VIRGINIA SOCIETY FOR HUMAN LIFE, INCORPORATED, Plaintiff-Appellee, v. FEDERAL ELECTION COMMISSION, Defendant-Appellant. Virginia Society for Human Life, Incorporated, Plaintiff-Appellant, v. Federal Election Commission, Defendant-Appellee.
Nos. 00-1252, 00-1332
United States Court of Appeals, Fourth Circuit
Argued Feb. 26, 2001. Decided Sept. 17, 2001.
263 F.3d 379
Before WILLIAMS and MICHAEL, Circuit Judges, and CYNTHIA H. HALL, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
OPINION
MICHAEL, Circuit Judge:
The Virginia Society for Human Life, Inc. (VSHL) sued the Federal Election Commission (FEC), seeking a declaration that
I.
VSHL is a Virginia-based nonprofit corporation established “to promote the pro-life cause.” VSHL spends money from its treasury for communications to the public that promote its views. As the 2000 federal elections were approaching, VSHL was interested in spending money on communications it regarded as “issue advocacy.” In particular, VSHL planned to distribute “voter guides,” which would indicate federal candidates’ positions and VSHL‘s own position on particular abortion-related issues. VSHL also planned to produce radio advertisements that would air one week before the election. These ads would compare the records and positions of the candidates for President and U.S. Senator for Virginia on issues relating to abortion. VSHL wanted to target Virginia residents in the northern Virginia metropolitan area. In order to reach this audience, VSHL intended to place the ads on at least one radio station whose broadcast
On January 6, 1999, VSHL submitted a petition for rulemaking to the FEC, requesting that it repeal
On August 9, 1999, VSHL sued the FEC in federal court in eastern Virginia seeking declaratory and injunctive relief. VSHL sought a declaration that the FEC‘s failure to act on VSHL‘s petition was contrary to law and that
II.
The issues in this appeal are better understood with a review of the case law
The Buckley Court limited
Congress amended FECA in 1976. See
The Ninth Circuit in Furgatch developed a standard for defining “express advocacy” under FECA:
[S]peech 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. This standard can be broken into three main components. 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. at 864. Applying this standard, the Ninth Circuit concluded that Furgatch‘s ads constituted express advocacy of the defeat of President Carter. See id. at 864-65.
Drawing on Buckley, MCFL, and Furgatch, the FEC in 1995 adopted a new regulation, revising its definition of “express advocacy.” See Express Advocacy; Independent Expenditures; Corporate and Labor Organization Expenditures, 60 Fed.Reg. 35292, 35294 (July 6, 1995). The new definition, found at
Expressly advocating means any communication that—(a) Uses phrases such as “vote for the President,” “re-elect your Congressman,” “support the Democratic nominee,” “cast your ballot for the Republican challenger for U.S. Senate in Georgia,” “Smith for Congress,” “Bill McKay in ‘94,” “vote Pro-Life” or “vote Pro-Choice” accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-Choice, “vote against Old Hickory,” “defeat” accompanied by a picture of one or more candidate(s), “reject the incumbent,” or communica-
tions of campaign slogan(s) or individual word(s), which in context can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc. which say “Nixon‘s the One,” “Carter ‘76,” “Reagan/Bush” or “Mondale!“; or
(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.
The regulation went into effect on October 5, 1995. See Final rules; Announcement of Effective Date, 60 Fed.Reg. 52069 (Oct. 5, 1995). Soon after, pro-life groups began to challenge the constitutionality of subpart (b). The first case was Me. Right to Life Comm., Inc. v. FEC, 914 F.Supp. 8 (D.Me.) (MRLC), aff‘d per curiam, 98 F.3d 1 (1st Cir. 1996) (affirming “for substantially the reasons set forth” by the district court). The First Circuit held that
The next challenge to subpart (b) of the regulation came in Right to Life of Dutchess County, Inc. v. FEC, 6 F.Supp.2d 248 (S.D.N.Y. 1998) (RLDC). There, the court held that by omitting any requirement that the communications include express words of advocacy,
We are now the third court to be presented directly with the question of whether
III.
Before considering the merits of the case, we must decide whether we are presented with a justiciable controversy. The FEC argues that VSHL has no standing to
A.
