Amicus Curiae Brief — Federal Election Comm'n v. Massachusetts Citizens for Life, Inc.

-

Supreme Court. U.S.

FILED

APR 4 1906

JOSEPH ©. SPANIOL, JR

CLERK

ree eee

No. 85-701

In The Supreme Court

Of The United States

October Term 1985

FEDERAL ELECTION COMMISSION,

Appellant,

Vv.

MASSACHUSETTS CITIZENS

POR LIFE, INC.,

Appellee.

ON APPEAL FROM THE '

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ere OF Mids CRS.

Or MASSACHUSETTS, IN SUPPORT OF

APPELLEE.

Marcia D. Seeler

Wayne S. Henderson*

New England Legal Foundation

55 Union Street

Boston, Massachusetts 02108

(617) 367-0174

Counsel for Amicus Curiae

* Counsel of Record

April 4, 1986

QUESTION PRESENTED

Whether 2 U.S.C. s.44lb can be applied to

prohibit corporate expenditures for the

publication of political information and ideas on

public issues ~- without approval of or

coordination with any candidate's campaign, and

without endorsing any particular candidate -—- and

if so, whether such application violates the

First Amendment freedoms of speech and

association?

TABLE OF CONTENTS

TABLE OF AUTHORITIES eeeeeeeeeeeeeeeeeeeee

SUMMARY OF ARGUMENT ..ncccccccccccccecesess

I.

III.

THE PUBLICATION OF THE

NEWSLETTER IS NOT AN EXPENDITURE

WITHIN ‘THE MEANING OF

2 U.S.C. s.44lb eeeeeeeeoeeeeeeeeeeee

A. Section 44lb Does Not Prohibit

Corporate Contributions or

Expenditures Not Made to

Candidates eeeseeeoeoeeeeeeaeeeeeeeene

B. Section 44lb Prohibits Only

Expenditures Which Expressly

Advocate the Election or

Defeat of a Candidate ..........

IS UNCONSTITUTIONALLY VAGUE .....«+--

THE MCFL PUBLICATION IS

PROTECTED BY THE FIRST

AMENDMENT GUARANTEES OF FREE

SPEECH AND ASSOCIATION ..ceesceceees

iii

ll

ll

15

22

32

IV. THE PUBLICATION MAY NOT

BE PROHIBITED ABSENT A

COMPELLING GOVERNMENTAL

INTEREST eeeeeeeeeeeeeeeeeeeeeeeneeee

A. The FEC Has Failed to

Demonstrate a Campelling

Goverrmental Interest ......ss+:.

B. The Prohibition Against

Corporate Expenditures is

Unnecessarily and

Impermissibly Broad .....ssseee.

CONCLUS ION eeeeeeeeeeeeeeeeeeeeeeeeeeaeeeee

ii

40

44

47

TABLE OF AUTHORITIES

aay v. Valeo, 519 F.2d 821

. . r. 5) eeeeeeeeeeeeeeeee

Buckley v. Valeo, 424 U.S. 1 (1976) .

California Medical Ass'n. v. FEC,

Cantwell v. Connecticut,

Citizens inst Rent Contro

on For r ng

Ve e

Cammon Cause v. Schmitt,

° ° ° D.C. 1980),

aff'd 455 U.S. 129 (1982) ........

FEC v. APSCME, 371 F. Supp. 315

. . . 979) eeeeeeeeeeeeeeeeeee

FEC v. Central Island

~~ ‘Tax Reform ately Committee,

. r. eeeeee

FEC v. Massachusetts Citizens For Life,

19,38

29, 32,33

° eeeeeeeeeeeeee 16,17,40,43

FEC v. Massachusetts Citizens For Life,

iii

21

FEC v. National Conservative Political

,

TOS S.Ct. 1459 (1985) eeeeeeeeeeees 37, 38,39,45

FEC v. National to Work Cammittee,

ewe eeeeeeeeeeeeee 36 ,43,45

First National Bank of Boston v. Bellotti,

U. ° ) eeeeeeeeeeeees 34, 37,40, 46

Gibson v. Florida Fey Station Cammittee,

eo oe eeeeoeoeaeeeoeeee8 35

Griswald v. Connecticut,

> oe eeeeseeeaeeeeeeeee 34,35

Lovell v. Griffith,

oe ss 937) eeenseeoeaeeeeeeee 34

NAACP v. Alabama,

357 U.s. 449 (1958) eeeeseeeeeeeeeee 35

NAACP v. Button,

EE es EE EEE cccccccecocess 23,24

Roth v. United States,

U. o ) eeeeeeeeeeeeee 32

v. New ire,

* . eeeseeoeeeeeeeee 35

United States v. National Fee acre Committee.

