘s assertions, Citizens United also supports the Commission‘s use of a functional equivalent test in defining “expressly advocating.” In the course of striking down FECA‘s spending prohibitions on certain corporate election expenditures, the Citizens United majority first considered whether those regulations applied to the communications at issue in the case. 130 S.Ct. at 888-96. Using Wisconsin Right to Life‘s “functional equivalent” test, the Court concluded that one advertisement—Hillary: The Movie—qualified as the functional equivalent of express advocacy because it was “in essence ... a feature-length negative advertisement that urges viewers to vote against Senator [Hillary] Clinton for President.” Citizens United, 130 S.Ct. at 890. But more importantly for our decision, the Court also upheld BCRA‘s disclosure requirements for all electioneering communications—including those that are not the functional equivalent of express advocacy. Id. at 914-16 (“We reject Citizens United‘s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy“).3 In this portion of the opinion, joined by eight Justices, the Court explained that because disclosure “is a less restrictive alternative to more comprehensive regulations of speech,” mandatory disclosure requirements are constitutionally permissible even if ads contain no direct candidate
B
In addition to its overbreadth argument, Real Truth argues that even if express advocacy is not limited to communications using Buckley‘s magic words,
Both standards are also restrictive, in that they limit the application of the disclosure requirements solely to those communications that, in the estimation of any reasonable person, would constitute advocacy. Although it is true that the language of
Real Truth relies heavily on our decision in North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir.2008), where we held North Carolina‘s campaign finance statute unconstitutional, to argue that
Second, the North Carolina provision in Leake regulated all electoral speech, including, potentially, issue advocacy. To resolve whether such communications could constitutionally be regulated, we articulated two requirements. First, because the regulation covered electoral speech broadly defined, we applied the requirement in Wisconsin Right to Life, 551 U.S. at 474 n. 7, that it fulfill the statutory definition of “electioneering communication” in
Finally, our opinion in Leake emphasized the importance of BCRA‘s electioneering communication definition in minimizing the potential vagueness of campaign finance regulations. Leake, 525 F.3d at 282. Importantly, however, the North Carolina statute at issue in Leake imposed a variety of restrictions on campaign speech, including limits on acceptable contributions and expenditures. Again in contrast, following Citizens United,
C
Real Truth advances several other reasons why it believes
First, Real Truth argues that the regulation applies a balancing test similar to one in
Second, Real Truth asserts that because
Third, Real Truth suggests that the entirety of
Fourth and finally, Real Truth argues that
At bottom, we conclude that
IV
Finally, Real Truth contends that the Commission‘s policy for applying the “major purpose” test in determining whether an organization is a PAC is unconstitutional because it “weigh[s] various vague and overbroad factors with undisclosed weight.” It maintains that the only permissible methods of analyzing PAC status are (1) examining an organization‘s expenditures to see if campaign-related speech amounts to 50% of all expenditures; or (2) reviewing “the organization‘s central purpose revealed by its organic documents.”4
The FECA defines a “political committee” or PAC, as we have called it, 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.
In Buckley, the Supreme Court concluded that defining PACs “only in terms of amounts of annual ‘contributions’ and ‘expenditures‘” might produce vagueness issues. Accordingly, the Court limited the applicability of FECA‘s PAC requirements to organizations controlled by a candidate or whose “major purpose” is the nomination or election of candidates. Buckley, 424 U.S. at 79. An organization that is not controlled by a candidate must therefore register as a PAC if its contributions or expenditures exceed $1,000 and its “major purpose” is the nomination or election of a federal candidate.
Following Buckley, the Commission adopted a policy of determining PAC status on a case-by-case basis. See Political Committee Status,
When the Commission‘s decision not to adopt a statutory definition of a PAC was challenged in court, the court rejected the plaintiffs’ request to require the Commission to commence a new rulemaking. It found, however, that the Commission had “failed to present a reasoned explanation for its decision” to regulate § 527 organizations through case-by-case adjudication rather than a rulemaking. See Shays v. Fed. Election Comm‘n, 424 F.Supp.2d 100, 117 (D.D.C.2006) (“Shays I“). Therefore, it remanded the case to the Commission “to explain its decision or institute a new rulemaking.” Id. at 116-17.
The Commission responded in February 2007 by publishing in the Federal Register a “Supplemental Explanation and Justification,” as part of the 2007 Notice, where it gave notice of its decision not to promulgate a new definition of “political committee” and discussed the reasons it would not do so but instead would continue to apply a case-by-case approach.
