Federal Election Commission v. Christian Action Network, Inc.

Filed: May 5, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-2600
(CA-94-82-L)
Federal Election Commission,
Plaintiff - Appellant,
versus
Christian Action Network, Inc., et al,
Defendants - Appellees.
O R D E R
The Court amends its opinion filed April 7, 1997, as follows:
On page 8, first paragraph, line 4 -- "Brief for Respondent in
Opposition" is corrected to read "Brief in Opposition."
On page 13, second full paragraph, line 5 -- the parenthetical
("Opp. Mem.") after the word "Fees" is deleted.
On page 15, first paragraph, lines 4-5 -- the lines are
changed to read ". . . Appellant's Opposition to Fees at 8, and
upon the timing of the communication, see id. at 10 . . . ."
On page 17, first paragraph, line 1 after indented quotation
-- "Opp. Mem." is changed to read "Appellant's Opposition to Fees."
- 2 -
On page 28, footnote 13, line 1 -- the spelling is corrected
in "sleight-of-hand."
On page 29, first full paragraph, line 10 -- "FEC's Opposition
to Certiorari" is changed to read "FEC Opposition to Certiorari."
On page 30, first full paragraph, line 25 -- "Opp. Mem." is
changed to read "Appellant's Opposition to Fees."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FEDERAL ELECTION COMMISSION,
Plaintiff-Appellant,
v.
CHRISTIAN ACTION NETWORK,
INCORPORATED; MARTIN MAWYER,
No. 95-2600
Defendants-Appellees.
DEMOCRATIC NATIONAL COMMITTEE;
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA,
Amici Curiae.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
James C. Turk, District Judge.
(CA-94-82-L)
Submitted: November 29, 1996
Decided: April 7, 1997
Before RUSSELL and LUTTIG, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.
_________________________________________________________________
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.
_________________________________________________________________
COUNSEL
Lawrence M. Noble, General Counsel, Richard B. Bader, Associate
General Counsel, David Brett Kolker, FEDERAL ELECTION COM-
MISSION, Washington, D.C., for Appellant. David William T. Car-
roll, II, Columbus, Ohio; Frank M. Northam, WEBSTER,
CHAMBERLAIN & BEAN, Washington, D.C., for Appellees. Ste-
phen B. Pershing, Legal Director, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for
Amicus Curiae ACLU. Joseph E. Sandler, General Counsel, DEMO-
CRATIC NATIONAL COMMITTEE, Washington, D.C.; Donald B.
Verrilli, Paul M. Smith, Washington, D.C.; Daniel H. Bromberg,
Washington, D.C., for Amicus Curiae Committee.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
The Supreme Court of the United States held in Buckley v. Valeo,
424 U.S. 1 (1976), and reaffirmed in FEC v. Massachusetts Citizens
For Life, Inc., 479 U.S. 238 (1986), that corporate expenditures for
political communications violate 2 U.S.C. § 441b(a) only if the com-
munications 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 com-
mercial in which the following text was read by a narrator:
Bill Clinton's vision for America includes job quotas for
homosexuals, giving homosexuals special civil rights,
allowing homosexuals in the armed forces. Al Gore supports
homosexual couples' adopting children and becoming foster
parents. Is this your vision for a better America? For more
information on traditional family values, contact the Chris-
tian Action Network.
Although conceding that the Christian Action Network's advertise-
ments did not employ "explicit words," "express words," or "lan-
guage" 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)
2
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 presiden-
tial 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 exam-
ine the "meaning behind the images" which appear in the Network's
television commercial.1 Id. at 958. We, in turn, summarily affirmed
on the reasoning of the district court, characterizing the interpretation
advanced by the Commission as "unsupportable." Federal Election
Commission v. Christian Action Network, 92 F.3d 1178, 1996 WL
431996 (4th Cir. 1996) (per curiam) (adopting district court opinion,
894 F. Supp. at 959). Before us now is a request by the Network, pur-
suant to the Equal Access to Justice Act, 28 U.S.C. § 2412, for fees
and costs incurred in connection with the FEC's prosecution and
appeal of this matter. Because the position taken by the FEC in this
litigation was foreclosed by clear, well-established Supreme Court
caselaw, and it is apparent from the Commission's selective quotation
from and citation to those authorities that the agency was so aware,
_________________________________________________________________
1 The FEC argues that the district court accepted the Commission's the-
ory that "imagery" can constitute "express advocacy," but merely
rejected the agency's specific contention in this case that the imagery in
the video expressly advocated the defeat of Governor Clinton. See
Appellant's Br. at 9; Opposition to Defendant-Appellee's Application for
Fees at 4. This is simply incorrect. While one sentence in the district
court's opinion, if read in isolation, would permit such a reading, see 894
F. Supp. at 948 ("The advertisements at issue do not contain explicit
words or imagery advocating electoral action."), the district court repeat-
edly emphasized that it "[could not] accept the FEC's invitation to delve
into the meaning behind the image. To expand the express advocacy
standard enunciated in Buckley in this manner would be to render the
standard meaningless," see id. at 958.
