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.
No. 00-1252 No. 00-1332.
UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.
Argued: February 26, 2001.
Decided: September 17, 2001.
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge. (CA-99-559)[Copyrighted Material Omitted]
COUNSEL ARGUED: David Brett Kolker, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellant. James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Appellee. ON BRIEF: Lawrence M. Noble, General Counsel, Richard B. Bader, Associate General Counsel, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellant. James R. Mason, III, BOPP, COLESON & BOSTROM, Terre Haute, Indiana; VIRGINIA SOCIETY FOR HUMAN LIFE, Richmond, Virginia, for Appellee.
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.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Michael wrote the opinion, in which Judge Williams and Senior Judge Hall joined.
OPINION
MICHAEL, Circuit Judge:
The Virginia Society for Human Life, Inc. (VSHL) sued the Federal Election Commission (FEC), seeking a declaration that 11 C.F.R. S 100.22(b), a regulation defining "express advocacy" for purposes of the Federal Election Campaign Act (FECA), is unconstitutional. VSHL also sought an injunction prohibiting the FEC from enforcing the regulation and an order directing the FEC to open a rulemaking to consider repeal of the regulation. The district court ruled in favor of VSHL, holding that the regulation is unconstitutional and enjoining the FEC from enforcing the regulation against VSHL or any other party in the United States. On appeal the FEC raises standing and ripeness arguments, which we reject because VSHL faces a credible threat of prosecution under the regulation. On the merits of VSHL's claim, we hold that the regulation is unconstitutional because it is not limited to communications that contain express words of advocacy as required by Buckley v. Valeo,
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 was received by listeners in the District of Columbia. The radio station selected would be located either in northern Virginia or in the District.
On January 6, 1999, VSHL submitted a petition for rulemaking to the FEC, requesting that it repeal 11 C.F.R. S 100.22(b), which defines "express advocacy" for purposes of the corporate expenditure prohibitions found in FECA. VSHL claimed that because S 100.22(b)'s definition of "express advocacy" was overly broad, some of the group's planned issue advocacy communications might constitute improper election expenditures. VSHL noted that the regulation had already been struck down in the First Circuit and the Southern District of New York. The FEC should repeal the regulation, VSHL urged, so that groups distributing nationwide messages would not be judged by different rules in different locales. On February 3, 1999, the FEC published a notice in the Federal Register informing the public of VSHL's petition and opening a month-long comment period. See Rulemaking Petition: Definition of "Express Advocacy"; Notice of Availability, 64 Fed. Reg. 5200 (Feb. 3, 1999). Seven individuals or organizations submitted comments, five in favor of the petition and two in opposition. On April 29, 1999, the FEC voted 33 on two motions involving VSHL's petition. The first 3-3 vote came on a motion to adopt the General Counsel's recommendation that the Commission decline to open a rulemaking. The second split vote came on a motion to direct the General Counsel to initiate a rulemaking. Because neither motion received an affirmative vote of four Commissioners as required by 2 U.S.C. S 437c(c), the FEC announced that it was taking no further action on VSHL's petition. See 64 Fed. Reg. 27478 (May 20, 1999).
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 11 C.F.R. S 100.22(b) is unconstitutional. In addition, VSHL requested an injunction ordering the FEC to grant its petition for rulemaking and prohibiting the FEC from bringing an enforcement action under 11 C.F.R. S 100.22(b). On September 22, 1999, six weeks after VSHL sued, the FEC voted 6-0 to adopt a policy that 11 C.F.R. S 100.22(b) would not be enforced in the First or Fourth Circuits because the regulation "has been found invalid" by the First Circuit and "has in effect been found invalid" by the Fourth Circuit. (emphasis added). Based on this expression of policy, the FEC moved to dismiss VSHL's complaint for lack of subject matter jurisdiction on the ground that VSHL had no standing to sue. The district court denied the motion, reasoning that VSHL's activities extend beyond the Fourth Circuit, that private citizens can initiate FECA enforcement, and that the FEC's nonbinding policy vote does not dissipate the chill created by the existence of the regulation. Next, the parties filed cross-motions for summary judgment. In ruling on these motions the district court held that the regulation ran afoul of the First Amendment because it regulates issue advocacy, not just express advocacy. In addition, the district court enjoined the FEC "from enforcing 11 C.F.R. [S] 100.22(b) against the VSHL or against any other party in the United States of America." The court, however, declined to order the FEC to open a rulemaking to repeal the regulation. The FEC appeals the ruling on standing and the scope of the injunction. VSHL cross-appeals on the rulemaking issue.
