Joint Appendix — Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n

Supreme Court brief1996

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COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE

and DouGLas L. JONES, as TREASURER,

Petitioners,

FEDERAL ELECTION COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

JOINT APPENDIX

JAN WITOLD BARAN *

THOMAS W. KIRBY

CAROL A. LAHAM

MICHAEL E. TONER

Scott S. HARRIS

WILEY, REIN & FIELDING

1776 K Street, N.W.

Washington, D.C. 20006

(202) 429-7000

Attorneys for Petitioners

* Counsel of Record

February 16, 1996

Drew S. Days, III *

Solicitor General

PAUL BENDER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

LAWRENCE M. NOBLE «

General Counsel ,

RICHARD B. BADER

Associate Genera! Counsel

Rita A. REIMER

Attorney

FEDERAL ELECTION COMMISSION

Washington, D.C. 20463

Attorneys for Respondents

PETITION FOR CERTIORARI FILED SEPTEMBER 21, 1995

PETITION FOR CERTIORARI GRANTED JANUARY 5, 1996

thine

TABLE OF CONTENTS

DOCKET ENTRIES

Docket Entries in the United States District Court

for the District of Colorado

Docket Entries in the United States Court of Ap-

peals for the Tenth Circuit

RELEVANT DECISIONS BELOW

August 30, 1993 Order and Memorandum of Deci-

sion of the United States District Court for the

District of Colorado

June 23, 1995 Opinion of the United States Court

of Appeals for the Tenth Circuit

September 6, 1995 Order of the United States Court

of Appeals for the Tenth Circuit Denying the Colo-

rado Republican Federal Campaign Committee’s

Suggestion for Rehearing En Banc

RELEVANT PLEADINGS

Plaintiff’s Complaint for Declaratory, Injunctive

and Other Appropriate Relief (filed July 6, 1989) ..

Defendants’ Answer and Counterclaims (filed Au-

gust 25, 1989) (including Exhibit 1 (omitting at-

tachments) and Exhibit 2)

Plaintiff Federal Election Commission’s Reply to

Defendants’ Counterclaim (filed October 20, 1989) ..

Defendants’ Statement of Undisputed Facts and

Supporting Exhibits (filed May 15, 1990), includ-

ing the following exhibits attached thereto: .........

1. Exhibit 4, Attachment 6 (April 25, 1986 In-

2. Exhibit 5 (Plaintiff Federal Election Commis-

sion’s Response to Defendants’ First Set of

Discovery Requests)

. Exhibit 6 (Defendants’ Response to Plaintiff's

Second Set of Discovery Requests)

ii iii

TABLE OF CONTENTS—Continued TABLE OF CONTENTS—Continued

Page Page

4. Exhibit 7 (Plaintiff Federal Election Commis- 2 U.S.C. § 434 (b) . «gon

sion’s Response to Defendants’ First Request 2 U.S.C. § 487e(c) . 233

for the Production of Documents) (omitting | 2 U.S.C. § 488(d)_... | 233

EE 136 2U.S.C.§441b.... 234

5. Exhibit 8 (Defendants’ Supplemental Responses

to Plaintiff’s Second Set of Discovery Requests, | REGULATORY PROVISIONS

Interrogatory Nos. 6 and 7) .. —_ 143 | 11 C.F.R. § 110.7 (1995) . 239

* Ze eee tee Fletion Comm be | Express Advocacy, 60 Fed. Reg. 35,292-96 & 85,804-

05 (1995) (to be codified at 11 C.F.R. 100.17 &

First Set of scashtewed me etl oe ex- 100.22) 243

hibits) .. oan. 151 | saeecewee en .

Te Exhibit 1 10 0 (Affidavit of alas Sint on 159 | FEDERAL ELECTION COMMISSION ADVISORY

| OPINIONS

Ce Sean | FEC Advisory Opinion 1978-46 253

Colorado Republican Federal Campaign Commit- ) FEC Advisory Opinion 1984-15 . 269

tee’s Radio Advertisements and dames Con- | FEC Advisory Opinion 1985-14 ..... -_ 267

cerning Congressman Wirth .. weit ao. oa

Statement of Candidacy of Tim Wirth (filed a

ERIE SESE 173

Colorado Republican Federal Campaign Commit-

tee’s Assignment of Expenditure Authority to the

National — Senatorial Committee (dated

March 14, 1986) ... ante 175

Colorado tien ‘Federal: Guede Communit

tee’s Report of Receipts and Disbursements (dated

BNE Ae 177

June 23, 1988 FEC Probable Cause Letter toBaran.. 181

January 17, 1989 FEC Probable Cause Letter to

ESSA ET AEN TNA EE a 183

Deposition of Howard H. Callaway (taken June 5

RR EE 185

STATUTORY PROVISIONS

EE 217

EE 224

ID RED antnigimisccssimecttvntsceccsosemmmasnatnanenae 226

U.S. DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(DENVER)

Civil Docket for Case #: 89-CV-1159

FEDERAL ELECTION COMMISSION,

7 Plaintiff

COLORADO REPUBLICAN FEDERAL

CAMPAIGN COMMITTEE, et al.,

7/6/89

7/12/89

8/2/89

8/7/89

Complaint .. . pd

Summons Issued

Notice of Motion

Motion for waiver of Local Rule 300 & 301

Memorandum in support of Motion for Waiver

with supporting affidavit of Mr. Snyde; Certificate

of Service

ORDER (ZLW) ... that plaintiff's motion for

order waiving application of requirements of Rule

300 and 301 is GRANTED ... com... eod 7/12/89

UNOPPOSED MOTION for Waiver of Local Coun-

sel Requirement .. . by Defendants COS

Declaration of Jan W. Baran in Support of De-

fendants’ Cross Motion for Waiver of Local Coun-

sel Requirement

Notice and Acknowledgement of Receipt of S&C,

signed by Jan W. Baran[], Counsel for Colorado

Republican Federal Campaign Committee on 8/

1/89 and another one signed by Jan W. Baran[],

Counsel for Douglas L. Jones, Treasurer, on 8/1/89

DATE

PROCEEDINGS

8/16/89

8/25/89

8/23/89

10/20/89

10/25/89

12/89

3/16/90

3/19/90

3/28/90

3/29/90

ORDER (ZLW) .. . that defendants’ motion for

order waiving application of Local Rules 300 and

301 is GRANTED ...com.. . eod 8/17/89

ANSWER & COUNTERCLAIM ... by Defend-

ants—cos

ORDER OF REFERENCE (ZLW) .. . to magis-

trate Schauer for pretrial ... com. . . eod 8/25/89

Reply to Counterclaim by Plaintiff . . . cos

MINUTE ORDER (HS) ... initial discovery con-

ference held 10/23/89 . . . discovery cutoff date.

2/28/90 . . . further settlement/status conf. set

3/6/90 at 1:30 ...com...eod 10/25/89

Letter to Counsel advising of case reassignment to

Judge Nottingham

Notice of Motion to compel

Motion by Plaintiff to Compel answers to inter-

rogatories w/brief ... COM

Notice of Motion to Compel ... COM

Plaintiff Federal Election Commission’s Opposition

to Defendants’ Motion to Compel Discovery .. .

C.0.M.

HEARING (HS) .. . statements of counsel...

pif. opposition to motion to compel filed 3/28/90

and defendant motion to strike filed 3/29/90

STRICKEN .. . plaintiff motion to compel filed

3/16/90 GRANTED with compliance by 4/16/90

. . plaintiff to refile motion to open discovery

. . » Defendant motion to compel filed 3/19/90

GRANTED except for interrogatories 18 and 19

. Pretrial 6/29/90 at 1:30 . . . eod 3/30/90.

Motion to Strike plaintiff briefs and impose sanc-

tions on plaintiff counsel .. . COM

— —— ——————————_—_ EEL

DATE

PROCEEDINGS

4/3/90

4/30/90

5/3/90

5/15/90

5/17/90

5/21/90

5/25/90

5/29/90

5/30/90

6/5/90

Transcript of Electronically recorded proceedings

before Magistrate Schauer on 3/29/90 (pages

1-60)

MOTION of federal election commission to extend

discovery

MINUTE ORDER (HS) .. . defs. to respond to

motion to extend discovery by 5/15/90

OPPOSITION TO Plaintiff's motion for an ex-

tension of discovery .. . by defendants. MOTION

for summary judgment . . . by defendants. MEM-

ORANDUM in support of defendants motion for

summary judgment .. . by defendants Statement

of undisputed facts and support exhibits . . . by

defendants . . . Certificate of Service for Motion

for Summary Judgment and memo and Statement

of Undisputed facts filed 5/15/90.

ORDER (HS) .. . discovery extended to 6/27/90

to permit plaintiff to depose certain individuals

... Pretrial 6/29/90 at 1:30... COM

COS Motion to extend discovery

MINUTE ORDER (EWN) ... response to mo-

tion for summary judgment to be in accordance

with rules, reply due 10 days thereafter ... COM

Notice of Deposition of Howard Callaway 6/5/90

PLAINTIFF’s Motion To Hold This Case In Abey-

ance Or, Alternatively, For An Extension Of Time

To Respond To Defendant’s Summary Judgment

Motion

Defendant’s Opposition to Plaintiff's Motion to

Hold This Case In Abeyance Or, Alternatively, For

An Extension Of Time To Respond To Defend-

ants’ Summary Judgment Motion .. . Certificate

of Service

Submission by Federal Election Commission under

Rule 56 and Affidavit

GN — — ———————eeEE——E

DATE PROCEEDINGS

6/12/90 Defendant’s response to plaintiff’s submission pur-

suant to Rule 56(F)

6/18/90 Notice of Deposition of Kay Riddle on 6/22/90 at

10:00

Notice of Deposiiton of Doug Goodyear on 6/22/90

at 2:00

Return of Service returned unexecuted as were un-

able to serve by due date 6/4/90 by Benny L. Bailey

6/14/90 Minute Order (EWN) .. . Ordered that plaintiff

will respond to the pending motion for summary

judgment on or before 7/6/90 . . . FURTHER

ORDERED that all other dispositive motions in

this case by filed by 7/6/90 .. . FURTHER OR-

DERED that no further extension of time will be

granted.

6/20/90 MOTION by defendant Colorado Republican, de-

fendant Douglas Jones for protective order, and

for sanctions (yk) [Entry date 06/25/90]

6/20/90 CERTIFICATE of service of motion by defendant

Colorado Republican, defendant Douglas Jones

(yk) [Entry date 06/25/90]

6/21/90 Opposition by plaintiff Federal Election Com to

motion for protective order [1-1], motion for sanc-

tions [1-2] (yk) [Entry date 06/25/90]

6/21/90 CERTIFICATE by defendant Colorado Republi-

can, defendant Douglas Jones of faxing Notice

of Withdrawal of Motion (yk) [Entry date 06/

25/90]

6/25/90 MOTION by plaintiff, defendant to defer pretrial

and preparation of pretrial order pending rlg on

mtns (yk) [Entry date 06/28/90]

6/26/90 ORDER by Magistrate Hilbert Schauer granting

[5-1] motion to defer pretrial Parties shall brief

the summary judgment motions. Within 15 days

————

DATE

PROCEEDINGS

7/6/90

7/25/90

8/7/90

11/14/90

after a ruling has been entered on the cross mo-

tions for summary judgment, a joint proposed

scheduling order shall be submitted to magistrate

for consideration (cc: all counsel) (pa) [Entry

date 07/03/90]

RESPONSE by plaintiff Federal Election Comm

to def statement of undisputed facts and support-

ing exhibits (yk) [Entry date 07/09/90]

STATEMENT by plaintiff Federal Election Comm

of material facts not in genuine dispute and sup-

porting exhibits (yk) [Entry date 07/09/90]

Motion by plaintiff Federal Election Com for sum-

mary judgment before Judge Edward W. Notting-

ham (yk) [Entry date 07/09/90]

BRIEF by plaintiff Federal Election Com in sup-

port of motion for summary judgment before

Judge Edward W. Nottingham [9-1] (yk) [Entry

date 07/09/90)

MINUTE ORDER: by Judge Edward W. Notting-

ham re mtn summary judgment [9-i] response

due in accordance w/rules, reply due 10 days there-

after (cc: all counsel) (yk) [Entry date 07/10/91]

RESPONSE by defendant Colorado Republican,

defendant Douglas Jones to plf statement of ma-

terial facts notin dispute (yk) [Entry date 07/27/

90]

BRIEF by defendant Colorado Republican in op-

position to motion for summary judgment and in

reply to plf opposition to def mtn summary judg-

ment before Judge Edward W. Nottingham [9-1]

(yk) [Entry date 07/27/90]

REPLY by plaintiff Federal Election Com re [9-1]

(1f)

LETTER to court from plaintiff counsel w/addl

citation (yk) [Entry date 11/16/90]

DATE

PROCEEDINGS

12/4/90

11/8/93

11/8/98

9/15/95

9/28/95

9/29/95

10/6/95

LETTER to court from REOPEN CERTIO

NOTICE OF TRANSCRIPT ORDER FORM filed

by defendants/appellants; (Transcript not neces-

sary) re appeal [21-1] (gc)

NOTICE OF TRANSCRIPT ORDER FORM filed

by plaintiff/appellant Federal Election Com;

(Transcript not necessary) re appeal [22-1] (gc)

LETTER (Re: [22-1], [21-1]) to USCA and all

counsel advising that records is now complete... .

tofs filed stating transcripts not necessary. (gc)

MANDATE from the Court of Appeals; CA #93-

1433 and 93-1434; Dt issued 9/14/95; JUDGMENT

dated 6/23/95 reversing the decision of the Dis-

trict Court and remanding w/ instructions that

the District Court enter judgment in favor of FEC

and for a determination under 2 USC 437g(a) (6)

of the appropriate civil penalty. re: [Appeal

[22-1], [Appeal [21-1]; Mandated order deadline

set for 11/14/95 (gc) [Entry dated 09/18/95]

MINUTE ORDER: by Judge Edward W. Notting-

ham; status conf set for 2:30 9/29/95 (cc: all

counsel); entry date: 9/19/95 (yk) [Entry date

09/19/95)

MOTION by plaintiff Federal Election Com, defend-

ant Colorado Republican for leave to appeal by

phone (yk) [Entry date 10/02/95]

ORDER by Judge Edward W. Nottingham finding

the motion for leave to appear by phone [30-1]

moot; status conf set 9/29/95 is vacated (cc: all

counsel); entry date: 10/2/95 (yk) [Entry date

10/02/95)

NOTIFICATION from Court of Appeals regard-

ing Petition for Writ of Certiorari Filed in US

Supreme Court on 9/21/95 Case No 95-489 (re

appeal [22-1], (re appeal [21-1] (gc)

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Nos. 93-1433 and 93-1434

FEDERAL ELECTION COMMISSION,

Plaintiff,

Vv.

COLORADO REPUBLICAN FEDERAL

CAMPAIGN COMMITTEE, ef al.,

Defendants.

DOCKET ENTRIES

DATE

PROCEEDINGS

11/1/98

11/5/98

11/8/93

11/8/98

Proceedings in Case No. 93-1433

[718341] Civil case docketed. Preliminary record

filed. Transcript order form due 11/12/93 for

Roxie English pursuant to R.42.1. Docketing

statement due 11/12/93 for Douglas Jones, for

Colorado Republican. Notice of appearance due

11/12/93 for Douglas Jones, for Colorado Repub-

lican, Federal Election. (pdw) [938-1433]

[720146] Docketing statement filed by Colorado

Republican, Douglas Jones. Original and 4 copies

c/s: y. (afw) [93-1433]

[721059] Notice received from Appellant Colorado

Republican that a transcript is not necessary for

this appeal. Notice due that record is complete

11/22/98 for Edward W. Nottingham (afw) [93-

14383]

[721436] Filed notice record is complete 11/8/98.

(afw) [98-1433 98-1434]

——_-—— —--

- —_ - —_

DATE

PROCEEDINGS

11/9/93

11/10/93

11/15/93

11/23/93

12/13/93

12/27/93

[721525] Notice of appearance filed by Carol A.

Laham in 93-1433, Thomas W. Kirby in 93-1433,

Jan Witold Baran in 93-1438, Carol A. Laham in

93-1434, Thomas W. Kirby in 93-1434, Jan Witold

Baran in 93-1434 as attorney for Colorado Republi-

can in 93-1438. Douglas Jones in 93-1433, Colorado

Republican in 93-1434, Douglas Jones in 93-1434.

CERT. OF INTERESTED PARTIES (y/n): n

(mbm) [938-1433 93-1434]

[721073] Case referred for settlement conferenc-

ing. (afw) [93-1433]

[721529] Notice of appearance filed by Richard

B. Bader in 93-1433, Vivien Clair in 93-1433, Ken-

neth E. Kellner in 93-1433, Lawrence M. Noble in

93-1433 as attorney for Federal Election in 93-

1433. CERT. OF INTERESTED PARTIES

(y/n): (mbm) [938-1433]

[721439] Cross-appeal schedule set. A/Pet appen-

dix due 12/20/93 for Douglas Jones in 93-1433,

for Colorado Republican in 93-1433, for Douglas

Jones in 93-1434, for Colorado Republican in 93-

1434 (afw) [93-1433 93-1434]

[725454] Case settlement conferencing terminated.

(afw) [98-1433 93-1434]

[728884] Notice of appearance filed by Rita A.

Reimer, Richard B. Bader, Lawrence M. Noble as

attorneys for Federal Election in 93-1433. CERT.

OF INTERESTED PARTIES (y/n): y. (pdw)

[93-1433]

[732161] First brief on cross-appeal filed by Colo-

rado Republican, Douglas Jones in 93-1433, 93-

1434. Original and 7 copies. c/s: y. Served on

12/20/93. Oral Argument? y. 2nd cross-appeal

brief due 1/24/94 for Federal Election in 93-1433,

for Federal Election in 98-1434 (pdw) [93-1433

93-1434]

DATE

PROCEEDINGS

12/27/98

1/19/94

1/20/94

2/8/94

3/17/94

3/29/94

9/21/94

11/4/94

11/14/94

[732172] Appendix filed by Colorado Republican

Douglas Jones in 93-1433, 93-1434. Original and

1 copy (2 volumes). c/s: y. (pdw) [93-1433 93-

1434]

[736699] Appellee’s motion to extend time to file

second brief on cross-appeal until 2/7/94 [93-1433,

98-1434] filed by Federal Election in 93-1433, Fed-

eral Election in 93-1434. Original and 3 copies.

c/s: y (mbm) [98-1433 98-1434]

[736700] Order filed by RLH granting Appellee/

Respondent motion to extend time to file brief

[736699-1] in 98-1433, 93-1434 Parties served by

mail. (mbm) [93-1433 98-1434]

[743586] Second brief on cross-appeal filed by Fed-

eral Election in 93-1433, Federal Election in 93-

1434, Original and 7 copies. Served on 2/7/94

Oral Argument? y (mbm) [93-1433 938-1434]

[751948] Third brief on cross-appeal filed by

Douglas Jones in 93-1433, Colorado Republican in

93-1433, Douglas Jones in 93-1434, Colorado Re-

publican in 93-1434. Original and 7 copies. Served

on 3/14/94 (mbm) [93-1433 93-1434]

[754600] Cross-appeal reply brief filed by Federal

Election in 93-1433, 93-1434. Original and 7 copies.