3
we conclude that the Commission's position, if not assumed in bad
faith, was at least not "substantially justified" within the meaning of
28 U.S.C. § 2412(d)(1)(A), and therefore that the Christian Action
Network is entitled to the requested fees and costs under the Equal
Access to Justice Act.2
I.
A.
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 inter-
preted the statutory phrase "relative to," see 18 U.S.C. § 608(e)(1)
(repealed in 1976),3 so that the section would only prohibit corporate
expenditures for "express advocacy" -- "communications that include
explicit words of advocacy of election or defeat of a candidate," id.
at 43 (emphasis added), or "communications containing express
words of advocacy of election or defeat," id. at 44 n.52 (emphasis
added). See also id. at 80 n.108. That is, the Court held that the Fed-
eral Election Campaign Act could be applied consistently with the
First Amendment only if it were limited to expenditures for communi-
cations that literally include words which in and of themselves advo-
cate the election or defeat of a candidate. The Court even provided an
illustrative list of the kinds of "express words of advocacy" the use
of which in corporately-funded communications could violate section
608(e)(1):
_________________________________________________________________
2 Because disposition of the merits of Christian Action Network's
motion for fees and expenses (as opposed to the amounts of such fees
and expenses awardable) entails a simple, straightforward application of
clear principles of law announced by the Supreme Court, and the district
court's view of the FEC's position is evident in the court's thorough
opinion, we are satisfied that, in this particular case, the merits of the
motion are most appropriately resolved in this forum in the interest of
judicial economy.
3 Section 608(e)(1) provided in relevant part that "no person may make
any expenditure . . . relative to a clearly identified candidate during a cal-
endar year which, when added to all other expenditures made by such
person during the year advocating the election or defeat of such candi-
date, exceeds $1,000."
4
This construction [of section 608(e)(1)] would restrict the
application of [the 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 44 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, the Court concluded, plain and sim-
ple, that absent the bright-line limitation, the distinction between issue
discussion (in the context of electoral politics) and candidate advo-
cacy 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:
[W]hether words intended and designed to fall short of invi-
tation would miss that mark is a question both of intent and
of effect. No speaker, in such circumstances, safely could
assume that anything he might say upon the general subject
would not be understood by some as an invitation. In short,
the supposedly clear-cut distinction between discussion, lau-
dation, general advocacy, and solicitation puts the speaker
in these circumstances wholly at the mercy of the varied
understanding of his hearers and consequently of whatever
inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In
these conditions it blankets with uncertainty whatever may
be said. It compels the speaker to hedge and trim.
Id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)). The
Court opted for the clear, categorical limitation, that only expendi-
tures for communications using explicit words of candidate advocacy
are prohibited, so that citizen participants in the political processes
5
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 ("The constitutional deficiencies described
in Thomas v. Collins can be avoided only by reading § 608(e)(1) as
limited to communications that include explicit words of advocacy of
election or defeat of a candidate.") (emphasis added). The Court could
have drawn the line between permissible and impermissible expendi-
tures differently, but a different line would have come at the cost of
expanded regulatory authority in a sphere where government regula-
tion, if it is to be permitted at all, must be viewed with the utmost sus-
picion -- a cost the Court had no difficulty concluding was too high
for the incremental additional "benefits" that would be obtained by
vesting broader power in the government, and in particular in the
FEC.
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 intru-
sive provision" of the Act, see MCFL, 479 U.S. at 249, which prohib-
its 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)
(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
6
with photographs and urged voters to vote for those candidates
through the "explicit directive" "VOTE PRO-LIFE." Id. at 243, 249.
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" communica-
tions 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 posi-
tion 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 deci-
sion in MCFL, the Ninth Circuit in FEC v. Furgatch, 807 F.2d 857
(9th Cir.), cert. denied, 484 U.S. 850 (1987), could not have been
clearer that it, too, shared this understanding of the Court's decision
in Buckley.4 Although the court declined to "strictly limit" express
advocacy to the "magic words" of Buckley's footnote 52 because that
footnote's list does "not exhaust the capacity of the English language
to expressly advocate election or defeat of a candidate," id. at 862-63,
_________________________________________________________________
4 Curiously, the Ninth Circuit never cited or discussed the Supreme
Court's opinion in MCFL, notwithstanding that MCFL was argued in the
Supreme Court three months prior to the decision in Furgatch and
decided by the Court almost a month prior to the Court of Appeals' deci-
sion. The Ninth Circuit does discuss the First Circuit's opinion in MCFL,
but without noting that certiorari had been granted to review the case.
See 807 F.2d at 861. Thus, the Furgatch court relied upon Buckley alone,
without the reaffirmation provided by the Court in MCFL, for its conclu-
sion that explicit "words" or "language" of advocacy are required if the
Federal Election Campaign Act is to be constitutionally enforced.
7
the entire premise of the court's analysis was that words of advocacy
such as those recited in footnote 52 were required to support Commis-
sion jurisdiction over a given corporate expenditure. See, e.g., FEC
Brief in Opposition to Certiorari in Furgatch at 4
(explaining that the Ninth Circuit's opinion "emphasize[s] that the
statute was narrowly limited to communications containing language
``susceptible of no other reasonable interpretation but as an exhorta-
tion to vote for or against a specific candidate.'" (emphasis added)).
