# Joint Appendix — Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0654%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1996 - **Citation:** 518 U.S. 604 ## Text 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 2 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 3 — —— ——————————_—_ 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 4 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 5 ———— DATE PROCEEDINGS 7/6/90 7/6/90 7/6/90 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 11/8/93 11/8/98 9/15/95 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) 7 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 11/10/93 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 9 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] —- 10 DATE ‘PROCEEDINGS 12/12/94 12/13/94 6/23/95 8/7/95 8/7/95 8/11/95 8/21/95 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] 1] 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] 12 DATE PROCEEDINGS 11/1/93 11/5/98 11/5/98 11/8/93 11/9/98 11/10/93 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 12/27/93 1/19/94 13 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 14 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] 15 PROCEEDINGS 8/7/95 8/7/95 8/11/95 8/21/95 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] 16 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] 17 UNITED STATES DISTRICT COURT D. COLORADO Civ. A. No. 89 N 1159 FEDERAL ELECTION COMMISSION, Plaintiff, v. 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). 18 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. 19 (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 20 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 21 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- 22 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. 23 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- 24 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 25 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. 26 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. 27 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- 28 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, 29 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 30 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). 31 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. 32 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. 33 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. 34 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. I 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). A 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 35 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. 36 § 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). 37 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 } 38 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. 39 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). 40 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 41 § 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. Cc 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. 42 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). 43 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 : s E ad an electioneering message, without regard to whether that message constitutes express advocacy. D 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 (C) the identity of the candidate is apparent by unambigu- 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. 45 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- 46 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. II 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 47 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. 48 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. 49 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. 50 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 51 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 52 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 53 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, 54 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 ' it 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. 56 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 ; Ht Ls : 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 a8 J i = ; 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). 59 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 60 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 61 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. 62 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. 63 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 64 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 66 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). 67 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. 68 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 71 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 7 , | : with 2 US.C. § 437g(a)(4)(B) and § 437g(a)(12) 72 (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 73 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 : if 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 : 1 brochures and the text of the radio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0654%3A05. Public record. Not legal advice.