(ke) [93-1433 93-1434]

[796183] Hearing set for November 1994 Session,

at Denver (sls) [93-1433 93-1434 93-1498 94-1040

94-1051, 94-1060 94-1061 94-1066 94-1069 94-1217]

[807426] Appellant’s supplemental authority filed

by Douglas Jones in 93-1433, Colorado Republican

in 98-1433, Colorado Republican in 93-1434, Doug-

las Jones in 93-1434 and submitted to panel. Origi-

nal and 7 copies. c/s: y (mbm) [93-1433 93-1434]

[809301] Case argued and submitted to Judges

Henry, Logan, Reed. (sls) [98-1433 93-1434]

—-

DATE

‘PROCEEDINGS

12/12/94

12/13/94

6/23/95

8/7/95

8/11/95

8/21/95

[816655] Appellee’s supplemental authority filed by

Federal Election in 98-1433. Original and. c/s: y

(fg) [98-1488 98-1434]

[816664] Appellee’s supplemental authority sub-

mitted to panel. (fg) [98-1438 98-1434]

[867629] Terminated on the Merits after Oral

Hearing; Reversed; Written, Signed, Published.

Henry; Logan, authoring judge; Reed. [93-1433,

98-1484] (mbm) [93-1483 98-1434]

[875848] Petition for rehearing in banc [93-1433]

filed by Douglas Jones in 98-1488, Colorado Repub-

lican in 98-1438. Original and 14 copies. c/s: y

(mbm) [98-1433]

[875849] Document [875848-1] Petition for re

hearing in banc filed by Appellant Douglas Jones,

Colorado Republican submitted to panel. (mbm)

[98-1433]

[877125] Order filed by Judge(s) Henry, Logan,

Reed - response to petition for rehearing due

8/21/95 for Federal Election in 93-1433, for Fed-

eral Election in 93-1434 Parties served by mail.

(mbm) [98-1483 98-1434]

[879331] Response filed by Federal Election in

93-1433 order Response due Original and 15 copies.

c/s: y (fg) [98-1433]

[8793382] Response filed by Federal Election in

98-1488, Federal Election in 93-1484 Document

[879831-1] response Null Relief Code filed by

Appellee Federal Election in 98-1483, Document

(877125-1] order Response due filed, Robert H.

Henry, James K. Logan, Edward C. Reed Jr. in

93-1434 order Response due submitted to panel.

(fg) [98-1488 98-1484]

DATE

PROCEEDINGS

9/6/95

9/14/95

9/18/95

10/2/95

11/22/95

[882631] Order filed by Judge(s) Seymour, Moore,

Anderson, Tacha, Baldock, Brorby, Ebel, Kelly,

Henry, Briscoe, Logan, Reed denying Petition for

rehearing in banc [875848-1] in 98-1433, denying

Petition for rehearing in banc [8758538-1] in 93-

1434. Judges Baldock, Ebel and Kelly voted to

grant, Judge Lucero is recused. (mbm) [93-1433

93-1434]

[884426] Mandate issued to district court. Man-

date receipt due 10/16/95 in 93-1433, in 93-1434

(afw) [98-1433 98-1434]

[885654] Mandate receipt filed. (afw) [938-1488

98-1434]

[889596] Petition for writ of certiorari filed on

9/21/95 by Appellants Douglas Jones and Colo-

rado Republican in 93-1433, and Appellees Douglas

Jones and Colorado Republican in 98-1434. Su-

preme Court Number 95-489. (afw) [93-1433 93-

1484]

[900957] Case filed closed. 11/21/97 in 93-1434,

in 93-1433 (das) [93-1433 93-1434]

DATE

PROCEEDINGS

11/1/93

11/5/98

11/8/93

11/9/98

11/10/93

Proceedings in Case No. 98-1434

[718348] Civil case docketed. Preliminary record

filed. Transcript order form due 11/12/93 for

Roxie English pursuant to R.42.1. Docketing state-

ment due 11/12/93 for Federal Election. Notice

of appearance due 11/12/98 for Douglas Jones, for

Colorado Republican, for Federal. (pdw) [93-1434]

[720188] Docketing statement filed by Federal

Election. Original and 4 copies c/s: y. (afw)

[93-1434]

[720141] Notice received from Appellant Federal

Election that a transcript is not necessary for this

appeal. Notice due that record is complete

11/15/98 for Edward W. Nottingham (afw)

[93-1434]

[721436] Filed notice record is complete 11/8/93.

(afw) [93-1433 98-1484]

[721525] Notice of appearance filed by Carol A.

Laham in 93-1433, Thomas W. Kirby in 93-1433,

Jan Witold Baran in 93-1438, Carol A. Laham in

93-1434, Thomas W. Kirby in 93-1434, Jan Witold

Baran in 93-1434 as attorney for Colorado Repub-

lican in 93-1433, Douglas Jones in 98-1483, Colo-

rado Republican in 93-1434, Douglas Jones in

93-1434. CERT OF INTERESTED PARTIES

(y/n): n (mbm) [93-1433 93-1434]

[721074] Case referred for settlement conferenc-

ing. (afw) [93-1434]

[721520] Letter re: correction to docketing state-

ment (see correspondence side of file) filed by Ap-

pellant Federal Election in 98-1434. Original and

0 copies. c/s: y (mbm) [98-1434]

DATE

11/23/93

12/14/93

12/22/93

12/27/93

1/19/94

pendix due 12/20/98 for Douglas Jones in 93-1433,

for Colorado Republican in 93-1433, for Douglas

Jones in 93-1434, for Colorado Republican in 93-

1434 (afw) [93-1433 93-1434]

[725454] Case settlement conferencing terminated.

(afw) [93-1433 98-1434]

[728472] Order filed by RLH notice of appearance

form due 12/27/98 for Federal Election. Parties

served by mail. (afw) [93-1434]

[730729] Notice of appearance filed by Rita A.

Reimer in 93-1434, Richard B. Bader in 93-1434,

Lawrence M. Noble in 93-1434 as attorney for

Federal Election in 98-1434. CERT. OF INTER-

ESTED PARTIES (y/n): y. Attorney Kenneth

E. Kellner for Federal Election in 93-1434, at-

torney Stephen E. Hershkowitz for Federal Elec-

tion in 93-1434 terminated. (mbm) [93-1434]

[732161] First brief on cross-appeal filed by Colo-

rado Republican, Douglas Jones in 93-1433, 93-

1434. Original and 7 copies. c/s: y. Served on

12/20/93. Oral Argument? y. 2nd cross-appeal

brief due 1/24/94 for Federal Election in 93-1433,

for Federal Election in 93-1434 (pdw) [93-1433

93-1434]

[732172] Appendix filed by Colorado Republican

Douglas Jones in 93-1433, 93-1434. Original and

1 copy (2 volumes). c/s: y. (pdw) [93-1433

93-1434]

[736699] Appellee’s motion to extend time to file

second brief on cross-appeal until 2/7/94 [93-1433,

93-1434] filed by Federal Election in 93-1433, Fed-

eral Election in 93-1434. Original and 3 copies.

c/s: y (mbm) [93-1433 93-1434]

DATE

PROCEEDINGS

1/20/94

2/8/94

3/17/94

3/29/94

9/21/94

11/4/94

11/14/94

12/12/94

12/13/94

[736700] Order filed by RLH granting Appellee/

Respondent motion to extend time to file brief

[736699-1] in 93-1483, 93-1434 Parties served by

mail. (mbm) [93-1433 93-1434]

[743586] Second brief on cross-appeal filed by

Federal Election in 93-1433, Federal Election in

93-1434. Original and 7 copies. Served on 2/7/94

Oral Argument? y (mbm) [93-1433 93-1434]

[751948] Third brief on cross-appeal filed by

Douglas Jones in 93-1433, Colorado Republican in

93-1433, Douglas Jones in 93-1434, Colorado Re-

publican in 98-1434. Original and 7 copies.

Served on 3/14/94 (mbm) [93-1433 93-1434]

[754600] Cross-appeal reply brief filed by Federal

Election in 93-1433, 93-1434. Original and 7

copies. (ke) [93-1483 98-1434]

[796183] Hearing set for November 1994 Session,

at Denver. (sls) [93-1433 93-1434 93-1498 94-

1040, 94-1051, 94-1060 94-1061 94-1066, 94-1069

94-1217]

[807426] Appellant’s supplemental authority filed

by Douglas Jones in 93-1433, Colorado Republican

in 93-1433, Colorado Republican in 93-1434, Doug-

las Jones in 93-1434 and submitted to panel. Origi-

nal and 7 copies. c/s: y (mbm) [93-1433 93-1434]

[809301] Case argued and submitted to Judges

Henry, Logan, Reed. (sls) [93-1433 93-1434]

[816655] Appellee’s supplemental! authority filed by

Federal Election in 98-1433. Original and. c/s: y

(fg) [98-1433 981434}

[816664] Appellee’s supplemental authority sub-

mitted to panel. (fg) [98-1433 98-1434]

PROCEEDINGS

8/7/95

8/11/95

8/21/95

9/6/95

[867629] Terminated on the Merits after Oral

Hearing; Reversed; Written, Signed, Published.

Henry; Logan, authoring judge; Reed. [93-1433,

93-1434] (mbm) [93-1433 93-1434]

[875853] Petition for rehearing in banc [93-1434]

filed by Douglas Jones in 93-1434, Colorado Re-

publican in 93-1434. Original and 14 copies. c/s:

y (mbm) [93-1434]

[875854] Document [875853-1] Petition for re-

hearing in banc filed by Appellee Douglas Jones,

Colorado Republican submitted to panel. (mbm)

[93-1434]

[877125] Order filed by Judge(s) Henry, Logan,

Reed response to petition for rehearing due 8/21/

95 for Federal Election in 93-1433, for Federal

Election in 93-1434 Parties served by mail. (mbm)

[98-1433 93-1434]

[879332] Response filed by Federal Election in

93-1433, Federal Election in 93-1434 Document

[879331-1] response Null Relief Code filed by

Appellee Federal Election in 93-1433, Document

[877125-1] order Response due filed, Robert H.

Henry, James K. Logan, Edward C. Reed Jr. in

93-1434 order Response due submitted to panel.

(fg) [93-1433 98-1434]

[879333] Response filed by Federal Election in

93-1434 order Response due Original and 15 copies.

c/s: y (fg) [93-1434]

[882631] Order filed by Judge(s) Seymour, Moore,

Anderson, Tacha, Baldock, Brorby, Ebel, Kelly,

Henry, Briscoe, Logan, Reed denying Petition for

rehearing in banc [875848-1] in 93-1433, denying

Petition for rehearing in banc [875853-1] in 93-

434. Judges Baldock, Ebel and Kelly voted to

grant, Judge Lucero is recused. (mbm) [93-1433

98-1434]

DATE

—____—_———————————

PROCEEDINGS

9/14/95

9/18/95

10/2/95

11/22/95

[884426] Mandate issued to district court. Man-

date receipt due 10/16/95 in 98-1433, in 98-1434

(afw) [93-1433 98-1434]

[885654] Mandate receipt filed. (afw) [93-1433

93-1434]

[889596] Petition for writ of certiorari filed on

9/21/95 by Appellants Douglas Jones and Colorado

Republican in 93-1433, and Appellees Douglas

Jones and Colorado Republican in 93-1434. Su-

oy Court Number 95-489. (afw) [93-1433 98-

[900957] Case file closed. 11/21/97 in 93-1434, in

93-1433 (das) [93-1433 98-1434]

UNITED STATES DISTRICT COURT

D. COLORADO

Civ. A. No. 89 N 1159

FEDERAL ELECTION COMMISSION,

Plaintiff,

COLORADO REPUBLICAN FEDERAL

CAMPAIGN COMMITTEE, et al.,

Defendants.

Aug. 30, 1993

ORDER AND MEMORANDUM

OF DECISION

NOTTINGHAM, District Judge.

This case involves alleged violations of the Federal

Elections Campaign Act of 1971, as amended, 2 U.S.C.A.

$§ 431-456 (West 1985) (the “Act”). Plaintiff Federal

Election Commission sued Defendant Colorado Republi-

can Federal Campaign Committee and its treasurer,

Douglas L. Jones, claiming that defendants had failed

to report a certain payment as an “expenditure,” as re-

quired by 2 U.S.C.A. § 441a(d)(3). Plaintiff seeks de-

claratory, civil, and injunctive relief under the Act. The

matter comes before the court on (1) “Defendants’ Mo-

tion for Summary Judgment” filed May 15, 1990, and

(2) “Plaintiff's Motion for Summary Judgment” filed July

6, 1990. Jurisdiction is based on 28 U.S.C.A. § 1345

(West 1976).

FACTS

Defendant Colorado Republican Federal Campaign

Committee (the “Committee”) is an unincorporated po-

litical association. It works to advance the goals and

values of the Republican Party in the State of Colorado.

(Defs.’ Statement of Undisputed Facts and Supp. Exs.

q 1 [filed May 15, 1990] {hereinafter “Defs.’ Statement”’],

admitted at P\.Fed.Election Comm’n’s Resp. to Defs.’

Statement of Undisputed Facts and Supp. Exs. 4 1 [filed

July 6, 1990] [hereinafter “Pl.’s Resp. to Defs.’ State-

ment”]) It is the federally-registered committee for the

Republican Party in Colorado and is therefore (as it

acknowledges) subject to the Act.

Section 441(a)(3) of the Act limits the amount which

such a committee may expend “in connection with the

general election campaign of a candidate for federal of-

fice.” 2 U.S.C.A. § 44la(d)(3). In 1986, the Commit-

tee assigned its yearly right to make expenditures under

the Act to the National Republican Senatorial Committee.

(Defs.’ Statement 4 16, Ex. 4 [Defs.’ Resp. to Pl.’s Req.

for Admis.!, admitted at Pl.’s Resp. to Defs.’ Statement

44 15-16.) The Committee thereafter paid $15,000 for

a radio advertisement, entitled “Wirth Facts #1” {here-

inafter “the Advertisement”], the text of which follows:

Paid for by the Colorado Republican State Central

Committee

Here in Colorado we're used to politicans who let

you know where they stand, and I thought we could

count on Tim Wirth to do the same. But the last

few weeks have been a real eye-opener. I just saw

some ads where Tim Wirth said he’s for a strong

defense and a balanced budget. But according to his

record, Tim Wirth voted against every new weapon

system in the last five years. And he voted against

the balanced budget amendment.

Tim Wirth has a right to run for Senate, but he

doesn’t have a right to change the facts.

(Defs.’ Statement 47, admitted at P\.’s Resp. to Defs.’

Statement 44 4-7.)

The Committee devised “Wirth Facts #1” as a re-

sponse to a series of television advertisements featuring

then-Congressman Wirth. These advertisements were spon-

sored by the Committee for Tim Wirth, Inc. (PI.Fed.

Election Comm’n’s Mem. of P. & A. in Supp. of PI.’s

Mot. for Summ.J. and in Opp’n to Defs.’ Summ.J.Mot.

at 6 [filed July 6, 1990] {hereinafter “PI.’s Mot.”].) The

Advertisement ran between April 4 and 13, 1986, four

months before the August Democratic primary and seven

months before the November general election. (Defs.’

Statement 44 4-6, admitted at P\.’s Resp. to Defs.’ State-

ment 44 4-7.)

The Committee is required by section 434(b)(4)(H)

(iv) to make quarterly or monthly reports which must

contain any section 44la(d)(3) expenditures. See 2

U.S.C.A. § 434(a)(4)(A)(i). In the Committee’s quar-

terly report, it listed the $15,000 paid for the Advertise-

ment as an operating expense—not as a section 441la(d)

(3) expenditure—and identified it as “voter information

to Colorado voters—advertising.” (Defs.’ Statement, Ex.

12 at 3 [Defs.’ Br. for Fed.Election Comm'n Proceed-

ings].) On June 12, 1986, the Colorado Democratic

Party filed an administrative complaint with the Federal

Election Commission (“Commission”), alleging, inter alia,

that defendants’ expenditure for the Advertisement vio-

lated the Act. On January 10, 1989, the Commission

determined there was probable cause to believe defend-

ants had violated sections 434(b)(4)(H)(iv), 434(b)

(6)(B) (iv), and 441a(f) of the Act. When settlement

negotiations failed, the Commission instituted this civil

action.

The parties filed cross-motions for summary judgment

on plaintiff's claim that defendants failed to comply with

the Act. Defendants maintain section 441a(d)(3) does

not apply to the money paid for the Advertisement be-

cause it was not an expenditure “in connection with” the

general election of a candidate for federal office. (Defs.’

Mem. in Supp. of Defs.’ Mot. for Summ.J. at 6-7 [filed

May 15, 1990] [hereinafter “Defs.’ Mot.”].) Defendants

also assert a counterclaim alleging that section 441a(d)

(3) is unconstitutional. No material facts are in dispute.

Because I find that plaintiff has failed to demonstrate

the Advertisement was “in connection with” the general

elecion of a candidate for federal office. I grant defend-

ants’ motion for summary judgment and deny plaintiff's

motion. I therefore need not, and do not, reach defend-

ants’ challenge to section 441a(d)(3)’s constitutionality.

ANALYSIS

Pursuant to rule 56(c) of the Federal Rules of Civil

Procedure, summary judgment may be granted where

there is “no genuine issue as to any material fact and the

. . . Moving party is entitled to judgment as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The burden of establishing the nonexistence of a genuine

issue of material fact is on the moving party. Celotex

Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). In a case where a party

moves for summary judgment on an issue on which he

would not bear the burden of persuasion at trial, his

initial burden of production may be satisfied by showing

the court that there is an absence of evidence in the

record to support the nonmoving party’s case. Id., 477

U.S. at 321, 106 S.Ct. at 2552. Once the moving party

has met this initial burden of production, the burden

shifts to the nonmoving party to establish that there is a

triable issue of fact. A triable isue of material fact

exists only where “there is sufficient evidence favoring

the nonmoving party for a jury to return a verdict for

that party.” Merrick v. Northern Natural Gas Co., 911

F.2d 426, 429 (10th Cir.1990). If the nonmoving party

cannot muster sufficient evidence to make out a triable

issue of fact on his claim, a trial would be useless and

the moving party is entitled to summary judgment as a

matter a Anderson, 477 U.S. at 250, 106 S.Ct.

