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FEDERAL ELECTION COM'N v. CHRISTIAN COAL.

August 2, 1999

FEDERAL ELECTION COMMISSION, PLAINTIFF,
v.
THE CHRISTIAN COALITION, DEFENDANT.



The opinion of the court was delivered by: Joyce Hens Green, District Judge.

  OPINION AND ORDER

This enforcement action was brought by the Federal Election Commission ("FEC" or "Commission") alleging that the Christian Coalition ("the Coalition") violated federal campaign finance laws during congressional elections in 1990, 1992 and 1994, and the presidential election in 1992. The Coalition is a corporation, and this case presents two novel issues concerning restrictions on corporate campaign-related activity.

Federal campaign finance law prohibits corporations and labor unions from using general treasury funds to make contributions — in cash or in kind — to a candidate for federal office.*fn1 But corporations and unions can make independent expenditures that are related to a federal election campaign so long as those expenditures are not for communications that expressly advocate the election or defeat of a clearly identified candidate for federal office.

The first issue is one of first impression in this Circuit and has created a moderate division of opinion among other Circuits. The question presented is whether "express advocacy" by corporations and labor organizations is limited to communications that use specified phrases, such as "vote for Smith" or "support Robinson," or whether a more substantive inquiry into the clearly intended effect of a communication is permissible. The FEC advocates a substantive inquiry and alleges that the Coalition used general corporate funds to expressly advocate the election or defeat of certain candidates through a speech made by the Coalition's then-Executive Director, Ralph Reed, and by certain of the Coalition's direct-mail communications.

The second novel issue relates to how an in-kind campaign contribution is to be defined. According to the FEC, the Coalition spent considerable general corporate funds in coordination with the election campaigns of certain Republican candidates and the National Republican Senatorial Committee — the FEC refers to this spending as "coordinated expenditures" — to produce and distribute millions of "voter guides," and "Congressional Scorecards" comparing candidates' or incumbents' positions on certain issues. Although these materials made clear which candidates the Coalition preferred, the FEC acknowledges that most of the voter guides did not expressly advocate the election or defeat of any particular candidate. The FEC's theory is not that the election materials themselves violated the "express advocacy" limitation on independent corporate expenditures but that the Coalition's extensive consultations with the campaign staff of certain candidates regarding the distribution of its voter guides and other materials turned otherwise permissible campaign-related materials into illegal in-kind campaign contributions.

The FEC and the Coalition each have filed a motion for summary judgment. Giving new meaning to the saying "politics makes strange bedfellows," the Coalition's position regarding "coordinated expenditures" is supported by amici, the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") and the American Civil Liberties Union ("ACLU"). Having considered all the briefs, oral argument, and the entire record in this matter, the Court will grant both motions in part and deny both motions in part. The FEC is entitled to a civil penalty for the Coalition's express advocacy of House Speaker Newt Gingrich's reelection in 1994 and for the Coalition having provided the senatorial campaign of Oliver North with a valuable mailing list. The FEC is not entitled to injunctive relief. Three issues are left to be determined: (1) the fair market value of the mailing list; (2) whether the Coalition coordinated its selection of issues on its 1994 Virginia senatorial voter guide with Oliver North's campaign; and (3) the amount of civil penalty to which the FEC is entitled. While the Court rejects some of the Coalition's legal contentions, in all other respects, judgment is in favor of the Coalition.

I. PROCEDURAL History

A. The Parties

The FEC is the independent agency of the United States government with exclusive primary jurisdiction over the administration, interpretation and civil enforcement of the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 431-455. The FEC is authorized to institute investigations of possible violations of the Act and has exclusive jurisdiction to initiate civil actions in the United States district courts to obtain judicial enforcement of the Act. Id. §§ 437c(b)(1), 437d(e).

