Fees and other expenses awarded and case remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge RUSSELL and Senior Judge CHAPMAN joined.
LUTTIG, Circuit Judge:
The Supreme Court of the United States held in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and reaffirmed in FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986), that corporate expenditures for political communications violate 2 U.S.C. § 441b(a) only if the communications employ "explicit words," "express words," or "language" advocating the election or defeat of a specifically identified candidate for public office. In the underlying litigation, the Federal Election Commission advanced the position that the Christian Action Network violated section 441b(a) through corporate expenditures for a commercial in which the following text was read by a narrator:
Although conceding that the Christian Action Network's advertisements did not employ "explicit words," "express words," or "language" advocating the election or defeat of a particular candidate for public office, the FEC nonetheless contended that the Network's expenditures for these advertisements violated section 441b(a) because the advertisements "unmistakably" "expressly advocated" the defeat of then-Governor Clinton in the presidential election of 1992, through the superimposition of selected imagery, film footage, and music, over the nonprescriptive background language.
On the authority of Buckley v. Valeo and FEC v. Massachusetts Citizens For Life ("MCFL"), the district court dismissed the FEC's action against the Network for failure to state a claim upon which relief could be granted, holding that, as "issue advocacy intended to inform the public about political issues germane to the 1992 presidential election," the advertisements were "fully protected as `political speech' under the First Amendment." Federal Election Commission v. Christian Action Network, 894 F.Supp. 946, 948 (W.D.Va.1995). In so holding, the district court refused the FEC's invitation to examine the "meaning behind the images" which appear in the Network's television commercial.
In Buckley v. Valeo, in order to eliminate what otherwise would have been the unconstitutional overbreadth of the Federal Election Campaign Act of 1971, as amended in 1974, the Supreme Court interpreted the statutory phrase "relative to," see 18 U.S.C. § 608(e)(1) (repealed in 1976),
Id. at 44 n. 52, 96 S.Ct. at 647 n. 52.
The Court adopted the bright-line limitation that it did in Buckley in order to protect our cherished right to political speech free from government censorship. Recognizing that "the distinction between discussions of issues and candidates [on the one hand] and advocacy of election or defeat of candidates [on the other] may often dissolve in practical application," id. at 42, 96 S.Ct. at 646, the Court concluded, plain and simple, that absent the bright-line limitation, the distinction between issue discussion (in the context of electoral politics) and candidate advocacy would be sufficiently indistinct that the right of citizens to engage in the vigorous discussion of issues of public interest without fear of official reprisal would be intolerably chilled. Thus, the Court reasoned:
Id. at 43, 96 S.Ct. at 646 (quoting Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 325, 89 L.Ed. 430 (1945)). The Court opted for the clear, categorical limitation, that only expenditures for communications using explicit words of candidate advocacy are prohibited, so that citizen participants in the political processes would not have their core First Amendment rights to political speech burdened by apprehensions that their advocacy of issues might later be interpreted by the government as, instead, advocacy of election result. See Buckley at 43, 96 S.Ct. at 646 ("The constitutional deficiencies described in
The Court's commitment to a limited role for the government in the regulation of corporate political expenditures, and specifically its commitment to an interpretation of the Constitution that permits the prohibition only of corporate political communications that employ express words of advocacy, was reaffirmed a full decade after Buckley, in MCFL. There, the Court interpreted section 441b of the Federal Election Campaign Act, 2 U.S.C. § 441b(a), "the more intrusive provision" of the Act, see MCFL, 479 U.S. at 249, 107 S.Ct. at 623, which prohibits corporations from using treasury funds to make any "contribution or expenditure in connection with" any federal election. Observing that Buckley's rationale, that the divide between discussion of issues and candidates and election advocacy is so obscure as to require a prophylactic definition in order to give the widest berth to First Amendment freedoms, was equally applicable to expenditures under section 441b(a), the Court unanimously engrafted onto section 441b(a) Buckley's "express advocacy" limitation. Citing to footnote 52 in Buckley, the Court reiterated its holding that "a finding of `express advocacy' depend[s] upon the use of language such as `vote for,' `elect,' `support,' etc." Id. (quoting Buckley, 424 U.S. at 44 n. 52, 96 S.Ct. at 647 n. 52) (emphasis added). And, consistent with its reaffirmation of Buckley's "explicit words of advocacy" standard, the Court concluded that "[j]ust such an exhortation" appeared in the voter guides at issue in that case, which identified particular pro-life candidates by name and with photographs and urged voters to vote for those candidates through the "explicit directive" "VOTE PRO-LIFE." Id. at 243, 249, 107 S.Ct. at 620, 623.