2511.

Section 441(d)(3) of the Act is at the center of this

uispute. It provides:

The national committee of a political party, or a State

committee of a political party, including any subordi-

nate committee of a State committee, may not make

any expenditure in connection with the general elec-

tion campaign of a candidate for Federal office in

a State who is affiliated with such party which ex-

ceeds-——

(A) in the case of a candidate for election to

the office of Senator . . ., the greater of—

(i) 2 cents multiplied by the voting age

population of the State . . .; or

(ii) $20,000... .

2 U.S.C.A. § 441a(d)(3) (emphasis added). Because the

Committee assigned the full amount of expenditures per-

mitted by section 441a(d)(3) to the National Republican

Senatorial Committee, see Federal Election Comm'n v.

Democratic Senatorial Campaign Comm., 454 U.S. 27,

39-40, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981) [herein-

after DSCC], it no longer had the right to make section

441la(d)(3) expenditures. As a consequence, the Com-

mittee’s expenditure of $15,000 for the Advertisement, if

made “in connection with” the general election campaign,

was a violation of the spending limits established by

section 44la(d)(3).

Two types of expenditures are regulated under the Act:

coordinated and independent. A coordinated expenditure

is one madé in cooperation with, or with the consent of a

candidate, his agents, or an authorized committee of a

candidate. Buckley v. Valeo, 424 U.S. 1, 47 n. 53, 96

S.Ct. 612, 647 n. 53, 46 L.Ed.2d 659 (1976). An inde-

pendent expendituure is one made without the knowledge

or permission of a candidate, his agent, or his campaign

committee. /d. See 2 U.S.C.A. § 431(17). Coordinated

expenditures are considered “contributions” under section

441la(a)(7)(B)(i); as such, they may be more freely

limited than independent expenditures. Buckley, 424 U.S.

at 48, 96 S.Ct. at 647-48; Federal Election Comm'n v.

National Conservatice Political Action Comm., 470 U.S.

480, 491, 105 S.Ct. 1459, 1466, 84 L.Ed.2d 455 (1985)

[hereinafter NCPAC]. In Buckley, the Court upheld as

constitutional the limitations on contributions to candi-

dates and struck down as unconstitutional limitations on

independent expenditures. NCPAC, 470 U.S. at 491.

105 S.Ct. at 1465. See also Federal Election Comm'n vy.

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 260,

107 S.Ct. 616, 630, 93 L.Ed.2d 539 (1986) [hereinaf-

ter MCFL] (“We have consistently held that restrictions

on contributions require less compelling justification than

restrictions on independent spending.” ); California Medi-

cal Ass'n v. Federal Election Comm'n, 453 U.S. 182,

194, 196-97, 101 S.Ct. 2712, 2720, 2724-25, 69 L.Ed.2d

567 (1981) (same).

Expenditures by party committees are considered to be

coordinated expenditures subject to the monetary limits of

section 44la(d). DSCC, 454 U.S. at 27 n. 1, 102 S.Ct.

at 40. n.1." Party committees have been deemed incapable

of making independent expenditures in connection with the

campaigns of their party’s candidates. DSCC, 454 U.S. at

' Defendants point to a passage in Buckley which classifies 2

U.S.C.A. § 608(f) (West 1976) (recodified as section 44la[d]) as

an “expenditure ceiling,” as opposed to a contribution limitation.

According to defendants, this reference suggests the Court con-

sidered section 441la(d) to regulate independent expenditures. It is

unclear how referring to section 441a(d) as an “expenditure” limi-

tation necessarily suggests the section regulates independent ex-

penditures. In light of the Court and Commission’s other pronounce-

ments, and the fact that this reference is dicta, see Buckley, 424

U.S. at 58 n. 66-67, 96 S.Ct. at 658 n. 66-67, I do not find this

singular reference persuasive.

27, n. 1, 102 S.Ct. at 40 n. 1. See also FEC Advisory

Opinion 1985-14, 1 Fed. Election Campaign Fin. Guide

(CCH) 4 5819 (July 18, 1985); FEC Advisory Opinion

1984-15, 1 Fed. Election Campaign Fin. Guide (CCH)

4 5766 (Aug. 16, 1984).

The Commission has the “primary and substantial re-

sponsiblity for administering and enforcing the Act,” and

has “extensive rulemaking and adjudicative powers.”

Buckley, 424 U.S. at 109-10, 96 S.Ct. at 677-78. When

interpreting the Act, the Commission’s interpretation is

presumptively entitled to deference. DSCC, 454 US. at

38, 102 S.Ct. at 45. The Commission has, by regulation,

forbidden independent expenditures by national and state

party committees. See 11 C.F.R. § 110.7(B)(4) (1981).

Defendants suggest that because no Republican candi-

date had been nominated, the expenditure was necessarily

“independent,” not “coordinated.” However, for purposes

of determining whether an expenditure is coordinated or

independent, it is irrelevant whether a candidate has been

nominated at the time the expenditure is made. See FEC

Advisory Opinion 1985-15, 1 Fed. Election Campaign Fin.

Guide (CCH) 4 5766 (Aug. 16, 1984). “[NJothing in

the Act, its legislative history, Commission regulations, or

court decisions indicates that coordinated party expendi-

tures must be restricted to the time period between nomi-

nation and the general election.” Jd. Organizations whose

major purpose is the nomination or election of a candidate

“are, by definition, campaign related,” Buckley, 424 U.S.

at 80, 96 S.Ct. at 663, regardless of whether a specific

candidate has been nominated. Based on Supreme Court

precedent and the Commission’s interpretation of the stat-

ute, I find that the Committee’s expenditure was coordi-

nated. It was made on behalf of the Republican candidate,

whomever that might be; and it is irrelevant that no par-

ticular person had been designated.

The Committee’s expenditure would nevertheless not be

subject to section 441a(d)(3) limitations unless the ex-

penditure was made “in connection with” the general

election compaign of a candidate for federal office. No

controlling or persusaive authority has interpreted the

phrase “in connection with” in the context of section 441la

(d)(3). The Court, however, has interpreted the phrase

“in connection with” in the context of section 441b, which,

like section 441a(d)(3), regulates contributions and ex-

penditures. In MCFL, the Court held that “an expendi-

ture must constitute ‘express advocacy’ in order to be

subject to the prohibition of § 441b.” MCFL, 479 USS. at

249, 107 S.Ct. at 623. See also Buckley, 424 U.S. at 80,

96 S.Ct. at 663. “The normal rule of statutory construc-

tion assumes that identical words used in different parts

of the same act are intended to have the same meaning.”

See Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499,

2504, 110 L.Ed.2d 438 (1990); Sorenson v. Secretary of

Treasury of the United States, 475 U.S. 851, 860, 106

S.Ct. 1600, 1606, 89 L.Ed.2d 855 (1986): Barnson vy.

United States, 816 F.2d 549 (10th Cir.), cert. denied,

484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987)

(when the same words are used in dicerent sections of the

same law, they will be given the same meaning ).

This rule of statutory construction is usually followed

where different parts of the same act have a similar pur-

pose, as do sections 441a(d)(3) and 441b. Both sections

441a(d)(3) and 441b are intended to regulate contribu-

tions and expendiutres of multi-person organizations.

While section 441a(d) regulates expendiutures by national

committees, state committees, or subordinate committees

of the state committees, section 441b regulates expendi-

tures by national banks, corporations, or labor organiza-

tions. Since I examine the statute as a whole, I find the

Court’s interpretation of “in connection with” in the con-

text of section 441b to be persuasive of my interpretation

of the same words in section 441a(d) ( 3).

Plaintiff urges the court to adopt the Commission’s in-

terpretation of “in connection with” which would require

the Advertisement to contain a “clearly identified candi-

date” and an “electioneering message.” FEC Advisory

Opinion 1985-14, 1 Fed.Election Campaign Fin.Guide

(CCH) 4 5249 (July 18, 1985). According to plaintiff,

section 44 ib differs significantly from section 441a(d) (3),

in that 441b regulates independent expenditures, whereas

section 44la(d)(3) regulates coordinated expenditures.

Although Buckley acknowledges that coordinated expendi-

tures may be more freely regulated than independent ex-

penditures, it does not follow that the identical words,

when used with reference to coordinated expenditures,

should be given a more expansive interpretation.

The Supreme Court’s decision in Buckley suggests just

the opposite. When examining the intrusiveness of the

statute’s regulations on first amendment freedoms, the

Court found that a limitation on coordinated expenditures

was justified in order to stem “the reality or appearance

of corruption in the electoral process.” Buckley, 424 U.S.

at 46, 96 S.Ct. at 647-48. Although the Court found the

justification for regulating coordinated expenditures out-

weighed the infringement on the First Amendment, this

conclusion does not create a carte blanche for expansive

regulation of coordinated expenditures. On the contrary,

the fact that section 441a(d)(3) implicates first amend-

ment freedoms argues for adoption of the more narrowly

defined “express advocacy” interpretation in order to mini-

mize intrustions.2 Moreover, as Buckley notes, the limita-

2 A narrow interpretation of the words “in connection with” also

addresses the constitutional concerns raised by defendants. Defend-

ats contend that if all expenditures by state committees were

deemed contributions subject to section 44la(d)(3), then they

would not be free to speak in favor of their candidates. (Defs.’

Mem. in Opp’n to Pl.’s Mot. for Summ.J. and in Reply to Pl.’s Opp’n

to Defs.’ Mot. for Summ.J. at 4 [filed July 25, 1990] [hereinafter

“Defs.’ Reply” ].) By adopting a more narrowly defined interpreta-

iton of “in connection with,” state political committees remain free

to engage in speech which does not expressly advocate the election

of its candidates.

tion on contributions by state political committees “[r]ather

than undermining freedom of association, . . . enhances

the opportunity of bona fide groups to participate in the

election process.” Buckley, 424 U.S. at 33, 96 S.Ct. at

642. Given that the effect of the regulation is to enhance

the political freedom of committees, I find that the “express

advocacy” standard, which is a less intrusive limitation on

a committee’s freedom, is consistent with the Act's purpose.

I do not find any compelling justification within the Com-

mission’s advisory opinion, nor in plaintiff's argument,

for expanding Buckley's carefully circumscribed exception

to its prohibition against regulation of freedom of speech.

The Commission does not point to any other section of

the statute where the courts have given the language “in

connection with” the expansive interpretation the Com-

mission advocates in this case. In fact, the courts have

consistently interpreted “in connection with” as requiring

express advocacy.” See Federal Election Comm'n y.

Furgatch, 807 F.2d 857, 864 (9th Cir.), cert. denied, 484

U.S. 850, 108 S.Ct. 151, 98 L.Ed.2d 106 (1987); Federal

Election Comm'n v. Central Long Island Tax Reform, 616

F.2d 45, 53 (2nd Cir.1980).* In Orloski v. Federal Elec-

tion Commission, 795 F.2d 156 (D.C.Cir.1986), the

In United States v. International Union UAW-CIO, 352

567, 587, 77 S.Ct. 529, 550, 1 LEd.2d 668 (1957), the Couct inten

preted “in connection with” in the context of a predecessor to the

current Act, which prohibited corporate or union contributions or

expenditures to be used “in connection with” any election for federal

office. Jd., 352 U.S. at 568, 77 S.Ct. at 530. The Court held that the

“in connection with” found in the statute was understood to pro-

scribe “the expenditure of union dues to pay for commercial! broad-

casts that are designed to urge the public to elect a certain candidate

or party.” Id., 352 U.S. at 587, 77 S.Ct. at 550. It is unclear from

this language whether the Court was adopting a different interpre-

tation of “in connection with” or merely applying the “express

advocacy” standard. Plaintiff does not explain how this language

differs materially from the “express advocacy” standard. Since no

court has subsequently adopted the language used in International

Union UAW-CIO, I decline to do so in this case.

Commission itself advocated the adoption of the “express

advocacy” interpretation of “in connection with” in the

context of section 441b(a). In adopting the Commission's

interpretation, the D.C. Circuit noted:

{T]he FEC’s interpretation is consistent with Buckley,

in which the Supreme Court held that under the first

amendment, the phrases “for the purposes of influenc-

ing any election” and “in connection with any elec-

tion” must be defined as the “express advoca[cy] [of]

the election or defeat of a clearly-identifiable candi-

date,” a definition that was subsequently incorporated

into the Act. See 2 U.S.C. § 431(17). To be sure,

the Court limited these definitions to those provisions

curtailing or prohibiting independent expenditures.

This definition is not constitutionally required for

those statutory provisions limiting contributions, see

Buckley, 424 U.S. at 78-80, 96 S.Ct. at 663-64.

Nonetheless the fact that the Court in Buckley formu-

lated these definitions for this statutory language

demonstrates that the FEC’s similar interpretation of

the same language is logical, reasonable, and con-

sistent with the overall statutory framework. The fact

that the FEC adopted this interpretation for all rele-

vant statutory provisions, even where not constitu-

tionally required, only adds to its reasonableness for

it enhances the consistency and evenhandedness with

which the FEC ultimately administers the Act.

Orloski, 795 F.2d at 166-67 (emphasis added). See also

FEC Advisory Opinion 1978-46, | Fed.Election Campaign

Fin.Guide (CCH) 4 5348 (Oct. 5, 1978) (suggesting that

section 441a(d) requires “express advocacy”).

The “thoroughness, validity, and consistency of an

agency's reasoning are factors that bear upon the amount

of deference to be given an agency's ruling.” DSCC, 454

U.S. at 35, 102 S.Ct. at 44; Adamo Wrecking Co. v.

United States, 434 U.S. 275, 287 n. 5, 98 S.Ct. 566, 573

n. 5, 54 L.Ed.2d 538 (1978). I do not find the Com-

mission s suggested interpretation of “in connection with”

to be entitled to deference where it is neither thorough nor

consistent with either its own previous rulings or ths

courts holdings. I conclude that “express advocacy” is

required in order for a coordinated expenditure to be “in

connection with” the general election campaign of a

candidate for federal office under section 44la(d)(3).

Having made this determination, I must decide whether

the Advertisement constituted “express advocacy.” The

Court has adopted a bright-line test for identifying speech

which constitutes “express advocacy” recognizing that:

[T]he distinction between discussion of issues and

candidates and advocacy of election or defeat of can-

didates may often dissolve in practical application.

Candidates, especial ly incumbents, are intimately tied

to public issues involving legislative proposals and

govern mental actions. Not only do candidates cam-

paign on the basis of their positions on various issues,

om campaigns themselves generate issues of public

Buckley, 424 U.S. at 42, 96 S.Ct. at 645. See Fureat

q Ct. , h,

807 F.2d at 860; Federal Election Comm'n v. National

Organization for Women, 713 F.Supp. 428, 432 (D.D.C.

1989). The Court defined “express advocacy” as “ex-

press words of advocacy of election or defeat, such as

a for, elect, support,’ ‘cast your ballot for,’ ‘Smith

or Congress,’ ‘vote against,” ‘defeat,’ or ‘reject.’” Buck-

ley, 424 US. at 46 n. 52, 96 S.Ct. at 647 n. 52.

is advocacy” if it “presents a clear plea for specific ac-

tion, and . . . it must be clear what action is advocated.”

Furgatch, 807 F.2d at 864. Speech which is merely in-

formative would not be considered “advocacy.” Jd. When

oan ey whether — constitutes “express advo-

4 ocus is on actual wordi

424 US. at 42, 96 S.Ct. at 646. whreetieiaiens

The Advertisement does not contain any words whi

expressly advocate action. fa task, Go Gaal enema,

the Advertisement contains an indirect plea for action.

The Advertisement concludes with “Tim Wirth has the

right to run for the Senate, but he doesn’t have the right

to change the facts.” Even assuming the Advertisement

indirectly discourages voters from supporting Wirth, it

does not contain the direct plea for specific action re-

quired by Buckley and Furgatch.

According to plaintiff, the surrounding circumstances

suggest the Advertisement was, in fact, a plea for action.

The Advertisement identified Wirth by name and position,

referred to his senate candidacy, responded to Wirth’s

own campaign advertisements, and said “paid for by the

Colorado Republic State Central Committee.” (PI.’s Mot.

at 15.) At the time the Advertisement ran, plaintiff

maintains, Wirth was the only credible announced Dem-

ocratic candidate for Senate. Id. In addition, the public

“knew” the sponsor of the Advertisement, i.e., the Re-

publican party, would eventually nominate a candidate.

Thus, the Advertisement implicitly urged the public both

to vote against Wirth and to support whomever the Re-

publican candidate would be. Plaintiff also points to

contemporaneous press statements of Howard “Bo” Calla-

way, then Chairman of the Colorado Republican Party,

concerning the state committee’s general purpose which

allegedly leave “no doubt that the intent of the ad was

to attack Mr. Wirth’s candidacy for the Senate.” (PI.’s

Mot. at 10-11, 17-18.)

I do not believe this type of indirect urging consti-

tutes “express advocacy” under the Buckley analysis.

Buckley adopted a bright-line test that expenditures must

“in express terms advocate the election or defeat of a

candidate” in order to be subject to limitation. Faucher

v. Federal Election Comm'n, 928 F.2d 468, 471 (ist

Cir.1991). In adopting a bright-line approach, the Court

noted the difficulty in interpreting the meaning and ef-

fects of words:

[Whether words intended and designed to fall short

of invitation would miss that mark is a question both

of intent and of effect. No speaker, in such circum-

stances, safely could assume that anything he might

say upon the general subject would not be under-

stood by some as an invitation. In short, the sup-

posedly 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 con-

sequently of whatever inferences may be drawn 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.

Buckley, 424 U.S. at 43, 96 S.Ct. at 646 (quoting

Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315,

325, 89 L.Ed. 430 [1945]). In adopting the “express

advocacy” standard, the Court sought to protect issue ad-

vocacy. “In a republic where the people are sovereign,

the ability of the citizenry to make informed choices

among candidates for office is essential. . . . Discussion

of public issues and debate on the qualifications of can-

didates are integral to the operation of the system of

government established by our Constitution.” Buckley,

424 US. at 14-15, 96 S.Ct. at 632. Trying to determine

whether the surrounding circumstances, coupled with the

implications of the Advertisement, constitute “express ad-

vocacy” leads to the type of semantic dilemma which the

Court sought to avoid by adopting a bright-line rule. I

decline to blur Buckley’s bright-line rule by interpreting

the Advertisement’s criticism of Wirth as “express ad-

vocacy.” Viewing the facts in the light most favorable

to plaintiff, I find that the Advertisement does not call

for the type of “express advocacy” required by Buckley.