The Christian Coalition was and is a corporation incorporated under the laws of the Commonwealth of Virginia which transacts business in the District of Columbia. The Coalition had its roots in the unsuccessful 1988 presidential campaign of Marion G. "Pat" Robertson ("Robertson"). Robertson was and is well known as the host of the "700 Club" television program, which during the relevant periods herein aired on Robertson's Christian Broadcasting Network ("CBN"). In the aftermath of the election Robertson sought to create an organization that would provide a voice in the public arena for Christians and other "people of faith." Robertson discussed his interest in creating such an organization with Ralph E. Reed, Jr. ("Reed") at a dinner given by Students for America during President Bush's 1989 inauguration.*fn2 Reed submitted a proposal to Robertson and a meeting was held in the fall of 1989 with Reed, Robertson, and various other participants, many of whom were supporters of Robertson's 1988 presidential campaign. The Coalition was formed soon thereafter.

The Coalition's Articles of Incorporation were signed on October 2, 1989. Robertson is the corporation's Chairman of the Board and former President. The Coalition is a nonprofit, non-stock corporation financed by voluntary contributions obtained through fund raising and telemarketing activities. The Coalition has five stated purposes: (1) to represent Christians before local councils, state legislatures and the United States Congress; (2) to train Christians for effective political action; (3) to inform Christians of timely issues and legislation; (4) to speak out in the public arena and the media; (5) to protest anti-Christian bigotry and defend the legal rights of Christians. See CC Ex. 11 at 2-302 — 306, 314.*fn3

Reed served as the Executive Director of the Coalition from October 2, 1989 until June 11, 1997. Reed also joined the Board of Directors in 1994. As Executive Director, Reed supervised the day-to-day operations of the Coalition and formulated policy for legislative projects. Reed was responsible for fund raising activities and publications, press communications, and various other supervisory tasks. The voter guides, congressional scorecards and training sessions were all the brainchild of Reed.

The Coalition began as a centralized, national organization, but five regional directors, working under the supervision of a national field director, were soon hired and assigned to establish separate state affiliates. There are currently Coalition affiliates in every state except Utah. Each state affiliate is a separate corporation and each has a written affiliation agreement with the Coalition. The affiliation agreements contain guidelines requiring the state affiliates to answer to the Coalition on certain matters. The affiliates generally conduct their own affairs, however, on matters not covered by the written agreement. Funding is provided to the state affiliates from the Coalition's state project fund, which receives 15 percent of the Coalition's direct mail revenue.

Some of the alleged FECA violations at issue in this case involve actions by the Coalition's state affiliates. The Coalition asserted that it could not be held responsible for the affiliates' actions because they were separate corporate entities. However, because the Coalition was unable to meet its discovery obligations with respect to information about Coalition-affiliate relations, the Coalition stipulated, for purposes of this action, that it

  controls and is legally responsible for its
  state/and or local affiliates' activities
  regarding, referring or relating to (i) all voter
  identification activities, get-out-the-vote
  activities, and voter guide preparation and
  distribution activities for federal elections
  held in 1990, 1992 and 1994, and (ii) all other
  correspondence and communications that use the
  term "Christian Coalition" with the general
  public and/or with candidates for federal office
  and for federal elections held in 1990, 1992 and
  1994, (iii) except for specific actions by
  officials or agents of state affiliates that the
  Christian Coalition shows to have been ultra vires.

Stipulation for Partial Dismissal ¶ 5.

The Coalition conducts many activities to further its purposes. It engages in polling and telemarketing survey research, it operates training and leadership schools, it conducts voter registration within the churches, it encourages members to contact their legislators on certain issues, it makes get-out-the-vote calls during election years to supporters and members.

The Coalition maintains two membership files. The "house file" consists of everyone who has contributed to the Coalition or who has contacted the Coalition in some fashion. In 1992, the house file was used mainly for soliciting contributions, informing supporters about legislative issues, educating supporters about candidates and issues, and encouraging them to vote. The other file is the voter identification database, or "voter file," which consists of names purchased or obtained by the Coalition of people who are believed to be "pro-life" voters, and names obtained from grassroots voter canvassing. The FEC claims that the voter identification database is used to mail voter guides to people in particular districts or states. The Coalition claims that the voter file was "maintained so that when [the Coalition is] mailing [ ] voter guides to a particular district or state, [the voter file] is available to be accessed and mailed if [ ] so desired." CC Ex. 133 at 117. The Coalition claims that it usually does not have the funds to mail to both the voter list and the house list because the voter list now contains almost 1.6 million names. See id.