* r. eeee

iv

Statutes and Regulations

2 U.S.C.

s.431(9) (A) eeeeeeeeeeeeeeeeeeeeee

s.431(9)(B)(v) eeeeeeeeeeeeeeeeeee

2 U.S.C.

s.44lb eeeeeeeeoee eee ee eee eeeeee eee

s.441b(a) eeeeeeeeeeeeeeeeeeeeeeee

S.441D(D) (2) ccccccccccccccecseces

13

ee Se

The Home Builders Association of

Massachusetts (hereinafter the Association) is a

non-profit tax exempt corporation organized under

the laws of the Commonwealth of Massachusetts for

the purpose of articulating the position of the

home building industry on any matter which affects

the ability of the industry to produce housing for

all citizens of the Commonwealth. Among its many

activities, the Association monitors | federal,

state, and local government issues which may have

an impact on the hame building industry and its

ability to provide housing opportunities to the

public.

In order to fulfill its objectives the

Association periodically prepares, prints and

distributes a newsletter. As well as notifying

its members of other information integral to the

building trade, the newsletter also includes

summaries of proposed legislation at the state

2

level which could affect the home building

business. These summaries include critiques of

those legislators who support or oppose important

bills.

The Association desires to expand its

newsletter to include reference to federal as well

as state activity. Such reference may well

include publication of the voting records or

positions of federal candidates. As a result, the

Association is likely to confront issues identical

to those presented in the instant suit.

The Home Builders Association of

Massachusetts, therefore, has a vital interest in

presenting to the Court its position on the issues

involved, by the filing of its brief amicus curiae

in support of the Appellee in this action.

STATEMENT OF THE CASF

The case is before the Court on an appeal

by the Federal Election Commission (hereinafter

FEC) from a judgment of the United States Court of

Appeals for the First Circuit. The action was

initiated in the District Court by the FEC which

alleged that the Massachusetts Citizens For Life

(hereinafter MCFL) a non-profit corporation,

violated 2 U.S.C. s.44lb(a) by using corporate

funds to prepare, print and distribute : special

election edition of its newsletter to members of

the general public.

The special edition newsletter at issue was

published prior to a primary election held on

September 19, 1978. The cost of the publication

and a subsequent redistribution of a re-edited

version of the newsletter was $9,812.76. Both

versions listed all candidates in the primary

election for federal and state offices and

reported their positions on three pro-life issues:

a constitutional human life amendment, legislation

7

to prohibit the use of tax funds for abortions,

and legislation to provide positive alternatives

to abortion. While the publication did urge

readers to vote “pro-life,” it also stated that

"(T)he Mass. Citizens For Life election survey is

an educational service to help you cast an

informed vote when you go to the polls on

September 19th." Moreover, it included a

specific disclaimer that, "(T)his special election

edition does not represent an endorsement of any

particular candidate."

Following cross-motions for summary

judgment, the District Court issued an Opinion on

June 29, 1984 in which it dismissed the FEC’s

complaint. The District Court concluded that the

MCFL did im violate s.44lb(a) because the

newsletter in dispute was exempted fram the

definition of expenditure as a periodical

publication. In the alternative, the Court found

that the application of s.44lb(a) to the

newsletter of the non-profit issue-oriented

5

corporation would violate its rights to freedam of

speech, press and association under the First

Amendment of the United States Constitution.

The Court of Appeals affirmed the District

Court’s ruling solely on the constitutional

grounds. The Court found the statutory definition

of “expenditure” to be ambiguous and turned to the

legislative history of the Act. Based upon its

interpretation of the legislative history the

Court concluded that MCFL'S publication of the

special edition newspaper was within the ambit of

prohibited expenditures under s.44lb(a).

The court found, however, that the statute

provided a context-based restriction on speech,

permissible under the First Amendment only when

narrowly drawn to achieve a campel ling

governmental interest and that the FEC had failed

to satisfy this requirement in prohibiting MCFL'S

expenditures for publication of its Special

Election Editions. Therefore, the Court concluded

that the application of s.44lb(a) to indirect,

6

uncoordinated expenditures by a non-profit

ideological corporation expressing its views of

political candidates is a violation of that

organization's First Amendment rights.

7

SUMMARY OF ARGUMENT

I. The Publication of The MCFL Newsletter is

a

ra on n ‘ing of

The Federal Election Campaign Act, at 2

U.S.C. $.441b which generally prohibits

corporations from making a contribution or

expenditure in connection with a federal election,

must be read in context with s.441b(2), which

limits the prohibition to those expenditures or

contributions which are made to a candidate,

campaign Committee or political party. The

statutory language provided in these sections is

not ambiguous. Consequently, it is unnecessary to

resort to an examination of the legislative

history of the Federal Election Campaign Act in

order to interpret the statute. Furthermore,

incorporating the general definitional section of

the Act into section 44lb, as the FEC

8

advocates, improperly negates the specific

Statutory language contained in that section.

A violation of s.44lb, is made out only if a

corporation expends funds for the purpose of

expressly advocating the election or defeat of a

candidate. Since the MCFL Newsletter was

published solely for educational purposes, and not

to endorse specifically named candidates, the

publication did not constitute an expenditure in

violation of the Act.

II. The

Sees

>»

Prohibition >rporat

penditu Sonnect*on Witt edera.

Elect ic ‘Inconstitutionally v

As the Court of Appeals held, the

restriction on corporate expenditures in the

Federal Election Campaign Act constitutes a

content-based restriction on free speech. The

term “in connection with" a Federal Election, as

it is interpreted and applied by the FEC, is

unconstitutionally vague, as it does not

adequately forewarn and describe the parameters of

9

prohibited conduct. Continued prosecutions by the

FEC based solely upon this standardless term will

chill constitutionally protected speech.