Because I conclude that no reasonable trier of fact could

find for plaintiff on the basis of the evidence presented,

defendants are entitled to summary judgment as a matter

of law. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89

L.Ed.2d 538 (1986).

With regard to plaintiff's motion for summary judgment,

the analysis of whether the Advertisement constitutes “ex-

press advocacy” is the same. Defendants allege that the

Advertisement neither contains a direct plea for action,

nor conveys support for a particular candidate. According

to defendants, the Advertisement simply informed the

public about the political record of an incumbent Colo-

rado congressman; it did not advocate voting for or against

any political candidate. (Defs.’ Mot. at 7.) In addition,

the Advertisement was broadcast seven months before the

general election—before either party had chosen its candi-

date. (Defs.’ Reply at 10.) Defendants Claim Wirth’s

senate candidacy was referenced in the Advertisement only

for the purpose of identifying his statements. (Defs.’ Reply

at 9.) Plaintiff fails to adequately rebut these claims.

Accordingly, plaintiff's motion for summary judgment is

denied.

Conclusion

Because I find that the expenditure for the Advertise-

ment was not “in connection with” the general election

of a candidate for federal office, it was not subject to

section 44la(d)(3) limitations and did not violate the

Act. Since I am able to resolve the dispute on statu-

tory grounds, I do not reach defendants’ challenge to the

constitutionality of section 441la(d)(3). Defendants can-

not avoid this result by posturing the constitutional issue

as an independent counterclaim. It is therefore

ORDERED as follows:

(1) Plaintiff's motion for summary judgment is DE-

NIED; and

(2) Defendants’ motion for summary judgment is

GRANTED. All claims against defendants are dismissed.

Defendants’ counterclaim is DISMISSED as moot.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 93-1433, 93-1434

FEDERAL ELECTION COMMISSION,

Plaintiff /Counter-Defendant/

Appellee /Cross-A ppellant,

Vv.

COLORADO REPUBLICAN FEDERAL CAMPAIGN,

COMMITTEE, Douglas Jones,

Defendants/Counter-Claimants/

Appellants/Cross-A ppellees.

June 23, 1995

Before HENRY and LOGAN, Circuit Judges, and

REED, District Judge.*

LOGAN, Circuit Judge.

The Federal Election Commission (FEC) appeals from

the dismissal on the merits of its underlying suit filed

against the Colorado Republican Federal Campaign Com-

mittee and its treasurer, Douglas L. Jones (collectively

the Committee) alleging violations of the Federal Elec-

tion Campaign Act of 1971 (FECA), 2 U.S.C. $§ 431-

442. The Committee cross-appeals from the dismissal as

moot of its counterclaim challenging the constitutionality

*The Honorable Edward C. Reed, Jr., Senior United States

District Judge, United States District Court for the District of

Nevada, sitting by designation.

of the FECA expenditure limitations. We hold that the

Committee expendiutres at issue did violate the coordi-

nated expenditure limitation in 2 U.S.C. § 441a(d)(3).

We also reach the constitutional issue and hold that § 441a

(d)(3) does not violate the Committee’s First Amend-

ment rights.

This action stems from the 1986 United States sena-

torial «ampaign in Colorado, and pre-election spending

by the Committee. In January 1986, then-Congressman

Timothy E. Wirth had registered with the FEC as a candi-

date for the Democratic nomination for the U.S. Senate.

Several months later, but before either political party had

nominated senatorial candidates, the Committee spent

$15,000 for a radio advertisement directed at Wirth’s

announced candidacy (“Wirth Facts #1”).' This spend-

ing prompted the Colorado Democratic Party’s adminis-

trative complaint with the FEC alleging that it was an

“expenditure in connection with” the general election cam-

paign of a candidate for federal office in violation of the

spending limits set out in FECA § 441a(d)(3).

The FEC made a probable cause determination that

the Committee violated the FECA. When the parties

were unable to reach a settlement the FEC filed suit.

The FEC alleged that the Committee failed to report the

amount spent on the anti-Wirth publicity as an “expendi-

' Wirth Facts #1 read:

Paid for by the Colorado Republican State Central Committee.

Here in Colorado we're used to politicians who let you know

where they stand, and I thought we could count on Tim Wirth

to do the same. But the last few weeks have been a real eye-

opener. I just saw some ads where Tim Wirth said he’s for a

strong defense and a balanced budget. But according to his

record, Tim Wirth voted against every major new weapon

system in the last five years. And he voted against the balanced

budget amendment.

Tim Wirth has a right to run for the Senate, but he doesn’t

have a right to change the facts.

Jt.App. 95-96.

ture in connection with” the general election campaign,

in violation of FECA §§ 434(b)(4)(H)(iv), 434(b)

(6)(B)(iv), and 44la(f). The Committee counter-

claimed, alleging that the FECA was an unconstitutional

infringement on its First Amendment rights. In ruling on

the parties’ cross motions for summary judgment, the dis-

trict court dismissed the underlying action after finding

no FECA violation, and dismissed the counterclaim as

mooted by its merits ruling. These appeals followed.

We first address whether the district court correctly

concluded that the Committee did not violate the FECA.

We review de novo a district court’s grant of summary

judgment using the same legal standards as the district

court. Clark v. Haas Group, Inc., 958 F.2d 1235, 1237

(10th Cir.), cert. denied, U.S. ——, 113 S.Ct. 98,

121 L.Ed.2d 58 (1992).

The FECA regulates contributions made to federal

candidates and political parties, and expenditures made by

persons and political committees. It also imposes record-

keeping and reporting requirements. The Committee ac-

knowledges that it is subject to the FECA as a federally

registered committee of the Colorado Republican Party.

The statute limits monetary contributions and expendi-

tures by state and national political party committees as

follows:

(d) Expenditures by national committee, State

committee, or subordinate committee of State com-

mittee in connection with general election campaign

of candidates for Federal office

(1) Notwithstanding any other provision of law

with respect to limitations on expenditures or limita-

tions on contributions, the national committee of a

political party and a State committee of a political

party, including any subordinate committee of a

State committee, may make expenditures in connec-

tion with the general election campaign of candidates

for Federal office, subject to the limitations contained

in paragraphs (2) and (3) of this subsection.

* o* * *

(3) The national committee of a political party,

or a State committee of a political party, including

any subordinate committee of a State committee, may

not make any expenditure in connection with the

general election campaign of a candidate for Federal

office in a State who is affiliated with such party

which exceeds—

(A) in the case of a candidate for election to

the office of Senator, or of Representative from

a State which is entitled to only one Representa-

tive, the greater of—

(i) 2 cents multiplied by the voting age: popu-

lation of the State (as certified under subsection

(e) of this section); or

(ii) $20,000.

2 U.S.C. § 44la(d)(1) and (3). A state political party

committee may assign to a designated agent (including a

national party committee) the right to make the expendi-

tures the state party could have made. See FEC v. Demo-

cratic Senatorial Campaign Committee, 454 U.S. 27,

41-43, 102 S.Ct. 38, 46-48, 70 L.Ed.2d 23 (1981)

(DSCC). Here the Committee expended funds on the

anti-Wirth publicity after assigning to the National Repub-

lican Senatorial Committee the authority to make all! of

the expenditures—$103,248—it was allowed under § 441la

(d)(3) for the 1986 U.S. Senate election. See I Jt.App.

4, 14; II id. 473. The Committee did not report the

$15,000 anti-Wirth publicity expense under 2 U.S.C.

§ 434(b)(4)(H)(iv),’ instead characterizing it as an

expense for “Voter Information to Colorado Voters—

Advertising.” II App. 478, §€ A. The narrow issue is

whether the anti-Wirth publicity expense was an “expendi-

ture in connection with the general election campaign”

pursuant to § 441a(d)(3) and should have been reported

accordingly. If so, the Committee exceeded the § 44la

(d)(3) monetary ceiling.

As relevant here, the FECA addresses two types of

campaign expenditures: independent and coordinated.*

A coordinated expenditure is one made “in cooperation

with or with the consent of a candidate, his agents, or an

authorized committee of the candidate.” Buckley v. Valeo,

424 US. 1, 47 n. 53, 96 S.Ct. 612, 648 n. 53, 46 L.Ed.2d

659 (1976). See also 11 C.F.R. § 110.7(b) (4). Because

political parties are considered incapable of making in-

dependent expenditures, the district court correctly found

that the anti-Wirth publicity expense was a coordinated

*2 U.S.C. § 434(b) (4) (H) (iv) reads in part:

(b) Contents of reports

Each report under this section shall disclose—

(4) for the reporting period and the calendar year, the total

amount of all disbursements, and all disbursements in the fol-

lowing categories:

(H) for any political committee other than an authorized

committee—

(i) contributions made to other political committees;

(ii) loans made by the reporting committees ;

(iii) independent expenditures ;

(iv) expenditures made under section 44la(d) of this

title; and -

(v) any other disbursements.

* An independent expenditure is “made without cooperation or

consultation with any candidate, or any authorized committee or

agent of such candidate, and which is not made in concert with, or

at the request or suggestion of, any candidate, or any authorized

committee or agent of such candidate.” 2 U.S.C. § 431(17) ; see also

§ 44la(a) (7) (A)-(B).

expenditure. See DSCC, 454 US. at 29 n. 1, 102 S.Ct.

at 41 n. 1. If that spending was an “expenditure{] in

connection with” the campaign it was subject to the mone-

tary limitations at § 441a(d). Jd. The district court con-

cluded that the Committee’s coordinated expenditure on

the anti-Wirth publicity was not made in connection with

the 1986 Colorado senatorial campaign, and therefore

was not subject to the § 441a(d) (3) limits.

The FECA does not clearly manifest the meaning

Congress intended to attach to the “expenditures in con-

nection with” language in § 441a(d)(3) Acknowledging

that there were no controlling or persuasive cases inter-

preting that section, the district court relied upon FEC v.

Massachusetts Citizens for Life, 479 U.S. 238, 107 S.Ct.

616, 93 L.Ed.2d 539 (1986) (MCFL), and its inter-

pretation of FECA § 44!b. Section 441b* restricts the

42 U.S.C. § 441b provides in relevant part as follows:

(a) It is unlawful for any national bank, or any corporation

organized by authority of any law of Congress, to make a

contribution or expenditure in connection with any election to

any political office, or in connection with any primary election

or political convention or caucus held to select candidates for

any political office, or for any corporation whatever, or any

labor organization, to make a contribution or expenditure in

connection with any election at which presidential and vice

presidential electors or a Senator or Representative in, or a

Delegate or Resident Commissioner to, Congress are to be

voted for, or in connection with any primary election or political

convention or caucus held to select candidates for any of the

foregoing offices, or for any candidate, political committee, or

other person knowingly to accept or receive any contribution

prohibited by this section, or any officer or any director of any

corporation or any national bank or any officer of any labor

organization to consent to any contribution or expenditure by

the corporation, national bank, or labor organization, as the case

may be, prohibited by this section.

[Continued }

contributions and expenditures of national banks, corpo-

rations, or labor organizations. The Supreme Court in

MCFL considered whether Massachusetts Citizens for

Life, Inc., a nonprofit, nonstock corporation, by financing

a newsletter urging voter support for identified pro-life

candidates, violated the “independent spending” limita-

tions in in § 441b. Id. at 241, 107 S.Ct. at 619. Inter-

preting the term “expenditure in connection with any

election” the Court held that the expenditure “must con-

stitute ‘express advocacy’ in order to be subject to the

prohibition of § 441b.” Id. at 249, 107 S.Ct. at 623.

MCFL relied upon the Buckley opinion’s interpretation

of a limitation on independent expenditures “relative to”

a clearly identifiable candidate. To avoid invalidating on

vagueness grounds what was then FECA § 608(e)(1),

the Buckley Court held the term encompassed only “ex-

penditures for communications that in express terms advo-

cate the election or defeat of a clearly identified candidate

* [Continued }

(b) (2) For purposes of this section and section 79l(h) of

Title 15, 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

(except a loan of money by a national or State bank made in

accordance with the applicable banking laws and regulations

and in the ordinary course of business) to any candidate, cam-

paign committee, or political party or organization, in connec-

tion with any election to any of the offices referred to in this

section, but shall not include (A) communications by a cor-

poration to its stockholders and executive or administrative

personnel and their families or by a labor organization to its

members and their families on any subject; (B) nonpartisan

registration and get-out-the-vote campaigns by a corporation

aimed at its stockholders and executive or administrative per-

sonnel and their families, or by a labor organization aimed at

its members and their families; and (C) the establishment,

administration, and solicitation of contributions to a separate

segregated fund to be utilized for political purposes by a

corporation, labor organization, membership organization, co-

operative, or corporation without capital stock.

for federal office.” Buckley, 424 U.S. at 44, 96 S.Ct. at

646-47. The opinion clarified in a footnote that this con-

struction would restrict the application to “communica-

tions 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. n. 52. MCFL adopted the same definition, referencing

the same footnote, for purposes of § 441b’s in

spending limitation. 479 U.S. at 249, 107 S.Ct. at 623.

The district court, noting the identity of the “expendi-

tures in connection with” language in § 441b and in

§ 441a(d)(3), concluded that the anti-Wirth publicity

was not express advocacy and therefore not governed by

the § 441a(d)(3) limitations. The district court relied

in part on a common law rule of statutory construction

that identical words used in different sections of the same

statute generally should be given the same meaning. How-

ever, the Supreme Court has also stated that “the pre-

sumption readily yields to the controlling force of the

circumstance that words, though in the same act, are found

in such dissimilar connections as to warrant the conclu-

sion that they were employed in the different parts of the

act with different intent.” Helvering v. Stockholms En-

skilda Bank, 293 U.S. 84, 87, 55 S.Ct. 50, 51, 79 L.Ed.

211 (1934).

Further, we cannot overlook a significant distinction

between Buckley and MCFL and the instant case. The

Buckley opinion distinguished- between independent ex-

penditures—regulated by then FECA § 608(e)(1)—and

coordinated expenditures. The Buckley opinion unequivo-

cally stated that controlled or coordinated expenditures

are treated as “contributions rather than expenditures

under the FECA* 424 US. at 46-47 & n. 53, 96 S.Ct.

at 648 & n. 53. Although Buckley found the ceiling on

independent expenditures failed to serve substantial enough

5 Coordinated expenditures are treated as campaign contributions

that must be reported pursuant to § 441a(a) (7) (B) (i).

government interests to be constitutional, it reached the

Opposite conclusion as to the limitations on expenditures

by national or state political parties. Jd. at 55-59 & n. 67,

96 S.Ct. at 652-54 & n. 67 (“Does 18 U.S.C. § 608(f)

(1970 ed., Supp. IV) violate [constitutional | rights, in

that it limits the expenditures of national or state com-

mittees of political parties in connection with general

election campaigns for federal office? Answer: NO, as

to the Fifth Amendment challenge advanced by appel-

lants.”). Buckley accepted the FECA’s treatment of ex-

penditures by national and state committees of political

parties as contributions, as have subsequent opinions of

the Supreme Court. See DSCC, 454 U.S. 27, 29 n. 1, 102

S.Ct. 38, 41 n. 1 (1981) (“Party committees are con-

sidered incapable of making ‘independent’ expenditures in

connection with the campaigns of their party’s candidates.

The Commission has, by regulation, forbidden such “in-

dependent’ expenditures by the national and state party

committees.”). Similarly, MCFL made the same distinc-

tion when interpreting the meaning of independent ex-

penditure limits in § 441b. MCFL, 479 US. at 259-60.

107 S.Ct. at 628-29.

Subsequent amendments to the FECA include “expressly

advocating” into the definition of independent expendi-

tures. See 2 U.S.C. § 431(17). Coordinated expenditures

of political parties, however, are not defined in this man-

ner. See id. § 431(9)(B)(ix); cf. id. § 431(8)(B)(v),

(x), (xii) (what is not a contribution). This is some

evidence of congressional intent that the phrases are not

intended to have the same meaning.

The distinction between independent expenditures and

political party expenditures that are deemed to be con-

tributions, and their different treatment by the Supreme

Court, negates the necessity that “expenditures in con-

nection with” be construed identically in different sections

of the FECA. However, the meaning of “expenditures in

connection with” is not perfectly clear, else the Court in

MCFL would not have had to cabin its meaning under

§ 441b in the manner it did. The question then becomes

whether we must construe the phrase as narrowly as the

Supreme Court did in MCFL in order to uphold its validity.

The FEC has issued advisory opinions interpreting the

“expenditures in connection with” phrase in § 441a(d(3)

in a manner different than that adopted by the district

court and urged upon us by the Committee. We believe

this is an appropriate circumstance in which to follow the

Supreme Court's admonishment that “if the statute is silent

or ambiguous with respect to the specific issue, the ques-

tion for the court is whether the agency's answer is based

on a permissible construction of the statute.” Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, 467

U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694

(1984) (footnote omitted); see also DSCC, 454 US. at

37, 102 S.Ct. at 44-45 (the FEC, a bipartisan body, is

“precisely the type of agency to which deference should

presumptively be afforded”) .*

Advi inion 1984-15 addressed questions

ralaad by to estes Party regarding spending for a

series of television ads denigrating the potential _Demo-

cratic presidential candidates, relating to an upcoming

election. The FEC responded to a specific question

whether such spending was within the limitations of

§ 44la(d).

These advertisements effectively advocate the defeat

of a clearly identified candidate in connection with

*We note that one of the reasons the Buckley opinion gave for

its “express advocacy” restrictive interpretation of § 608(e) “

“relative to” language was that most who were subject to

statute’s criminal sanctions had no right to obtain PO eae |

opinion of the FEC. See 424 U.S. at 40 n. 47, 96 S.Ct. at n. 47.

It noted that only candidates, federal office holders and oo

committees had that right. Jd. Section 44la(d), at issue _

us, applies only to political committees; thus all to whom it appl

can secure advisory opinions from the FEC.

that election and thus have the purpose of influencing

the outcome of the general election for President of

the United States. See generally Advisory Opinion

1978-46. Therefore, expenditures for these advertise-

ments benefit the eventual Republican presidential

candidate and are made with respect to the presiden-

tial general election and in connection with the presi-

dential general election campaign.

A.O. 1984-15, Fed. Elec. Campaign Fin. Guide (CCH)

¢ 5766 (May 31, 1984) (footnote omitted). The opinion

then concluded that the spending in question was a co-

ordinated expenditure subject to the limitations in § 441a

(d)(2).