That the Court in Buckley and MCFL unambiguously limited the Federal Election Commission's regulatory authority over corporate expenditures to those for communications that use explicit words of advocacy has been uniformly recognized by the lower courts.
In one of the first appellate cases following Buckley, the Second Circuit flatly rejected the FEC's definition of "express advocacy." FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2nd Cir.1980) (en banc) ("CLITRIM"). The Second Circuit found the FEC's position, which, like that urged by the FEC in this case, would have allowed the FEC to regulate "implied" communications that "encourag[ed]" election or defeat, to be "totally meritless." Id. at 53. Admonishing that the Supreme Court's interpretations of sections 434(e) and 441d "clearly establish that, contrary to the position of the FEC, the words `expressly advocating' mean exactly what they say," the court warned that the FEC's position would effectively "nullify" the Supreme Court's decision in Buckley. Id.
Seven years later, and less than a month following the Court's decision in MCFL, the Ninth Circuit in FEC v. Furgatch, 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850, 108 S.Ct. 151, 98 L.Ed.2d 106 (1987), could not have been clearer that it, too, shared this understanding of the Court's decision in Buckley.
The court explained that individual words or sentences of the message cannot be considered in isolation, but, rather, must be considered together with the other words and sentences that appear in the communication, in determining whether the message is one of election advocacy:
Id. at 863. Then, although noting how "[w]ords derive their meaning from what the speaker intends and what the reader understands," the court declined to place too much importance on intent because "to fathom [the speaker's] mental state would distract [the court] unnecessarily from the speech itself." Id. And, finally, although the court refused to foreclose resort to contextual considerations external to the words themselves, it explained that external context must necessarily be an "ancillary" consideration because it is "peripheral to the words themselves," id., and it pointedly noted that such "context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words," id. at 864.
Having established that the emphasis must always be on the literal words of the communication, with little if any weight accorded external contextual factors, the court proceeded to outline what it considered to be "a more comprehensive approach to the delimitation of `express advocacy.'" Id. at 862. In so doing, the court repeatedly emphasized that the message of candidate advocacy must appear in the speech, in the words, of the communication if the expenditure of corporate funds for that communication is to be prohibited:
Id. at 864 (emphases added). The court's almost exclusive focus on "speech," and specifically "speech" defined as the literal words or text of the communication, could not have been any clearer, as the following passage in explanation of its conclusion confirms:
Id. (emphases added).
Indeed, the simple holding of Furgatch was that, in those instances where political communications do include an explicit directive to voters to take some course of action, but that course of action is unclear, "context" — including the timing of the communication in relation to the events of the day—may be considered in determining whether the action urged is the election or defeat of a particular candidate for public office. See id. at 865 ("We hold . . . that this failure to state with specificity the action required does not remove political speech from the coverage of the Campaign Act when it is clearly the kind of advocacy of the defeat of an identified candidate that Congress intended to regulate."). As the FEC described Furgatch in opposing a grant of certiorari in that case:
FEC Opposition to Certiorari in Furgatch at 7.