II.
The issues in this appeal are better understood with a review of the case law leading up to and following the promulgation in 1995 of 11 C.F.R. S 100.22. Our starting point is Buckley v. Valeo,
The Buckley Court limited S 434(e) "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate."
Congress amended FECA in 1976. See Pub. L. No. 94-283, 90 Stat. 475. One of the 1976 provisions prohibits corporations from making "a contribution or expenditure in connection with any [federal] election" if the contribution or expenditure comes out of the corporation's general treasury. 2 U.S.C. S 441b(a). In FEC v. Mass. Citizens for Life, Inc.,
One circuit case, FEC v. Furgatch,
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 11 C.F.R. S 100.22, provides:
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 communications 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,
The next challenge to subpart (b) of the regulation came in Right to Life of Dutchess County, Inc. v. FEC,
We are now the third court to be presented directly with the question of whether 11 C.F.R. S 100.22(b) is constitutional.2
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 bring this action and that the case is not ripe for review. We review these issues de novo. See Marshall v. Meadows,
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,
The FEC argues that VSHL faces no credible threat of prosecution because the FEC has adopted a policy of not enforcing 11 C.F.R. S 100.22(b) in the Fourth Circuit. The FEC maintains that it adopted this policy because our decision in FEC v. Christian Action Network, Inc.,
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 11 C.F.R. S 100.22. The communications leading to the CAN case took place before the FEC promulgated the regulation. The FEC brought an enforcement action against CAN for violating various provisions of FECA. See FEC v. Christian Action Network,
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 28 U.S.C. S 2412, the section dealing with fees and costs when the United States is a party. Under this provision "a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." S 2412(d)(1)(A). We held that CAN was entitled to fees and costs because the FEC's position that the imagery of CAN's advertisements made them express advocacy was not substantially justified "in light of the Supreme Court's unambiguous pronouncements in Buckley and MCFL that explicit words of advocacy are required." CAN II,
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,
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,
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 communications. Even if the FEC's policy statement remains in place, it is too narrow to fully protect VSHL because the policy is limited to the Fourth Circuit. VSHL alleges that during the 2000 election it intended to engage in issue advocacy outside of the Fourth Circuit. To assist in getting its message to residents of the northern Virginia metropolitan area, VSHL planned to place its advertisements on at least one radio station whose broadcast is received in the District of Columbia. This would have required the use of a radio station physically located either in northern Virginia or in the District. VSHL intends to engage in similar advertising activity outside of this circuit in the future. The FEC has in the past prosecuted groups in the judicial districts where they distributed advertising materials, as opposed to the states where they are chartered or headquartered. See, e.g., FEC v. Pub. Citizen, Inc.,
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,
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,
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.,
IV.
A.
We turn now to the merits of this case--whether 11 U.S.C. S 100.22(b) is unconstitutional. In district court the FEC ultimately conceded that the regulation is invalid in this circuit because of CAN II,
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.
