Election Law @ Moritz

Election Law Litigation

Christian Civic League of Maine v. Federal Elections Commission

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Detailed Summary

Background

The Christian Civic League of Maine (CCL) is running a radio advertisement in support of the federal Marriage Protection Amendment to the U.S. Constitution, on which the Senate is set to vote on June 5, 2006. In relevant part, the ad states, "Unfortunately, your senators voted against the Marriage Protection Amendment two years ago. Please call Senators Snowe and Collins immediately and urge them to support the Marriage Protection Amendment when it comes to a vote in early June." [1] In anticipation that the Federal Election Commission (FEC) would attempt to take action against CCL upon the airing of the ad, CCL filed a complaint for declaratory and injunctive relief on April 3, 2006, against the FEC in the federal District Court for the District of Columbia. CCL seeks protection from enforcement of the Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), for this advertisement, as well as for similar "grassroots" issue advertisements in the future.

The advertisement by CCL is presumably in violation of FECA § 316(a), [2] which forbids all corporations from making contributions or expenditures for, among other things, "electioneering communications." Because the ad would be broadcast in Maine within 30 days prior to a primary election for a Senator from Maine, clearly identifying a Senatorial candidate, it meets the definition of an "electioneering communication." [3] The Supreme Court upheld § 316 in McConnell v. Federal Election Commission (McConnell), [4] reading into the prohibition the exception announced in Federal Election Commission v. Mass. Citizens for Life (MCFL) [5] for nonprofit corporations engaging in issue advocacy regarding issues in which they have an acute interest (commonly referred to as MCFL organizations). CCL, however, is not seeking the benefit of the MCFL exemption and instead wishes to receive a judicial decree that the content of its radio ad is constitutionally immune from the statutory prohibition on corporate funding.

Procedural Disposition

Concurrently with the complaint, CCL filed a motion for a preliminary injunction. A week later, it filed a motion to consolidate the hearing on the merits with the hearing for the preliminary injunction. This second motion was denied. Senators John McCain and Russell Feingold, and U.S. Representatives Christopher Shays, Martin Meehan, and Tom Allen intervened in opposition to CCL, pursuant to BCRA § 403(b). A three-judge panel of the DC District Court, convened at CCL's request, pursuant to BCRA § 403(a)(1) and 28 U.S.C. § 2284, denied CCL's motion for a preliminary injunction. [6]CCL appealed directly to the U.S. Supreme Court, pursuant to BCRA § 403(a)(3), and moved to expedite the determination of the case, and to consolidate the jurisdictional statement required by § 403(a)(3) with the brief as to the merits. The Supreme Court issued an order denying CCL's motion. [7]

Issues Presented

There are several issues presented in this case. First, it is important to note that, at this point, the question before the Supreme Court is whether to grant CCL's motion for a preliminary injunction. The four elements that the moving party must prove for a preliminary injunction are (1) that the moving party will likely succeed on the merits, (2) that the moving party will suffer irreparable injury if the motion is denied, (3) that the other interested parties will not suffer substantial injury if the injunction is issued, and (4) that the injunction furthers the public interest. [8] The District Court analyzed each of these elements separately, determining that CCL had not satisfied any of them. [9]

Given that the Supreme Court refused to expedite the case, it will probably not confine itself to a ruling specific to the motion for a preliminary injunction. In fact, the motion technically will be moot by the time the Court hears the case, since the primary elections will be over long before then. Thus, the Court will most likely consider the first element that CCL must prove: the likelihood of success on the merits. Since there are few, if any, facts in dispute, this determination will likely decide the case. It is possible that the Supreme Court could further delay its consideration of the merits of the case by disposing of the preliminary injunction appeal summarily-perhaps with a one-line order explaining that it is unnecessary to grant any preliminary relief at the time the appeal comes before the Court-a disposition that would have the effect of sending the case back down to the District Court for a final judgment on the merits, after which the Supreme Court could consider a second appeal.