Between 1991 and 1994, the Coalition held four annual Road to Victory conferences. These conferences served educational, informational and organizational purposes with the goal of ultimately seeing election victory for candidates who shared the Coalition's values. The agenda for the conference is set by the Executive Director and the staff of the Coalition. The conference has attracted high-profile speakers such as President Bush in 1992, Vice President Quayle in 1991 as well as Members of Congress and senior executive branch officials.

B. Administrative Proceedings

On February 27, 1992, the Democratic Party of Virginia filed an administrative complaint with the FEC alleging that the Coalition had violated the FECA. Eight months later the Democratic National Committee also filed a complaint with the FEC against the Coalition, and the FEC merged the two complaints for enforcement purposes. The FECA establishes a multi-step confidential administrative process through which the FEC must go to enforce the Act's provisions. If at the end of that process the FEC has not been able to resolve a matter, it may file a civil action in federal district court. Compliance with many of the administrative requirements is necessary for the Court to have jurisdiction over the matter. In this case, the FEC has complied with all necessary administrative requirements.

While the administrative investigative stage can be quite lengthy in its own right, the process was lengthened in this case by the intervening decision of our Court of Appeals, holding that the Commission's composition violated the principle of separation of powers because the Secretary of the Senate and the Clerk of the House of Representatives, or their designees, were part of the Commission as non-voting ex officio members. See FEC v. NRA Political Victory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993) ("NRA"), cert. dismissed for want of jurisdiction, 513 U.S. 88, 115 S.Ct. 537, 130 L.Ed.2d 439 (1994). The NRA court concluded that the Commission, as then structured, lacked authority to prosecute an enforcement suit.

Following the NRA decision, the voting members of the Commission voted to reconstitute itself as a six-member Commission without ex officio members, conforming with the Court of Appeals' decision. The new Commission ratified the decision to investigate the Coalition. After finding probable cause and attempting to conciliate with the Commission, the FEC filed this lawsuit in 1996. Shortly after this lawsuit was filed, the Coalition moved for partial dismissal on statute of limitations grounds. That motion was granted in part and denied in part. See Federal Election Com'n v. The Christian Coalition, 965 F. Supp. 66, 72 (D.D.C. 1997).

Discovery commenced, and was lengthy. On various occasions the Coalition was unable to meet its discovery obligations, requiring that discovery be extended and that certain depositions be reopened. The Coalition's repeated inability to comply with reasonable discovery requests led Magistrate Judge Alan Kay, who oversaw discovery, to impose sanctions. Additionally, in response to an FEC motion, the Coalition abandoned one of its central affirmative defenses, stipulating that it did not quality for the exemption on corporate expenditures reserved for certain "ideological corporations." When discovery finally closed, the parties filed cross motions for summary judgment.*fn4

II. RELEVANT FECA BACKGROUND

The following background on the legal principles governing federal campaign finance in the Federal Election Campaign Act, 2 U.S.C. § 431-455, provides a necessary frame of reference for understanding the facts in this case. Congress enacted the FECA in 1971 in response to revelations during the congressional investigation of the campaign-related activities of senior officials in President Nixon's Administration. The FECA was enacted to prevent "corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office." Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam).

The FECA, as substantially amended in 1974 and 1976, was the most comprehensive regulation of the federal electoral process in history. The 1974 amendments to the Act created the Federal Election Commission to regulate the federal electoral process and to enforce the Act's limitations. Shortly after passage, a constitutional challenge against numerous FECA provisions was launched. That attack culminated in the United States Supreme Court's lengthy per curiam Buckley opinion, which provided a partial First Amendment blueprint for restrictions on campaign finance while striking down or scaling back various FECA provisions.

