Virginia Commercial Litigation With The FEC

Virginia Society For Human Life, Inc. v. FEC

On September 17, 2001, the U.S. Court of Appeals for the Fourth Circuit upheld a district court decision that 11 CFR 100.22(b) is unconstitutional. The regulation defines “express advocacy” as a communication that, when taken as a whole and with limited reference to external events (such as proximity to an election), can only be interpreted by a reasonable person as unambiguously advocating the election or defeat of a clearly identified candidate.1

The appeals court, however, found that the district court's injunction, which prohibited the FEC from enforcing the regulation against any party throughout the country, was too broad. Instead, the appeals court limited the injunction to bar the FEC from enforcing the regulation against the Virginia Society for Human Life, Inc. (VSHL). The appeals court also rejected the VSHL's cross-appeal, which asked the court to require the FEC to repeal the regulation. The appeals court found that ruling 11 CFR 100.22(b) unconstitutional and barring the FEC from enforcing the regulation against Plaintiffs gave the VSHL complete relief.

Background The VSHL is a nonprofit, tax-exempt membership corporation, which accepts corporate contributions. The group had planned to distribute voter guides to the general public in connection with the 2000 federal election cycle. The guides outlined the VSHL's stance on abortion-related issues and tabulated candidates' positions on these issues. The VSHL also planned to produce radio advertisements that would compare the positions of the candidates for President and U.S. Senator for Virginia on abortion-related issues. The VSHL planned to run these ads in Northern Virginia or the District of Columbia one week before the election.

On January 6, 1999, the VSHL submitted a petition for rulemaking to the FEC, requesting that it repeal 11 CFR 100.22(b). The VSHL argued that the definition of “express advocacy” was overly broad, and, thus, some of its planned activities might constitute prohibited corporate expenditures. See 2 U.S.C. §441b. The Commission did not vote to open a rulemaking. On August 9, 1999, the VSHL asked the U.S. District Court for the Eastern District of Virginia, Richmond Division, to require the FEC to act on its petition and to prohibit the Commission from enforcing 11 CFR 100.22(b).

District Court Decision On January 4, 2000, the district court issued an injunction prohibiting the FEC from enforcing 11 CFR 100.22(b) “against the VSHL or against any other party in the United States of America.” Relying on Buckley v. Valeo, the district court concluded that the regulation at 100.22(b) was unconstitutional. The district court said that the Buckley court defined express advocacy as “communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” The court found that by allowing the FEC to regulate advocacy based upon the understanding of the audience rather than the actual message of the advocate, the regulation at 100.22(b) failed the Buckley test. Moreover, the district court concluded, the regulation empowered the FEC to regulate issue advocacy, which was “clearly forbidden by Buckley.”