In fact, it is only because the court believed that the word combina-
tions that could constitute express advocacy were many that it
rejected the suggestion that "the ``express advocacy' language of
Buckley . . . [drew] a bright and unambiguous line," Furgatch, 807
F.2d at 861.
The court explained that individual words or sentences of the mes-
sage cannot be considered in isolation, but, rather, must be considered
together with the other words and sentences that appear in the com-
munication, in determining whether the message is one of election
advocacy:
A proper understanding of the speaker's message can best
be obtained by considering speech as a whole. Comprehen-
sion often requires inferences from the relation of one part
of speech to another. The entirety may give a clear impres-
sion that is never succinctly stated in a single phrase or sen-
tence. Similarly, a stray comment viewed in isolation may
suggest an idea that is only peripheral to the primary pur-
pose of speech as a whole. Furgatch would have us reject
intra-textual interpretation and construe each part of speech
independently, requiring express advocacy from specific
phrases rather than from speech in its entirety.
We reject the suggestion that we isolate each sentence and
act as if it bears no relation to its neighbors. This is not to
say that we will not examine each sentence in an effort to
understand the whole. We only recognize that the whole
consists of its parts in relation to each other.
Id. at 863. Then, although noting how "[w]ords derive their meaning
from what the speaker intends and what the reader understands," the
8
court declined to place too much importance on intent because "to
fathom [the speaker's] mental state would distract [the court] unnec-
essarily 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 sup-
ply 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 exter-
nal contextual factors, the court proceeded to outline what it consid-
ered 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:
We conclude that speech need not include any of the words
listed in Buckley to be express advocacy under the Act, but
it [the speech] must, when read as a whole, and with limited
reference to external events, be susceptible of no other rea-
sonable interpretation but as an exhortation to vote for or
against a specific candidate.
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 follow-
ing passage in explanation of its conclusion confirms:
This standard can be broken into three main components.
First, even if it is not presented in the clearest, most explicit
language, speech is "express" for present purposes if its
message is unmistakable and unambiguous, suggestive of
only one plausible meaning. Second, speech may only be
termed "advocacy" if it presents a clear plea for action, and
thus speech that is merely informative is not covered by the
Act. Finally, it must be clear what action is advocated.
Speech cannot be "express advocacy of the election or
9
defeat of a clearly identified candidate" when reasonable
minds could differ as to whether it encourages a vote for or
against a candidate or encourages the reader to take some
other kind of action.
We emphasize that if any reasonable alternative reading of
speech can be suggested, it cannot be express advocacy sub-
ject to the Act's disclosure requirements.
Id. (emphases added).5
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 candi-
date 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 Con-
_________________________________________________________________
5 Contrary to its assertions, the Commission's regulatory definition of
"express advocacy" does not parallel this test. According to the FEC:
[l]ike the first prong in Furgatch, the Commission's regulation
requires the "electoral portion of the communication [to be]
unmistakable, unambiguous, and suggestive of only one mean-
ing" (11 C.F.R. § 100.22(b)(1)). Like the second and third
prongs, the Commission's regulation requires that"[r]easonable
minds could not differ as to whether it encourages actions to
elect or defeat one or more clearly identified candidate(s) or
encourages some other kind of action" (11 C.F.R.
§ 100.22(b)(2)).
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., "un-
mistakable," "unambiguous," "suggestive of only one meaning," "encour-
age[ment]", 807 F.2d at 864), and ignored those portions of Furgatch,
quoted above, which focus on the words and text of the message.
10
gress intended to regulate."). As the FEC described Furgatch in
opposing a grant of certiorari in that case:
The court of appeals' assessment of Mr. Furgatch's adver-
tisement under [the "express advocacy"] standard turns upon
the particular facts of this case, and thus does not necessar-
ily indicate how courts will assess other communications in
other circumstances. Such a fact-dependent determination
does not warrant plenary review by this Court, particularly
since the Court discussed the proper application of the
express advocacy standard only last Term in FEC v.
Massachusetts Citizens for Life, Inc., 107 S. Ct. at 623, and
applied it in a manner consistent with that of the court of
appeals in this 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 Oppo-
sition 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 "com-
mand," 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 dis-
pute 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 adver-
tisement appeared one week before the 1980 presidential election;
however, the court explained, that fact only served to "reinforce" its
determination based upon the language of the advertisement. Id.6
_________________________________________________________________
6 The Ninth Circuit did use other, "soft" language when describing the
framework within which the express advocacy determination is to be
made. For example, the court stated broadly that it "must read section
11
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 advo-
cacy" which, in substance, is the definition the FEC urged upon us.7
And, it did so on the authority of Buckley and MCFL -- indeed, in
express reliance upon the very district court opinion that we affirmed
in the litigation underlying the present application. See 98 F.3d 1 (1st
Cir. 1996) (affirming per curiam "for substantially the reasons set
forth" by the district court in 914 F. Supp. 8 (D. Maine 1996))
_________________________________________________________________
434(c) so as to prevent speech that is clearly intended to affect the out-
come of a federal election from escaping, either fortuitously or by
design, the coverage of the Act," id. at 862. Under the facts of the case,
these broader observations were obviously dicta. As the FEC said in
opposing certiorari in Furgatch:
[Petitioner Furgatch] takes issue with a number of the lower
court's general statements regarding law and policy, taken out of
their context in a lengthy and discursive opinion. . . . Petitioner's
disagreements with the Ninth Circuit's general discussion of
express advocacy provide no basis for granting plenary review.