A. Contributions vs. Expenditures

In the Act Congress sought to restrict campaign "contributions" and "expenditures" equally. However, the Buckley Court read the First Amendment to require substantially different treatment of "contributions" and independent "expenditures." The Buckley Court observed that "virtually every means of communicating ideas in today's mass society requires the expenditure of money." Buckley, 424 U.S. at 19, 96 S.Ct. 612. From that observation, the Court reached its holding that restrictions on campaign contributions and expenditures are restrictions on political speech. See Buckley, 424 U.S. at 19, 96 S.Ct. 612. Such restrictions are permissible only if they survive strict judicial scrutiny.*fn5 After defining and balancing the relevant interests at stake, the Buckley Court concluded that the First Amendment permitted limits on campaign contributions but not on independent expenditures by individuals.

1. Contributions

Buckley recognized a compelling governmental interest in preventing corruption, or the appearance of corruption, spawned by large campaign contributions. To determine whether the limitations on contributions and expenditures were narrowly tailored to that interest, the Court considered the degree and type of protected speech burdened by the legislation, as well as the burden on the right of free association. The Court concluded that the limitation on campaign contributions was permissible because such contributions involved only a limited degree of protected speech — "symbolic expression of support," id. at 21, 96 S.Ct. 612 — and that the legislation was narrowly tailored because it directly addressed its anti-corruption interest, i.e., the specter of large campaign contributions leading to a legislative quid pro quo. Id. at 28-29, 96 S.Ct. 612.

  2. Independent Expenditures — "Express
          Advocacy"

As to expenditures made independent of any campaign, however, the Court's analysis proceeded in two steps. Of particular significance in this case, the Court first determined that the statutory limit on "expenditures relative to a clearly identified candidate," see 18 U.S.C. § 608(e)(1) (repealed), was impermissibly vague. The Court recognized that Congress intended this phrase to sweep broadly, but held that First Amendment concerns overrode congressional intent in the context of independent expenditures or else the phrase "relative to" might be construed to impermissibly limit lobbying and other non-campaign-related political speech. Buckley, 424 U.S. at 41-44, 96 S.Ct. 612.

Thus, the Court created the "express advocacy" test by limiting the cap on independent expenditures "relative to" a candidate to apply only to independent expenditures on communications "that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Buckley, 424 U.S. at 44, 96 S.Ct. 612. In a footnote that has grown in significance, the Court elaborated: "This construction would limit the application of [§] 608(e)(1) to communications containing express words of advocacy of election or defeat, such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat' `reject'." Id. at 47 n. 52, 96 S.Ct. 612; see also id. at 80 n. 108, 96 S.Ct. 612.

In the second step, after so narrowing the statute, the Buckley Court determined that the spending cap violated the First Amendment because it directly infringed on a speaker's independent political speech while being only tangentially related to the Government's interest in preventing corruption. Id. at 47-48, 96 S.Ct. 612. However, the Court sustained § 434's requirement that independent expenditures on communications containing express advocacy be reported to the FEC. See id. at 80, 96 S.Ct. 612.

B. Speech by Corporations and Labor Unions

Buckley's analysis did not explicitly extend to the FECA provision limiting corporate and union expenditures at issue in this case, a legal provision with a long history. See Federal Election Comm'n v. Massachusetts Citizens For Life, 479 U.S. 238, 246-48, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) [hereafter MCFL].*fn6 That provision, § 441b, declares in pertinent part:

  It is unlawful for . . . any corporation
  whatever, or any labor organization, to make a
  contribution or expenditure in connection with any
  [federal election].

2 U.S.C. § 441b(a) (emphasis added). A "contribution or expenditure"

  shall include any direct or indirect payment,
  distribution, loan, advance, deposit, or gift of
  money, or any services, or anything of value
  ([except a regular bank loan]) to any candidate,
  campaign committee, or political party or
  organization, in connection with any [federal
  election].