III. The MCFL Publication is Protected The

‘First Amendment Guarantees

The First Amendment guarantees not only the

right to speak but also the right to publish,

circulate or distribute that speech. This right

does not depend upon the individual or corporate

identity of the speaker, because the right to

associate, in corporate or any other om. in

order to advance an ideological cause is similarly

protected by the First Amendment. Any restriction

placed upon*this constitutionally guaranteed right

must be narrowly drawn to serve a compelling

goverrmental interest.

10

IV. The FEC Has Failed to Demonstrate a

nteres cient to

t ting cation.

The FEC has failed to demonstrate a

compelling governmental interest in prohibiting

the MCFL publication. Under the standards set by

this Court, the FEC may justify its broad

interpretation of the Act's prohibitions only if

such interpretation is required to prevent

corruption, or the appearance of corruption, in

the electoral process. MCFL’s publication

represented an expenditure independent fram, and

uncoordinated with, any candidate or political

party. Such expenditure could not corrupt an

election, since the opportunity for’ the

corporation to exact a political debt from a

candidate was nonexistent. Therefore, the broad

restriction against the corporate expenditures at

issue in this cae violates the constitutional

protections of free speech and association.

ll

ARGUMENT

I. THE PUBLICATION OF THE MCFL NEWSLETTER IS NOT

AN EXPENDITURE IN CONNECTION WITH A FEDERAL

s.441b.

A. Section 44lb Does Not Prohibit

Corporate Contributions or

Expenditures Not Made to Candidates,

Campaign Cammittees, or Political

Parties or Organizations.

Pursuant to 2 U.S.C. s.44lb(a), it is unlawful

for any corporation to make a “contribution or

expenditure” in connection with any federal

election. The operative phrase is defined as

follows:

(F)or the purpose of this section ...

the term ‘contribution or

expenditure’ shall include any direct

or indirect payment, distribution,

loan, advance, deposit, or gift of

money, or any services, or anything

of value ... to candidate

campaign committee, or Titical

fry or Ization in connection

w any election to any of the

offices referred to in this section

eee 2 U.S.C. 8.441b(b)(2) (emphasis

added).

12

According to. the very terms of the statute,

therefore, a corporation is not prohibited from

expending funds in connection with a federal

election unless those funds are targeted to the

election or defeat of a specific candidate,

committee, party, or organization.

The Complaint against the Massachusetts

Citizens for Life (MCFL) brought by the Federal

Election Cammission (FEC) in this action alleges

that the non-profit corporation expended funds "in

connection with" an election, not that it

contributed to a candidate, or that’ the

expenditures for the newsletters were made to, in

concert with, or approved by a named candidate.

Absent an allegation which charges this nexus

between an expenditure of funds and a particular

candidate, there can be no fiuding that MCFL

violated the federal election law.

The Court of Appeals erroneously held, despite

the wording of the statute, that the definition of

contribution or expenditure appearing in

13

s.441b(b) (2) is not __ inclusive. While

acknowledging that the starting point in every

question of statutory construction is necessarily

the statute itself, the Court found same ambiguity

in the statute, and, consequently chose to examine

the legislative history surrounding the Federal

Election Act. Regardless of the specific

statutory limitation on the term “contributions or

expenditures" stated in s.44lb(b)(2), the Court

concluded that the prohibition against corporate

expenditures must be expanded to include the

broader definition of the word “expenditure” which

is found in the general definitions section of the

Act. This broader definition prohibits, “any

purchase, payment, distribution, loan, advance,

deposit, or gift of money or anything of value,

made by any person for the purpose of influencing

any election for Federal office” 2 U.S.C.

S.431(9)(A) (1982). (emphasis added)

Not only does the lower Court's interpretation

of the Act violate the acknowledged principle,

14

that statutory construction must, ere possible,

rely exclusively on the plain meaning of statute

itself, but it also ignores the clear conditioning

statement in s.431(9)(B)(v) that the term

"expenditure" does not include -

any payment or obligation incurred by

a corportion or labor organization

which, under s.44lb(b) would not

constitute an expenditure by such

corporation or labor organization.

Thus, an interpretation such as that of the

Court of Appeals, which would incorporate the

general definitional sections of the Federal

Election Campaign Act into Section 441lb, both

negates this specific statutory provision and

effectively denies the language of s.44lb(2). A

blanket prohibition against corporate expenditures

intended to influence any election for federal

office, would subsume and render surplus the more

precisely drawn prohibition against corporate

expenditures in behalf of a candidate, campaign

committee or political party.

15

The plain language of the statute should not

be contorted so as to nullify the narrowly written

restrictions enumerated in s.44lb.

B. Section 44lb Prohibits Only Expenditures

or Contributions Which Expressly Advocate

the Election or Defeat of a Particular

Candidate.

The purpose of the MCFL newsletter was to

provide informtion to voters on the public issue

of interest to the organization, and to encourage

votes to be cast in furtherance of the

organization's philosophy on that issue. No

particular candidate was either endorsed or

attacked. The statute, therefore, simply does not

apply to such an informational issue-oriented

publication.