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.
7 In relevant part, the FEC's new regulatory definition of "express
advocacy," which became effective October 5, 1995, provides,
Expressly advocating means any communication that . . .
(b) When taken as a whole and with limited reference to exter-
nal 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 unmistak-
able, unambiguous, and suggestive of only one meaning; and
(2) Reasonable minds could not differ as to whether it encour-
ages actions to elect or defeat one or more clearly identified
candidate(s) or encourages some other kind of action.
11 C.F.R. § 100.22(b).
12
("MRLC"). The court even awarded costs to the Maine Right to Life
Committee in connection with its defense of the FEC's suit. MRLC,
98 F.3d 1. Reasoning that the "bright line" created by the Supreme
Court's insistence upon explicit words of advocacy for the election or
defeat of a particular candidate permits free discussion of "things that
affect the election process, but at all costs avoids restricting, in any
way, discussion of public issues," the First Circuit held, as have we,
that both Buckley and MCFL unequivocally require "express" or "ex-
plicit" "words of advocacy of election or defeat of a candidate."
MRLC, 914 F. Supp. at 10-12.
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.),
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 Repub-
lican Federal Campaign Committee, 839 F. Supp. 1448 (D. Co.),
rev'd on other grounds, 59 F.3d 1015 (10th Cir.), vacated on other
grounds, 116 S. Ct. 2309 (1996); Faucher v. FEC, 928 F.2d 468 (1st
Cir.), cert. denied, 502 U.S. 820 (1991); FEC v. National Organiza-
tion 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 Munic-
ipal Employees, 471 F. Supp. 315 (D.D.C. 1979).
B.
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" posi-
tion, see Appellant's Opposition to Defendant-Appellees' Application
For Fees at 13, that, even though the Christian Action
Network's advertisements did not include any explicit words or lan-
guage advocating Governor Clinton's defeat, the expenditure of cor-
porate funds for these advertisements nonetheless violated section
13
441b because, considered as a whole with the imagery, music, film
footage, and voice intonations, the advertisements' nonprescriptive
language unmistakably conveyed a message expressly advocating the
defeat of Governor Clinton. That is, the FEC argued the position that
"no words of advocacy are necessary to expressly advocate the elec-
tion of a candidate," Appellant's Br. at 25 (emphasis in original), that
an advertisement which does not include any "express words of advo-
cacy" may nevertheless constitute "express advocacy" as defined by
the Supreme Court in Buckley and MCFL, provided it unmistakably
conveys a message urging action with respect to a particular candidate
for public office.
Thus, according to the Commission's arguments, it could regulate
under the standard of "express advocacy" any "terms," any "commu-
nications," 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 expres-
sion. 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 regula-
tion 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 consid-
ered 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 communi-
cative effect as [ ] verbal expressions."). It would depend upon the
perceived "charge" of the "rhetoric" used, see Appellant's Br. at 12-
14
13, 37 n.18 (noting FEC's belief that the controversial and provoca-
tive character of a communication is an "important factor" in demon-
strating 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:
The Court: And [the advertisement is] only bad if you
believe that the voters disagree with the message about
homosexuality there. For those voters who agree with the
message, why is it a negative ad?
Mr. Kolker: Well, I think, I think it's clear to a reasonable
person that the Christian Action Network thinks these things
are bad . . . . I think that the ardent gay rights activist would
view this ad as a message from the Christian Action Net-
work to vote against Clinton. That they believe his views on
homosexuals are wrong . . . .
The Court: That's only if you bring to the table an under-
standing of what the Christian Action Network is.
***
Mr. Kolker: It's a self-defined group using the label Chris-
tian Action.
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 per-
son, informed about the speaker's identity (and thus potential biases
and passions), understands the communication to mean." Appellant's
Br. at 36-37; see also id. at 42 ("The very fact that an organization
professing ``traditional family values' chooses to broadcast images
that they themselves plainly find offensive sends a powerful message
about the measures that are appropriate to prevent Clinton's ``vision'
15
from becoming the policy of the United States."); id. at 13 ("Ordinary
viewers seeing that a ``Christian' group has deliberately chosen to
broadcast -- shortly before election day -- provocative images of gay
men parading in black leather clothing, could not fail to understand
that the video is espousing extreme measures to prevent Clinton from
implementing his national agenda."). Under certain circumstances, as
the following exchange shows, the right could even be withdrawn
merely because the speaker expresses disagreement with a candidate
over a particular issue:
Mr. Kolker: . . . If all you're doing is mentioning an issue
to say that their candidate's position on it is wrong, it is not
a real discussion of the issue, the focus of the ad is the can-
didate --
The Court: -- So you can't link the candidate with the
issue, that's what --
Mr. Kolker: No, I think you can but not if all you're doing
is saying the candidate believes X and X is the wrong posi-
tion. . . .