The FEC‘s first justiciability argument is that VSHL lacks standing to sue. To establish standing, a plaintiff must show three things: (1) an injury in fact, (2) a causal connection between the plaintiff‘s injury and the defendant‘s conduct, and (3) a likelihood that the injury will be redressed by a decision favorable to the plaintiff. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal quotation marks and citations omitted). When a party, like VSHL in this case, brings a preenforcement challenge to a statute or regulation, it must allege “an intention to engage in a course of conduct arguably affected with a constitutional interest,” and there must exist “a credible threat of prosecution” under the statute or regulation. Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979). The fear of prosecution cannot be imaginary or wholly speculative. See id. at 298, 302.
The FEC argues that VSHL faces no credible threat of prosecution because the FEC has adopted a policy of not enforcing
We begin with our CAN II decision, which the FEC says forecloses it from enforcing the regulation in the Fourth Circuit. But CAN II did not strike down
CAN then filed an application with us for the fees and costs it incurred in defending the FEC‘s prosecution and appeal of the case. CAN applied under
Our decision in CAN II aside, the FEC argues that its policy statement removes any threat of prosecution. VSHL, in turn, relies on N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) (NCRL), to argue that the FEC‘s policy statement is not entitled to any weight. In NCRL a nonprofit corporation that advocates the pro-life position challenged the constitutionality of various provisions of North Carolina law relating to elections and campaign finance. One of these provisions required political committees to register and file regular reports with the state and to maintain detailed accounts of contributions and expenditures. See id. at 709 (citing
We rejected North Carolina‘s argument. We first noted that when a statute on its face restricts a party from engaging in expressive activity, there is a presumption of a credible threat of prosecution. See id. “This presumption is particularly appropriate when the presence of a statute tends to chill the exercise of First Amendment rights.” Id. We then pointed out that the North Carolina statute facially restricts NCRL‘s present and future expressive activities. In dealing with North Carolina‘s argument that there was no threat of prosecution, we said:
The State‘s litigation position—that it does not interpret section 163-278.6(14) to encompass issue advocacy—fails to alter our analysis in this case. The record does not indicate that the Board has promulgated a rule exempting from its definition of political committee those entities that engage in issue advocacy only. Nor does the record indicate that the local district attorneys have any intention of refraining from prosecuting those who appear to violate the plain language of the statute.
NCRL is left, therefore, with nothing more than the State‘s promise that NCRL‘s officers will face no criminal penalties if NCRL distributes its voter guide without registering as a political committee. NCRL‘s First Amendment rights would exist only at the sufferance of the State Board of Elections. It has no guarantee that the Board might not tomorrow bring its interpretation more in line with the provision‘s plain language. Without such a guarantee, NCRL will suffer from the reasonable fear that it can and will be prosecuted for failing to register and file the necessary disclosures, and its constitutionally protected speech will be chilled as a result.
Id. at 710-11 (citations omitted). Because the statute‘s plain language prohibited NCRL‘s activities, North Carolina‘s nonbinding assurances that NCRL would not be prosecuted did not overcome the presumption of a credible fear of prosecution.
The FEC‘s policy of nonenforcement, adopted by the FEC in a closed meeting, is somewhat more formal than the promise made during litigation by the State in NCRL. On the other hand, the FEC‘s policy is not contained in a final rule that underwent the rigors of notice and comment rulemaking. Cf. Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C.Cir. 1995) (“The rule constitutes the purported legal norm that binds the class regulated by statute.“). Instead, the policy is recorded in FEC minutes that do not carry the binding force of law. The Commissioners who adopted the policy might be replaced with ones who disagree with it, or some of the Commissioners who voted might change their minds. A simple vote of the Commission, in other words, could scuttle the policy. See id. (“Nothing . . . prevents the Commission from enforcing its rule at any time with, perhaps, another change of mind of one of the Commissioners.“). But see Salvation Army v. Dep‘t of Cmty. Affairs, 919 F.2d 183, 191-94 (3d Cir. 1990) (booklet granting exemptions to certain statutory provisions was enough to make controversy nonjusticiable).
In any event, we do not have to decide whether the FEC‘s policy is so easy to change that the regulation‘s continuing presence chills constitutionally protected speech, making it reasonable for VSHL to refrain from engaging in its planned com-
Finally, the FEC maintains that VSHL‘s allegations are too speculative to confer standing. To establish standing for a preenforcement challenge to a regulation, it is enough to “allege[ ] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a [regulation].” Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979). VSHL has alleged an intention to engage in constitutionally protected activities that would fall within the reach of the regulation. It would engage in some of these activities outside of the Fourth Circuit, where its fear of prosecution is even more reasonable than within the Fourth Circuit. The allegations of future intentions cannot be speculative or imaginary, of course, see id., and the injury must be imminent, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). At the time that VSHL filed suit, the 2000 election was only fifteen months away. VSHL‘s injury—its fear of prosecution—was not only imminent but immediate because it needed to plan the substance and placement of its advertisements. Furthermore, federal elections recur every two years, making VSHL‘s injury ongoing. Cf. id. at 564 (holding that injury was not imminent because plaintiffs’ affidavits only stated that they would return to previously visited places “some day” and gave no concrete descriptions of their plans). VSHL has alleged that it “intends to continue to spend money to communicate with the general public as it has in the past.” VSHL‘s intended activities both inside and outside the Fourth Circuit are concretely described, and they further support its credible fear of prosecution.