In emphasis of the language of the communication, the court's analysis focused on the words of the advertisement at issue in the case, "DON'T LET HIM DO IT," and, specifically, on the words "DON'T LET HIM." Furgatch, 807 F.2d at 864; see also FEC Opposition to Certiorari in Furgatch at 4 ("The court found that the language of Mr. Furgatch's advertisement left `no doubt that the ad asks the public to vote against Carter.'" (emphasis added)). The court characterized these words as "simple and direct" words of "command," which "`expressly advocate[d]' action of some kind." Furgatch, 807 F.2d at 864. Although acknowledging that whether the words constituted express advocacy was a "very close call," id. at 861, the court ultimately held that "[r]easonable minds could not dispute that [the] advertisement urged readers to vote against Jimmy Carter . . . [because] [t]his was the only action open to those who would not `let him do it,'" id. at 865. It noted the fact that the advertisement appeared one week before the 1980 presidential election; however, the court explained, that fact only served to "reinforce"
Bridging the decade between Furgatch and today, the First Circuit, in Maine Right to Life Committee v. FEC, recently even invalidated that portion of the FEC's new regulatory definition of "express advocacy" which, in substance, is the definition the FEC urged upon us.
And the First Circuit's rejection of the FEC's arguments as to the meaning of "express advocacy" is only the most recent in a string of losses in cases between the FEC and issue advocacy groups over the meaning of the phrase "express advocacy" and the permissible scope of the FEC's regulatory authority over corporate political speech. See, e.g., FEC v. Christian Action Network, 894 F.Supp. 946 (W.D.Va.1995), aff'd per curiam, 92 F.3d 1178, 1996 WL 431996 (4th Cir.1996); FEC v. Survival Education Fund, No. 89 Civ. 0347, 1994 WL 9658 (S.D.N.Y. Jan. 12, 1994), aff'd in part and rev'd in part on other grounds, 65 F.3d 285, 290 (2nd Cir.1995); FEC v. Colorado Republican Federal Campaign Committee, 839 F.Supp. 1448 (D.Co.1993), rev'd on other grounds, 59 F.3d 1015 (10th Cir.1995), vacated on other grounds, ___ U.S. ___, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996); Faucher v. FEC, 928 F.2d 468 (1st Cir.), cert. denied, 502 U.S. 820, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991); FEC v. National Organization for Women, 713 F.Supp. 428 (D.D.C.1989); FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2nd Cir.1980); FEC v. American Federation of State, County and Municipal Employees, 471 F.Supp. 315 (D.D.C.1979).
Against this overwhelming weight of (and, in the case of the Supreme Court decisions, dispositive) authority, the FEC argued before the district court and before us the concededly "novel" position, see Appellant's
Thus, according to the Commission's arguments, it could regulate under the standard of "express advocacy" any "terms," any "communications," which "unmistakably" or "unambiguously" "encourage" voters to take "some kind of action" for or against a candidate, whether or not those communications take the form of "words" or "language" "expressly" or "explicitly" "advocating" the election or defeat of a particular candidate at the polls. See Appellant's Br. at 11; 11 C.F.R. § 100.22(b). Buckley's requirement of "explicit words" would be satisfied by the use of non-verbal "terms." See Appellant's Br. at 23. MCFL's (and Buckley's) insistence upon "language" of advocacy would be satisfied by any communicative form of expression. See 11 C.F.R. § 100.22(b). And, where "express" "advocacy" has been required, "unmistakable" "encouragement" would suffice. See also Brief of Amicus Curiae Democratic National Committee in Support of Appellants ("DNC Br.") at 10 (arguing that federal regulation applies to "speech that is unambiguously aimed at influencing voters").
Stripped of its circumlocution, the FEC's argument was (and is) that the determination of whether a given communication constitutes "express advocacy" depends upon all of the circumstances, internal and external to the communication, that could reasonably be considered to bear upon the recipient's interpretation of the message. The right to engage in political speech would turn on an interpretation of the "imagery" employed by the speaker. See Appellant's Br. at 26-27 ("Symbols, pictures, and images can have the same potent communicative effect as  verbal expressions."). It would depend upon the perceived "charge" of the "rhetoric" used, see Appellant's Br. at 12-13, 37 n. 18 (noting FEC's belief that the controversial and provocative character of a communication is an "important factor" in demonstrating that the communication has an unmistakable electoral message); Appellant's Opposition to Fees at 8, and upon the timing of the communication, see id. at 10 (stressing the importance of the "context and timing" of speech). The right would be contingent upon one's mere identity or association, as the following exchange between the court and FEC counsel reveals:
Oral Arg. Trans. at 11-13. The FEC thus argues that "[w]hen included as part of the message, the speaker's identity becomes part of the communication itself, and what matters is not what the viewer or the courts will infer about the speaker's intent, but what a reasonable person, informed about the speaker's identity (and thus potential biases and
Oral Arg. Trans. at 15-16.
