Free Speech v. – Federal Election Commission

On June 14, 2012, Free Speech filed suit in the U.S. District Court for the District of Wyoming challenging the constitutionality of the Commissions regulations, policies and practices regarding the determination of when a communication constitutes express advocacy, whether a communication is a solicitation, and whether a group is a political committee. The group sought injunctive relief and a declaratory judgment that the rules are unconstitutional, on their face and as applied.

Free Speech is a Wyoming-based, unincorporated association with a stated purpose of promoting and protecting free speech, limited government, and constitutional accountability." The political organization plans to use individual donations to finance $10,000 in Internet, newspaper, TV, and radio ads during the months leading up to the 2012 election. Free Speech states that it will not coordinate any of its advertising expenditures and will not accept donations from foreign nationals and federal contractors. Nor will it contribute to federal candidates, political parties, or political committees.

The lawsuit follows the Commissions May 8, 2012, response to the groups advisory opinion request. In AO 2012-11, the Commission concluded that two of the 11 ads Free Speech planned to run expressly advocate the election or defeat of a federal candidate under the Act; four of the proposed advertisements do not; and two of the four proposed donation requests are not solicitations. The Commission could not approve a response by the required four votes with respect to the five remaining ads and the two remaining donation requests, nor could it approve a response as to whether Free Speech would have to register and report as a political committee. 11 CFR 100.22 and 100.5(a).

Free Speechs suit focuses primarily on the regulatory definition of express advocacy at 11 CFR 100.22(b). The suit argues that this regulation and related FEC rules, policies and practices abridge Free Speechs First Amendment freedoms. It also questions the Commissions interpretation and enforcement process regarding political committee status, solicitation tests, the major purpose test, and express advocacy determinations. See 2 U.S.C. 431(4), 431(8), 441d; 11 CFR 100.5(a), 100.52(a), 110.11(a).

The groups main argument consists of three parts. First, it states that the Commissions definition of express advocacy is put forth in unclear terms leaving those who guess wrong [to be] subject to criminal or civil penalties. Secondly, it argues the Commissions political committee registration and reporting requirements are burdensome for all groups whose expenditures aggregate more than $1,000 in a calendar year. See 2 U.S.C. 431; 11 CFR 100.5. Lastly, Free Speech disputes whether independent expenditures must include disclaimers and be reported to the Commission. See 2 U.S.C. 434; 11 CFR 104.4.

On March 19, 2013, the U.S. District Court for the District of Wyoming dismissed Free Speech's case. The court denied the plaintiffs motion for a preliminary injunction in a telephonic ruling on October 3, 2012.

Express Advocacy

Commission regulations define express advocacy communications as those that: (a) use explicit words of advocacy; or (b) in context, can only be interpreted by a reasonable person as advocating a candidates election or defeat. 11 CFR 100.22(a) and (b). Communications that meet either of the regulatory definitions and are not coordinated with a candidate or party are independent expenditures and must be disclosed. See 2 U.S.C. 434(c) and 11 CFR 109.10.

Free Speech argued that the Commissions interpretation of express advocacy at 11 CFR 100.22(b) is vague and offers no clear guidelines for speakers to tailor their constitutionally protected conduct and speech, and that the regulation fails to limit its application to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate (i.e., through use of the so-called magic words such as vote for, elect, support, etc.).

The district court noted that the Supreme Court has ruled in several cases that the definition of express advocacy may also include, in addition to use of the magic words, communications that are the functional equivalent of express advocacy. See McConnell v. FEC, 540 U.S. at 193 (2003) and FEC v. Wisconsin Right to Life, Inc. (WRTL), 551 U.S. 449 (2007).

In WRTL, the Supreme Court stated that other courts should find that a communication is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. WRTL, 551 U.S. at 460-470. The district court noted that the functional equivalent test is closely correlated to the Commissions regulation at 100.22(b), which provides that a communication is express advocacy if it could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).

The Supreme Court also addressed the issue of express advocacy in Citizens United v. FEC (2010). The court found that a communication at issue in that case was the functional equivalent of express advocacy and further upheld the disclosure requirements as they applied to all electioneering communications.

As a result, the district court held that the Supreme Courts ruling in Citizens United directly contradicts the plaintiffs argument that the definition of 100.22(b) is overly broad with respect to disclosure requirements: if mandatory disclosure requirements are permissible when applied to ads that merely mention a federal candidate, then applying the same burden to ads that go further and are the functional equivalent of express advocacy cannot automatically be impermissible.

Solicitation Standard

Commission regulations require any person who solicits a contribution through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing or any other type of general public political advertising to include an explicit disclaimer on the solicitation. 2 U.S.C. 441d(a).

The Commission determines whether a request for funds amounts to a solicitation based on whether the request indicates that the contributions will be targeted to the election or defeat of a clearly identified federal candidate. See FEC v. Survival Education Fund, Inc., 65 F.3d 285, 293 (2d Cir. 1995). The plaintiff challenged this approach, arguing that it is unconstitutionally vague and overbroad.

The court disagreed with the plaintiff and noted that the plaintiff is free to spend unlimited funds on its solicitations and to solicit unlimited funds for its express advocacy activities. Communications that amount to solicitations merely trigger disclosure requirements; they do not prevent the plaintiff from speaking. Since disclosure serves an important governmental interest in insuring that the voters are fully informed about the person or the group who is speaking, the court held that the plaintiff had failed to establish any constitutional deficiency in the Commissions approach to determining whether a communication is a solicitation for contributions.

Political Committee Status

The plaintiff also challenged the Commissions method of determining when an organization meets the definition of political committee. The Act and Commission regulations define a political committee as any committee, club, association or other group of persons that makes more than $1,000 in expenditures or receives more than $1,000 in
contributions during a calendar year. 2 U.S.C. 431(4)(A). In Buckley v. Valeo (1976), the Supreme Court concluded that defining a political committee only in terms of contributions and expenditures could be interpreted to reach groups engaged purely in issue discussion. As such, the Court limited application of the Commissions political committee requirement to organizations either controlled by a candidate or those groups whose major purpose is the nomination or election of candidates.

The Commission has adopted a case-by-case analysis of an organizations conduct and activities for evaluating whether an organizations major purpose is the nomination or election of federal candidates. See Political Committee Status, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007).

The district court held that the Commissions method of determining political committee status is a permissible approach that is consistent with Supreme Court precedent and does not unlawfully hinder protected speech. The district court granted the Commissions motion to dismiss. On March 25, 2013, Free Speech appealed the district courts dismissal of the case to the United States Court of Appeals for the Tenth Circuit.

On June 25, 2013, the Court of Appeals affirmed the district courts dismissal, holding that the district court correctly resolved each of Free Speechs constitutional challenges. The Court of Appeals adopted the district courts opinion in its entirety.

On May 19, 2014, the Supreme Court declined to hear Free Speechs constitutional challenge to the FECs process for determining whether an organization qualifies as a "political committee." The Courts denial of certiorari lets stand the June 2013 decision by the U.S. Court of Appeals for the Tenth Circuit to affirm the U.S. District Court for the District of Wyomings dismissal of the suit.

Source: FEC Record -- June 2014; August 2013; April 2013; August 2012

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Free Speech v. - Federal Election Commission