Advisory Opinion 1985-14 responded to questions from

a Democratic Congressional Committee regarding pro-

posed publicly focusing on a number of congressmen, not

all with announced opposition candidates. A.O. 1985-14,

Fed. Elec. Campaign Fin. Guide (CCH) 4 5819 (May

30, 1985). The opinion endorsed Advisory Opinion

1984-15 with its construction of § 441a(d) as regulating

expenditures that “both (1) depicted a clearly identified

candidate and (2) conveyed an electioneering message.” *

The FEC has “primary and substantial responsibility

for administering and enforcing” the FECA. Buckley,

424 US. at 109, 96 S.Ct. at 677-78. The FEC argues

that its construction of § 441a(d) as regulating political

committee expenditures depicting a clearly identified can-

didate and conveying an electionering message as a reason-

able one to which we must defer. Viewing the party

expenditures as contributions, as we must, we agree.

* Advisory Opinion 1978-46 appears more restrictive; it can be

read to adopt the express advocacy position. A.O. 1978-46, Fed.

Elec. Campaign Fin. Guide (CCH) 5348 (Sept. 5, 1978). But

even if the more recent decisions represent a change in position by

the FEC we must still give the current view deference if the current

construction is reasonable. Rust v. Sullivan, 500 U.S. 173, 186-87,

111 S.Ct. 1759, 1768-69, 114 L.Ed.2d 238 (1991).

T i interest served by the Act is the

tion spawned by the real or imagined coercive influence

of large financial contributions on candidates’ positions

and on their actions if elected to office.” DSCC 454 US.

and those that might develop from independent expendi-

tures, finding less inherent risk in the latter. Our analysis,

therefore, with respect to controls on coordinated ex-

penditures and contributions under § 441a is different

than that required for § 441b.

Section § 44la(d) addresses the concern that large

contributors to political parties will exert undue influence

limits must be reported, along with identification of

cs ch cams tau ae Contribution

limits still apply. Giving deference to the FEC’s interpre-

tation, § 441a(d)(8) applies to coordinated

spending that involves a clearly identified candidate and

an electioneering message, without regard to whether that

message constitutes express advocacy.

The Committee does not seriously contest that the anti-

Wirth publicity was directed at a clearly identified can-

didate. “Wirth Facts #1” referenced Wirth’s senatorial

aspirations and challenged his personal integrity and cam-

paign statements in the context of the current election.’

Wirth was not yet the Democratic nominee, but the FECA

regulates coordinated expenditures made before the pri-

mary election. A.O. 1984-15, Fed. Elec. Campaign Fin.

Guide (CCH) 45766. The Committee’s objective to

elect the eventual Republican candidate is not diminished

because a Democratic nomine has not emerged. See

Buckley, 424 U.S. at 79, 96 S.Ct. at 633 (major purpose

of expenditures by candidates and political committees

“js the nomination or election of a candidate”).

We next consider whether “Wirth Facts #1” contained

an electioneering message." Advisory Opinion 1984-15

examined proposed television advertising by the Repub-

lican National Committee that would “question or chal-

lenge the candidate’s statements, position, or record.”

The FEC concluded that the

® See also 2 U.S.C. § 431(18) which reads:

The term “clearly identified” means that—

(A) the name of the candidate involved appears:

(B) a photograph or drawing of the candidate appears; or

ous reference.

1° We agree with the district court that the message in “Wirth

Facts #1” would not constitute express advocacy within the narrow

definition of Buckley and MCFL. It lacks the express words “vote

for” or “vote against,” or words of similar import, although it

comes close when the ad suggests that an identified candidate dis-

torted his voting record.

clear import and purpose of these proposed advertise-

ments is to diminish support for any Democratic

Party presidential nominee and to garner support for

whoever may be the eventual Republic Party nom-

inee. These advertisements relate primarily, if not

solely, to the office of President of the United States

and seek to influence a voter's choice between the

Republican Party presidential candidate and any

Democratic Party nominee in such a way as to favor

the choice of the Republican candidate. .. . These

advertisements effectively advocate the defeat of a

clearly identified candidate in connection with that

election and thus have the purpose of influencing the

outcome of the general election for President of the

United States. Therefore, expenditures for these ad-

vertisements benefit the eventual Republican presi-

dential candidate and are made with respect to the

presidential general election in connection with the

presidential general election campaign.

A.O. 1984-15, Fed. Elec. Campaign Fin. Guide (CCH)

§ 5766 (citation and footnotes omitted). The next year,

the FEC relied upon that construction in rendering Ad-

visory Opinion 1985-14 to the Democratic Congressional

Campaign Committee stating that “[eJlectioneering mes-

sages include statements ‘designed to urge the public to

elect a certain candidate or party.” A.O. 1985-14, Fed.

Elec. Campaign Fin. Guide (CCH) 45819 (quoting

United States v. United Auto Workers, 352 U.S. 567,

587, 77 S.Ct. 529, 539, 1 L.Ed.2d 563 (1957)).

Any reasonable reading of “Wirth Facts #1,” which

included the notation of Republican Party sponsorship,

would leave the reader (or listener) with the impression

that the Republican Party sought to “diminish” public

support for Wirth and “garner support” for the unnamed

Republican nominee. “Wirth Facts #1” unquestionat ly

contained an electioneering message. We conclude that

that the anti-Wirth publicity was an “expenditure in con-

nection with” the 1986 Colorado senatorial election be-

cause it named both a clearly identifiable candidate and

contained an electioneering message. The Committee,

therefore, violated the FECA by making a § 441a(d)(3)

expenditure after delegating to the National Republican

Senatorial Committee the authority to spend all of the

Committee’s available funding for the 1986 Colorado

Senate race.

We next consider the Committee’s constitutional chal-

lenges to the FECA. The Committee asserts that the

monetary caps in § 44la(d)(3) violate its First Amend-

ment guarantees of freedom of speech and association.

The Committee focuses on the alleged absence of a com-

pelling governmental interest served by the restrictions in

§ 441a(d)(3) and also asserts that the statute discrim-

inates based upon content. The FEC’s position is that

Buckley and later cases endorse distinctions between

independent expenditures and contributions, and that

other FECA contribution ceilings have consistently been

upheld as constitutional by the Supreme Court. We agree

with the FEC that § 441a(d)(3) is a permissible burden

on speech and association.

The primary purpose of the contribution and expendi-

ture caps in the FECA are to prevent corruption or the

appearance of corruption. Buckley 424 U.S. at 25-26, 96

S.Ct. at 637-38. The FECA starts from the premise that

political committees may make only minimal expenditures

in connection with campaigns, § 441a(a) (dollar limits on

contributions), then creates one exception at § 44la(d)

(3) (coordinated expenditure limits for certain political

committees made in connection with federal election cam-

paigns). DSCC, 454 U.S. at 28-29 n. 1, 102 S.Ct. at

40-41 n. 1; 11 C.F.R. §110.7(b); see also 2 U.S.C.

§ 431(14)-(16). This exception allows for greater mone-

tary support by political parties than would otherwise be

permitted by § 44la(a). The coordinated expenditures

permitted by § 441a(d)(3) are treated for purposes of

reporting and monetary limitations as contributions from

the political committee to the candidate, § 441a(a)(7)(B)

(i); see also § 434(b)(4)(H)(iv), and fall within the

contribution ceilings contained in § 441a(a). See Buckley,

424 US. at 46, 96 S.Ct. at 647-48; FEC v. National

Political Action Committee, 470 U.S. 480, 492, 105 S.Ct.

1459, 1466, 84 L.Ed.2d 455 (1985) (NCPAC).

The same reasoning the Supreme Court used to up-

hold the constitutionality of other contribution limitations

applies when analyzing the constitutionality of limits on

coordinated expenditures by political committees.” The

opportunity for abuse is greater when the contributions

(or in the instant case, coordinated expenditures) derive

from sources inherently aligned with the candidate,

rather than with independent expenditures. See Buckley,

424 US. at 26-27, 96 S.Ct. at 638-39; NCPAC, 470

U.S. at 497, 105 S.Ct. at 1468-69. The Committee,

stressing the benefits of party discipline and the broad in-

terests of party success, argues that the dangers of domi-

nation of candidates by large individual donors do not

apply to party expenditures. But party expenditures, par-

ticularly pre-primary, often are controlled by incumbent

officeholders. We cannot say the dangers of domination

that underlay the Supreme Court’s acceptance of the con-

stitutionality of contribution limits are not present in po-

litical party expenditures. The members of Congress who

enacted this law were surviving veterans of the election

campaign process, and all were members of organized

political parties. They should be considered uniquely

qualified to evaluate the risk of actual corruption or ap-

pearance of corruption from large coordinated expendi-

11 We acknowledge that Buckley upheld then 18 U.S.C. § 608(f)

as constitutional when challenged as discriminatory under the Fifth

Amendment, and not the First Amendment, which is the basis for

the Committee’s constitutional challenge here. Buckley, 424 U.S.

at 59 n. 67, 96 S.Ct. at 654 n. 67. However, MCFL adopted much of

the reasoning in Buckley in analyzing the First Amendment chal-

lenges to 441b. We do not, therefore, discount the importance of

Buckley in the context of our First Amendment analysis.

tures by political parties. This case is, therefore, ideally

postured for deference to the congressional will.

The Supreme Court has endorsed the government's in-

terest in curtailing large campaign contributions as legiti-

mate. In addition to preventing corruption or the ap-

pearance of corruption, these restrictions “equalize the

relative ability of all citizens to affect the outcome of

elections,” Buckley, 424 U.S. at 26, 96 S.Ct. at 638,

and to a degree cap campaign costs and increase ac-

cessibility to our political system. Jd. The Court has

distinguished between restrictions on contributions and

restrictions on independent expenditures and then inval-

idated spending restrictions while upholding contribution

limits. Id. at 58-59, 96 S.Ct. at 653-54.

By treating coordinated expenditures as contributions,

the FECA effectively precludes political committees from

literally or in appearance, “secur[ing] a political quid pro

quo from current and potential office holders.” Jd. at 26-

27, 96 S.Ct. at 638. Contribution limits regulate the

quantity of political speech, but do not foreclose speech

or political association. We do not see this monetary

cap as content based; it is rather a consequence of the

funding source. We uphold as constitutional, against the

Committee’s First Amendment challenge, the spending

limits in § 441a(d)(3).

We REVERSE and REMAND with instructions that

the district court enter judgment in favor of the FEC,

and for a determination under 2 U.S.C. § 437g(a)(6)

of the appropriate civil penalty.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Nos. 93-1433, 93-1434

(D.C. No. 89-N-1159)

[Caption Omitted in Printing]

ORDER

Entered September 6, 1995

Before SEYMOUR, Chief Judge, MOORE, ANDER-

SON, TACHA, BALDOCK, BRORBY, EBEL, KELLY,

HENRY, BRISCOE, LOGAN Circuit Judges and

REED*, District Judge.

This matter comes on for consideration of appellants/

cross-appellees Colorado Republican Federal Campaign

Committee and Douglas Jones’ suggestion for rehearing

in banc.

In accordance with Rule 35(b), Federal Rules of Ap-

pellate Procedure, the suggestion for rehearing in banc

was transmitted to all of the judges of the court who are

in regular active service. The court having been polled

*The Honorable Edward C. Reed, Jr., Senior United States

Judge, United States District Court for the District of Nevada,

sitting by designation.

on the suggestion for rehearing in banc, Rule 35, Federal

Rules of Appellate Procedure, the Suggestion for rehearing

in banc is denied. Judges Baldock, Ebel and Kelly voted

to grant rehearing. Judge Lucero is recused.

Entered for the Court

PATRICK FISHER

Clerk

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.

FEDERAL ELECTION COMMISSION,

999 E Street, N.W.

Washington, D.C. 20463

(202) 376-8200,

Vv.

COLORADO REPUBLICAN FEDERAL

CAMPAIGN COMMITTEE,

1275 Tremont Place

Denver, Colorado 80204

(303) 893-1776,

and

DouGLas L. JONES, AS TREASURER,

1275 Tremont Place

Denver, Colorado 80204

(303) 893-1776,

Defendants.

Plaintiff,

COMPLAINT FOR DECLARATORY, INJUNCTIVE

AND OTHER APPROPRIATE RELIEF

JURISDICTION

1. This action seeks declaratory, injunctive and other

appropriate relief pursuant to the express authority

granted the Federal Election Commission (“Commission”

or “FEC”) by provisions of the Federal Election Cam-

paign Act of 1971, as amended (“Act” or “FECA”),

codified at 2 U.S.C. §§ 437d(a)(6) and 437g(a)(6)(A).

This court has original jurisdiction over this suit pursuant

to 28 U.S.C. § 1345 as an action brought by an agency

of the United States expressly authorized to sue by an act

of Congress.

VENUE

2. Venue is properly found in the District of Colorado,

in accord with 2 U.S.C. § 437g(a)(6)(A), as the de-

fendants can be found, reside or transact business in this

district.

THE PARTIES

3. Plaintiff Federal Election Commission is the agency

of the United States government empowered with exclus-

ive and primary jurisdiction with respect to the administra-

tion, interpretation, and civil enforcement of the Federal

Election Campaign Act of 1971, as amended. See gen-

erally 2 U.S.C. §§ 437¢(b) (1), 437d(a) and 437g. The

FEC is authorized to institute investigations of possible

violations of the Act, 2 U.S.C. §§ 437g(a)(1) and (2),

and has exclusive jurisdiction to initiate civil actions in

the United States district courts to obtain judicial enforce-

ment of the Act. 2 U.S.C. §§ 437c(b)(1) and 437g

(a) (6).

4. Defendant Colorado Republican Federal Campaign

Committee (“State Party”) is a political committee within

the meaning of 2 U.S.C. § 431(4) and is the federal ac-

count of the Colorado Republican State Central Commit-

tee. See 11 C.F.R. § 102.5(b)(1)(i). Hence the State

Party is a party committee which represents a political

party on the state level. See 11 C.F.R. § 100.5(e) (4).

5. Defendant Douglas L. Jones is the treasurer of the

Colorado Republican Federal Campaign Committee. See

2 U.S.C. §§ 432(a), 432(c), and 434(a)(1).

STATUTES

6. 2 U.S.C. § 441a(d)(3)(A) states, inter alia, that a

State committee of a political party may not make any

expenditure in connection with the general election cam-

paign of a candidate for the United States Senate in that

State who is affiliated with such party which exceeds the

greater of 2 cents multiplied by the voting age population

of the State or $20,000.

7. 2 U.S.C. § 434(b)(4)(H) (iv) states that political

committees must report to the Commission, for the re-

porting period and the calendar year, the total amount of

expenditures made under 2 U.S.C. § 44la(d).

8. 2 U.S.C. § 434(b)(6)(B)(iv) states that political

committees (other than the authorized committees of can-

didates) must report to the Commission the name and

address of each person who receives any expenditure from

the reporting committee during the reporting period in

connection with an expenditure under 2 U.S.C. § 441a(d),

together with the date, amount, and purpose of any such

expenditure as well as the name of, and the office sought

by, the candidate on whose behalf the expenditure is made.

9. 2 U.S.C. § 44la(f) states, inter alia, that no poli-

tical committee shall knowingly make any expenditure in

violation of 2 U.S.C. § 441a, and no officer or employee

of a political committee shall knowingly make any exi-

penditure on behalf of a candidate in violation of any

limitation imposed on contributions and expenditures un-

der 2 U.S.C. § 441a.

ADMINISTRATIVE PROCEEDINGS

10. On June 12, 1986, M. Buie Seawell filed an ad-

ministrative complaint on behalf of the Colorado State

Democratic Party against the State Party and its treasurer.

On June 19, 1986, the Commission notified the State

party and its treasurer that a complaint had been filed

against them. Acting upon the basis of information ascer-

tained from the complaint and the response made thereto,

the Commission, by the affirmative vote of at least four

of its members, found reason to believe on November 5,

1986, that the State Party and its treasurer violated 2

U.S.C. §§ 434(b)(4)(H)(iv) and 434(b)(6)(B) (iv).

The basis of this finding was that it appeared that the

State Party and its treasurer had made a disbursement for

a radio advertisement that appeared to be an expenditure

in connection with the general election for United States

Senator from Colorado in 1986, and thus said expendi-

ture appeared to be subject to the limitations of 2 U.S.C.

§ 441a(d)(3)(A); the State Party and its treasurer, how-

ever, had not reported these expenditures in accordance

with 2 U.S.C. §§ 434(b)(4)(H)(iv) and 434(b)(6)(B)

(iv). An investigation was initiated.

11. By letter dated November 13, 1986, the State

Party and its treasurer were notified of the Commission's

reason to believe findings of November 5, 1986.

12. The Commission’s General Counsel notified the

State Party and its treasurer by letter dated November 10,

1987, that the General Counsel was prepared to recom-

mend that the Commission find probable cause to believe

that they had violated the Act, and provided them with a

brief stating the position of the General Counsel on the

legal and factual issues of the case. See 2 U.S.C. § 437g

(a)(3). The State Party and its treasurer were provided

an opportunity to respond.

13. On June 14, 1988, the Commission, by the affir-

mative vote of at least four of its members, found prob-

able cause to believe that the State Party and its Treas-

urer violated 2 U.S.C. §§ 434(b)(4)(H) (iv), 434(b) (6)

(B) (iv), and 441a(f).

14. By letter dated June 23, 1988, the State Party and

its treasurer were notified of the Commission's probable

cause to believe findings of June 14, 1988, and a pro-

posed conciliation agreement directed to the State Party

and its treasurer was enclosed.

15. The Commission’s General Counsel notified Doug-

las L. Jones by letter dated September 28, 1988, that the

16. On January 10, 1989, the Commission, by the

affirmative vote of at least four of its members, found

probable cause to believe that Douglas L. Jones, as treas-

urer of the State Party, violated 2 U.S.C. §§$434(b)(4)

(H) (iv), 434(b) (6) (B) (iv), and 441a(f).

17. By letter dated January 17, 1989, the State Party

and Douglas L. Jones, as treasurer, were notified of the

Comrnaission’s probable cause to believe findings of Jan-

uary 10, 1989, and a proposed conciliation agreement di-

rected to the State Party and Douglas L. Jones, as treas-

urer, was enclosed.

18. The Commission endeavored for a period of not

less than thirty (30) days to correct the violation by in-

formal methods of conference, conciliation and persuasion,

and to enter into a conciliation agreement with the de-

fendants in accordance with 2 U.S.C. § 437g(a)(4)(A).

19. On April 7, 1989, after failing to reach an agree-

ment with the State Party and Douglas L. Jones, as treas-

urer, the Commission, by the affirmative vote of at least

four of its members, authorized, pursuant to 2 U.S.C.