To quote the following passage, in which the FEC articulates some of the multitude of factors that would be considered under its interpretation in determining whether a given communication was prohibited, is to appreciate the breadth of power that the FEC would appropriate to itself under its definition of "express advocacy":
Appellant's Opposition to Fees at 8. This is little more than an argument that the FEC will know "express advocacy" when it sees it.
The FEC's enforcement action against the Christian Action Network in this case brings into relief the extent to which, under the FEC's interpretation of "express advocacy," political speech would become hostage to the vicissitudes of the Commission, because, although a viewer could interpret the Network's video as election advocacy of the defeat of Governor Clinton, another viewer could just as readily interpret the video as issue advocacy on the question of homosexual rights. Indeed, the commercial and advertisements that the FEC here contend fall squarely within its regulatory purview are precisely the kinds of issue advocacy that the Supreme Court sought to protect in Buckley and MCFL; and the FEC's interpretation of these advertisements is exactly that contemplated by the Court when it warned of the constitutional pitfalls in subjecting a speaker's message to the unpredictability of audience interpretation, see Buckley, 424 U.S. at 43, 96 S.Ct. at 646. Cf. Appellant's Reply Br. at 8 (conceding that Network's television commercial and newspaper advertisements "[took] a position against Clinton's purported positions on gay rights and thus contain issue advocacy," but contending that these communications "also contain[ed] express electoral advocacy"); Appellant's Br. at 13 ("[The advertisement's] explicit focus was on Clinton's presidential campaign agenda, not a more general discussion of gay rights.").
Absent the final sentence, which adds nothing of advocacy to the preceding text, these words could well have appeared in a commercial approved by Governor Clinton himself and advocating his own election; it is a matter of public record that then-Governor Clinton and now-President Clinton considers expanded homosexual rights as an important part of his vision for the Country. The FEC's own brief quotes President Clinton in a May 1992 speech to a gay and lesbian audience as promising that "I have a vision, and you are part of it". See Appellant's Br. at 41 n. 21.
The video's nonprescriptive language is no more incontrovertibly an exhortation to vote against Governor Clinton when spoken with the inflection and overlaid with the imagery, music, and film footage which served as the backdrop for the text. Entitled "Clinton's Vision for a Better America," the video opens with a complimentary, full-color photograph of Governor Clinton, which quickly fades into a black-and-white photographic negative and
The two print advertisements, which the FEC urges that we consider in tandem with the television video, are even less susceptible to characterization as election advocacy.
Like the television video, these letters are, at most, "openly hostile to the [pro-homosexual rights] proposals believed to have been endorsed by" candidates Clinton and Gore. Christian Action Network, 894 F.Supp. at 953; see also Brief of Amicus Curiae American Civil Liberties Union of Virginia in Support of Appellees ("ACLU Br.") at 21. The only action they urge is that Governor Clinton, Senator Gore, and Mr. Brown abandon their positions on the various public issues concerning homosexual rights, as the district court found. See Christian Action Network, 894 F.Supp. at 954 ("any call for action encompassed in the advertisements was directed at the candidates and Chairman Brown, not the voting public.").
