for Fair Elections project." Id. at 2711. GOPAC has shown that the Commission has not supported any of these allegations with proffers of probative, material, undisputed facts and thus, GOPAC, rather than the Commission, is entitled to a summary judgment with respect to the 1989 and 1990 elections of President Bush and Congressman Gingrich and the removal of Speaker Wright from the House of Representatives by the House itself rather than the electorate.
In addition to the foregoing examples advanced by the Commission of GOPAC support for particular candidates, the Commission sought to demonstrate a major GOPAC purpose to influence federal elections indirectly. It is arguable that GOPAC's concentration of support for Republican candidates for state legislatures where reapportionment was likely to advantage Republican candidates for federal office was sufficiently direct support for particular candidates to require its registration. The parties' response to a January 29, 1996 Notice to Counsel identified the Republican candidates for Congress from each state where GOPAC anticipated reapportionment favorable to Republicans. However, unchallenged advisory opinions of the Commission treat the apportionment process as "separate and distinct from the election process by which individuals are selected for office." See Pl.'s Second Notice of Filing, Feb. 14, 1996 (Advisory Opinion 1981-35). Thus, although the candidates who benefited indirectly were identifiable after the fact, GOPAC's support for legislators who would be likely to cause reapportionment advantageous to a federal candidate does not constitute support for the election or defeat of a particular candidate for federal office.
Nor does GOPAC's support for a "farm team" of future candidates for federal office constitute support for an actual, particular federal candidate or candidates. See Machinists, 655 F.2d at 392. It is undisputed that once a farm team member decided to run for Congress and requested contributions from GOPAC, "he or she was referred to the [National Republican Campaign Committee]." Def.'s Statement P 53; Pl.'s Response P 53.
At oral argument, Commission counsel generally observed that "the Commission has taken the position in the past -- and takes the position today -- that providing a forum for candidates to appear and solicit contributions is a contribution itself to the candidates." Tr. at 20. However, the Commission has not pointed to evidence that would sustain a claim that GOPAC served as such a forum. The Commission cites a statement in a New Yorker magazine article that "GOPAC served as a fundraising mechanism for congressional candidates" during the 1990 election cycle. Pl.'s Statement P 203. But see Def's Response P 203. However, accounts of GOPAC meetings attended by national leaders, possibly including members of Congress, and Charter Members conspicuously fail to establish that GOPAC used the meetings as forums for candidates to solicit contributions. See Pl.'s Statement PP 54-56, 64-71, 76-87; compare Tr. at 20. Moreover, a magazine article is not "significantly probative" nor is it "material" "evidence on which [a trier of fact] could reasonably find" that GOPAC served as a "fundraising" mechanism for federal candidates. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Doe v. Gates, 299 U.S. App. D.C. 114, 981 F.2d 1316, 1323 (D.C. Cir.), cert. denied sub nom. Doe v. Woolsey, 510 U.S. 928, 126 L. Ed. 2d 282, 114 S. Ct. 337 (1993).
The Commission points to the fact that Congressman Gingrich's Campaign Committee received $ 124,503 or 23% of the $ 539,328 contributed to Republican candidates for the House of Representatives in 1990 by Charter Members. However, the Commission does not allege or proffer direct evidence that there is any causal connection between GOPAC's actions and Congressman Gingrich's disproportionate share of such contributions. In other circumstances where no First Amendment values are at stake, a trier of fact might be required to weigh possible inferences from this concentration of contributions. However, in this area where objective bright lines are in order, a finding that GOPAC served as a fundraising forum based on such inferences would require more subjective judgments than are appropriate, particularly where, as here, the Charter Member contributors and/or the campaign obviously reported the $ 124,503 in contributions to the Commission pursuant to their obligations under other provisions of the Act.
