The Real Truth About Abortion, Inc. v. FEC, No. 11-1760

Decided: June 12, 2012

The Real Truth About Abortion appeals from the district court’s grant of summary judgment in favor of the FEC.  Real Truth brought this action against the FEC contending that it was “chilled” from posting information about then-Senator Obama because of the vagueness of a Commission regulation and a Commission policy relating to whether Real Truth has to make disclosures or is a political action committee.

Real Truth is a Virginia non-profit corporation organized as an issue adversary organization under § 527 of the Internal Revenue Code.  Its IRS filing stated that its purpose was to provide truthful information about the public positions taken by Senator Barack Obama but that it would not “expressly advocate the election or defeat” of any political candidate or “make any contribution” to a candidate.  Real Truth commenced this action within days of its incorporation, challenging three Commission regulations implementing the Federal Election Campaign Act (FECA) and defining: when a communication expressly advocates the election or defeat of a clearly identified candidate (11 C.F.R. § 100.22(b)), defining contributions for certain purposes under FECA (11 C.F.R. § 100.57(a)), and regulating the use of corporate or union funds for “electioneering communications” (11 C.F.R. § 114.15)  Additionally, Real Truth challenged the Commission’s policy of determining PAC status by using a “major purpose” test on a case-by-case basis.  It asserted that the three regulations and the policy were unconstitutional, facially and as applied, for being overbroad and vague, thus in violation of the First and Fifth Amendments.

Real Truth’s as-applied challenge was in the context of two radio advertisements it intended to spend over $1,000 to air during the 60 day period immediately before the 2008 general election concerning then-candidate Obama’s positions on abortion.  Its complaint expressed fear that these would be construed as independent expenditures, subjecting it to disclosure requirements and potentially making it a PAC subject to additional regulation.  Real Truth sought a preliminary injunction against enforcement of the challenged regulations and policy against its advertisements and the district court denied Real Truth’s motion.  On appeal, the Fourth Circuit affirmed the denial.  Real Truth then filed a petition for a writ of certiorari in the Supreme Court.  While the petition was pending, the Court decided Citizens United v. FEC, striking a provision banning corporations and labor unions from using their general treasury funds for electioneering communications.  Based on that decision, the Court granted Real Truth’s petition, vacated the Fourth Circuit’s judgment and remanded the case.  Also in the interim, the D.S. Circuit decided EMILY’s List v. FEC, striking down aspects of § 100.57, leading the Commission to announce that it was ceasing enforcement of that regulation.  On remand of Real Truth’s remaining challenges, the district court granted summary judgment to the Commission, holding that § 100.22(b) was constitutional and the Commission was entitled to use a multifactor approach on a case-by-case basis for determining PAC status.

On appeal, Real Truth urged the Fourth Circuit to review the regulation and policy under the strict scrutiny standard, arguing they placed onerous burdens on speech similar to those the Supreme Court applied strict scrutiny to in Citizens United.  Under Supreme Court jurisprudence, since § 100.22(b) relates only to disclosure and organizational requirements, it is one of the least restrictive forms of regulating speech and does not prevent Real Truth from speaking nor impose a ceiling on campaign related activities.  Thus, the Fourth Circuit held that the exacting scrutiny standard should be applied, requiring the government to demonstrate only a “substantial relation” between the disclosure requirement and “sufficiently important government interest.”

Real Truth first contended that the definition of “expressly advocating” under § 100.22(b) was constitutionally overbroad.  Under the regulation, expressly advocating is any communication that “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one of more clearly identified candidate(s)” because it is “unmistakable, unambiguous, and suggestive of only one meaning” and “reasonable minds could not differ.”  Real Truth’s challenge was based on the assertion that since the regulation did not require the “magic words” articulated in Buckly v. Valeo – “vote for,” “elect,” “defeat,” or “reject” – it was facially overbroad.  However, the Supreme Court jurisprudence has never limited express advocacy to those magic words, and has repeatedly supported requirements that are the functional equivalent of express advocacy.  Real Truth next argued that the language of § 100.22(b) was unconstitutionally vague, however the standard could only be applied when reasonable minds could not differ.  Furthermore, the Supreme Court has recognized routinely that it is constitutionally permissible to require disclosure for a wider variety of speech than electioneering, because disclosure requirements occasion a lesser burden on speech.  The Fourth Circuit concluded that § 100.22(b) is constitutional, facially and as applied to Real Truth’s intended advertisements.

Finally, Real Truth contended that the Commission’s policy for applying the “major purpose” test in determining whether an organization is a PAC is unconstitutional because it weighs vague and overbroad factors with undisclosed weight, and the only permissible factors should be whether campaign related speech amounts to 50% of all expenditures of an organization and the organizations central purpose revealed in its organizational documents.  In Buckley, the Supreme Court concluded that defining PACs only based on annual contributions and expenditures could produce vagueness issues, limiting the definition to organizations controlled by a candidate or whose major purpose is the nomination or election of candidates.  Following that decision, the Commission adopted a policy of determining PAC status on a case-by-case basis, taking into consideration all of a group’s political activities as well as public statements, fundraising appeals, and organizational documents.  The Fourth Circuit concluded that the Commission made a well-reasoned decision in taking a case-by-case approach rather than promulgating a new definition of PACs, because the determination of that status is inherently a comparative task and often requires weighing the importance of some of a group’s activities against others.  Although certain factors such as expenditure rations and organizational documents may be particularly relevant, the Commission is not foreclosed from using a more comprehensive methodology.   Ultimately, the Fourth Circuit affirmed the district court’s grant of summary judgment, holding that the Commission’s policy is constitutional because its multi-factor major purpose test is consistent with Supreme Court precedent and does not unlawfully deter protected speech.

Full Opinion

-Nora Bennani

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