In sum, unlike even the advertisement in Furgatch, which was "bold in calling for action, but fail[ed] to state expressly the precise action called for," Furgatch, 807 F.2d at 865; see also FEC Opposition to Certiorari in Furgatch at 8 (noting that Furgatch's advertisement included "explicit exhortation"), in neither the video nor in the print advertisements at issue in this case is there any action urged with respect to any candidate. There are no words expressly advocating the defeat of Governor Clinton in the 1992 presidential election, or, for that matter, any words urging voters to take any action whatsoever as to the Governor. As the district court found, these advertisements are simply "devoid of any language that directly exhorted the public to vote" for or against any particular candidate. See Christian Action Network, 894 F.Supp. at 953. They presented viewers "with the candidates' views on homosexual rights and told [them] that [those views] sharply contrasted with those held by the [Christian Action Network][,] [but] [t]he only immediate action called for by the commercial was for viewers to contact CAN if they agreed with the [Network's] opposition to a `gay rights agenda,'" id. at 954, and the only action called for by the newspaper advertisements was for candidates Clinton and Gore to repudiate their positions with respect to homosexual rights. Just as the FEC argued in opposition to
Yet, the FEC would have us confer power upon it to regulate these advertisements because, in its assessment,
Appellant's Br. at 37-38. Or, because, in the words of the "expert" whom the FEC retained to assist it in its action against the Christian Action Network:
See J.A. at 65, 77 (Prof. Darrell M. West, Brown University, An Analysis of Ads Run by the Christian Action Network, Inc. in 1992).
Even absent binding Supreme Court precedent, we would bridle at the power over political speech that would reside in the FEC under such an interpretation. The American Civil Liberties Union observes in its amicus brief in support of the Christian Action Network that if the FEC's interpretation were to prevail, "ads attacking an identified candidate's political positions during a campaign [would] virtually always, if not per se, amount to `express advocacy' of that candidate's defeat at the polls." ACLU Br. at 3. And, from the Commission's argument that advertisements which "make it absolutely clear that [the group sponsoring the ads] considers homosexual behavior and the support of additional rights for gay men and lesbians to be abhorrent" can "only reasonabl[y]" be interpreted as "asking others to join its fight to defeat Clinton and thereby foreclose his asserted homosexual rights agenda," see Appellant's Br. at 40, this would appear to be precisely the consequence of the agency's interpretation.
Whether we would agree with the FEC's interpretation of its authority under the Federal Election Campaign Act, or find its interpretation reasonable, were this a matter of first impression, however, is not ultimately the question. The question for us is only whether the FEC was "substantially justified" in taking the position it did, in light of the Supreme Court's unambiguous pronouncements in Buckley and MCFL that explicit words of advocacy are required if the Commission is to have standing to pursue an enforcement action. The simple answer to this question must be that it was not so justified. As we stated in adopting the district court's opinion, the FEC's position was based not only "on a misreading of the Ninth Circuit's decision in Furgatch," but also on a
From the foregoing discussion of Buckley and MCFL, it is indisputable that the Supreme Court limited the FEC's regulatory authority to expenditures which, through explicit words, advocate the election or defeat of a specifically identified candidate. In the portion of Buckley in which the Court addresses the overbreadth of the Federal Election Campaign Act and adopts its limiting construction of section 608(e)(1)'s term "relative to," the Court does not even use the phrase "express advocacy," upon the purported "ambiguity" of which the FEC builds its diffuse definition. In this most important portion of the opinion, cf. DNC Br. at 5, the Court only refers to "explicit words of advocacy," "express terms," and "express words of advocacy." See Buckley, 424 U.S. at 43-44, 96 S.Ct. at 646-47. It is not until the Court interprets the statutory term "expenditure" in section 434(e) to include the same limitation as in section 608(e)(1), forty pages later in the opinion, that the Court even uses the phrase "express advocacy," see id. at 80, 96 S.Ct. at 664. But even there, the Court confirms through footnote 108's cross-reference to footnote 52, in which the Court lists the kinds of words that would warrant exercise of the FEC's regulatory authority, that it meant by the phrase "express advocacy" nothing more or less than "express words of advocacy."
Were this alone not sufficient to establish that the Court meant by "express advocacy" "express words of advocacy," then the Court's subsequent discussion in MCFL removes all doubt. There, because it was interpreting the statutory term "expenditure," the Court cited to Buckley's discussion of section 434(e), rather than to that case's discussion of section 608(e)(1), and used the shorthand phrase "express advocacy." See MCFL, 479 U.S. at 248-49, 107 S.Ct. at 622-23. The Court then went on to define "express advocacy," again through citation to its footnote 52 in Buckley, to mean "express words of advocacy." See id. at 249, 107 S.Ct. at 623 (citing Buckley, 424 U.S. at 44 n. 52, 96 S.Ct. at 647 n. 52). It even stated that in Buckley it had concluded "that a finding of `express advocacy' depend[s] upon the use of language such as `vote for,' `elect,' `support,' etc." MCFL, 479 U.S. at 249, 107 S.Ct. at 623 (citing Buckley, 424 U.S. at 44 n. 52, 96 S.Ct. at 647 n. 52) (emphasis added).