Id. § 441b(b)(2) (emphasis added).*fn7

In analyzing a First Amendment challenge to § 441b, the MCFL Court followed Buckley's two-step analysis. MCFL first declared that the "express advocacy" limitation also applies to § 441b's restriction on independent expenditures. MCFL, 479 U.S. at 249, 107 S.Ct. 616. In the second step, the Court reached a different result than in Buckley because the nexus between the Government's anti-corruption interest and the ban on corporate and union independent expenditures is much closer than was the case with individuals.*fn8

        III. COUNT III: ALLEGED VIOLATION OF § 441B's BAN
                       ON EXPRESS ADVOCACY

Relying on these holdings of Buckley and MCFL, the FEC, in Count III, contends that the Coalition violated § 441b by using general treasury funds to finance communications that expressly advocated the election or defeat of a clearly identified candidate on three occasions: (1) a 1992 speech made by the Coalition's Executive Director Ralph Reed in Montana; (2) a 1994 national mailing entitled "Reclaim America"; and (3) a 1994 mailing by the Coalition's Georgia affiliate. The facts, although voluminous, are not genuinely disputed.*fn9

A. Reed's 1992 Montana Speech

On January 24 and 25, 1992, Christian Coalition of Montana and the Montana Family Coalition jointly sponsored a conference ("Montana conference") open to the public in Helena, Montana. The invitation to the Montana conference and its agenda listed Ralph Reed as a scheduled speaker and identified him as the "National Executive Director of Christian Coalition." The FEC alleges that the Coalition violated the FECA in connection with Reed's speech because the Coalition made an expenditure from general corporate funds — to fly Reed to Montana and compensate him for his time — and that Reed expressly advocated the defeat of the incumbent, Representative Pat Williams, a member of the Democratic Party who represented Montana's First District in the United States House of Representatives.*fn10

When introducing Reed, the moderator reminded the audience "[t]hat we heard [Reed] say last night, he's gonna be here at least two more times before the election." CC Ex. 130 at 2-3. Reed spoke for approximately 45 minutes. His speech was entitled "Address and Challenge."*fn11 Reed opened with a partisan jibe at Senator Harkin, a presidential candidate at the time,*fn12 and then announced that Reed's purpose was "to feed you and nourish you in terms of strategy and tactics for the pro-family movement." Id. at 5. Much of the next portion of the speech was dedicated to references to the Bible in conjunction with a cataloguing of numerous perceived social ills. Summing up this portion of the speech, Reed said "[a]nd without getting into advocating election or defeat of anybody, I'd have to say that the last three years or so of policy have not been good ones with respect to pulling us out of this." Id. at 16.*fn13

Reed then characterized a growing Christian movement rising up to respond to the perceived social ills as an "army" in need of a "strategy." Reed offered "five effective keys to a winning strategy for the pro-family movement that I've drawn from Sun Tsu [author of THE ART OF WAR]." See id. at 20-21. The first strategy was "secrecy."

  We're involved in a war. It's not a war fought
  with bullets. It's a war fought with ballots. . .
  . . [Y]ou've got to . . . move secretively. . . .
  This is sort of the opposite of what the
  pro-family movement did for most of the 1980s.
  Here was a typical national pro-family strategy
  when it came to knocking off somebody like Pat
  Williams. Fly Jerry Falwell or Pat Robertson in,
  hold a news conference with his opponent in front
  of a bank of microphones, announce that Pat
  Williams is one of your top targets in the entire
  nation, and then give a big bear hug to the other
  guy and say, this was the guy you were supporting.

Id. at 22 (emphasis added). Reed advised that the second strategy was "safety," which he translated into avoiding "the totally unwinnable race." The third principle was to "know yourself and your enemy." He admonished that in the past:

  Too often what we have done as a pro-family
  movement is gone out and decided we wanted to get
  somebody because we just couldn't stand their
  voting record. And that was all. We just didn't
  like them. We wanted to get rid of them. We
  didn't do any polling. We didn't do any
  opposition research.

Id. at 31. Reed then gave an example in which the Coalition had applied this principle in a recent state senate election in Virginia: "We knocked off a guy who was about to run for lieutenant governor or attorney general." Id. at 32.