Success on the Merits

The District Court noted that the First Amendment protects speech, even by a corporation, "at least where that speech is '[a] matter[] of public concern.'" [10]Thus, FECA § 316's restriction must be narrowly tailored to further a compelling government interest. The Supreme Court in McConnell found that most of the BCRA, including the relevant amendment to FECA § 316, satisfied this criterion on its face. [11] However, in Wisconsin Right to Life v. Federal Election Commission (WRTL), [12] the Court restricted that ruling from McConnell to the facial challenge only, leaving the door open for as-applied challenges to BCRA. [13]

The Court concluded in McConnell that the line between free speech and election-related speech susceptible of regulation drawn by Congress in the definition of "electioneering communication" was an appropriate one, even satisfying strict scrutiny. [14] However, an as-applied challenge could change that line somewhat. There is an added layer of complication, in that Congress has included in BCRA an alternative definition of "electioneering communication," in the case that the original definition is found "constitutionally insufficient by final judicial decision." [15] So, if the Court wants to "redraw the line" by striking down the BCRA prohibition on corporate electioneering communications as applied to CCL's particular advertisement, it has several options. If it finds the definition of "electioneering communication" unconstitutional as applied, then it will be presented with the alternative definition, forcing an evaluation thereof. [16] On the other hand, it could strike down the definition in its entirety, restoring FECA § 316 to its pre-BCRA form, and thereby overruling McConnell on this point. [17] Indeed, the Supreme Court could go even further and invalidate the prohibition on corporate funding even with respect to ads that expressly endorse a candidate's election, overruling an earlier precedent upon which McConnell relied. [18]

The other option, interpreting BCRA to include an exception for the type of communications with which CCL is involved, seems to be somewhat less attractive. McConnell did interpret an MCFL exception into BCRA, but it did so on the understanding that MCFL was a fixture in the law, and that Congress had the case in mind when drafting BCRA. [19] By contrast, it is clear that Congress did not want any exceptions to its bright-line, date-determinative definition of "electioneering communication," unless the FEC adopted an exception by regulation. The FEC has created no exception that would protect CCL's ad on the basis of its content.

Since FECA § 316, as amended by BCRA, is a regulation of speech, as the Court recognized in McConnell, the Court will evaluate whether the provision is narrowly tailored to a compelling government interest with respect to CCL's "grassroots lobbying." [20] If the Court is to find the provision unconstitutional as applied to this particular ad, then it must consider where to draw the line between constitutionally-protected corporate political speech and campaign speech susceptible to regulation. CCL is asking the Court to carve out an exception for "grassroots lobbying," the concept of swaying a politician's constituency in order to sway the politician. However, it is not an easy argument to make that during election time this differs much, if at all, from campaign speech. Regardless of CCL's proposed line, the Court will consider whether any line it draws is better than the one that Congress drew in BCRA. In doing this, the Court will also weigh the decisiveness of the line, one of the strong points of BCRA's "electioneering communication" definition.

Even if CCL succeeds in garnering the Supreme Court's support for the "grassroots lobbying" exception to the corporate electioneering communication prohibition, there may be an issue with whether their ad fits exclusively under that definition. This point was brought up during CCL's oral argument. The IRS's definition of grassroots lobbying, quoted in CCL's brief, emphasizes the attempt to influence citizens on a certain issue, [21] and the Court would almost certainly protect this type of speech. However, CCL's ad most definitely seeks also to influence Maine voters' relationships with their senators, one of whom is up for reelection soon.

Possible Narrow Holdings

Since the action is for a declaratory judgment and injunction, CCL must prove that it has standing to bring the suit at all. [22] CCL must allege facts that show it will be injured if the statutory provision is allowed to stand. [23] The District Court ruled that since CCL's director had issued an affidavit that the organization had been promised the requisite funds for the advertisement, and since it is not known whether CCL will fall under the MCFL exception to the prohibition on electioneering communication (see below), then CCL did have standing to bring the suit. [24] If the FEC fails to take any other action against CCL or determines that they are an MCFL organization, then there is a possibility that the Court will dismiss the case for CCL's lack of standing.

Another option for the Court is to hold the prohibition unconstitutional with regard to the specific facts of the case, including the fact that Senator Snowe is running unopposed in the upcoming primary. Thus, the ad is not influencing the outcome of the primary simply by occurring within 30 days prior to it. This might be the easiest option for a deadlocked Court, should that situation arise. If this is the disposition, there would be no revolution in the law, but instead the ruling would create another exception, voiding the prohibition window if the candidate is running unopposed in the election.