It is undisputed that in 1990, in response to an inquiry from a Charter Member, GOPAC identified four congressional campaigns which it considered to be the most important, and the Charter Member subsequently contributed $ 1,500 to three of these. See supra at 8. However, the Commission has not treated an organization's response to a contributor's request for advice about where to place a contribution as a contribution itself. Tr. at 20. It correctly distinguishes such communication from an organization's provision of a forum for the solicitation for contributions, which provision the Commission does treat as a contribution. Id.6
GOPAC concedes that in 1989 and 1990, in pursuit of its objective to elect a Republican majority in the House of Representatives, it provided direct financial support to state and local candidates and widely distributed services and other things of value, such as audiotapes and videotapes, to others, possibly including Republican candidates for Congress. For example, GOPAC anticipated that some of its expenditures directly for the benefit of Republican state and local candidates in Michigan, Montana, and Texas could have the effect of "reverse coat tails" -- that is, strengthening the entire Republican ticket in the jurisdiction, including federal candidates. See Pl.'s Ex. 66 at 3785 (Michigan); Pl.'s Ex. 66 at 3945 (Montana); Pl.'s Ex. 66 at 5519 (Texas); supra at 11-12. GOPAC trained its state and local candidates on issues of national scope and importance so that "all of the campaigns [would] be able to subsume themselves into a larger pattern so that . . . you create an echo effect, a resonance, which fits about 88 percent of the country." Pl.'s Ex. 23 at 38 (Gingrich Dep.). GOPAC furnished literature, tapes, and services to Republicans generally, including, incidentally, Republican candidates for federal office. GOPAC also planned "to assist the national Party committees in educating the voters in 'swing' Congressional districts about their Democratic Congressmen's voting records." Pl.'s Statement P 270; Pl.'s Ex. 30 at 2727B (GOPAC 1989-1990 Political Strategy Campaign Plan and Budget).
As Commission counsel acknowledged in oral argument with respect to possible indirect support for Congressman Gingrich's 1990 campaign, it would be theoretically possible to isolate and trace the indirect impact on congressional elections of GOPAC contributions to other local and state candidates and of its more generalized activities nationwide in an attempt to show a causal connection between the contributions and activities and the election of a particular federal candidate or candidates. However, the Commission has "never opined on that particular question [whether indirect support is relevant]." Tr. at 17. Nor has either counsel cited, nor has independent research discovered, any other authority on the subject. In the circumstances here, the best guidance is our Court of Appeals' observation that: "In this delicate first amendment area, there is no imperative to stretch the statutory language . . . . Achieving a reasonable, constitutionally sound conclusion in this case requires just the opposite." Machinists, 655 F.2d at 394. The foregoing examples of arguably indirect support more nearly resemble general party and pre-candidacy support, which the relevant precedents distinguish from support for any particular federal candidate or candidates.
Furthermore, it is apparent from the Commission's strong pleas to adopt its broader concept of the Act as applied to political committees, and from its stance at oral argument, that it would prefer not to undertake, or impose on the regulated, the burden of trying to detect a quantifiable, or causal, connection between support directed to state and local candidates, or expenditures for party support without reference to a particular candidate, and any indirect benefit to a federal candidate. In any event, it has conspicuously failed to do so. See Tr. at 24; supra at 23-24. Direct support can be readily detected and quantified by conventional inquiry and accounting techniques; indirect support cannot. Cf. Robertson, 45 F.3d at 486. Indeed, the Commission has allocation rules according to which an organization separates its federal expenditures and activities from its non-federal ones and reports only the former. See Tr. at 51-52, 63; see also Robertson, 45 F.3d at 491. There do not appear to be any allocation rules for distinguishing between direct and indirect support. During several months of unlimited discovery, the Commission collected data for 315 items consuming 100 pages of material facts not in dispute based on 6,000 pages of exhibits without firmly establishing its claim based on the Buckley major purpose test. Our Court of Appeals' observation merits repetition: "[a] bright-line test is . . . necessary to enable donees and donors to easily conform their conduct to the law and to enable the FEC to take the rapid, decisive enforcement action that is called for in the highly-charged political arena." Orloski, 795 F.2d at 165. This authoritative and reasonable preference for bright-line rules counsels persuasively against making GOPAC's obligation to register as a political committee as of 1989 and 1990 turn on a 1996 fact-trier's evaluation of circumstantial evidence and inferences therefrom as to whether GOPAC's in-house support for Newt Gingrich as its General Chairman, its direct support for state and local candidates, and its more generalized activities nationwide indirectly benefited a particular federal candidate or candidates. For all of the foregoing reasons, an accompanying Order denies the Commission's motion for summary judgment and grants GOPAC's motion for summary judgment.
Date: February 28, 1996
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
For the reasons stated in the accompanying Memorandum, it is this 28th day of February, 1996 hereby
ORDERED: that the Commission's motion for summary judgment should be, and is hereby, DENIED; and it is further
ORDERED: that GOPAC's motion for summary judgment should be, and is hereby, GRANTED.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE