TURK, District Judge.
This civil enforcement action was brought by the Plaintiff, the Federal Election Commission, ("FEC" or "Commission"), against the Defendant, the Christian Action Network, ("CAN"), and its president and chief executive officer, Martin Mawyer, alleging violations of the Federal Election Campaign Act of 1971, as amended 2 U.S.C. §§ 431 et seq. ("FECA" or the "Act").
The matter is presently before the court on the Defendants' motion to dismiss. The Defendants do not dispute that corporate treasury funds were used to finance the advertisements or that CAN failed to comply with FECA reporting requirements. Instead, the Defendants contend that the advertisements did not expressly advocate the election or defeat of a particular federal candidate. Accordingly, the Defendants argue that the FEC has no authority to regulate the manner in which the advertisements were financed. In the alternative, even if it could be said that the advertisements constituted express advocacy, the Defendants believe the advertisements would still be exempt
Having carefully reviewed the record, the parties' pleadings, and the pertinent case and statutory law, the court finds that it must grant the Defendants' motion. The advertisements at issue do not contain explicit words or imagery advocating electoral action. On the contrary, the advertisements represent a form of issue advocacy intended to inform the public about political issues germane to the 1992 presidential election. Therefore, the advertisements are fully protected as "political speech" under the First Amendment. Their financing is not governed by FECA and the FEC lacks jurisdiction to bring this suit.
The undisputed facts are as follow. The Christian Action Network is a nonprofit corporation created in 1990 under the laws of the Commonwealth of Virginia. CAN is a grass-roots organization that seeks to inform the public about issues which it believes affect "traditional Christian family values." During the weeks leading up to the November 3, 1992 presidential election, CAN spent approximately sixty-three thousand dollars, ($63,000.00), from its general treasury fund to produce television and print advertisements. These advertisements assailed what the Defendants believed to be the militant homosexual agenda of the Democratic candidates for president and vice-president, William Jefferson Clinton and Albert Gore, Jr. (hereinafter "Bill Clinton" and "Al Gore").
The television advertisement consisted of a thirty second spot entitled "Clinton's Vision for a Better America."
The commercial then presents a series of pictures depicting advocates of homosexual rights, apparently gay men and lesbians, demonstrating at a political march. While the narrator discusses the candidates' alleged agenda for homosexuals, short captions paraphrasing their positions are superimposed on the screen in front of the marchers. These images include: marchers carrying a banner saying "Libertarians for Gay and Lesbian Concerns" accompanied by the superimposed text "Job Quotas for Homosexuals"; the same banner accompanied by the superimposed text "Special Rights for Homosexuals"; two individuals with their arms around each others shoulders and text saying "Homosexuals in the Armed Forces"; and a man wearing a shirt which reads "Gay Fathers" with the text "Homosexuals Adopting Children."
As the scenes from the march continue, the narrator asks in rhetorical fashion, "Is this your vision for a better America?" Thereafter, the image of the American flag reappears on the screen, but without the superimposed image of candidate Clinton. At the same time, the music changes back to the single high pitched tone. The narrator then states, "[f]or more information on traditional family values, contact the Christian Action Network."
Shortly after CAN's television commercial began airing, the Chairman of the Democratic National Committee, Ron Brown, wrote a letter to various television stations and cable operators. In his letter, Chairman Brown asked the television media to discontinue running the commercial because he believed it to be "patently offensive" and "false." In response to this letter, CAN published a full page advertisement on October 15, 1992 in the Richmond Times-Dispatch. This date was approximately two weeks after the television commercial had begun airing. It also coincided with a nationally televised debate among the 1992 presidential candidates, which was held that evening in Richmond, Virginia. The newspaper advertisement was entitled "An Open Letter To: Gov. Bill Clinton, Democratic Presidential Candidate [and] Mr. Ron Brown, Democratic Party Chairman", and stated that it was "paid for by the Christian Action Network...." Importantly, however, the advertisement failed to state whether it was authorized by any candidate or committee. The body of the letter reads as follows:
CAN never received a response from the Clinton election team or any member of the Democratic National Committee. As a result, on October 26, 1992, the Defendants placed another full page newspaper ad. This time the advertisement was published in the Washington Times and was entitled "Since You Did Not Respond to Our Ad in Richmond; An Open Letter To: Gov. Bill Clinton, Democratic Presidential Candidate [and] Mr. Ron Brown, Democratic Party Chairman." The second newspaper ad was substantively identical to its predecessor. However, the second ad contained a statement that it was not authorized by any candidate. Furthermore, it failed to state that it was a paid political advertisement.
Motion to Dismiss Standard
On a motion to dismiss, the court must view the allegations in the complaint in the light most favorable to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Revene v. Charles County Com'rs, 882 F.2d 870, 872 (4th Cir.1989).
FECA Section 441b(a) and the Express Advocacy Standard
A literal reading of FECA section 441b(a) suggests that corporate entities are strictly prohibited from using general treasury funds to make independent expenditures in connection with federal elections.
However, a significant judicial gloss has been read into section 441b making the provision's ban less severe than it initially appears. Specifically, before an expenditure is subject to the prohibition of § 441b, it must be found to "expressly advocate" the election or defeat of a "clearly identified" federal candidate. Federal Election Com. v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249, 107 S.Ct. 616, 623, 93 L.Ed.2d 539 (1986), (hereinafter "MCFL").
Therefore, in order for the disclosure requirement to avoid being constitutionally infirm, the Court held that the term "expenditure" had to be construed to apply "only to expenditures 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. at 646-47. (emphasis added). As guidance, the Court went on to suggest certain language that it believed could properly be labeled "express advocacy." "[The Court's] construction would restrict the application of [the disclosure provision] 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 n. 52.
In the nineteen years since the Supreme Court's ruling in Buckley v. Valeo, the parameters of the "express advocacy" standard have been addressed by several federal courts in a variety of circumstances. Faucher v. Federal Election Com., 928 F.2d 468 (1st Cir.), cert. denied, 502 U.S. 820, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991) (pro-life voter guide); Federal Election Com. v. Furgatch, 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850, 108 S.Ct. 151, 98 L.Ed.2d 106 (1987) (newspaper advertisements criticizing President Carter); Federal Election Com. v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2nd Cir.1980) ("Central Long Island Tax Reform") (bulletin criticizing voting record of local congressman); Federal Election Com. v. Survival Education Fund, Inc., No. 89 Civ. 0347 (TPG), 1994 WL 9658 (S.D.N.Y. Jan. 12, 1994) ("SEFI") (letters criticizing the Reagan Administration's military involvement in Central America); Federal Election Com. v. Colorado Republican Fed. Campaign Comm., 839 F.Supp. 1448 (D.Colo.1993) ("Colorado Rep. C.C.") (radio advertisement attacking Senate candidate's alleged positions on defense spending and balanced budget issues); Federal Election Com. v. National Organization for Women, 713 F.Supp. 428 (D.D.C.1989) ("NOW") (mailings attacking certain members of Congress for their political views in opposition to abortion rights and the ERA); Federal Election Com. v. American Federation of State, County & Municipal Employees, 471 F.Supp. 315 (D.D.C.1979) ("American Federation") (Nixon-Ford poster distributed to union members criticizing the Watergate pardon).
The one notable exception, on which the FEC relies heavily in the instant case, is the Ninth Circuit's decision in FEC v. Furgatch.
At the outset, the Ninth Circuit stated that it believed the "express advocacy language of Buckley ... [did] not draw a bright and unambiguous line" and that it was therefore compelled "to interpret and refine the standard...." Id. at 861. The Ninth Circuit then argued that an advertisement should not be required to contain the "magic words" provided by the Buckley Court in order to constitute "express advocacy" and fall under the auspices of FECA.
Applying its "more comprehensive approach," the Furgatch Court found that the defendant's advertisement represented express advocacy. This was true despite the fact that the advertisement failed to state the precise action called for, but rather left the reader with an "obvious blank" to fill in. Id. at 865. Considering the timing of the advertisement, appearing less than a week before the election, and the fact that it repeatedly referred to the election campaign, the Ninth Circuit found that "reasonable minds could not dispute that [the] advertisement urged readers to vote against Jimmy Carter." Id. Therefore, the Court concluded there was no real ambiguity as to what the phrase "DON'T LET HIM DO IT" meant and the advertisement was found to be subject to FEC regulation.
The Defendants' Advertisements Did Not Expressly Advocate the Defeat of Candidates Clinton and Gore
Having thoroughly reviewed the case law addressing the "express advocacy" standard, the court finds that the Defendants' advertisements are not subject to regulation under FECA. This is true whether CAN's television commercial is viewed individually or in conjunction with the two print advertisements. Concededly, the advertisements "clearly identified" the 1992 Democratic presidential and vice presidential candidates. Bill Clinton's face was prominently displayed in the television commercial and both Clinton and Gore were mentioned by name in all three advertisements. Similarly, it is beyond dispute that the advertisements were openly hostile to the proposals believed to have been endorsed by the two candidates. Nevertheless, the advertisements were devoid of any language that directly exhorted the public to vote. Without a frank admonition to take electoral action, even admittedly negative advertisements such as these, do not constitute "express advocacy" as that term is defined in Buckley and its progeny. See Colorado Rep. C.C., 839 F.Supp. at 1455 ("Even assuming the [a]dvertisement indirectly discourages voters from supporting [the candidate], it does not contain a direct plea for specific action required from Buckley and Furgatch."); SEFI, 1994 WL 9658 at *3 ("It is clear from the cases that expressions of hostility to the positions of an official, implying that [the] official should not be reelected — even when that implication is quite clear — do not constitute the express advocacy which runs afoul of [FECA]."); American Federation, 471 F.Supp. at 317 ("[A]lthough the poster includes a clearly identified candidate and may have tended to influence voting, it contains communication on a public issue widely debated during the campaign.... [a]s such, it is the type of political speech which is protected from regulation.").
CAN's television commercial addressed political issues. It informed the public on what the organization believed to be the "gay agenda" of the Democratic candidates. Specifically, the commercial questioned whether homosexuals should be afforded protection under federal civil rights laws. It also questioned the propriety of integrating homosexuals into the armed services and permitting their adoption of children. Moreover, through the use of the narrator's rhetorical question at the end of the commercial — "Is this your vision of a better America?" — the Defendants made it clear that they were adamantly opposed to such action.
At the same time, despite the implication that the Democratic candidates favored such changes, nowhere in the commercial were viewers asked to vote against them. As the
With respect to the two newspaper advertisements, the court, again, cannot agree with the Commission that the Defendants urged the public to take electoral action. The print advertisements merely reiterated the candidates' positions on homosexual rights that had been presented in CAN's television commercial. It is true that the print ads stated "the voting public needs to know ... Gov. Bill Clinton's agenda" and described CAN's television commercial as "informing the voting public of Gov. Bill Clinton's support for the `gay rights' political agenda." It is also true that the print ads identified the Democratic Party and referred to the Richmond presidential debate. However, informing the public of a candidate's political views, even when the reader is addressed as a member of the voting public, does not per se translate into an exhortation to vote.
Furthermore, it is clear that the only reason the print ads referred to the Democratic party and Richmond presidential debate was because the Defendants wanted some individual, either from the Clinton campaign team or the Democratic National Committee, to state publicly and unequivocally the candidates' position on homosexual rights. Therefore, any call for action encompassed in the advertisements was directed at the candidates and Chairman Brown, not the voting public. The ads asked Clinton and Gore to retract their alleged support for a "homosexual agenda," and challenged Chairman Brown to identify what he believed was "patently offensive" and "false" about CAN's television commercial. Simply put, even if one views the advertisements' request for the Democratic leaders to clarify their views on homosexual rights as dubious or juvenile baiting, it cannot reasonably be said that the import of the ads was to instruct the public on how they should vote.