The MCFL newsletters were published to provide

an educational service and not to exp «ssly

advocate the election or defeat of a particular

candidate. The newsletter specifically states

"(T)he Massachusetts Citizens for Life election

survey is an educational service to help you cast

16

an informed vote when you go to the polls on

September 19th.” To reinforce the impartial

mature of the publication the final page of the

newsletter stated, "(T)his special election

edition does not represent an endorsement of any

particular candidate.”

Commission v. Massachusetts Citizens for Life

SS ssssssssessstssssssssnsensnssnsnssteesanmaneeneensfeme

Inc., 769 F.2d 13, 15 (1985).

The identification of a candidate’s views on a

specified issue and an exhortation to vote

according to a certain ideology do not violate the

Federal Election Campaign Act. In Buckley v.

Valeo, 424 U.S. 1 (1976), this Court, in another

context, set out an "express advocacy” requirement

for an action to violate the statute. The Court

asserted that the term “express advocacy” applies

only “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,’ etc.” 424 U.S. at 44, n.52. The Court

conc luded,

Federal Elect ion

17

(W]e construe ‘expenditure’ ... to

reach only funds for communications

that expressly advocate the election

or defeat of a clearly identified

candidate. This reading is directed

precisely to that spending which is

unambiguously related to the campaign

of a particular candidate. (footnote

amitted). 424 U.S. at 80.

As both the District Court and the Court of

Appeals found, the exhortation in the newsletter

"Vote Pro-Life” does not “fit within the Buckley

definition of express advocacy because it does not

advocate the election of particular candidates for

particular offices, but urges support of a general

position on a controversial issue.” FEC v. MCFL,

769 F.2d at 20.

Despite its conclusion on this point, the

Court of Appeals proceeded, impermissibly to

expand the Buckley definition, in holding the

newsletter’s general issue-oriented advocacy to be

prohibited express advocacy. The Court of Appeals

found the inclusion of the pictures of certain

pro-life candidates and the statement that “your

18

vote in the primary will make the critical

difference in electing pro-life candidates,"

transformed the mission of the newsletter fram one

of providing public information on a general issue

to one of advocating the election of specifiw,

identified candidates. The Court's reading of the

purpose and effect of the newsletter is, however,

misplaced.

It is true, as the Court of Appeals has

stated, that only candidates who supported

pro-life positions had pictures published in the

newsletter. Yet, in the race for the United

States Senate, two pro-life candidates were

featured, and in the Fifth Congressional District

race none of the pro-life candidates was

represented photographically. Similarly, in the

First Congressional District, Silvio Conte's

picture was published even though he was an

unopposed incumbent. The purpose of _ the

publication was to advocate a particular ideology

by informing the electorate which, if any,

19

candidates supported that ideology and not to

pramote the election of a particular candidate.

The choice between two pro-life candidates, or

between two pro-choice candidates, was left to the

voters without any influence from MCFL.

In fact, the inclusion of a candidate's

pro-life position in this publication may well

have been a detriment rather than a benefit in

his re-election campaign. As this Court has

stated, independent expenditures made purportedly

in support of a candidate may well provide little

assistance to the candidate's campaign and indeed

may prove counterproductive. Buckley v. Valeo,

424 U.S. at 47; Common Cause v. Schmitt, 522 F.

Supp. 489 (D. D.C. 1980), aff'd, 455 U.S. 129

(1982). The absence of prearrangement and

coordination of an expenditure with the candidate

or his agent not only undermines the value of the

expenditure to the candidate, but also alleviates

the danger that expenditures will be given as a

quid pro quo for improper cammitments from the

candidate. Buckley, supra. at 47.

20

This point is amply illustrated by the MCFL

publication. It is unknown whether any of the

candidates listed in the newsletter desired their

pro-life/pro-choice record or position to be an

issue in their election campaign. In fact, the

publication of a candidate's voting record on this

issue is equally informative to a voter

predisposed against pro-life issues, as to one who

Supports MCFL's position. Although one recipient

of the MCFL newsletter may favored Howard

Phillips, Democratic candidate for United States

Senate in the 1978 primary, because of his

pro-life record, another voter might be equally

persuaded by the newsletter to vote for his

Opponent, Paul Tsongas upon learning of his

pro-choice position. Indeed, as the opinion of

the District Court noted, to the extent that the

newsletter was distributed beyond defendant's

membership, “i' probably lessened rather than

enhanced the prospects of election of candidates

Subscribing to defendants’ platform which,

21

according to public opinion polls, is opposed by

most citizens." Federal Election Commission v.

Massachusetts Citizens For Life, Inc. 589 F.Supp.

646, 649 (D. Mass. 1984).

The Federal Election Campaign Act was not

intended to reach such impersonal (or

multi-personal) advocacy, which serves only to

inform the electorate on a public issue, leaving

the choice among candidates still very clearly in

the hands of the voters.