In closing, Reed quickly reviewed the fourth and fifth principles (unity and persistence, respectively) and finished with the following remarks:

  And those are the five basic principles of what I
  think is a winning strategy. And I think if we
  will do it effectively, if we will move secretly
  . . ., if we will think of safety as important,
  if we will know ourselves and our enemies, if we
  will move forward in unity, and if we will be
  persistent, victory will be ours. It will be ours
  here in Montana. And it will be ours all across
  America.
    And what I said, this is my first time in
  Montana, but I can assure you, it will not be my
  last. . . . .
    We're going to see Pat Williams sent bags packing
  back to Montana in November of this year.

And I'm going to be here to help you.

Thank you.

Id. at 37 (emphasis added). As it turned out, Reed did not return to Montana prior to the general election in November 1992.

B. "Reclaim America" Mailing

In 1994, the Coalition spent approximately $930,000 to produce and distribute a direct mail package ("Reclaim America mailing") to targeted constituents. The Coalition did not report to the FEC any of its expenditures for the Reclaim America mailing as independent expenditures. The mailing focused on the upcoming general congressional election in 1994. The package was comprised of a six-page letter signed by Pat Robertson as Founder and President of the Coalition; a "1994 National Referendum on the Clinton Presidency"; and a "Christian Coalition Congressional Scorecard."*fn14

The FEC argues that the following portions of the Reclaim America package constitute prohibited express advocacy.

a.  Excerpt from Robertson's Second Letter
  In fact, the 1994 elections for Congress . . . will
  give Americans their first opportunity to deliver
  their verdict on the Clinton Presidency. If
  America's 40 million eligible Christian voters are
  going to make our voices heard in the elections
  this November . . . we must stand together, we must
  get organized, and we must start now.

FEC Ex. 119 (emphasis added).

b.  Excerpts from Robertson's First Letter
  In other words, America's 40 MILLION Christian
  voters have the potential to make sweeping
  changes in our government . . . IF Christians get
  to the ballot box and IF Christians have accurate
  information about how their elected
  representatives are voting.
  That's what our RECLAIM AMERICA CAMPAIGN is all
  about.

Elsewhere in the letter Robertson explained that the Reclaim America mailing was meant to give Christians a "chance to make the politicians in Washington feel the power of the Christian vote."

  c.  The Christian Coalition Congressional
            Scorecard

Robertson's letter indicates that the Coalition publishes its Congressional Scorecard four times per year. Of the two "Scorecards" in the record, each listed and characterized several issues about which Congress had voted, stated the Coalition's position on each, and reported how each incumbent candidate had voted on each one. Each vote was judged with a rating " " or "-", followed by an overall percentage for each Senator and Representative. On the "Scorecard" was an explanation that the "index . . . includes a total score for each member of Congress. A score of 100% means the Congressman supported Christian Coalition's position on every vote. A score of 0% means the Congressman never supported a Christian Coalition position." The names of Members of Congress from the Republican Party were printed in upper case letters while the names of Members from the Democratic Party were printed in upper and lower case letters. The average score for Republicans was higher than the average score for Democrats.*fn15

Robertson's first letter explained that the Coalition's "new CONGRESSIONAL SCORECARD [is] designed to give Christian voters the facts they need to hold their Congressmen accountable." The letter also claimed that the "Scorecard" "will give America's Christian voters the facts they need to distinguish between GOOD and MISGUIDED Congressmen."

d.  Robertson's Solicitation

After alerting the reader to the fact that the Democratic National Committee had filed a complaint with the FEC regarding the Coalition, Robertson's second letter sought monetary gifts to "help [the Coalition] survive the legal attack we're under from the Democratic National Committee, which is trying to close down the Christian Coalition in an effort to silence Christian voices and suppress the Christian vote in November."