***
Mr. Kolker: [I]t's clear from the ad that the way that final
[rhetorical] question [in the television ad] forcefully is spo-
ken, that from the speaker's perspective, it's the wrong
vision. And what I'm saying is the candidate has a position,
he's wrong on the position. There's no real issue discussion.
It's just an attack on the candidate.
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 interpre-
tation 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":
16
[E]xpress electoral advocacy [can] consist[ ] not of words
alone, but of 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 which,
taken as a whole, sen[d] an unmistakable message to oppose
[a specific candidate].
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.
C.
The FEC's enforcement action against the Christian Action Net-
work 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. Cf. Appellant's Reply Br. at 8 (conceding that Network's
television commercial and newspaper advertisements "[took] a posi-
tion against Clinton's purported positions on gay rights and thus con-
tain 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 cam-
paign agenda, not a more general discussion of gay rights.").8
_________________________________________________________________
8 The district court described the Christian Action Network's television
commercial as follows:
The television advertisement consisted of a thirty second spot
entitled "Clinton's Vision for a Better America." [footnote omit-
17
The text of the television advertisement is nonprescriptive, taking
no position whatever, implied or otherwise, on the candidacy of Gov-
ernor Clinton and Senator Gore, or even on the issue of homosexual
rights. In its entirety, the text reads as follows:
Bill Clinton's vision for America includes job quotas for
homosexuals, giving homosexuals special civil rights,
_________________________________________________________________
ted.] It opens with a full-color picture of candidate Bill Clinton's
face superimposed upon an American flag, which is blowing in
the wind. Clinton is shown smiling and the ad appears to be
complimentary. However, as the narrator begins to describe
Clinton's alleged support for "radical" homosexual causes, Clin-
ton's image dissolves into a black and white photographic nega-
tive. The negative darkens Clinton's eyes and mouth, giving the
candidate a sinister and threatening appearance. [citation omit-
ted.] Simultaneously, the music accompanying the commercial
changes from a single high pitched tone to a lower octave.
The commercial then presents a series of pictures depicting
advocates of homosexual rights, apparently gay men and lesbi-
ans, demonstrating at a political march. While the narrator dis-
cusses 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 Con-
cerns" accompanied by the superimposed text "Job Quotas for
Homosexuals"; the same banner accompanied by the superim-
posed 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." [citation omitted.]
As the scenes from the march continue, the narrator asks in rhe-
torical fashion, "Is this your vision for a better America?" There-
after, 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 tradi-
tional family values, contact the Christian Action Network."
[footnote and citation omitted.]
Christian Action Network, 894 F. Supp. at 948-49.
18
allowing homosexuals in the armed forces. Al Gore supports
homosexual couples' adopting children and becoming foster
parents. Is this your vision for a better America? For more
information on traditional family values, contact the Chris-
tian Action Network.
Absent the final sentence, which adds nothing of advocacy to the pre-
ceding text, these words could well have appeared in a commercial
approved by Governor Clinton himself and advocating his own elec-
tion; 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.21.9
The video's nonprescriptive language is no more incontrovertibly
an exhortation to vote against Governor Clinton when spoken with the
_________________________________________________________________
9 See also, Steven A. Holmes, Clinton Would Outlaw Job Bias Against
Gays, Ft. Lauderdale Sun-Sentinel, Oct. 20, 1995 (quoting October 1995
letter from President Clinton to Senator Kennedy that "[t]hose who face
this kind of job discrimination have no legal recourse . . . . This is
wrong."); Michael Isikoff, Gays Mobilizing for Clinton as Rights Become
an Issue, The Washington Post, Sept. 28, 1992 (reporting that "[Clinton]
released formal position papers on gay issues that essentially pledged
him to virtually the entire mainstream gay political agenda . . . [includ-
ing] sign[ing] an executive order ending the U.S. military policy discrim-
inating against homosexuals, support[ing] legislation to amend federal
civil rights laws to include sexual orientation,``appoint[ing] gays and les-
bians to major positions' in his administration and launch[ing] a
``Manhattan-type Project' to find a cure for AIDS."); Thomas L. Fried-
man, Clinton to Lift Ban on Gays[,] He Reassures Military, Veterans
He'll be Tough on National Security, The Kansas City Star, Nov. 12,
1992 (reporting that "President-elect Clinton said Wednesday that he
plans to lift the ban on homosexuals in the military after he takes office
in January"); Paul Taylor, Democratic Rivals Back Tougher S. Africa
Sanctions, The Washington Post, April 13, 1988 (reporting April 1988
Democratic Presidential Primary debate where three candidates, includ-
ing "Sen. Albert Gore Jr. (D-Tenn.)[,] . . . supported . . . the right of
homosexuals to serve as foster parents").
19
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 then almost immediately
disappears, as a narrator recites the above text and as three pictures
of pro-homosexual rights parades rapidly flash across the screen. The
very short advertisement concludes with the narrator asking rhetori-
cally, "Is this your vision for a better America? For more information
on traditional family values, contact the Christian Action Network."