Pursuant to s.44lb, a corporation is

prohibited from making “expenditures or

contributions" in “connection with a federal

election." As has been discussed, there are

significant questions concerning the definition of

the word “expenditure” as it is used in the

Federal Election Campaign Act. There is even

greater uncertainty —- which, particularly in the

context of a content-based restriction on

free-speech, presents an issue of constitutional

proportions —- over the meaning of the term “in

connection with" any federal election as it is

used in the prohibition against corporate

expenditures. The amicus submits that the tern,

as interpreted and applied by the FEC, is

unconstitutionally vague, as it cannot adequately

23

forewarn and describe the parameters of prohibited

conduct. The term “in connection with" is not

defined in the Act. Consequently, the FEC freely

decides whether to prosecute an action based

solely on its subjective view that a statement or

publication may have a sufficient nexus with an

election to have been “in connection with” that

election. Civil penalties and/or criminal

prosecution may be imposed, therefore, even though

an association has no objective standards or

criteria by which to determine the permissibility

of its conduct under the statute. Other more

precisely worded statutes have been invalidated as

being unconstitutionally vague, and the FEC'’s

reading must follow suit.

Nowhere are the constitutional implications of

vagueness more dangerous than in the exercise of

protected First Amendment righ -s. NAACP Vv.

Button, 371 U.S. 415 (1963). "(Where a vague

statute ‘abut[s] upon sensitive areas of basic

First Amendment freedams’ it ‘operates to inhibit

24

the exercise of [those] freedoms,’ ... Uncertain

meanings inevitably lead citizens to ‘steer far

wider of the unlawful zone’ ... than if the

boundaries of the forbidden area were clearly

marked.” Buckley v. Valeo, 519 F. 2d 821, 874

(D.C. Cir. 1975) (en banc) (per curiam), aff'd in

part rev'd in part, 424 U.S. 1 (1976) (per curiam)

(citations amitted). Because of the potential

chilling effect upon the exercise of vital First

Amendment rights, the government may regulate

expression and association only with narrow

specificity and carefully drawn regulations which

proscribe only unprotected, and not protected,

expression. NAACP v. Button; Cantwell v.

Connecticut, 310 U.S. 296 (1940).

Section 44lb(a), which circumscribes corporate

expenditures “in connection with" a federal

election, does not meet these long established

constitutional standards. Given the breadth of

interpretation applied by the FEC, the statute

fails to clearly mark the boundaries between

25

affected and unaffected conduct with narrow

specificity. Would, for example, the FEC have

deemed the MCFL newsletter to be an expenditure if

the organization had published the newsletter on

the same date but had dropped the admonition to

vote pro-life? How praminent must an issue be in

a given federal election for statements regarding

that issue to be deemed “connected” with the

election? May an interview of a candidate be

published if there is no mention of an impending

election? May an organization exhort’ the

importance of voting only for candidates who hold

a particular view if no identification is made of

those candidates? Or is any reference to an

election, or to the act of voting, necessarily

made “in connection with" an election? Does a

publication became connected with an election only

by proximity of date, or only by content, or are

both date and content required? Without answers

to these and many other questions, no publicly

spirited group can safely publish its views on

either issues or individuals without facing

26

possible civil or criminal prosecution by the FEC.

The inhibiting impact of the FEC's preferred

broad prohibition against corporate expenditures

"in connection with" an election, if upheld,

cannot be overestimated. MCFL is by no means

unique in its. position. Virtually every

non-partisan, issue-oriented, non-profit

corporation speaks or may wish to speak on matters

of public importance. Any issue of such societal

importance as to have spawned a supporting — or,

for that matter, an opposing — organization is

also likely to appear in one form or another as an

electoral campaign issue. What more important

topic for speech could there be for an

issue-oriented group than the positions that

candidates may have on those very issues which are

the core of the organization's philosophy and

purpose?

This point was acknowledged by the Court of

Appeals in Buckley v. Valeo, in striking down

Section 437(a) of the Federal Election Campaign

27

Act. In that case, the Court of Appeais held one

provision, s.437(a), unconstitutionally vague

and overbroad on the ground that the provision is

"susceptible to a reading necessitating reporting

by groups whose only connection with elective

process arises fram campletely non-partisan public

discussion of issues of public importance." No

appeal was taken fram that holding. Buckley, 519

F. 2d at 10, n. 7.

While the corporate structure of the various

plaintiff organizations is not discussed in the

Buckley case, the First Amendment implications of

restricting discussion of candidates’

qualifications, voting records and positions on

campaign issues is thoroughly analyzed. In

discussing the impact of s.437(a) on a specific

plaintiff, the New York Civil Liberties Union, the

Court noted that the organization publicizes in

newsletters and other publications the civil

liberties voting records, positions, and actions

of elected officials, same of wham are candidates

28

for public office. In addition to the Civil

Liberties Union, the Appeals Court also identified

trade and professional journals, campus

newspapers, union newsletters and even

church bulletins as being potentially restricted

by the Act. “Indeed, ‘every Little Audubon

Society Chapter’ [might] be [interrupted], for

‘environment’ is an issue in one campaign or

another. On this basis, too, a Boy Scout troop

advertising for membership to cambat ‘juvenile

delinquency’ or a Golden Age Club promoting

‘senior citizens’ rights’ [might] fall under the

Act." Id. at 871.