For all of these reasons, we hold that VSHL has standing to bring this lawsuit against the FEC.
B.
The FEC‘s second justiciability argument is that the case is not ripe for review. Here, the FEC maintains, like it did in its standing argument, that VSHL‘s allegations about its planned activities are not sufficiently concrete. Ripeness concerns the “appropriate timing of judicial intervention.” Renne v. Geary, 501 U.S. 312, 320 (1991). The doctrine‘s “basic rationale is
The issue in this case is fit for judicial decision at this stage. VSHL is bringing a facial challenge to a regulation that has the force of law and carries stiff criminal and civil penalties. The case presents a “purely legal” issue and further factual development will not assist us in our resolution. Id. at 149. See also Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985); Chamber of Commerce v. FEC, 69 F.3d 600, 604 (D.C.Cir. 1995). Moreover, VSHL will face a significant impediment if we delay consideration of the regulation‘s constitutionality. The presence of the regulation requires VSHL “to adjust [its] conduct immediately.” Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 891 (1990) (noting that these types of “substantive rule[s]” are “‘ripe’ for review at once“). It must refrain from distributing communications that fall within
IV.
A.
We turn now to the merits of this case—whether
The regulation under challenge provides:
Expressly advocating means any communication that—. . .
(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.
Above in part II we noted that the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), limited the reach of FECA
Again, our decision in CAN II did not consider whether
Under the regulation in question,
B.
The FEC ends its argument that
V.
The next issue we must address is whether the scope of the district court‘s injunction is too broad. As a general matter, we review the grant of a permanent injunction for abuse of discretion. Of course, underlying factual findings are reviewed for clear error, and legal conclusions are reviewed de novo. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 939 (4th Cir. 1995). Because the FEC challenges the scope of the district court‘s injunction, our review is for abuse of discretion. See Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 703 (4th Cir. 1999).
“[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). An injunction should be carefully addressed to the circumstances of the case. See Hayes v. N. State Law Enforcement Officers Ass‘n, 10 F.3d 207, 217 (4th Cir. 1993) (“Although injunctive relief should be designed to grant the full relief needed to remedy the injury to the prevailing party, it should not go beyond the extent of the established violation.“); Consolidation Coal Co. v. Disabled Miners, 442 F.2d 1261, 1267 (4th Cir. 1971) (calling an injunction an “extraordinary writ” which “should be tailored to restrain no more than what is reasonably required to accomplish its ends“). Nationwide injunctions are appropriate if necessary to afford relief to the prevailing party. See Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1988). For instance, in Richmond Tenants Org. v. Kemp, 956 F.2d 1300 (4th Cir. 1992), a nationwide injunction prohibiting the eviction of housing tenants without notice and a hearing was appropriate because the plaintiffs were tenants from across the country. See id. at 1302, 1309.
In this case VSHL is the only plaintiff. An injunction covering VSHL alone adequately protects it from the feared prosecution. See Right to Life of Dutchess County Inc. v. FEC, 97 Civ. 2614(SHS) (S.D.N.Y. July 20, 1998) (order clarifying that injunction shall only apply to the plaintiff). Preventing the FEC from enforcing
There is another reason why a nationwide injunction prohibiting the FEC from proceeding against any other party is inappropriate in this case. The broad scope of the injunction has the effect of precluding other circuits from ruling on the constitutionality of
VSHL argues for a nationwide injunction based on the language of the “Scope of review” section of the Administrative Procedure Act (APA), which provides that agency action can be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
For these reasons, we remand the case to the district court for a modification of the injunction. The amended injunction should be limited to enjoining the FEC from enforcing
VI.
VSHL cross-appeals because the district court did not award it all of the relief it sought. Specifically, the district court did not order the FEC to open a rulemaking to consider the repeal of
VII.
In sum, we conclude that VSHL has standing and that its case is ripe for review. On the merits, we affirm the district court‘s order awarding summary judgment to VSHL on the ground that
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.