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RIGHT TO LIFE OF DUTCHESS COUNTY, INC. v. FEC

June 1, 1998

RIGHT TO LIFE OF DUTCHESS COUNTY, INC., Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant.



The opinion of the court was delivered by: STEIN

OPINION

 SIDNEY H. STEIN, U.S. District Judge.

 The issue for resolution is whether a Federal Election Commission ("FEC") regulation, which defines the scope of the prohibition on corporate "express advocacy" of the election or defeat of candidates for federal office, is consistent with the strictures imposed by the United States Supreme Court to avoid impinging on rights of expression protected by the First Amendment. This Court finds that the regulation is impermissibly overbroad in light of the Supreme Court holdings in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1979), and FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986) ("MCFL ").

 Specifically, the FEC regulation, which is set forth at 11 C.F.R. § 100.22(b), defines the term "expressly advocating" for purposes of the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 431 et seq. ("FECA"). In this action, plaintiff Right to Life of Dutchess County, Inc. ("RLDC") seeks (1) a declaratory judgment that the FEC's definition of "express advocacy" is invalid either because it is unconstitutionally overbroad in that it prohibits protected First Amendment speech, or because it is unconstitutionally vague and, thus, violative of the Fifth Amendment's due process guarantee, and (2) an injunction prohibiting the FEC from enforcing the regulation. The parties have moved for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, plaintiff's motion is granted, defendant's motion is denied, 11 C.F.R. § 100.22(b) is declared invalid, and the FEC is enjoined from enforcing 11 C.F.R. § 100.22(b).

 I. Background

 A. The challenged regulation

 Federal election law bars "any corporation whatever" from making expenditures "in connection with" any presidential or congressional election. See 2 U.S.C. § 441b(a). While the statutory prohibition is extremely broad on its face, First Amendment concerns have led the Supreme Court to limit its reach to prohibit solely the "express advocacy" of the election or defeat of a clearly identified candidate or candidates. See Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1979); MCFL, 479 U.S. 238, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986).

 More specifically, the Supreme Court has found that corporate expenditures for political communications violate 2 U.S.C. § 441b(a) only where the communications employ "express" or "explicit" words of advocacy, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," or "reject." See MCFL, 479 U.S. at 249 (quoting Buckley v. Valeo, 424 U.S. at 44 n.52); see also Buckley v. Valeo 424 U.S. at 80 n.108. Lower courts, with the notable exception of the United States Court of Appeals for the Ninth Circuit, have adhered to that narrow, bright-line reading of the "express advocacy" standard. See FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir. 1980) (en banc) ("CLITRIM") (section 441d "clearly establish[es] that, contrary to the position of the FEC, the words 'expressly advocating,' mean exactly what they say"); FEC v. Survival Educ. Fund, Inc., 1994 U.S. Dist. LEXIS 210, *6, No. 89 Civ. 034 (S.D.N.Y.), aff'd in part and rev'd in part on alt. grounds, 65 F.3d 285 (2d Cir. 1995). See also FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1051-53 (4th Cir. 1997); Maine Right to Life Comm., Inc. v. FEC, 914 F. Supp. 8, 13 (D. Me), aff'd, 98 F.3d 1 (1st Cir. 1996); Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991). But see FEC v. Furgatch, 807 F.2d 857, 862-63 (9th Cir. 1987) (making "more comprehensive" Buckley's definition of "express advocacy" to include speech that, "when read as a whole, and with limited reference to external events, [is] susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate").

 Nevertheless, the FEC has historically been reluctant to limit its enforcement activities to "express advocacy," as that phrase has been interpreted by the Supreme Court, and has only recently drafted language to define the term. *fn1" According to the FEC regulation at issue:

 
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 ...

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