§ 437g(a)(6)(A), the filing of a civil suit against the

defendants in the United States District Court. .

20. Thereafter, the defendants were notified by letter

dated April 10, 1989, of the Commission’s authorization

of the instant civil action.

21. The Commission has met all of the jurisdictional

prerequisites for filing this suit.

STATEMENT OF CLAIM

COUNT |

22. Plaintiff incorporates by reference the allegations

contained in paragraphs | through 21, inclusive.

23. Defendants were prohibited by 2 U.S.C. § 44la

(d)(3)(A), from making expenditures in connection with

the 1986 general election campaign of a candidate for

United States Senator from Colorado in excess of an

amount equal to 2 cents multiplied by the voting age popu-

lation of the State, which amount was $103,248.

24. Defendants assigned their right to make expendi-

tures pursuant to 2 U.S.C. § 441a(d)(3)(A) in connec-

tion with the 1986 general election campaign for United

States Senator from Colorado to the National Republican

Senatorial Committee.

25. On April 2, 1986, defendants made an expendi-

ture of $15,000 to pay for a radio advertisement, known

as “Wirth Facts #1.” The text of this advertisement was

pe ed

strong defense and balanced budget. But accord-

against every

major new weapon system in the last five years. And

he voted against the balanced budget amendment.

“Tim Wirth has a right to run for Senate, but

he doesn’t have a right to change the facts.”

26. “Wirth Facts #1” was aired during the period be-

tween April 2, 1986 and August 12, 1986. During that

;

Senate in

mary, he

office of United States Senator, and ran in the general

27. Defendants’ expenditure of $15,000 to pay for the

radio advertisement known as “Wirth Facts #1” was made

in connection with the 1986 general election for the

United States Senate in Colorado.

28. Defendants’ expenditure of $15,000 to pay for

“Wirth Facts #1” was an expenditure made by the State

29. Defendants did not report to the Commission their

expenditure of $15,000 pursuant to 2 U.S.C. § 44la(d)

as required by 2 U.S.C. § 434(b) (4) (H) (iv).

30. Defendants’ failure to report to the Commission

their expenditure of $15,000 pursuant to 2 U.S.C. § 441a

(d) violated 2 U.S.C. § 434(b)(4) (H) (iv).

COUNT 2

31. Plaintiff incorporates herein by reference the alle-

gations contained in paragraphs 1 through 21, and 23

through 28, inclusive.

32. Defendants were required by 2 U.S.C. § 434(b)

(6)(B)(iv) to report to the Commission the name and

address of each person who received any expenditure from

the State Party during the reporting period in connection

with an expenditure under 2 U.S.C. § 441a(d), together

with the date, amount, and purpose of such expenditure,

33. Defendants did not report to the Commission, with

respect to their expenditure for “Wirth Facts #1,” the

;

the name and address

was made, violated 2 U.S.C. § 434(b) (6) (B) (iv).

COUNT 3

35. Plaintiff incorporates herein by reference the alle-

gations contained in paragraphs 1 through 21, and 23

through 28, inclusive.

36. Defendants’ expenditure of $15,000 in connection

with the 1986 general election for U.S. Senator from Col-

orado pursuant to 2 U.S.C. § 441la(d) was in excess of

the limitation on the amount of such contributions set

forth at 2 U.S.C. § 441a(d)(3)(A)(i), in that defend-

ants had assigned their right to make expenditures pur-

suant to 2 U.S.C. § 441a(d)(3)(A) in connection with

the 1986 general election campaign for United States Sen-

ator from Colorado to the National Republican Senatorial

Committee, and therefore defendants could no longer

make such expenditures.

37. Defendants violated 2 U.S.C. § 441a(f) by mak-

ing an expenditure in excess of the limitation set forth at

2 U.S.C. § 441a(d)(3)(A) (i).

PRAYER FOR RELIEF

WHEREFORE, the plaintiff Federal Election Com-

mission prays that this Court:

(1) Declare that defendants the Colorado Republican

Federal Campaign Committee and Douglas L. Jones, as

treasurer, violated 2 U.S.C. § 434(b)(4)(H) (iv) by fail-

ing to report an expenditure made pursuant to 2 U.S.C.

§ 44la(d).

(2) Declare that defendants the Colorado Republican

Federal Campaign Committee and Douglas L. Jones, as

treasurer, violated 2 U.S.C. § 434(b)(6)(B) (iv) by fail-

ing to report an expenditure made pursuant to 2 U.S.C.

§ 44la(d).

(3) Declare that defendants the Colorado Republican

Federal Campaign Committee and Douglas L. Jones, as

treasurer, violated 2 U.S.C. § 44la(f) by making an

expenditure in connection with a general election cam-

paign for federal office in excess of a limitation set forth

at 2 U.S.C. § 441a.

(4) Assess against defendants the Colorado xepubli-

can Federal Campaign Committee and Douglas L. Jones,

as treasurer, a civil penalty of the greater of five thousand

dollars ($5000) or an amount equal to 100 percent of the

amounts involved in each of the violations committed,

pursuant to 2 U.S.C. § 437g(a)(6)(B), for which de-

fendants shall be jointly and severally liable;

(5) Permanently enjoin each defendant from similar

future violations of the Federal Election Campaign Act

of 1971, as amended; and

(6) Award the plaintiff Federal Election Commission

such other and further relief as the Court deems appro-

priate.

July 5, 1989

Respectfully submitted,

/s/ Lawrence M. Noble

LAWRENCE M. Nose

General Counsel

/s/ Richard B. Bader

RICHARD B. BADER

Associate General Counsel

/s/ Ivan Rivera

IVAN RIVERA

Assistant General Counsel

/s/ Charles W. Snyder

CHARLES W. SNYDER

Attorney

For the Plaintiff

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

(202) 376-8200

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

[Caption Omitted in Printing]

DEFENDANTS’ ANSWER AND COUNTERCLAIMS

NOW COMES the Defendants in the above-captioned

action, Colorado Republican Federal Campaign Commit-

tee (“the State Party”) and Douglas L. Jones, as treas-

urer, and hereby answer the complaint of the Federal

Election Commission (“FEC”) a follows:

JURISDICTION

1. Paragraph 1 contains allegations of law as to which

no responsive pleading is required.

VENUE

2. Venue is not contested.

PARTIES

3. Defendants admit the allegations in paragraph 3 of

the complaint.

4. Defendants admit the allegations in paragraph 4 of

the complaint.

5. Defendants admit the allegations in paragraph 5 of

the complaint.

STATUTES

6. Paragraph 6 contains allegations of law as to which

no responsive pleading is required.

7. Paragraph 7 contains allegations of law as to which

no responsive pleading is required.

8. Paragraph 8 contains allegations of law as to which

no responsive pleading is required.

9. Paragraph 9 contains allegations of law as to which

no responsive pleading is required.

ADMINISTRATIVE PROCEEDINGS

10. With respect to the allegations in paragraph 10,

Defendants admit that the FEC notified the State Party

and its treasurer, Vincent Zarlengo, that an administra-

tive complaint had been filed against it (see Exhibit 1

attached). In addition, Defendants admit that the FEC

notified the State Party and its treasurer, Vincent Zar-

lengo, that it had determined there was reason to believe

that they violated 2 U.S.C. § 434(b)(4)(H)(iv) and

434(b)(6)(B)(iv) with respect to a radio advertisement

discussing defense issues. The FEC also notified the

State Party and its treasurer that it had “failed to pass

a motion to find reason to believe” that the State Party

and its treasurer, Vincent Zarlengo, had violated 2 U.S.C.

§ 434(b)(4)(H) (iv) and 434(b)(6)(B)(iv) in connec-

tion with other advertisements noted in the complaint.

The State Party denies that it had not reported the ex-

penditures for these radio advertisements. Defendants ad-

mit that an investigation was initiated. The Defendants

are without knowledge or information sufficient to form

a belief as to the truth of the remaining allegations in

paragraph 10, and therefore deny the same.

11. With respect to the allegations in paragraph 11,

Defendants admit that by letter dated November 13,

1986, the State Party and its treasurer, Vincent Zar-

lengo, were notified of the Commission’s reason to be-

lieve findings of November 5, 1986. (See Exhibit 2 at-

tached ).

12. With respect to the allegations in paragraph 12,

Defendants admit that the FEC notified the State Party

and its treasurer, Vincent Zarlengo that the General

Counsel was prepared to recommend that the Commis-

sion find probable cause to believe that a violation has

occurred, and further admit that they were provided an

opportunity to respond.

13. Wtih respect to the allegations in paragraph 13,

‘Defendants are without knowledge or information suffi.

cient to form a belief as to the truth of the allegations,

and therefore deny the same.

14. With respect to the allegations in paragraph 14,

Defendants admit that the FEC notified the State Party

and its treasurer, Vincent Zarlengo that it had found

probable cause to believe that they violated 2 U.S.C.

§$§ 434(b) (4) (H) (iv), 434(b)(6)(B)(iv) and 441a

(f), and further admit that a proposed conciliation

agreement was enclosed.

15. With respect to the allegations in paragraph 15,

Defendants admit that the FEC notified the State Party

and its treasurer, Vincent Zarlengo that the General

Counsel intended to recommend probable cause to be-

lieve that Douglas L. Jones, as new treasurer of the State

Party, had violated the Act, and further admit that

Douglas L. Jones, a’ treasurer, was provided an oppor-

tunity to respond.

16. With respect to the allegations in paragraph 16,

Defendants are without knowledge and information suf-

ficient to form a belief as to the truth of the allegations,

and therefore deny the same.

17. With respect to the allegations in paragraph 17,

Defendants admit that the FEC notified the State Party

and its new treasurer, Douglas L. Jones, that it had

found probable cause to believe Douglas L. Jones violated

the Act, and further admit that a proposed conciliation

agreement was enclosed.

18. With respect to the allegations in paragraph 18,

Defendants admit that the FEC endeavored to enter into

a conciliation agreement in accordance with 2 U.S.C.

§ 437g(a)(6)(A).

19. With respect to the allegations in paragraph 19,

Defendants admit that the FEC did not reach an agree-

ment with the State Party and its new treasurer, Douglas

L. Jones. However, Defendants are without knowledge

or information sufficient to form a belief as to the truth

of the remaining allegations in paragraph 18, and there-

fore deny the same.

20. With regard to the allegations in paragraph 20,

Defendants admit that the FEC notified the State Party

by letter dated April 10, 1989 that the Commission au-

thorized the General Counsel to institute a civil action for

relief in the United States District Court.

21. Paragraph 21 contains allegations of law as to

which no responsive pleading is required.

STATEMENT OF CLAIM

COUNT 1

22. Paragraph 22 contains no allegations as to which

a responsive pleading is required.

23. With respect to the allegations in paragraph 23,

Defendants admit that the 2 U.S.C. § 441a(d)(3)(A)

limitation for the Office of Senate in the State of Colo-

rado was $103,248 in connection with the general elec-

tion campaign of the candidate for the office of Senate

affiliated with the party.

24. With respect to the allegations in paragraph 24,

Defendants admit that the Colorado Republican Party

authorized the National Republican Senatorial Committee

to serve as its agent for the purpose of making expendi-

tures allowed under 2 U.S.C. § 441a(d)(3) in connec-

tion with the general election campaign of its candidate

for United States Senate.

25. With respect to the allegations in paragraph 25,

Defendants admit that the State Party made an expendi-

ture of $15,000 to pay for a radio advertisement, known

as “Wirth Facts #1” and further admits that the text of

the advertisement was as alleged.

Defendant’s deny that “Wirth Facts #1” was aired dur-

ing the period between April 2, 1986 and August 12,

1986. “Wirth Facts #1” was aired between April 4,

1986 and April 13, 1986. Defendants admit that Tim

Wirth was a Member of the United States House

resentatives. Defendants deny that at i

advertisement that Tim Wirth was an official candidate

of the Democratic Party for the Office of United States

Senate under the laws of Colorado. Defendants deny that

Tim Wirth had no opposition for the Democratic Party

nomination for the United States Senate and aver that

he was opposed by David Grace. Defendants admit that

the Democratic primary was held on August 12, 1986.

Defendants admit that Tim Wirth was nominated by the

Democratic Party in its August 12, 1986 primary for the

Office of United States Senator and that he ran for United

States Senator in the general election and was

by a candidate nominated by the Republican Party on

August 12, 1986.

27. With respect to the allegations in paragraph 27,

Defendants deny that the State Party’s expenditure of

$15,000 to pay for the radio advertisement known as

“Wirth Facts #1” was made in connection with the

1986 general election for the United States Senate in

Colorado. The State Party’s expenditure was an operat-

ing expenditure of the State Party and reported as such.

28. With respect to the allegations in paragraph 26,

Defendants deny that the State Party’s expenditure of

$15,000 to pay for “Wirth Facts #1” was an expenditure

made by the State committee of a political party that

was subject to 2 U.S.C. § 441a(d).

29. With respect to the allegations in paragraph 29,

Defendants deny that the State Party did not report the

expenditure of $15,000 paid for Wirth Facts #1 to the

Commission and further denies that it made an expendi-

ture of $15,000 pursuant to 2 U.S.C. § 441a(d) which

was reportable pursuant to 2 U.S.C. § 434(b)(4)(H)

(iv).

30. With respect to the allegations in paragraph 30,

Defendants deny that they violated 2 U.S.C. § 434(b)

(4) (H) (iv).

COUNT 2

31. Paragraph 31 contains no allegations as to which

a responsive pleading is required.

32. Paragraph 32 contains allegations of law as to

which no responsive pleading is required.

33. With respect to the allegations in paragraph 33,

Defendants deny that the State Party did not report to the

Commission, with respect to its expenditure for “Wirth

Facts #1,” the name and address of each person who

received said expenditure from the State Party, the date,

amount, and purpose of such expenditure. Defendants

further deny that the State Party was required to identify

the name of, and office sought of any candidate. Defend-

ants deny all further allegations of Paragraph 33.

34. With respect to the allegations in paragraph 34,

Defendants deny that they violated 2 U.S.C. § 434(b) (6)

(B) (iv). .

COUNT .*

35. Paragraph 35 contains im wllegation as to which

a responsive pleading is required.

36. With respect to the allegations in paragraph 36,

Defendant’s deny that its expenditure of $15,000 for

“Wirth Facts #1” was made in connection with the 1986

general election for U.S. Senator from Colorado. De-

fendants admit that the Colorado Republican Party au-

thorized the National Republican Senatorial Committee

to serve as its agents for the purpose of making expendi-

tures under 2 U.S.C. § 441a(d)(3) but deny all further

allegations of paragraph 36.

37. With respect to the allegations in paragraph 37,

Defendants deny that they violated 2 U.S.C. § 441a(f).

PRAYER FOR RELIEF

No answer is required.

ADDITIONAL DEFENSES

38. The complaint fails to state a claim upon which

relief can be granted, and the State Party, and Douglas

L. Jones, as treasurer are entitled to judgment in their

favor as a matter of law.

39. The State Party has not violated 2 U.S.C. § 441a

(f) because its disbursements for “Wirth Facts #1” are

not subject to 2 U.S.C. § 441a(d) limits.

40. The State Party’s disbursements are not subject

to the limits of 2 U.S.C. § 441a(d) because its disburse-

ments for “Wirth Facts #1” was not made “in connec-

tion with” a “general election.”

41. The State Party's disbursements are not subject

to the limits of 2 U.S.C. § 441a(d) because the disburse-

ment did not benefit any candidate for general election.

42. The State Party fully reported the expenditures

for “Wirth Facts #1” as required by the Federal Elec-

tion Campaign Act of 1971, as amended.

43. The State Party has not violated 2 U.S.C. § 434

(b)(4)(H)(iv) with respect to this expenditure because

it has not made an expenditure pursuant to 2 U.S.C.

§ 441la(d).

44. The State Party has not violated 2 U.S.C. § 434

(b)(6)(B)(iv) because it has not made an expenditure

pursuant to 2 U.S.C. § 441a(d).

45. 2 U.S.C. §44la(d) is unconstitutional on its

face as a vague and overbroad infringement on the free-

dom of speech and association guaranteed to the State

Party by the First Amendment to the United States Con-

stitution.

46. If 2 U.S.C. §441a(d) is construed to prohibit

the State Party's expenditure for an advertisement criti-

cizing an incumbent congressman, then that section is

unconstitutional as applied because it violates the freedom

of speech and association guaranteed to the State Party

by the First Amendment to the United States Constitution.

COMPULSORY COUNTERCLAIM

47. The State Party seeks a declaratory judgment pur-

suant to 28 U.S.C. § 2201 that the limits on its expendi-

tures in connection with the general election campaign

for the Office of United States Senator from the State of

Colorado imposed by 2 U.S.C. § 441a(d) are unconstitu-

tional, both facially and as applied, and appropriate fur-

ther relief pursuant to 28 U.S.C. § 2202 and other appli-

cable statutes. This court has original jurisdiction of this

counterclaim pursuant to 28 U.S.C. § 1331 and its pend-

ent and ancillary jurisdiction.

48. The State Party could and would have made ex-

penditures directly in connection with the general election

campaign for the Office of United States Senator from the

State of Colorado that exceeded the limits established by

2 US.C. § 441a(d), but for the deterrent and chilling

effect of the statutory prohibition on such expenditures.

Moreover, the State Party could and would make such

expenditures in connection with future general campaigns

but for the deterrent and chilling effect of those limits.

49. The radio advertisement known as “Wirth Facts

#1” was one of several such advertisements concerning

Tim Wirth that were purchased and aired by the State

Party at approximately the same time. The FEC found a

violation with respect to “Wirth Facts #1,” and not the

other such advertisements, solely because of the content

of “Wirth Facts #1.”

50. The spending limits established by 2 U.S.C.

§ 441a(d) restrict political speech by political bodies such

as the State Party concerning political subjects on the

basis of content in violation of the freedoms of speech

and association guaranteed by the First Amendment to

the United States Constitution.

51. The spending limits established by 2 U.S.C.

§ 441a(d) discriminate against the State Party because of

the State Party's political activities in violation of the

freedoms of speech and association guaranteed by the

First Amendment to the United States Constitution.

52. The restrictions and requirements of 2 U.S.C.

§ 44la(d) are unconstitutiorally vague and overbroad

and chill and deter speech in violation of the freedoms of

speech and association guaranteed by the First Amend-

ment to the United States Constitution.

53. The FEC denies that 2 U.S.C. § 441la(d) violates

the United States Constitution as alleged above, has initi-

ated enforcement proceedings against the State Party for

an alleged violation of 2 U.S.C. § 441a(d), and will con-

tinue to enforce 2 U.S.C. § 441a(d) unless appropriate

relief is granted in this proceeding.