The FEC is fully aware that the Supreme Court has required explicit words of advocacy as a condition to the Commission's exercise of power, as evidenced by its own dissembling before this court. See generally Thomasson v. Perry, 80 F.3d 915, 939-41 (4th Cir.1996) (Luttig, Circuit Judge, concurring);
That the Commission knows well the Court's holdings in Buckley and MCFL is further confirmed by the agency's subsequent action in Furgatch, which we referenced supra at 1053-55. Because Furgatch, despite its narrow holding, does include broad dicta which can be read (or misread) to support the FEC's expansive view of its authority,
In the face of the unequivocal Supreme Court and other authority discussed, an argument such as that made by the FEC in this case, that "no words of advocacy are necessary to expressly advocate the election of a candidate," simply cannot be advanced in good faith (as the disingenuousness in the FEC's submissions attests), much less with "substantial justification." See e.g., Pierce v. Underwood, 487 U.S. 552, 568-71, 108 S.Ct. 2541, 2551-53, 101 L.Ed.2d 490 (1988) (holding that "views expressed by other courts on the merits," and in particular "a string of losses," together with the "actual merits of the Government's litigating position," are central to issue of whether position was "substantially justified"). It may be that "[i]mages and symbols without words can also convey unequivocal meaning synonymous with literal text." Appellant's Br. at 28. It may well be that "[m]etaphorical and figurative speech can be more pointed and compelling, and can thus more successfully express advocacy, than a plain, literal recommendation to `vote' for a particular person[,]" and that "it would indeed be perverse to require FECA regulation to turn on the degree to which speech is literal or figurative, rather than on the clarity of its message," "[g]iven that banal, literal language often carries less force." Appellant's Br. at 25-26. It may even be, as the FEC contends in this particular case, that "the combined message of words and dramatic moving images, sounds, and other non-verbal cues such as film editing, photographic techniques, and music, involving highly charged rhetoric and provocative images ... taken as a whole sent an unmistakable message to oppose [Governor Clinton]." Appellant's Opposition to Fees at 8. But the Supreme Court has unambiguously held that the First Amendment forbids the regulation of our political speech under such indeterminate standards. "Explicit words of advocacy of election or defeat of a candidate," "express words of advocacy," the Court has held, are the constitutional minima. To allow the government's power to be brought to bear on less, would effectively be to dispossess corporate citizens of their fundamental right to engage in the very kind of political issue advocacy the First Amendment was intended to protect — as this case well confirms.
For the reasons stated, the case is remanded to the district court for a determination of the amount of fees and costs properly awardable to the Christian Action Network under the authority of the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), such amounts to include the relevant fees and costs incurred before the district court and this court, including those fees and costs incurred in pursuing the motion presently before us, see Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154, 160, 110 S.Ct. 2316, 2319-20, 110 L.Ed.2d 134 (1990).
Appellant's Reply Br. at 9 (footnote omitted). It is plain that the FEC has simply selected certain words and phrases from Furgatch that give the FEC the broadest possible authority to regulate political speech (i.e., "unmistakable," "unambiguous," "suggestive of only one meaning," "encourage[ment]", 807 F.2d at 864), and ignored those portions of Furgatch, quoted above, which focus on the words and text of the message.
See FEC Opposition to Certiorari at 9 (emphases added). But, to the extent that they do represent an intentional departure by the Ninth Circuit from the standard set forth by the Supreme Court in Buckley and MCFL, they were just that.
11 C.F.R. § 100.22(b).
Christian Action Network, 894 F.Supp. at 948-49.
Christian Action Network, 894 F.Supp. at 949-50.