MCFL Organization

One final issue with which the Court must deal is whether CCL is a so-called MCFL organization, and so would not be covered by the prohibition in FECA § 316(a). [25] If CCL is an MCFL organization, then the case is moot, because BCRA does not prohibit CCL's advertisements at all, and CCL has no standing to bring an as-applied challenge. [26] CCL claims (and the District Court agreed that this is probably the case, pending an advisory opinion by the FEC [27]) that it is not an MCFL organization, due to its business activities. Since there is no statutory provision that an organization must apply to become an MCFL organization (after all, the classification was created by the Court), and since the FEC has so far made no ruling as to the status of CCL, the Court probably will not rule on this basis at the preliminary injunction stage.

Overruling McConnell

One thing to keep in mind is that the Court has changed substantially since McConnell . Justice O'Connor, who co-authored the majority opinion with regard to FECA § 316, is no longer on the Court, being replaced by Justice Alito. There is a possibility that McConnell could be partially overturned. Justices Scalia, Kennedy, and Thomas all would invalidate the BCRA amendment to FECA § 316, based on their respective dissents in McConnell itself. [28] Thus, if Chief Justice Roberts and Justice Alito were to join them, FECA § 316, as amended by BCRA's addition of "electioneering communications" to the list of prohibited contributions and expenditures, would be held unconstitutional. This is a distinct possibility.

Notes

[1] Christian Civic League of Maine v. Fed. Election Comm'n, No. 06-0614, 2006 WL 1266408, *1 (D.C. DC 2006).

[2] Codified at 2 U.S.C. § 441b(a)

[3] See FECA § 304(f)(3), codified at 2 U.S.C. § 434(f)(3).

[4] McConnell v. Fed. Election Comm'n, 540 U.S. 93, 209 (2003).

[5] Fed. Election Comm'n v. Mass. Citizens for Life, 479 U.S. 238 (1986).

[6] CCL, supra note 1.

[7] Christian Civic League of Maine v. Fed. Election Comm'n , No. 05-1447, 2006 WL 1314282 ( U.S. Sup. Ct. 2006) (mem.).

[8] CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995).

[9] CCL, supra note 1 at *3 (D.C. DC 2006).

[10] Id. at *4 (quoting First Nat'l Bank of Boston v. Bellotti , 435 U.S. 765 (1978)).

[11] McConnell, supra , note 4.

[12] Wis. Right to Life v. Fed. Election Comm'n, 126 S. Ct. 1016 (2006).

[13] The facts in WRTL /em> are remarkably similar to those in CCL . Both cases involve advertisements that ask listeners to call their senators, explicitly naming both senators from the state, one of which is up for election soon. The listeners are instructed to ask their senators to take a certain legislative action. Neither senator is mentioned in any other context.

WRTL has been remanded to the DC District Court, with oral arguments scheduled for Sept. 18, 2006. The Supreme Court may wait to see what the District Court does with that case before ruling on CCL , since the facts are so similar. The cases may be combined before the Supreme Court.

[14] McConnell, supra, note 4 at 208.

[15] FECA § 304(f)(3)(A)(ii), codified at 2 U.S.C. § 434(f)(3)(A)(ii).

[16] The alternative definition eschews the bright-line definition in favor of the standard of a "broadcast, cable, or satellite communication . . . which . . . is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate." CCL's ad does not seem to fall under this rationale-based standard, and, being a more malleable standard, it does not seem susceptible to as-applied attacks in general.

There is an additional issue of interpretation that would be required with respect to the alternative definition. FECA § 304(f)(3)(A)(ii) states that the alternative definition is to be used "[i]f clause (i) is held to be constitutionally insufficient." The Court would then need to determine whether a successful as-applied challenge brings the alternative definition into force in only those situations in which the original definition was struck down, or whether it automatically replaces the original definition wholesale.

[17] This would probably amount to a reversion to the old express/issue advocacy distinction.

[18] Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990).

[19] McConnell, supra note 4 at 211.

[20] Id. at 205.

[21] See 11 C.F.R. § 4911(d)(1)(A).

[22] See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

[23] Id.

[24] CCL, supra note 1.

[25] The Supreme Court described such organizations in MCFL, supra note 5, and the FEC has attempted to characterize them as a subset of 501(c)(4) organizations defined in 11 C.F.R. § 114.10.

[26] See McConnell , supra note 4 at 211.

[27] CCL, supra note 1.

[28] McConnell, supra note 4 at 274 (Thomas, J., dissenting), 323 (Kennedy, J., dissenting).