This is simply not express advocacy of the defeat of Governor Clin-
ton; the advertisement urges no action upon viewers at all, beyond
contacting the network for more information on traditional family val-
ues should they wish, much less action at the polls. Far from a com-
mercial that would be "instantly recognizable by any voter as a
negative ad against the candidacy of Bill Clinton," see Appellant's Br.
at 13, the video could just as readily be viewed as passionate issue
advocacy on the important question of homosexual rights -- the very
kind of speech which the Supreme Court has held the First Amend-
ment jealously protects.
The two print advertisements, which the FEC urges that we con-
sider in tandem with the television video, are even less susceptible to
characterization as election advocacy.10 Moreover, they tend, if any-
_________________________________________________________________
10 The district court described the print advertisements in this way:
Shortly after the 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 dis-
continue 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 Rich-
mond, Virginia. The newspaper advertisement was entitled "An
Open Letter To: Gov. Bill Clinton, Democratic Presidential Can-
didate [and] Mr. Ron Brown, Democratic Party Chairman", and
20
thing, to confirm that the video not only was, but was intended to be,
more issue advocacy on the question of homosexual rights than elec-
_________________________________________________________________
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:
The Christian Action Network is now airing television ads
in Richmond, VA informing the voting public of Gov. Bill
Clinton's support of the "gay rights" political agenda.
The voting public has a right to know that Gov. Bill Clin-
ton's agenda includes (1) job quotas for homosexuals, (2)
special civil rights for homosexuals and (3) allowing homo-
sexuals in the U.S. Armed Forces.
Not surprisingly, the Democratic leadership has opposed
our television ads.
That's why Ron Brown, chairman of the Democratic
National Committee, is now sending letters to television and
cable operators asking them not to run our advertisement.
In his letter, Mr. Brown accuses our ads of being"patently
offensive" and "false." But the letter fails to point out any
"false" or "patently offensive" information in our ad cam-
paign.
Here are the documented facts in defense of our ads which
have also aired in Los Angeles, Houston, Cincinnati, Wash-
ington, D.C., Atlanta, San Diego, Seattle, Dallas, Santa
Rosa, Cleveland, Chicago and other major cities.
First, Gov. Clinton supports civil rights laws for homosex-
uals.
From a Clinton/Gore campaign paper titled, "Issues of
Concern to Gays and Lesbians" are these words: "A Clin-
ton/Gore Administration will support a federal gay civil
rights bill." This position paper was received from the Dem-
ocratic National Committee and paid for by the "Clin-
ton/Gore '92 Committee."
Second, Gov. Clinton will allow homosexuals in the mili-
tary.
From the same position paper cited above: "Bill Clinton
will issue executive orders to repeal the ban on gays and les-
bians from military and foreign service."
21
tion advocacy for the defeat of the Governor. These advertisements,
which were entitled "An Open Letter to Gov. Clinton, Democratic
_________________________________________________________________
Third, Gov. Clinton supports job quotas for homosexuals.
The Democratic Party Platform states it will "provide civil
rights protection for gay men and lesbians."
George Stephanopoulos, Mr. Clinton's spokesman, said
Gov. Clinton supports affirmative action for gays and lesbi-
ans because laws were needed to protect workers' rights.
Gov. Clinton has also promised that he will "appoint gays
and lesbians to major positions in his administration."
[Washington Post September 28, 1992]
The Christian Action Network has informed Gov. Bill
Clinton and DNC Chairman Ron Brown that it will change
its commercial if Clinton will publicly dispute any point
made in CAN's commercial, promise as president to veto
legislation that gives gays specific protection under the Civil
Rights Act and oppose affirmative action for gays.
The Christian Action Network has yet to hear verbal or
written communication from Gov. Clinton, Mr. Brown or
any other official of the Democratic National Party.
During tonight's debate -- or anytime thereafter-- I,
Martin Mawyer, president of the Christian Action Network,
call upon Gov. Bill Clinton to clearly state his position on
gay rights and publicly state what is "patently offensive" and
"false" in our television commercial.
When the Clinton/Gore campaign committee publicly and
unequivocally retract their commitments to the "gay rights"
community, the Christian Action Network will halt its televi-
sion campaign. [citation omitted] (emphasis added).
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 sec-
ond ad contained a statement that it was not authorized by any
candidate. Furthermore, it failed to state that it was a paid politi-
cal advertisement.
Christian Action Network, 894 F. Supp. at 949-50.
22
Presidential Candidate [and] Mr. Ron Brown, Democratic Party
Chairman" and "Since You Did Not Respond to Our Ad in Rich-
mond; An Open Letter to Gov. Clinton, Democratic Presidential Can-
didate [and] Mr. Ron Brown, Democratic Party Chairman," and
which appeared in the Richmond Times-Dispatch on October 15,
1992, and the Washington Times on October 26, 1992, respectively,
were written in response to criticism by Ron Brown that the Christian
Action Network's television commercial was untrue. These advertise-
ments essentially repeated in print the text of the television advertise-
ment, adding specific citations for the assertions made, and then
concluded with the promise that the network would
change its commercial if Clinton will publicly dispute any
point made in CAN's commercial, promise as president to
veto legislation that gives gays specific protection under the
Civil Rights Act and oppose affirmative action for gays . . . .