11 C.F.R. S 100.22(b).
Above in part II we noted that the Supreme Court in Buckley v. Valeo,
Again, our decision in CAN II did not consider whether 11 C.F.R. S 100.22(b) is constitutional. CAN II does nevertheless reveal how narrowly and strictly our circuit reads the "express advocacy" limitation of Buckley and MCFL. We summed up Buckley's holding as follows: "the Federal Election Campaign Act [can] be applied consistently with the First Amendment only if it[is] limited to expenditures for communications that literally include words which in and of themselves advocate the election or defeat of a candidate." CAN II,
Under the regulation in question, 11 C.F.R. S 100.22(b), "Expressly advocating means any communication that . . .[w]hen taken as a whole . . . could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) . . . ." The regulation thus shifts the focus of the express advocacy determination away from the words themselves to the overall impressions of the hypothetical, reasonable listener or viewer. This is precisely what Buckley warned against and prohibited. Buckley recognized that the distinction between "express advocacy" and "issue advocacy" can easily "dissolve in practical application." Buckley,
11 C.F.R. S 100.22(b) defines express advocacy with reference to the reasonable listener's or reader's overall impression of the communication. That is prohibited by Buckley and MCFL, which limit the meaning of "express advocacy" to clear words that "directly fit the term," MRLC,
B.
The FEC ends its argument that 11 C.F.R. S 100.22(b) is constitutional with the following comment: "if the express advocacy requirement is read too narrowly, the prohibitions of 2 U.S.C. [S] 441b will require little more than careful diction and will do almost nothing to prevent millions of dollars from the general treasuries of unions and corporations from directly influencing federal elections, and from doing so without disclosing to the public the source of the influence." Opening Br. for FEC at 58. That is a powerful statement, but we are bound by Buckley and MCFL, which strictly limit the meaning of "express advocacy." If change is to come, it must come from an imaginative Congress or from further review by the Supreme Court.
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.,
"[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki,
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 11 C.F.R. S 100.22(b) against other parties in other circuits does not provide any additional relief to VSHL. Cf. Meinhold v. United States Dep't of Def.,
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 11 C.F.R. S 100.22(b). Such a result conflicts with the principle that a federal court of appeals's decision is only binding within its circuit. See United States v. Glaser,
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." 5 U.S.C. S 706(2)(A). VSHL maintains that pursuant to this section the proper scope of injunctive relief is an order setting aside the unconstitutional regulation for the entire country. Nothing in the language of the APA, however, requires us to exercise such farreaching power. See RLDC,
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 11 C.F.R. S 100.22(b) against VSHL alone anywhere in the country.
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 11 C.F.R. S 100.22(b). (VSHL had sought such a rulemaking in its petition to the FEC.) We reject VSHL's request that we order the FEC to open a rulemaking because VSHL is receiving complete relief. We have held that the regulation is unconstitutional, and we have authorized an injunction that prohibits the FEC from enforcing the regulation against VSHL.
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 11 C.F.R. S 100.22(b) is unconstitutional. However, we vacate the nationwide injunction covering all parties in the United States, and we remand for an amendment of the injunction that limits its protection to VSHL. Finally, we reject VSHL's cross-appeal for a rulemaking because VSHL is already receiving complete relief.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Notes:
Notes
MCFL arose out of an enforcement action that the FEC brought against MCFL for its distribution of a "Special Edition" newsletter before the September 1978 primary elections. The publication, entitled "EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE," identified every candidate for state and federal office in Massachusetts as either supporting or opposing MCFL's positions on abortion issues. The "Special Edition" newsletter also contained photographs of thirteen candidates whose views mirrored those of MCFL. Finally, the newsletter included a clippable coupon that voters could remove and take with them to the polls as a reminder of the candidates' positions. See id. at 243-44. The Court considered this newsletter "express advocacy." See id. at 249-50. However, it held that S 441b's restrictions were unconstitutional as applied to MCFL because MCFL was more like a voluntary political association than a business entity. Thus, the restrictions lacked the traditional compelling justification of limiting corporate power in the political arena. See id. at 263-64.
In FEC v. Christian Action Network, Inc.,
Even though VSHL's intended communications were geared towards an election that has already passed, there is no mootness problem. This case falls under the exception for a case that is capable of repetition yet evades review because of the length of time required for the courts to resolve the matter. See DeFunis v. Odegaard,