WHEREFORE, the State Party and Douglas L. Jones,

as Treasurer, pray that the court declare 2 U.S.C. § 441a

(d) unconstitutional, facially and as applied; that it dis-

miss this action with prejudice; that it award the State

Party its reasonable costs and attorneys fees; and that

it award the State Party such other and further relief as

the court deems just and proper.

August 21, 1989

EXHIBIT 1

[FEC Logo]

FEDERAL ELECTION COMMISSION

Washington, D.C. 10463

June 19, 1986

Colorado Republican State Central Committee

1275 Tremont Place

Denver, Colorado 80204

Campaign

Act of 1971, as amended (the “Act”). A copy of the

complaint is enclosed. We have numbered this matter

MUR 2186. Please refer to this number in all future

correspondence.

Under the Act, you have the opportunity to demon-

strate in writing that no action should be taken against

the Colorado Republican State Central Committee in this

matter. Your response must be submitted within 15 days

of receipt of this letter. If no response is received within

15 days, the Commission may take further action based

on the available information

with 2 US.C. § 437g(a)(4)(B) and § 437g(a)(12)

(A) unless you notify the Commission in writing that

you wish the matter to be made public.

If you have any questions, please contact Patty Reilly,

the attorney assigned to this matter, at (202) 376-8200.

For your information, we have attached a brief descrip-

ion of the Commission's procedures for handling com-

plaints

Sincerely,

CHARLES N. STEELE

General Counsel

By: /s/ Lawrence M. Noble

LAWRENCE M. NosLe

Deputy General Counsel

Enclosures

Complaint

Procedures

Designation of Counsel Statement

COMPLAINT

BEFORE THE

FEDERAL ELECTION COMMISSION

INTRODUCTION

Act of 1971, as amended (“FECA”), 2 U.S.C. Sec. 431

» in its ongoing effort to secure the defeat of the

period of weeks and at considerable cost, the Republican

Committee has launched wave after wave of general pub-

lic criticism designed to influence voters to cast their

dallots against Congressman Wirth. The Republican

Committee apparently does not intend, however, to do as

the law requires: account for the money so spent under

appropriate FECA limitations, particularly 2 U.S.C. Sec.

441a(d)(3), applicable to general election spending.

PE LEER & ee "OEE 4h eee ee eee eee

—— ae

74 75

ll. THE FACTS this complaint as Attachment C (Defense Ad) and Attach-

wos wii . ment D (Telephone Ad).

nited States Senate race in Colorado revolves The Ads have been widely disseminated around Colo-

around the Senate seat now held by retiring incumbent rado. The Defense Ad, by the Republican Committee's

Senator Gary Hart. Vith no incumbent seeking re- own estimate, was mailed to over 100,000 Colorado voters

election, this open seat” for which candidates are com- at a cost of more than $15,000; the cost of the defense

peting is being vigorously contested. On June 7, 1986, radio ad was reported to be $15,000 as well. The two ads

the Republican Party nominated, from a field of 3, one together represent, therefore, a total of $30,000 in ex-

candidate whose name will appear on the August 12 pri- penditures by the Republican Committee. Attachment E

mary ballot. On the same day, the Democratic Party also The Telephone Ad in brochure form has been distributed

nominated a single candidate favs tate ie ae

The Republican Party—both the national party and the aired on 30 statewide radio stations at a total cost

state party—view Colorado as an excellent opportunity approximately $30,000. Attachment F.

to turn a formerly Democratic seat into a Republican one. These are only the most publicized of the Republican

As shown in the newspaper clippings contained in Attach- Committee’s activities against Congressman Wirth. Other

ment A, the Republicans have targeted the Colorado race mailings by the Republican Committee have been cited in

as part of their attempt to maintain a Republican majority the press reports. See, e.g., Attachment G. Assuming

in the Senate. Vice President Bush even described the race these other mailings were distributed in a manner familiar

as the “most important” for the Republicans, Attachment to The Ads, the cost would be at a minimum an additional

B. Such targeting has in the past translated into extraor- — $15,000.

dinary expenditures of funds by the Republican Party In any event, the Republican Committee, by its own

under 2 U.S.C. Sec 441a(d)(3) in support of the Re- siden Tee tae te. teoien tS Oe ae Gon

publican candidate and in opposition to the Democratic gressman Wirth. To date (through the April 15 Quar-

nominee terly Report), reports filed with the Federal Election

, (“FEC”) by the Republican Committee show

F Repubtenditures have already begun in Colorado. no disclosures of coordinated expenditures (2 U.S.C. Sec.

The Republican Comimttee has to date published at least

441a(d)) to reflect the benefit derived from The Ads by

two brochures and run three radio spots attacking Con- :

Tim W is : the Republican nominee. As will be shown in the dis-

Cae an with, who is the only candidate seekin; cussion below, failure by the Republican Committee to

the nomination of the Democratic Party for the Uni fer lawful limits for these coordinated expendi-

States Senate. The first spot and brochure citicize Con- Scseums constitute

gressman Wirth’s voting record on defense (“Defense turee—and to Gom—would ear viele

» tions of the FECA which, if uncorrected, will result in the

Ad”). The second and third spots and second brochure . sonal far in excess of

are concerned with Congressman Wirth’s position Republican ving funding :

brochures and the text of the radio spots are appended to ll. THE LAW

both the broch

' For convenience, throughout this complaint, Section 441a(d)(3) of the Federal Election Campaign

and radio spots will be referred to collectively as “The Ads”. onl Act operates as a limitation on the expenditures made by

political party committees in connection with the general

election campaigns of their nominees for the United

States Senate. Among the political party committees en-

titled to these special spending privileges are the “state

committees” of each political party. In the State of Colo-

rado, for purposes of this Complaint and on all other

relevant occasions, the “state committee” of the Repub-

lican Party in the State of Colorado is the Republican

State Central Committee named as Respondent in this

action.

The spending rights of political parties like the Repub-

lican Committee are well defined under the law. The

Republican Committee may make direct or indirect con-

tributions to candidates, in amounts not exceeding $5,000

per election. 2 U.S.C. Sec. 441a(a)(2). It may make co-

ordinated Sec. 441a(d) expenditures on its nominee’s be-

half. Also, the Republican Committee could somewhat

supplement the total dollars expended in connection with

the Senate general election campaign, by making certain

“exempt” expenditures in support of the general election

nominee in accordance with the terms and conditions of

the volunteer campaign materials, slate card and other

relevant exemptions. See, e,g., 2 U.S.C. Sec. 431(8)(B)

(v), (x) & (xii); 2 U.S.C. Sec. 431(9)(B) (iv), (viii)

and (ix).

These are the only choices available to the Republican

Committee in expending funds specifically to promote the

election of its nominee or the defeat of the Democratic

nominee for the United States Senate. It is significant

that regulations of the Federal Election Commission spe-

cifically prohibit political parties from undertaking “inde-

pendent” expenditures in support of their candidates in

the general election. 11 C.F.R. Sec. 110.7(a)(5) & (b)

(4). See also A.O. 1984-15 and A.O. 1980-119, 1 Fed.

Elec. Camp. Fin. Guide (CCH) Para. 5766, 5561. This

prohibition serves to impose Sec. 44la(a) or Sec. 44la

(d) limitations on any spending which might otherwise

appear “independent” in nature but which cannot be so

treated because the spending entity is a state party.

IV. DISCUSSION

The Republican Committee is apparently attempting to

steer clear of lawful limitations on any of its aggressive

anti-Wirth spending.” The Committee appears to assume

a right to make independent expenditures, or at least

quasi-independent expenditures, in opposition to the Wirth

candidacy. The advertisements financed by the Commit-

tee through direct mail or broadcast media specifically

identify Congressman Wirth and the texts of these adver-

tisements, in fact, are organized entirely around deroga-

tory claims about his record. Those same advertisements

make it clear that their purpose is to influence voter per-

ceptions about Congressman Wirth’s Senate candidacy.

Public statements by Republican Committee officials about

this anti-Wirth campaign confirm that it has this purpose

and only this purpose. It is equally obvious from the text

of these advertisements that the perception that their

authors hope to generate among Colorado voters would

not be favorable to Congressman Wirth.

The Commission has already addressed and resolved

this issue in Advisory Opinions 1984-15 and 1985-14.

1 Fed. Elec. Camp. Fin. Guide (CCH) Para. 5819, 5766.

Both these opinions address the issue of spending by party

committees in opposition to the other party’s candidate(s)

before their own nominee has been selected. In both

cases, the FEC found that certain types of spending for

this purpose was attributable to Sec. 441a(d) limits. The

spending subject to these rulings and held accountable to

limits is identical in character to the Republican Commit-

tee’s spending to defeat Congressman Wirth in the general

election.

2 See n' 5, infra.

1. Advisory Opinion 1984-15

Advisory Opinion 1984-15 involved advertisements pro-

posed by the Republican National Committee in con-

nection with the 1984 Presidential elections. The adver-

tisements would have aired before and after the Demo-

cratic Party nominating convention, but before the selec-

tion of the Republican nominee (who was, of course, not

in doubt). They would have featured a prominent can-

didate for the Democratic nomination and would have

contained statements attacking the candidate’s positions

on issues and his record.

Fhe FEC first held that the ads could be considered

Sec. 44la(d) coordinated expenditures, since “nothing in

the Act, its legislative history, Commission regulations or

court decisions indicates that coordinated party expendi-

tures must be restricted to the time period between nomi-

nation and the general election.” The test propounded

by the FEC to determine whether expenditures would, in

fact, count toward Sec. 44la(d) limits was whether the

expenditures were made “for the ~— of influencing

the outcome of the general election. .

As the FEC made clear in this tale expenditures

made with a genuine general election-influencing purpose

count against Sec. 44la(d) limits regardless of whether

a nominee has been selected or even clearly identified.

The FEC stated: “(W)hether a specific nominee has been

chosen, or a candidate assured of nomination, at the time

the expenditure is made, is immaterial.”* The Commis-

sion therefore concluded that the ads proposed by the

Republicans required allocation to Sec. 441la(d) limits

since

* The FEC has frequently noted also that a party committee need

not coordinate Sec. 44la(d) expenditures with its own nominee for

the Senate and thus can make such expenditures before its nominee

is selected. See, e.g., A.O. 1975-120, 1 Fed. Elec. Camp. Fin. Guide

(CCH) Para. 5186.

(t)he clear import and purpose of these proposed ad-

vertisements is to diminish support for any Demo-

cratic Party . . . nominee and to garner support for

whoever may be the eventual Republican Party nom-

inee. These advertisements relate primarily, if not

solely, to (a single federal office) and seek to influ-

ence a voter’s choice between the Republican Party

. . . candidate and any Democratic Party nominee in

such a way as to favor the choice of the Republican

candidate. The only election which will pose such a

choice is the . . . general election. These advertise-

ments effectively advocate the defeat of a clearly

identified candidate in connection with that election

and thus have the purpose of influencing the outcome

of the general election.

(Citation omitted.) Because the expenditures were made

to benefit the eventual nominee in the general election,

they must be allocated to Sec. 441a(d) limits.*

In holding that Sec. 441a(d) limits applied, the FEC

distinguished so-called “generic” party building advertise-

ments. Such ads do not count toward limitations attribu-

table to any particular candidate, but these ads may not

identify “by visual or audio content . . . any specific can-

didate or office.” The facts of this Complaint simply do

not support any attempted argument by the Republican

Committee that The Ads are in any way “generic.” °

* See also 11 C.F.R. Sec. 106.1(a) (Expenditures on behalf of

candidates must be attributed “in proportion to, and shall be

reported to reflect, the benefit reasonably expected to be derived.”’)

SIt is of political significance that in April of this year, the

Republican Committee responded to an FEC inquiry into whether

certain expenditures reflected on its year-end report required alloca-

tion to a specific candidate. The Republican Committee denied that

allocation was required, on the ground that the expenditures in

question involved “voter education” relating to the 1986 general

election at a time when there were no candidates for federal office in

that election. Of course, if (as may well be the case) some of these

The similarity of the facts of this complaint to those

underlying the main holding of the Advisory Opinion is

striking. The Ads involve an attack on the record and

positions of a clearly identified * candidate of the oppo-

sition party for a single office the United States Senate.

Although made before a nominee had been selected by

either party, the clear purpose of the ads is to influence

the general election, since voters will not have an oppor-

tunity to decide between the Democratic and Republican

nominees until the general election.’

1. Advisory Opinion 1985-14

A ruling by the FEC subsequent to Advisory Opinion

1984-15, Advisory Opinion 1985-14, confirms the teach-

ing of the former. There, the Democrats proposed certain

media ads and direct mailings critical of the Republican

Party and, in some cases, particular Members of Con-

expenditures were made to prepare for the anti-Wirth campaign

undertaken this year, the Republican Committee is wholly wrong

about the legal consequences of its acts. The funds spent for this

campaign, whenever spent, are allocable to the Sec. 44la(d) general

election spending limit.

*“Clearly identified” is defined by FEC regulations as an “un-

ambiguous reference,” such as where the name of a candidate

appears. 11 C.F.R. Sec. 100.17.

7 The one distinction between the facts of A.O. 1984-15 and of

this Complaint is, in the Commission’s words, “immaterial.” In

A.O. 1984-15, the candidate seeking the nomination of the Republi-

can Party, the party making the ads, was assured of the nomination,

while the candidate against whom the ads were to be made was

arguably involved in a contested nomination. Here, the candidate

against whom the ads have been made is apparently assured of the

nomination, while there were several candidates seeking the Repub-

lican nomination. The holding of the Opinion applies to either set

of facts: where the expenditures are for the purpose of influencing

the general election, as they must be where nongeneric ads are run

criticizing a potential opponent in the general election, Sec. 441la(d)

limits apply. The benefit to the Republican nominee in this case is

indisputable.

gress. The Comission concluded generally that ads which

did not identify a particular Congressman, office or elec-

tion, would qualify as generic party building expenditures,

not subject to any limitation.*

Where, however, the proposed direct mailing involved

reference to a particular Member of Congress by name,

and distribution within “all or part” of that Member’s

Congressional District, the FEC concluded that the

expenditures for producing and disseminating the

mailer either with or without the “Vote Democratic”

statement will be subject to the Act’s limitations and

attributable pursuant to 11 C.F.R. 106.1.

The ruling is unequivocal: direct mail such as that di-

rected by Respondent against Congressman Wirth is allo-

cable to limits where it identifies by name the candidate

under attack, critiques his or her performance in office or

position on issues, and its distribution to the voting con-

stituency.”

In so holding, the FEC noted that the declared pur-

pose of the mailing, stated by the Democratic party com-

mittee requesting the Advisory Opinion, was to “influ-

enc(e) voter perceptions of these candidates with a view

toward weakening their positions as candadates for re-

election.” This purpose, together with the identification

of a particular Member, requires a finding that the spend-

ing is attributable to the limits of Sec. 44la(d) under

the criteria set out in Advisory Opinion 1984-15.

It is important to note that there is no requirement in

either Advisory Opinion 1984-15 or Advisory Opinion

1985-14 that the advertisement, to be attributable, must

contain “express advocacy.” “Express advocacy” is a term

® The one exception was the proposed advertisement which referred

to “Your Republican Congressman” and included the tag line “Vote

Democratic”. In this case, the FEC vote was split 3-3 and the

Opinion did not reach the issue.

of art under the FECA, 11 C.F.R. 109.1(b)(2). In Ad-

visory Opinion 1984-15, the FEC recognized that an

advertisement was attributable where it “effectively” advo-

cated the defeat of a candidate. In Advisory Opinion

1985-14, the FEC, interpreting Advisory Opinion 1984-

15, stated the requirement that an allocable communica-

tion include “an electioneering message.” The Opinion,

in turn, defined “electioneering message” as one “designed

to urge the public to elect a certain candidate or party,”

citing United States v. United Auto Workers, 352 U.S.

567, 587 (1957). On the facts of that particular case,

the FEC identified a clear “electioneering message” in di-

rect mailings which clearly identified a Member of Con-

gress and which were distributed within the Member's

district with the stated purpose of influencing his or her

re-election prospects.

The Republican Committee ads which form the basis

of this complaint clearly fall within this category of ex-

penditures—and must be attributed to limitations under

the FECA. The Ads identify and criticize Congressman

Wirth unambiguously and have been distributed to

100,000 voters throughout Colorado. Since the Senate

race involves a state-wide election, this distribution is di-

rected toward the electorate that will be asked to choose

between the Republican and Democratic nominees in the

United States Senate general election.

Further, The Ads were aired and distributed by the Re-

publican Committee with the clear purpose to influence

the general election, by attacking Congressman Wirth—

a candidate whom the party will not directly oppose until

the general election. Attachment H. Douglas Goodyear,

the Republican political director in Colorado, is reported

in a May 21, 1986 Associated Press article to have de-

scribed the Phone Ads as designed as “a diversion (which)

gives the GOP time to select a candidate to face Wirth in

the general election campaign.” Attachment 1.

Vv. CONCLUSION

This Complaint does not present complex legal issues.

It presents a single issue of compliance by the Republican

Committee with Sec. 441a(d) limits on its general elec-

tion spending. The FEC has ruled on precisely this issue.

on Republican i

cannot conceivably, Gs Reape Meee, eves Ge op

(d) to influence the Colorado Senate race.

Moreover, because the law is clear, service

met Eo aye the Rey gros menor Algae ly gD as

notice that its spending is accountable under Sec. 44

, 8

(d). From that day forward, any spending by the Re-

publican Committee in defiance of those limits will be

viewed by Complainant as a knowing and wilful violation

of the FECA requiring FEC referral to the Justice De

under the statute. 2 U.S.C. Sec. 437g(d)(1). Com-

plainant will pursue this matter fully in cooperation with

the FEC until Respondent obeys the law.

On the basis of the foregoing, the Colorado State Dem-

ocratic Party requests that the FEC:

1. Conduct on an expedited basis an investigation

of the facts and determine the exact dollar

/s/ M. Buie Seawell

Colorado State Democratic Party

[Notary Omitted in Printing]

[FEC Logo}

FELERAL ELECTION COMMISSION

Washington, D.C. 20463

November 13, 1986

Jan Baran, Esquire

Wiley & Rein

1776 K Street N.W.

Washington, D.C. 20006

RE: MUR 2186

The Colorado Republican

Federal Campaign Committee and

Vincent Zarlengo, as treasurer

Dear Mr. Baran:

The Federal Election Commission previously notified

your clients of a complaint alleging violations of certain

sections of the Federal Election Campaign Act of 1971,

as amended (“the Act”). A copy of the complaint was

forwarded to your clients at that time.

Upon further review of the allegations contained in the

complaint, and information supplied by your clients, the

Commission, on November 5, 1986, determined that there

is reason to believe that your clients have violated pro-

visions of the Act.