When the Clinton/Gore Campaign committee publicly and
unequivocally retract their commitments to the "gay rights"
community, the Christian Action Network will halt its tele-
vision campaign.
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 Liber-
ties 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 con-
cerning homosexual rights, as the district court found. See Christian
Action Network, 894 F. Supp. at 954 ("any call for action encom-
passed in the advertisements was directed at the candidates and Chair-
man 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 Opposi-
tion to Certiorari in Furgatch at 8 (noting that Furgatch's advertise-
ment included "explicit exhortation"), in neither the video nor in the
print advertisements at issue in this case is there any action urged with
23
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 can-
didates' 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 com-
mercial was for viewers to contact CAN if they agreed with the [Net-
work'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 homo-
sexual rights. Just as the FEC argued in opposition to certiorari in
Furgatch that "[t]he only exhortation in the leaflet" at issue in FEC
v. Central Long Island Tax Reform Immediately Committee, 616 F.2d
45 (2nd Cir. 1980) (en banc) ("CLITRIM"), "called for communica-
tion with the congressman on the issue of taxes, not action against
him," see FEC Opposition to Certiorari at 8 n.4, the advertisements
here called only for viewers to contact the Christian Action Network
and for Governor Clinton and Senator Gore to abandon their positions
on homosexual rights, not for election action against these candidates.
Yet, the FEC would have us confer power upon it to regulate these
advertisements because, in its assessment,
[t]o the ordinary viewer in 1992, the CAN video unmistak-
ably encourages voters to defeat Bill Clinton. The video
communicates the following: A group explicitly aligning
itself with Christian, heterosexual, and traditional family
values graphically depicts a specific presidential candidate
supporting homosexual men vividly asserting their sexual
preferences; the message attacks Clinton's moral judgment
and alleged policy agenda; those positions involve steps that
only a federal elected official could take; the message is
delivered to viewers who live in states where Governor
Clinton has no contemporaneous authority to set policy; the
message is televised shortly before the presidential election;
and the message employs powerful symbolism and persua-
24
sive devices unique to the medium of video . . . . The video
admittedly contains no literal phrase such as "Defeat Bill
Clinton." But it contains a special kind of charged rhetoric
and symbolism that exhorts more forcefully and unambigu-
ously than mere words.
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:
[T]his 30 second television spot expressly advocated the
defeat of candidates Clinton and Gore in the upcoming pres-
idential general election. It did so by employing the tech-
niques of audio voice-overs, music, visual text, visual
images, color, codewords, and editing. In their totality, these
techniques said voters should defeat Clinton and Gore
because these candidates favor extremist homosexuals and
extremist homosexuals are bad for America.
See J.A. at 65, 77 (Prof. Darrell M. West, Brown University, An Anal-
ysis 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 candi-
date's defeat at the polls." ACLU Br. at 3. And, from the Commis-
sion'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.
D.
Whether we would agree with the FEC's interpretation of its
authority under the Federal Election Campaign Act, or find its inter-
25
pretation 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 "profound misreading" of the Supreme
Court's decisions in both Buckley and MCFL. Christian Action
Network, 894 F. Supp. at 958-59.
From the foregoing discussion of Buckley and MCFL, it is indispu-
table 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. It is not until the Court interprets the stat-
utory term "expenditure" in section 434(e) to include the same limita-
tion 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. 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."11 In other words, the Court itself in Buckley con-
_________________________________________________________________
11 The textual sentence in which the footnote call for note 108 appears
reads as follows: "To insure that the reach of § 434(e) is not impermiss-
ibly broad, we construe ``expenditure' for purposes of that section in the
same way we construed the terms of § 608(e)-- to reach only funds used
for communications that expressly advocate the election or defeat of a
clearly identified candidate." 424 U.S. at 80 (footnote 108 omitted). The
26
firmed that it intended the phrase "express advocacy" simply as a
shorthand for the "explicit words of advocacy of election or defeat"
"of a clearly identified candidate for federal office," which it had held
earlier in the opinion were required in order to save the Act from
constitutional infirmity.
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 dis-
cussion of section 608(e)(1), and used the shorthand phrase "express
advocacy." See MCFL, 479 U.S. at 248-49. 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 (cit-
ing Buckley, 424 U.S. at 44 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 (citing Buckley, 424 U.S. at 44 n.52) (emphasis added).12
The FEC is fully aware that the Supreme Court has required
explicit words of advocacy as a condition to the Commission's exer-
cise of power, as evidenced by its own dissembling before this court.
_________________________________________________________________
footnote call for note 108 appears immediately after the words "expressly
advocate." Footnote 108, cross-referencing note 52, reads in full as fol-
lows: "See n. 52, supra[,]" id., which, it bears repeating, reads that the
construction of section 608(e)(1) adopted by the Court would restrict
application of that section "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,'" Buckley, 424 U.S. at 44 n.52.