The issue of gay rights addressed by the CAN's television commercial and newspaper ads raised strong emotions amongst viewers and readers. However, there is no
The FEC's Proposed Approach to the Express Advocacy Standard is Legally and Logistically Untenable
The FEC seeks to avoid the weight of authority calling for a strict interpretation of the "express advocacy" test by arguing that the instant case is unique.
Especially significant, the FEC argues, is the strong message conveyed by the use of the American flag in the CAN television commercial. According to the FEC, the television advertisement "makes its anti-Clinton message explicit by concluding with the same full-color image of the rippling flag as opened the commercial — but without the superimposed image of Clinton." (Pl.'s Mem. in Opp. at 28.) "By graphically removing Clinton's superimposed image from the presidential setting of the American flag, the advertisement visually conveys the message that Clinton should not become president." Id. "[It] is a powerful visual image telling voters to defeat Clinton." Id.
In addition to the symbolic use of the American flag, the FEC notes several other aspects of CAN's television commercial which it believes are relevant to the court's express advocacy analysis. These include: (1) the visual degrading of candidate Clinton's picture into a black and white negative; (2) the use of visual text and audio voice-overs; (3) ominous music; (4) unfavorable coloring; (5) codewords such as "vision" and "quota;" (6) issues raised that are relevant only if candidate Clinton became president; (7) the airing of the commercial in close proximity to the national election; and (8) abrupt editing linking Clinton to the images of the gay rights marchers.
While the approach to the "express advocacy" standard proposed by the Commission is resourceful, the court cannot accept it. Under the Commission's approach, courts would be asked to consider not only the words used in a television advertisement, but also more nebulous characteristics such as the ad's use of color, music, tone, and editing. The Supreme Court's decision in Buckley simply does not permit this type of judicial inquiry.
Therefore, in order to avoid the possibility that a speaker's intent or meaning would be misinterpreted, the Court in Buckley limited FECA's restrictions to communications containing express words of advocacy. By creating a bright-line rule, the Court ensured, to the degree possible, that individuals would know at what point their political speech would become subject to governmental regulation.
It takes little reflection to realize that messages conveyed by imagery are susceptible to even greater misinterpretation than those that are conveyed by the written or spoken word.
The Commission's approach is also flawed because it is based on a misreading of the Ninth Circuit's decision in Furgatch. In Furgatch, the appellate court expressed its concern that by unnecessarily focusing on the "magic words" presented in Buckley and ignoring the context in which speech is presented, courts would "preserve the First Amendment at the expense of eviscerating the Federal Election Campaign Act." Furgatch, 807 F.2d at 863. At the same time, however, the panel was careful to note that the context of the speech cannot be the preeminent factor in a court's analysis in light of the express dictates of Buckley:
The FEC ignores this caveat and distorts the holding in Furgatch by attaching undue significance to the timing of the Defendants' advertisements. Repeatedly, the Commission insists that because the Defendants' advertisements appeared just prior to the general election they conveyed a singular message — vote against candidates Clinton and Gore.
Further, the court believes the Furgatch decision is readily distinguishable from the instant case because of the nature of the advertisement at issue. At the conclusion of the Ninth Circuit's opinion, the Court characterized the advertisement attacking President Carter as follows:
As stated, the same cannot be said with respect to CAN's advertisements. Both the television commercial and the print ads specifically addressed the election issue of homosexual rights. While the ads were negative, they assailed political views rather than indiscriminately attacking the candidates. Therefore, the Defendants' advertisements are substantively different from the ad in Furgatch.
Over the past decade political advertising has taken on an increasingly derisive tone. More and more, at both the state and federal levels, advertisements are disseminated for the purpose of stirring emotion rather than provoking lucid political discussion. With the onslaught of television into our daily lives, this type of politicking has increased exponentially. Nevertheless, the proper way to combat negative campaigning is not to increase government regulation over it.
The court appreciates that the FEC is in the precarious position of attempting to thwart the misuse of corporate funds to back or discredit candidates, while at the same time attempting to avoid undue government regulation of protected political speech. See Central Long Island Tax Reform, 616 F.2d at 55 (Kaufman, C.J.) (Concurring) "Buckley v. Valeo imposed upon the FEC the weighty, if not impossible, obligation to exercise its powers in a manner harmonious with a system of free expression.") Drawing that line has never been easy and the recent proliferation of negative advertising only makes it more difficult.