Although Buckley did create the major purpose test, it did not mandate a particular methodology for determining an organization‘s major purpose. And thus the Commission was free to administer FECA political committee regulations either through categorical rules or through individualized adjudications. See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“[T]he choice made between proceeding by general rule or by individual ... litigation is one that lies primarily in the informed discretion of the administrative agency“).
We conclude that the Commission had good and legal reasons for taking the approach it did. 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. As the district court noted in upholding the case-by-case approach in Shays v. Federal Election Commission, 511 F.Supp.2d 19 (D.D.C.2007) (“Shays II“),
an organization ... may engage in many non-electoral activities so that determining its major purpose requires a very close examination of various activities and statements. Or an organization may be engaging in substantial amounts of both federal and non-federal electoral
activity, again requiring a detailed analysis of its various activities.
The necessity of a contextual inquiry is supported by judicial decisions applying the major purpose test, which have used the same fact-intensive analysis that the Commission has adopted. See, e.g., Fed. Election Comm‘n v. Malenick, 310 F.Supp.2d 230, 234-37 (D.D.C.2004), rev‘d in part, No. Civ. A. 02-1237(JR), 2005 WL 588222 (D.D.C. Mar. 7, 2005); Fed. Election Comm‘n v. GOPAC, Inc., 917 F.Supp. 851, 859, 864-66 (D.D.C.1996); see also Shays II, 511 F.Supp.2d at 29-31 (holding that the Commission‘s choice to regulate § 527 groups by determining whether they qualified as political action committees on a case-by-case basis was neither arbitrary nor capricious).
Real Truth‘s argument that the major purpose test requires a bright-line, two-factor test relies heavily on Massachusetts Citizens for Life, 479 U.S. at 263, and Leake, 525 F.3d at 289. But neither of these cases can bear the weight Real Truth ascribes to it. In Massachusetts Citizens for Life, the Court suggested in dicta (inasmuch as Massachusetts Citizens for Life was not a PAC) that an organization‘s independent spending could “become so extensive that the organization‘s major purpose may be regarded as campaign activity.” 479 U.S. at 262. This statement indicates that the amount of independent spending is a relevant factor in determining PAC status, but it does not imply that the Commission may only consider spending. Indeed, the Court in Massachusetts Citizens for Life implicitly endorsed the Commission‘s approach when it examined the entire record to conclude that the plaintiff did not satisfy the “major purpose” test.
And Real Truth‘s reliance on Leake is similarly misplaced. In Leake, we described the major purpose test as follows:
Basically, if an organization explicitly states, in its bylaws or elsewhere, that influencing elections is its primary objective, or if the organization spends the majority of its money on supporting or opposing candidates, that organization is under “fair warning” that it may fall within the ambit of Buckley‘s test.
525 F.3d at 289. Like the dicta in Massachusetts Citizens for Life, this statement suggests that expenditure ratios and organizational documents are important considerations when determining whether an organization qualifies as a PAC. The case does not, however, make consideration of any other factors improper. In fact, we specifically declined to determine whether the very same bright-line, two-factor test urged by Real Truth was the only permissible manner in which to apply Buckley‘s major purpose requirement. Id. at 289 n. 6.
Thus, although cases since Buckley have indicated that certain facts may be particularly relevant when assessing an organization‘s major purpose, those decisions do not foreclose the Commission from using a more comprehensive methodology.
Despite Real Truth‘s protestations, we see little risk that the Commission‘s existing major purpose test will chill political expression.5 In the First Amendment context, a statute may be found overbroad if a “substantial number of [the statute‘s] applications are unconstitutional, judged in
We should note that the class of speakers who would be subject to FECA‘S PAC regulations would be significantly smaller than the totality of groups that speak on political subjects. In most cases the Commission would only begin to consider a group‘s “major purpose” after confirming that the group had either made $1,000 in expenditures or received more than $1,000 in contributions. See
And even if an organization were to find itself subject to a major-purpose investigation, that investigation would not necessarily be an intrusive one. Much of the information the Commission would consider would already be available in that organization‘s government filings or public statements. If additional information were required, the Commission‘s Federal Register notices, advisory opinions, and other policy documents would provide the organization with ample guidance as to the criteria the Commission might consider. In this respect, the Commission‘s test is again distinguishable from the test we struck down in Leake, which “provide[d] absolutely no direction as to how North Carolina determines an organization‘s ‘major purpose‘” and was implemented using “unannounced criteria.” 525 F.3d at 289-90.
At bottom, we conclude that the Commission, in its policy, adopted a sensible approach to determining whether an organization qualifies for PAC status. And more importantly the Commission‘s multifactor major-purpose test is consistent with Supreme Court precedent and does not unlawfully deter protected speech. Accordingly, we find the policy constitutional.
AFFIRMED