12 The FEC argues throughout its submissions that the Supreme Court
"never suggested that communications can constitute express advocacy
only if they include specific words from a special list." Appellant's Br.
at 23. This is true, but it is a red-herring. Most certainly, the Court never
said this. But, just as certainly, the Court never suggested that communi-
cations with no words of advocacy at all can nonetheless be considered
"express advocacy." In fact, as we show, it actually held precisely the
opposite.
27
See generally Thomasson v. Perry, 80 F.3d 915, 939-41 (4th Cir.
1996) (Luttig, Circuit Judge, concurring); Commonwealth v. Riley,
106 F.3d 559, 565-66 (4th Cir. 1997). The FEC's extensive submis-
sions in this case include notably little discussion of the legal analysis
in either Buckley or MCFL. Throughout the FEC's entire 69 pages of
briefing on the merits of this case, it never once quotes any of the
numerous passages in Buckley and MCFL referring to "explicit
words" or "express words" or "language" of advocacy. Nor does it
once quote Buckley's footnote 52. Compare DNC Br. at 5 (quoting
footnote 52 in full, including Buckley's"express words" locution).
The significance of this omission is illustrated by the fact that not a
single district court or court of appeals opinion has ever addressed
Buckley's "express advocacy" standard without quoting one or more
of these passages or at least referring to Buckley's requirement of
"words" of advocacy. The agency even goes so far as to quote the
very sentence from page 80 of Buckley in which the Court uses the
phrase "express advocacy" and defines that phrase in the sentence's
footnote 108 to mean "express words of advocacy," see note 11 supra,
but to omit any reference, by parenthetical or otherwise, to the fact
that footnote 108 appears in that sentence. Compare DNC Br. at 4, 10
(quoting sentence and noting that footnote was omitted).13 The agency
does make a single reference to Buckley's phrase "express terms" of
advocacy so that it can advance the argument that the term "terms"
includes "modes of expression" other than"words," an argument in
support of which it cites "Webster's II New Riverside University Dic-
tionary." Appellant's Br. at 22-23 ("``Terms' means ``language or a
mode of expression used' and is not limited to expression through
words.") (emphasis added; footnote omitted). But, even then, the
_________________________________________________________________
13 The FEC resorts to the same sleight-of-hand in its discussion of the
Ninth Circuit's decision in Furgatch. According to the FEC, the court of
appeals in that case said that "courts must take care to avoid an unneces-
sarily narrow application of express advocacy to prevent ``eviscerating
the Federal Election Campaign Act.'" Appellant's Br. at 18. In fact, what
the Ninth Circuit said was that "[a] test requiring the magic words ``elect,'
``support,' etc., or their nearly perfect synonyms for a finding of express
advocacy would preserve the First Amendment right of unfettered
expression only at the expense of eviscerating the Federal Election Cam-
paign Act." 807 F.2d at 863. In light of our discussion herein, the differ-
ence is of enormous significance.
28
Commission fails to note that the very sentence in which this phrase
appears is the sentence to which footnote 52 is appended.
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 8-11. 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,14
the agency vigorously opposed certiorari in the case. Wishing to have
the opinion preserved intact, the Commission in its submissions there,
in contrast to its submissions before this court, quoted Buckley as "re-
quir[ing] ``explicit words of advocacy of election or defeat of a candi-
date.'" FEC Opposition to Certiorari at 9 n.5 (quoting Buckley, 424
U.S. at 43) (emphasis added). The Commission even took the position
that Furgatch did, as we noted above, interpret the Federal Election
Campaign Act's corporate disclosure statutes as"narrowly limited to
communications containing language ``susceptible to no other reason-
able interpretation but as an exhortation to vote,'" id. at 4 (quoting
Furgatch, 807 F.2d at 864) (emphasis added); see also id. ("The court
found that the language of Mr. Furgatch's advertisements left ``no
doubt that the ad asks the public to vote against Carter.'" (emphasis
added)). Moreover, the FEC argued to the Supreme Court that
Furgatch was fully consistent with Buckley and MCFL precisely
because the opinion focused on the specific language of Furgatch's
advertisement and concluded that express advocacy existed only
because the advertisement "explicitly exhorted" voters to defeat then-
President Carter. Thus, there is no doubt the Commission understands
that its position that no words of advocacy are required in order to
support its jurisdiction runs directly counter to Supreme Court prece-
dent.
_________________________________________________________________
14 See FEC Opposition to Certiorari at 9-10:
[Petitioner Furgatch] takes issue with a number of the lower
court's general statements regarding law and policy, taken out of
their context in a lengthy and discursive opinion. It is well set-
tled, however, that "[t]his Court . . . reviews judgments, not
statements in opinions." . . . Petitioner's disagreements with the
Ninth Circuit's general discussion of express advocacy provide
no basis for granting plenary review.
29
II.
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 elec-
tion 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 (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 advo-
cacy, than a plain, literal recommendation to ``vote' for a particular
person[,]" and that "it would indeed be perverse to require FECA reg-
ulation 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 com-
bined 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 [Gov-
ernor 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 constitu-
tional 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
30
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 Nat-
uralization Service v. Jean, 496 U.S. 154, 160 (1990).
SO ORDERED
31