The Court of Appeals in Buckley also reviewed

the dilemma faced by organizations attempting to

camply with the statute.

Discussions of [public issues which

are also campaign issues], and as

well more positive efforts to

anfluence public opinion on then,

tend naturally and inexorably to

exert some influence in voting at

elections. In this milieu, where do

‘purpose’ and ‘design’ ‘to influence’

draw the line? Do they connote

29

subjectively a state of mind, or

objectively only a propensity of

influence? Do they require,

ion of state of mind, a

capability of influencing, and if so

how substantial a capability? What

do they demand with respect to

materials which ‘advocat[e] the

election or defeat of [a] candidate’

or which ‘set forth the candidate's

position on [a] public issue’ or ‘his

voting record,’ beyond the inherent

tendency of these materials to

influence? Id. at 875.

The chill on constitutionally protected speech

by similarly vague language is illustrated by a

review of other FEC enforcement actions under the

“Act. Examples include actions filed by the FEC

against a citizens’ group for limited taxation for

publishing voting records on tax issues, FEC v.

Central Long Island Tax _ Reform Immediately

Committee, 616 F. 2d 45 (2d Cir. 1980);

prosecution of a cammittee which had paid for an

advertisement appealing for the impeachment of the

President ami listing Congressmen who were

recorded in favor of impeachment, United States v.

National Impeachment Committee, 469 F. 2d 1135 (2d

Cir. 1972); and an action against a union for

30

publishing and circulating a poster depicting

former President Ford wearing a button reading

“Pardon me" and embracing former President Nixon,

FEC v. APSCME, 371 F. Supp. 315 (D. D.C. 1979).

In each of the aforementioned cases, the Court

Getermined Usat the FEC’s reading of the statute

was overly broad, and that the actions or

publications of the organization at issue were

permissible under the Federal Election Campaign

Act.

How many more prosecutions by the FEC of

non-profit, nonpartisan,

organizations will be instituted before such

issue-oriented

groups, often ill-equipped to absorb the expense

of defending their speech, will simply be forced

to cease publishing their views? Is it not

incongruous with the preferred position given to

First Amendment rights, that individuals seeking

to exercise these rights must justify their

conduct and bear the costs of such justification

before the FEC or in court when both the law and

31

its administering agency have failed to provide

cognizable and well-defined standards? The

chilling effect of this vague statute raises a

spectre of all the evils which the First Amendment

was designed to prevent. As Judge Kaufman stated,

in a stinging rebuke to the FEC,

I)f speakers are not granted wide

a to disseminate information

without goverrment interference, they

or sterilized. Accordingly, it is

not completely surprising that the

FEC should view the content of

defendants’ leaflet in a

upon

we ;, if not impossible,

obligation to exercise its powers in

a manner harmonious with a system of

free expression. Our decision today

should stand as an admonition to the

32

Commission that, at least in this

case, it has failed abysmally to meet

this awesame responsibility. v.

Island Tax

Famed lately tome ie

Wi. Waulean, C3-. ctecurring)

In the instant case the FEC has again failed to

exercise its powers in a manner harmorious with a

system of free expression.

The First Amendment protects political

expression in order to “assure unfettered

interchange of ideas for the bringing about of

political and social changes desired by the

people." Roth v. United States, 354 U.S. 476, 484

(1957). As this Court has noted, “discussion of

public issues and debate on the qualifications of

candidates are integral to the Operation of the

system of goverrment established by our

Constitution." Buckley 424 U.S. at 14. If

33

speakers are not granted wide latitude to

disseminate information, citizens will be deprived

of valuable information and opinions. FEC v.

Central Long Island Tax Reform Immediately

Committee, 616 F. 2d at 55 (concurring opinion).

In a republic where the people are sovereign, the

ability of the citizenry to make informed choices

among candidates for office is essential, for the

identities of those who are elected will

inevitably shape the course that we follow as a

nation. Buckley, 424 U.S. at 15.

Neeause the First Amendment guarantees not

only the right to hear, but also the right to

receive information, the Amendment has been held

to protect not only the right to speak but also

the right to publish, circulate or distribute that

speech. Thus, “[T)he right of freedam of speech

and press includes, not only the right to utter or

to print, but the right to distribute, the right

to receive, the right to read and freecom of

inquiry, freedam of thought and freedam to teach

‘

34

+++" Griswald v. Conmecticut, 381 U.S. 479, 482

(1965). (emphasis added). Furthermore, *(L) iberty

of circulating is as essential to that freedan as

liberty of publishing; indeed, without the

circulating the publication would be of little

value.” Lovell vy, Griffith, 303 U.S. 444, 452

(1937).

The inherent worth of the speech in terms of

its capacity for informing the public does not

depend upon the identity of its source, whether

corporation, association, union or individual.

First National Bank, 435 U.S. 765, 777 (1971). As

the Court asserted in invalidating a Massachusetts

Statute prohibiting corporate speech on referendum

issues:

35

or civic — to their respective

“business” when addressing the

public. Id. at 785.