Specifically, it appears that the disbursements made by

your clients for a radio advertisement discussing defense

issues (See Complaint at Attachment C) were found to

be expenditures in connection with the general election

for senator in the State of Colorado, and thus appear to

be subject to the limitations of 2 U.S.C. § 441a(d)(3)

(A). Thus, the Commission found reason to believe the

es a ee ce ae

its treasurer violated 2 U.S.C. §$§ 434(b)(4)(H)(iv) and

434(b)(6)(B)(iv). Additionally, the Commission con-

sidered allegations regarding other ads noted in the com-

plaint, but failed to pass a motion to find reason to be-

lieve your clients violated 2 U.S.C. §§ 434(b)(4)(H)

(iv) and 434(b)(6)(B) (iv) in connection with these ads.

attorney assigned to this matter, at 376-8200.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

[Caption Omitted in Printing]

———

PLAINTIFF FEDERAL ELECTION COMMISSION’S

REPLY TO DEFENDANTS’ COUNTERCLAIM

I. The plaintiff Federal Election Commission (“the Com-

mission” or “FEC”), through its undersigned counsel,

responds as follows to the counterclaim asserted by de-

fendants, the Colorado Republican Federal Campaign

Committee, et al., in this litigation:

COMPULSORY COUNTERCLAIM

47. Paragraph 47 of defendants’ Answer contains con-

clusions of the pleaders, including conclusions of law, and

defendants’ characterizations of the matters of which they

complain. With respect to those conclusions and char-

acterizations, no response is required. To the extent that

a response may be deemed necessary, however, plaintiff

denies that this Court has original jurisdiction of this

counterclaim pursuant to 28 U.S.C. § 1331 and its pend-

ent and ancillary jurisdiction.

48. In response to Paragraph 48 of defendants’ An-

swer, the plaintiff is without knowledge or information

suffierent to form a belief as to the truth of the averment

that defendants could or would have made expenditures

directly in connection with the general election campaign

for the Office of United States Senator from the State of

Colorado that exceeded the limits established by 2 U.S.C.

§ 441a(d), other than with respect to those expenditures

in connection with the general election campaign for the

Office of United States Senator from the State of Colorado

in excess of the limits of 2 U.S.C. § 44la(d) that defend-

to form a belief as to the truth of the averment. All other

allegations in Paragraph 48 are denied.

49. In response to Paragraph 49, plaintiff admits that

the radio advertisement known as Wirth Facts #1 was

50. Paragraph 50 of defendants’ Answer includes

statements of law not requiring a response, and each and

every other averment therein is denied.

51. Paragraph 51 of defendants’ Answer includes

statements of law not requiring a response, and each and

every other averment therein is denied.

52. Paragraph 52 of defendants’ Answer includes

statements of law not requiring a response, and each and

every other averment therein is denied.

53. As to Paragraph 53 of defendants’ Answer, the

allegation that the Commission has initiated enforcement

proceedings against the State Party for an alleged viola-

tion of 2 U.S.C. § 441la(d) is denied. Plaintiff admits

that, in a matter under review with the Commission that

arose from an administrative complaint filed with the

Commission pursuant to 2 U.S.C. § 437g(a)(1), the FEC

found probable cause to believe that the State Party and

Douglas L. Jones, as treasurer, violated 2 U.S.C. §§ 434

(b) (4) (H) (iv), 434(b) (6) (B)(iv), and 441a(f). Plain-

tiff admits that 2 U.S.C. § 441a(d) does not violate the

United States Constitution and that the Commission has

a continuing obligation to enforce the Federal Election

Campaign Act, of which 2 U.S.C. § 441la(d) is a part.

All other allegations contained in Paragraph 53 are denied.

II. Plaintiff further denies all allegations, in the counter-

claim not heretofore admitted or denied, or to which plain-

tiff has not specifically responded, and pleads the following

affirmative defenses:

1. The Court is without subject matter jurisdiction

with respect to defendants’ counterclaim;

2. Defendants’ counterclaim fails to state a claim upon

which relief can be granted.

3. Defendants’ counterclaim is barred by sovereign

immunity.

PRAYER FOR RELIEF

WHEREFORE, the plaintiff Federal Election Commis-

sion requests the Court to:

1. Enter judgment in favor of plaintiff Federal Elec-

tion Commission and dismiss defendants’ counterclaim

in its entirety;

2. Award the Commission its costs in this litigation;

and

3. Grant the Commisison such other and further relief

as may be appropriate.

October 19, 1989

Respectfully submitted,

‘s/ Lawrence M. Noble

LAWRENCE M. NoBLeE

General Counsel

/s’ Richard B. Bader

RICHARD B. BADER

Associate General Counsel

/s/ Ivan Rivera

IVAN RIVERA

Assistant General Counsel

/s/ Charles W. Snyder

CHARLES W. SNYDER

Attorney

For the Plaintiff

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

(202) 376-8200

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

[Caption Omitted in Printing]

STATEMENT OF UNDISPUTED FACTS

AND SUPPORTING EXHIBITS

Defendants Colorado Republican Federal Campaign

Committee (“State Party”) and its treasurer. Douglas L.

Jones, in support of their motion for summary judgment

submit the following statements of undisputed facts and

citations to supporting Exhibits, attached hereto. An Ex-

hibits Index follows for reference.

STATEMENTS OF UNDISPUTED FACTS

AND CITATION TO SUPPORTING EXHIBITS

1. The State Party is an unincorporated political asso-

ciation, funded by voluntary contributions from individ-

uals who support its purpose of advancing the goals and

values of the Republican Party. See Exhibit 6, at p. 9.

2. In early 1986, the State Party became aware that

Democratic Congressman Tim Wirth was aggressively

attempting to mislead Coloradans as to his official con-

duct in Washington, claiming that he had favored con-

servative Republican positions when, in fact, he had pur-

sued liberal Democratic policies. See Exhibit 8.

~—3. The State Party responded with three radio ads and

two pamphlets setting the record straight and calling on

Congressman Wirth to stop dissembling as to his official

conduct. See Exhibits 2 and 8.

4. Wirth Facts #1 was aired only between April 4 and

April 13, 1986. See Exhibit 4, Attachment 6 and Exhibit

5, Admission 12.

5. The primary election contest for the nominees for

United States Senator in both the Republican and Demo-

cratic Parties was held on August 12, 1986. See Exhibit

5, Admission 11.

6. The General election for the office of United States

Senator from Colorado was held on November 4, 1986.

7. The text of Wirth Facts #1 was as follows:

Paid for by the Colorado Republican State Central

Committee

Here in Colorado we're used to politicians who let

you know where they stand, and I thought we could

count on Tim Wirth to do the same. But the last

few weeks have been a real eye-opener. I just saw

some ads where Tim Wirth said he’s for a strong

defense and a balanced budget. But according to his

record, Tim Wirth voted against every new weapon

system in the last five years. And he voted against

the balanced budget amendment.

Tim Wirth has a right to run for the Senate, but he

doesn’t have a right to change the facts.

See Exhibit 2, Attachment C.

8. The State Party paid $15,000 to air this advertise-

ment, and reported this payment in its disclosure reports

on file with the Federal Election Commission. See Exhibit

4, Response to Interrogatory No. 6 and Attachment 6.

9. The text of the (“Wirth Facts #2”) second radio ad *

was as follows:

Ringing phone. .

Voice: “When it comes to telephone service, a lot

has changed in the last few years—none of it for the

better.”

Operator Voice: “Thank you for calling the tele-

phone company. Please hold.”

Voice: “Before Tim Wirth thought it would be a

good idea to break up the phone company, you could

solve your problems with a single call. Now, you

buy your phone at the hardware store, long distance

from one company, local service from someone else,

and pay three separate bills. I guess Tim Wirth

didn’t think about that when he was leading the fight

to bust up the best telephone system in the world.”

Operator Voice: “Equipment, service or billing?”

Voice: “Well, I’m not sure.”

Operator Voice: “Then please continue holding.”

Voice: “One thing is obvious: Tim Wirth’s bright

ideas about breaking up the phone company have

led to higher rates, and lots of confusion.

So it’s no surprise Tim Wirth is trying to deny his

role in the AT&T breakup. He may get away with

that in Washington, but people in Colorado have

long memories. You can’t change the facts Tim.”

Operator Voice: “Are you still there?”

Voice: “Just tell the folks this spot was paid for by

the Colorado Republican State Central Committee.”

Dial Tone.

See Exhibit 2, Attachment D.

10. The text of the third radio ad (“Wirth Facts #3”)

was as follows:

Paid for by the Colorado Republican State Central

Committee

There is a lot of controversy over Tim Wirth and the

telephone break-up. He says he didn’t have anything

to do with it. So what’s the issue? Credibility, that’s

the issue. Prior to the break-up, Congressman Wirth

held twenty five official hearings, generated eight

volumes of hearing transcripts, sponsored two ver-

sions of telephone break-up legislation and then

Wirth even wrote a letter to the Federal Judge say-

ing the Wirth Bill H.R. 5158 gave “legislative sanc-

tion to the divestiture.” That’s what Tim Wirth said.

And AT&T just told the Rocky Mountain News

“Wirth may have said later that breaking-up the

phone company was a bad idea, but as far as we

could tell that’s what his bill ultimately would have

done.” So what’s the issue when it comes to Tim

Wirth and the phone company? Credibility. Tim

Wirth’s credibility. Tim Wirth can continue to leave

out facts about his role, but he can’t change the

facts.”

See Exhibit II, Attachment 10

11. The Commission does not dispute that the informa-

tion communicated by the State Party’s materials was

accurate, fair, and important. See Exhibit 5, p. 5.

12. On June 12, 1986, two months before the Demo-

cratic Primary, the Colorado Democratic Party filed a

complaint asserting that each of the advertisements were

subject to 2 U.S.C. § 44la(d)(3) and that the State

Party thus violated the Act. See Exhibit 2.

13. Defendants responded to the complaint and the Com-

mission’s findings showing that Wirth Facts #1 was not

subject to 2 U.S.C. § 441a(d)(3), and that if it was, the

limits imposed by section 441la(d)(3) were unconstitu-

tional, both facially and as applied. See Exhibits 11 & 12.

14. The Federal Election Commission reviewed the Com-

plaint, and conducted an investigation, and concluded on

a divided vote that “Wirth Facts #1” reflected an “ex-

penditure in connection with the general election cam-

paign” that was held in November, seven months after

the ad last ran, and thus fell within Section 441a(d)(3)

of the Federal Election Campaign Act of 1971, as

amended (“Act”), 2 U.S.C. 441a(d)(3). See Exhibit 7.

15. 2 U.S.C. § 441a(d) states that:

The national committee of a political party, or a

State committee of a political party, including any

subordinate committee of a State committee, may

not make any expenditure in connection with the

general election campaign of a candidate for Federal

office in a state who is affiliated with such party

which exceeds—

(A) in the case of a candidate for election

to the office of Senator .. .

(i) 2 cents multiplied by the voting age

population of the State. . . .

16. The State Party assigned its Section 44la(d)(3)

spending limit to the National Republican Senatorial Com-

mittee (“NRSC”). See Exhibit 4.

17. Because the State Party had assigned to the NRSC

the limited amount of expenditures allowed to it by Sec-

tion 441a(d)(3), the Commission concluded that the ex-

penditure for Wirth Facts #1 only was excessive under

Section 441a(f). See Exhibits 2 and 7.

18. The Commission concluded that the State Commit-

tee’s financial reports had misclassified the payment for

Wirth Facts #1 in violation of Sections 434(b)(4)(H)

(iv) and 434(b)(6)(B) (iv). See Exhibit 7.

19. The Commission voted 3-3 on the issue of whether

there was reason to believe that the other ads violated

2 U.S.C. § 441a(f). See Exhibit 7.

20. 2 U.S.C. § 434(b)(4)(H)(v) states that a political

committee must report “any other disbursements” not

otherwise covered by the reporting provisions of the Act.

The State Party complied with this requirement. See Ex-

hibit 5, Admission 10.

21. Upon being ordered by the Court to explain the basis

for the Commission’s different treatment of Wirth Facts

#1, the best the Commission could offer was the specula-

tion that some members of the Commission perceived an

“electioneering message” in Wirth Facts #1 that they did

not perceive in the other ads or pamphlets. See Exhibit 9.

22. The Commission was unable or unwilling to identify

particular language that conveyed that “electioneering

message” during the discovery process. See Exhibit 9.

23. The Commission is unable to identify any time dur-

ing the entire term of office of Congressman Wirth that

the State Party could have paid for Wirth Facts #1 with-

out risking the charge made in this suit. See Exhibit 9.

24. To avoid further such charges, the State Party has

been forced to refrain from political expression. See Ex-

hibits 2 and 10.

25. Within the limits imposed on it by Section 441a(d)

(3), the State Party regularly makes expenditures in con-

nection with general elections for federal office either

directly or by assigning its expenditure limits to the Na-

tional Republican Congressional Committee or the NRSC

as appropriate. See Exhibit 2.

26. But for those statutory limits, the State Party would

have made greater expenditures in connection with the

1986 general election for U.S. Senator from Colorado,

and wou'd do so in future general elections. See Exhibits

2 and It.

27. The only justification that the Commission has identi-

fied for preventing the State Party from making such

additional expenditures is ‘preventing actual or apparent

corruption of the political process.” See Exhibit 9.

28. There is no evidence that financial expenditures by

the State Party here, or state parties in general, pose any

unique or specific hazards of corruption.

29. There is no evidence that would justify limiting the

amount of such spending.

30. Political action committees and individuals may

election or defe{a}t of candidates in general elections for

federal office.

31. Each of the document. attached hereto are fair and

accurate copies of genuine originals.

Respectfully submitted,

/s’ Jan Witold Baran

JAN WITOLD BARAN

Tuomas W. Kirsy

CarRoL A. LAHAM

Wicey, Rew & FIELDING

1776 K Street, N.W.

Washington, D.C. 20006

(202) 429-7000

Attorneys for the Colorado

Republican Federal Campaign

Committee and Douglas L. Jones,

as Treasurer

Date: May 14, 1990

EXHIBITS

INDEX TO EXHIBITS

DESCRIPTION

Federal Election Commission’s (Plaintiff) Com-

plaint for Declaratory, Injunctive and Other Ap-

propriate Relief, July 5, 1989

Colorado Republican Federal Campaign Com-

mittee and Douglas L. Jones’ (Defendants)

Answer and Counterclaims, August 21, 1989

Plaintiff Federal Election Commission's Reply

to Defendants’ Counterclaim, October 19, 1989

Defendants’ Responses to Plaintiff's First Set of

Discovery Requests, November 29, 1989

Plaintiff Federal Election Commission's Re-

sponse to Defendants’ First Set of Discovery Re-

quests, January 2, 1990

Defendants’ Responses to Plaintiff's Second Set

of Discovery Requests, January 22, 1990

Plaintiff Federal Election Commission's Response

to Defendants’ First Request for the Production

of Documents, February 2, 1990

Defendants’ Supplemental Responses to Plain-

tiff’s Second Set of Discovery Requests, Inter-

rogatory Nos. 6 and 7, April 16, 1989

Plaintiff Federal Election Commission's Supple-

mental Response to Defendants’ First Set of Dis-

covery Requests, April 16, 1990

Affidavit of Bruce Benson

Response of the State Party to the Administra-

tive Complaint, August 15, 1986

Response of the State Party to the General

Counsel’s probable cause brief, December 17,

1987

101

COLORADO MEDIA GROUP INC.

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Ang orpey OOS

Suite 326 . 5670 South Syracuse Circle

Englewood, Colorado 80111

(303) 779-3090

INVOICE

No: 5269

DATE: April 25, 1986

Republican State Central Committee

1275 Tremont Place

Denver, CO 80204

‘ONI dNOUD VIGAW OdVAOTOOD

— 15,000.00

Explanation of Services:

CRFCC Check #1166, 4-2-86 for Radio Buy

Total media placed, per attached report

13,968.61

232.03

129.34

204.25

Radio production, Wirth Facts #1, 4-2-86

Station dubs (30)

65.00

Express mail (dubs to 19 stations)

Misc expenses (delivery, long distance,

— 400.77

(Refund enclosed, CMG Check #1837, $400.77)

THANKS!

mileage expenses)

CREDIT BALANCE: $

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105

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

[Caption Omitted in Printing]

PLAINTIFF FEDERAL ELECTION COMMISSION’S

RESPONSE TO DEFENDANTS’ FIRST SET

OF DISCOVERY REQUESTS

The plaintiff Federal Election Commission (the “Com-

mission” or “FEC”), through its undersigned counsel,

responds to defendants’ first set of discovery requests in

this litigation as follows:

INTERROGATORIES

1. Specify the Commission’s basis for distinguishing

between the advertisements known as Wirth Facts #1

and each of the other advertisements which were the

subject of the complaint filed by M. Buie Seawell and

designated Matter Under Review 2186.

Response. The Commission has made no finding dis-

tinguishing between Wirth Facts #1 and the other adver-

tisements cited in the complaint.

2. Specify each compelling government interest as-

serted by the Commission in support of the constitution-

ality of 2 U.S.C. § 44la(d) and identify by document,

author, title, date, and page number, each source of docu-

mentary evidence relied upon by Plaintiff to evidence

each such interest.

Response. Plaintiff objects to this interrogatory on the

grounds that it seeks disclosure of the mental impressions,

conclusions, opinions, or legal theories of counsel for the

plaintiff. Further, plaintiff objects on the grounds that the

106

interrogatory is vexatious and unduly burdensome, and

calls for presentation and briefing of arguments which are

properly presented in a brief in support of or in opposition

to a Motion for Summary Judgment.

3. Identify by date, state, names of persons involved,

and documentary sources of information any examples of

problems involving corruption by a State party and ex-

plain.

Response. Plaintiff objects to this interrogatory on the

grounds that it is vague, confusing, vexatious, unduly

burdensome, and irksome and seeks discovery of matters

not relevant to the subject matter involved in the pending

action and not reasonably calculated to lead to the dis-

covery of admissible evidence.

4. Identify every instance in the legislative history of

the Federal Election Campaign Act of 1971, as amended

where Congress received evidence of corruption by a State

Party.

Response. Plaintiff objects to this interrogatory on the

grounds that it is vague, confusing, vexatious, unduly

burdensome, and irksome and seeks discovery of matters

not relevant to the subject matter involved in the pending

action and not reasonably calculated to lead to the dis-

covery of admissible evidence. Plaintiff further objects on

the grounds that the subject matter of the discovery re-

quest, the legislative history of the Federal Election Cam-

paign Act, consist

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