C. Georgia State Coalition — 1994 Mailing

The FEC also alleges that the Coalition engaged in express advocacy when, prior to the July 1994, primary election in Georgia, Christian Coalition of Georgia sent a cover letter from Patrick M. Garland, State Chairman, containing the heading "State Coalition Update — July 1994," accompanied by one of the two versions of the "Christian Coalition Congressional Scorecard" contained in the Reclaim America mailing.*fn16

Garland's letter stated in part:

  "The Primary Elections are here! On Tuesday, July
  19, Georgians will nominate Democratic and/or
  Republican candidates for the offices of: Governor,
  Lt. Governor, Insurance Commissioner, Congress,
  Public Service Commissioner, and the State
  Legislature.
  To help you prepare for your trip to the voting
  booth, we have enclosed a complementary voter ID
  card. This personalized card lists your
  Congressional district and your State House and
  State Senate districts.
  We have also enclosed a Congressional Scorecard
  which you may take to the voting booth. The only
  incumbent Congressman who has a Primary election
  is Congressman Newt Gingrich — a Christian
  Coalition 100 percenter.*fn17 Make sure that you
  save this scorecard for November, however, because
  all other Congressmen are opposed in the General
  Election.

FEC Ex. 118.

               IV. APPLYING THE "EXPRESS ADVOCACY"
                            STANDARD

As limited by the Supreme Court, § 441b(a) makes a corporation or labor union's independent expenditure from general treasury funds illegal only if it: (1) pays for a communication; (2) that expressly advocates the election or defeat; (3) of a clearly identified candidate. The most difficult element to apply is the second — "express advocacy." Because this Court finds that application of the second element is dispositive with respect to all three challenged communications, it is either assumed or undisputed that the FEC has established the first and third elements as to all three communications.*fn18

A. Precedent

The leading decision applying the "express advocacy" test is MCFL, 479 U.S. at 249, 107 S.Ct. 616. In MCFL, the speech at issue was a "Special Edition" of the newsletter published by Massachusetts Citizens For Life, Inc. Readers were exhorted to "Vote Pro-Life" and were provided with a coupon to take to the voting booth with the names of the "pro-life" candidates.*fn19 The Court held:

  The Edition cannot be regarded as a mere
  discussion of public issues that by their nature
  raise the names of certain politicians. Rather,
  it provides in effect an explicit directive: vote
  for these (named) candidates. The fact that this
  message is marginally less direct than "Vote for
  Smith" does not change its essential nature.

Id. at 249, 107 S.Ct. 616.

Most courts that have considered the issue understand Buckley and MCFL to have separated permissible "issue advocacy"*fn20 from impermissible "express advocacy" by a "bright line."*fn21 So-called bright-line rules of law are those that give the clearest possible advance (ex ante) guidance to distinguish permissible from impermissible conduct, leaving little room for after-the-fact (post hoc) case-by-case considerations. However, even those courts characterizing the "express advocacy" standard as a "bright line" recognize that the context-dependent nature of language introduces ambiguities requiring certain case-specific considerations.*fn22 These courts nevertheless find that, while factors such as proximity of the communication to an election appear relevant, the "express advocacy" test brightly illuminates the difference between permissible and impermissible communication by prohibiting only those communications that contain specific words of advocacy which unmistakably exhort the recipient to support the election or defeat of a clearly identified candidate. E.g., CAN II, 110 F.3d at 1051. Under this formulation, the presence of explicit words of advocacy is a constitutional requirement. But see Furgatch, 807 F.2d at 863 (rejecting a "magic words" approach because "[i]ndependent campaign spenders working on behalf of candidates could remain just beyond the reach of the Act by avoiding certain key words while conveying a message that is unmistakably directed to the election or defeat of a named candidate.")*fn23

In moderate contrast to this position is that taken by the Ninth Circuit, which held:

Furgatch, 807 F.2d at 864.*fn24 This more context-sensitive approach to "express advocacy" is supported by language in MCFL, holding that the "Special Edition" at issue "provide[d] in effect an explicit directive" and that the fact that it was "marginally less direct than "Vote for Smith" [did] not change its essential nature." MCFL, 479 U.S. at 249, 107 S.Ct. 616 (emphasis added).