Preedam to associate for the advancement of

beliefs and ideas is an inseparable aspect of the

liberty assured by the Constitution. Gibson v.

Florida Legislative Investigation Committee, 372

U.S. 539 (1963); NAACP v. Alabama, 375 U.S. 449

(1966). “The right of ‘association,’ like the

right of belief ... is more than the right to

attend a meeting; it includes the right to express

one's attitudes or philosophies by membership in a

group or by affiliation with it or by other lawful

means." Griswald, 381 U.S. at 483. This right is

most fundamentally applied to associations formed

for the purpose of political expression. ‘*[OJur

form of goverrment is built on the premise that

every citizen shall have the right to engage in

political expression and association.” Sweezy v.

New Hampshire, 354 U.S. 234, 250 (1957). In fact,

36

“le]ffective advocacy of both public and private

points of view, particularly controversial ones,

is undeniably enhanced by group association..."

Citizens inst Rent ition for Fair

Hous v. City of Berke California, 454 U.S.

290, 295 (1981). Its value lies in the fact that

by collective effort individuals can make their

views known, when individually their voices would

be faint or lost. Id. at 294.

Given that the right of association to espouse

social or political views is a fundamental right,

under the First Amendment the question remains

whether that right is diminished or even

disappears when the group chooses to associate as

a non-profit corporation. Contrary to the FEC's

argument, Federal Election Commission v. National

Right to Work Committee, 459 U.S. 197 (1982), is

not dispositive on the application of the Federal

Election Act on non-profit contributions, since

that case focused on solicitations for

contributions, independent

expenditures. In fact, the Court specifically

and not on

ol tE, Bete le ie ee ee

ee

i ee ae ee en

|

|

37

noted that “NRWC is consistent with this Court's

earlier holding that a corporation's expenditures

to propogate its views on issues of general public

interest are of a different constitutional stature

than corporate contributions to candidates." FEC

Vv. National Conservative Political Action

Committee, 105 S.Ct. 1459, 1468 (1985).

MCFL, if unincorporated, could have spoken on

candidates’ voting records and pro-life positions,

and could actively have advocated the election of

individual candidates. California Medical Ass'n.

v. FEC, 435 U.S. 182, 195 (1981). That right does

not evaporate simply because MCFL chose to

incorporate. Even the dissenting Justices in

First National Bank acknowledged the specific

problem of restricting the speech of non-profit

corporations. “Undoubtedly, as this Court has

recognized ... there are same corporations formed

for the express purpose of advancing certain

ideological causes shared by all their members or,

as in the case of the press, of disseminating

information and ideas. Under such circumstance,

38

association in corporate form may be viewed merely

aS a means of self-expression." 435 U.S. at 805.

This principal has recently been reiterated in

National Conservative Political Action Committee

in which this court stated,

NCPAC and FCM are mechanisms by which

large numbers of individuals of

modest means can join together in

organizations which serve to amplify

their voices ... To say that their

collective action in pooling their

resources to amplify their voices is

mot entitled full First Amendment

protection would subordinate’ the

voices of those of modest means as

opposed to those sufficiently

wealthly to buy expensive media ads

with their own resources. 105 S.Ct.

at 1467-68.

A restriction on the amount of money a person or

group can spend on political cammunication during

a campaign necessarily reduces the quality of

expression by restricting the number of issues

discussed, the depth of their exploration, and the

Size of the audience reached. Common Cause, 512

F. Supp. at 497. Virtually every means of

communicating ideas in today’s mass society

ee ee Le

|

39

requires the expenditure of money. The

distribution of the most humble handbill or

leaflet entails printing, paper and circulation

costs. Buckley, 424 U.S. at 19. To limit, or, in

this case, prohibit the association fram making

expenditures to publish a newsletter or pamphlet

precludes the association from. effectively

amplifying the voice of its adherents, the

original basis for the recognition of a First

Amendment protection of association, Id. at 22.

"(A]llowing the presentation of views [while

limiting expenditures) is much like allowing a

speaker in a public hall to express his views

while denying him the use of an amplifying

system." National Conservative Political Action

Committee, 105 S.Ct. at 1467. To restrain the

ability of an independent association to expend

political express ion is

simultaneously to interfere with the freedam of

resources on

its adherents. Buckley, 424 U.S. at 22.

™ . :

A. The FEC Has Failed to Demonstrate a

Campel ling Government Interest in

Prohibiting This MCLF’s Publication.

As the Court of Appeals determined, “s.441b

must be considered « content-based restriction on

expression and may be justified only by a showing

of substantial government interest." FEC v. MCLF,

769 F.2d at 22. Not only must the government

demonstrate that a compelling interest exists, but

it must also prove that the statute is closely

drawn to avoid unnecessary abridgement of First

Amendment rights. First National Bank, 435 U.S.

765.

In the area of political speech the government

has sought to limit or restrict expression through

the imposition of ceilings on expenditures and

contributions to candidates and political parties.

In support of these limitations, the government

has traditionally advanced the following

41

justifications: (a) to prevent corruption or the

appearance of corruption; (b) to reduce the

political impact oor influence of wealthy

individuals or groups; and (c) to limit the costs

of election campaigns. Of these three stated

governmental interests, this Court has concluded

that only the first is constitutionally sufficient

to warrant restrictions on political expression.