In this case, however, the FEC's position is unsupportable. To be sure, the Defendants' advertisements "clearly identified" candidates Clinton and Gore and were negative of the positions they held with respect to homosexual rights. But negative attacks on candidates' political views, without more, do not suffice to meet the standard enunciated in Buckley v. Valeo.
Therefore, it is the opinion of the court that the Defendants' advertisements do not constitute express advocacy and are not subject to regulation under FECA. Furthermore, because the court is convinced that there is no set of facts which the Commission could prove which would alter this result, the Defendants' motion must be granted. The remaining issues raised by the Defendants' need not be addressed. An appropriate order shall be entered this day.
In accordance with the Memorandum Opinion entered this day, it is hereby
ADJUDGED AND ORDERED
that the Defendants' motion to dismiss is GRANTED. The Clerk of Court is instructed to strike the case from the court's active docket and to send certified copies of this Order and accompanying Memorandum Opinion to all counsel of record.
"Clinton's Visions For A Better America"
"Clinton's Visions For A Better America"
"Clinton's Visions For A Better America"
"Clinton's Vision For A Better America"
"Clinton's Vision For A Better America"
"Clinton's Vision For A Better America"
"Clinton's Vision For A Better America"
"Clinton's Vision For A Better America"
Federal Election Commission v. Christian Action Network
(Mem. in Opp. at 20-21.)
Citing this footnote, the FEC argues that the Supreme Court has made "it clear that unambiguous imagery, and not only words, could satisfy the constitutional requirements it had identified." (Pl.'s Mem. in Opp. at 12); see also (Pl.'s Mem. in Opp. at 17) ("Buckley itself indicates that the constitutional standard can be satisfied by visual imagery alone....").
The court finds this reasoning suspect. It is doubtful that the Buckley Court ever contemplated the possibility that imagery could be sufficiently explicit to meet the express advocacy standard. The language used by the Buckley Court in enunciating the standard certainly does not suggest so. "The constitutional deficiency described in Thomas v. Collins can be avoided only by reading § 608(e)(1) as limited to communications that include explicit words of advocacy...." Buckley, 424 U.S. at 42, 96 S.Ct. at 646. "This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy...." Id. at 44 n. 52, 96 S.Ct. at 647 n. 52. Additionally, the court believes the FEC's contention is flawed on a more practical level. When a picture or life-like caricature is used in a political advertisement it will generally identify a particular candidate in unmistakable terms. That is, it will "clearly identify" the candidate. The same cannot be said with respect to "express advocacy" of electoral action. The court is not aware of any universally accepted symbol that unambiguously indicates "vote for" or "vote against" a particular candidate. See infra n. 16.
The court finds the expert's analysis unpersuasive for several reasons. First, the fact that an expert was needed to enlighten the court on the message conveyed by the communications strongly suggests that they did not directly exhort the public to vote. Second, the concepts used by the FEC's expert contradict his claim that a clear message was conveyed. For example, the term "codeword" cannot, by its very definition, be said to express a direct message. Lastly, nowhere in the expert's analysis does he state the legal standard or test on which he basis his opinion that the ads constituted "express advocacy."
The court is inclined to disagree. Depending on what accompanied the image, the international stop sign might communicate several different messages to the viewer besides voting against the candidate. This would be true even if such symbolism was used during an election campaign.
Regardless, assuming arguendo that the FEC is correct and imagery can constitute express advocacy, the court finds absolutely no merit in the Commission's claim that the imagery used by CAN, the black and white negative photo of Bill Clinton and the removal of his image from the American flag, is "like the international stop sign urging the defeat of a candidate during an election campaign." (Pl.'s Mem. in Opp. at 28.) The only clear message that was conveyed by the imagery in CAN's television commercial was the Defendants' firm opposition to the expansion of homosexual rights.