After the events in this case took place, the FEC promulgated a regulation that quotes, and in some instances extends, Furgatch. See 11 C.F.R. § 100.22 (1999). That regulation has been held invalid as beyond the scope of the FEC's authority by the First and Fourth Circuits and a District Court in the Second Circuit.*fn25 In this Court the FEC argues directly from Furgatch.

Our Circuit has not had an opportunity to apply the "express advocacy" standard in a reported decision. Indeed the issue seems to appear in this District Court on only a decennial basis. See NOW, 713 F. Supp. 428 (D.D.C. 1989) (Robinson, C.J.); Federal Election Comm'n v. American Fed. of State, County and Municipal Employees, 471 F. Supp. 315 (D.D.C. 1979) (Smith, J.).

B. Synthesis

Having considered the relevant precedent, this Court understands the following attributes to be necessary to the application of § 441b's prohibition on independent expenditures containing "express advocacy." First, the communication must in effect contain an explicit directive. MCFL, 479 U.S. at 249, 107 S.Ct. 616. That effect is determined first and foremost by the words used. More specifically, the "express advocacy" standard requires focus on the verbs. See, e.g., Furgatch, 807 F.2d at 864-65 (when contemplating phrase "don't let him do it," shifting from district court's focus on "it" to "don't let him"). For a communication to contain, in effect, an explicit directive it must use an active verb (or its functional equivalent, e.g., "Smith for Congress" or, perhaps, an unequivocal symbol).

Second, that verb or its immediate equivalent — considered in the context of the entire communication, including its temporal proximity to the election — must unmistakably exhort the reader/viewer/listener to take electoral action to support the election or defeat of a clearly identified candidate. The most obvious electoral action is to vote for or against the candidate. But as the Buckley Court recognized when it included the verb "support" in its non-exclusive list, see 424 U.S. at 44 n. 52, 96 S.Ct. 612, express advocacy also includes verbs that exhort one to campaign for, or contribute to, a clearly identified candidate.*fn26

Finally, application of the "express advocacy" standard is, as former Chief Judge Aubrey E. Robinson, Jr. held, a pure question of law. See NOW, 713 F. Supp. at 433. While in other contexts application of such a legal standard would likely be considered a mixed question of law and fact, the First Amendment requires that the issue of whether a reasonable person would understand a communication to expressly advocate a candidate's election or defeat must be decided solely as a matter of law. Cf. Bose Corp. v. Consumers Union of Am., 466 U.S. 485, 505-06, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). The only predicate factual determinations are identification of the speaker and the communication's contents. Once those have been made, a communication can be held to contain express advocacy only if no reasonable person could understand the speech in question — and in particular the verbs in question — to, in effect, contain an explicit directive to take electoral action in support of the election or defeat of a clearly identified candidate. See MCFL, 479 U.S. at 249, 107 S.Ct. 616, cf FED. R. Civ. P. 12(b)(6), 50(a), 56(c).

Thus, the "express advocacy" standard covers only a narrow class of communications. While some have complained that "express advocacy" cannot be so limited as to be easily avoided by linguistic sleight-of-hand, e.g. Furgatch, 807 F.2d at 863; Thomas, Courts Cooked the FECA?, 1069 PLI/Corp at 554, this Court must conclude that that is precisely how the Supreme Court has narrowed the Act. In Buckley, the Court held that, as written, the FECA had too much bite. The Court recognized that the result of its narrowing construction rendered the FECA's limitations on independent expenditures largely toothless:

  It would naively underestimate the ingenuity and
  resourcefulness of persons and groups desiring to
  buy influence to believe that they would have
  much difficulty devising expenditures that
  skirted the restriction on express advocacy of
  election or defeat but nevertheless benefited the
  candidate's campaign.

Buckley, 424 U.S. at 45, 96 S.Ct. 612.*fn27

C. Application

Turning to the three alleged acts of "express advocacy" at issue in this case, the Court finds that with respect to two communications, Reed's Montana speech and the "Reclaim American" mailing, the Coalition steered clear of ยง 441b(a)'s prohibition. However, the Coalition's Georgia affiliate, for whose speech ...


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