Buckley, 424 U.S. at 26.

While accepting the government's professed

intent to protect the electoral process fram

corrupt influence, as justification for same

measure of restriction, the Court has also found

that only a limitation on contributions, and not a

limitation on expenditures, furthers this aim

appropriately and narrowly enough to survive

constitutional challenge. The rationale for this

distinction is that “(T]he absence of

pre-arrangement and coordination of an expenditure

with the candidate or his agent not only

undermines the value of the expenditure to the

42

candidate, but also alleviates the danger that

expenditures will be given as a quid pro quo for

improper commitments.” Id. at 47.

MCFL'S expenditure here was not coordinated

with any campaign or candidate. The opportunity

to exact a guid pro quo was non-existent. Indeed,

the exposure of a candidate's views on right to

life issues could be either a benefit or a burden

in attracting a voter’s support. The clear

beneficiary of the information included in the

newsletter was, therefore, not the candidates for

election, but the voting public who received

important information not available elesewhere.

While the prevention of corruption has been

identified as the campelling governmental interest

behind the Federal Election Campaign Act, this

Court has also sought to protect individuals who

have paid money into a corporation or union for

purposes other than the support of candidates fran

having that money used to support political

candidates to wham they may be opposed. National

ee

43

Right to Work Committee, 459 U.S. at 207-208.

This is not a legitimate concern in this case. As

the Court of Appeals noted, “contributors to MCFL

need not be protected fram having their money used

for expenditures such as the Special Election

Edition. Individuals who contribute to MCFL do so

because they support MCFL’s anti-abortion position

and presumably would favor expenditures for a

publication that informs contributors and others

of the position of various candidates on the

abortion issue. This would appear to be the very

purpose of the organization and the contributions

to it." PEC v. MCFL, 769 F.2d at 23.

Moreover, even the stockholders of a

for-profit corporation retain other remedies

against an expenditure if corporate funds for

political purposes with which they disagree. They

may, of course, sell their stock, band together to

vote the responsible officers out of office, or in

the extreme case, bring suit for the

mis-application of corporate funds. The Federal

44

Election Campaign Act is neither necessary, nor

was it intended, to provide additional protections

to the stockholders, and particularly not at the

expense of the important First Amendment rights at

stake in this case.

B. The Prohibition Against Corporate Expenditures

is Unnecesarily and Impermissibly Broad.

Even if a compelling interest could be found

to justify restrictions on corporate speech, the

prohibition contained in the Federal Election

Campaign Act, as interpreted by the FEC in the

instant case, is not sufficiently narrow to

satisfy constitutional standards. Rather than

prohibiting only those types of corporate

contributions which could lead to corruption, cr

ever the appearance of corruption, the FEC

attempts to interpret the statute to blindly

prohibit any and all corporate expenditures having

even the slenderest of connections with an

election.

45

As this Court has acknowledged, “the

‘differing structures and purposes of different

entities’ may require different forms of

regulation in order to protect the integrity of

the electoral process" National Right to Work

Committee 459 U.S. at 210, quoting California

Medical Associates v. FEC, 453 U.S. 182, 201

(1981). "A corporation's expenditures to

propogate its views on issues of general public

interest are of a different constitutional statute

than corporate contributions to candidates."

National Conservative Political Action Committee,

105 S.Ct. at 1468. Yet, where the law requires

that the restriction of First Amendment rights be

carved out with a scalpel, the FEC has used a

hatchet.

A narrow prohibition may be easily drawn to

protect the goverrment’s valid interest, yet allow

constitutionally protected speech: prohibit

corporate contributions in elections, but permit

independent expenditures by such entities provided

46

that there is full disclosure that the expenditure

is made by a corporation. Prohibiting corporate

contributions to candidates would prevent the

possible purchase of candidates, the concern

identified by the Court as the only valid

campelling governmental interest in restricting

political speech. Allowing such independent

expenditures but requiring disclosure would permit

constitutionally protected speech, while serving

to notify the public that it is hearing corporate

rather than individual speech. Permitting speech

only with full disclosure would conform to

guidelines set by the Supreme Court:

The people in our democracy are

entrusted with the responsibility for

judging and evaluating the relative

merits of conflicting arguments.

They may consider, in making their

judgment, the source and credibility

of the advocate. But if there be any

danger that the people cannot

evaluate tne information and

arguments advanced by appellants, it

is a danger contemplated by the

Framers of the First Amendment.

First National Bank, 435 U.S. at 791.

47

The Home Builders Association of Massachusetts

submits that Massachusetts Citizens For Life's

publication of the special election edition

newsletter did not constitute an expenditure in

connection with a federal election in violation of

2 U.S.C. s.441b. Amicus further submits that the

application of this statute to that publication is

a violation of the First Amendment to the United

States Constitution.

Marcia Drake Seeler

New England Legal Foundation

55 Union Street

Boston, Massachusetts 02108

(617) 367-0174

Wayne S. Henderson

David A. Cohen (on brief)

New England Legal Foundation

DATED: April 4, 1986