98-4166. Definition of ``Express Advocacy''

[Federal Register Volume 63, Number 33 (Thursday, February 19, 1998)]
[Proposed Rules]
[Pages 8363-8364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4166]


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FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 1998-6]


Definition of ``Express Advocacy''

AGENCY: Federal Election Commission.

ACTION: Notice of disposition of petition for rulemaking.

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SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking filed on October 20, 1997 by James Bopp, Jr., on behalf of 
the James Madison Center for Free Speech. The petition urged the 
Commission to revise its definition of ``express advocacy'' to reflect 
a recent U.S. Circuit Court of Appeals Decision. The Commission has 
decided not to initiate a rulemaking in response to this Petition.

DATES: February 12, 1998.

FOR FURTHER INFORMATION CONTACT: Ms. Susan E. Propper, Assistant 
General Counsel, or Ms. Rita A. Reimer, Attorney, 999 E Street, N.W., 
Washington, D.C. 20463, [phone] or [phone].

SUPPLEMENTARY INFORMATION: On October 20, 1997, the Commission received 
a Petition for Rulemaking from James Bopp, Jr., on behalf of the James 
Madison Center for Free Speech. The Petition urged the Commission to 
revise the definition of ``express advocacy'' set forth at 11 CFR 
100.22 to reflect the decision in Maine Right to Life Committee v. FEC, 
914 F.Supp. 8 (D.Me. 1995), aff'd per curiam, 98 F.3d 1 (1st Cir. 
1996), cert. denied, 118 S.Ct. 52 (1997). Specifically, the Petition 
urges repeal of 11 CFR 100.22(b), which was held invalid in that case. 
The challenged paragraph defines ``express advocacy'' to include 
communications in which the electoral portion is ``unmistakable, 
unambiguous, and suggestive of only one meaning, and reasonable minds 
could not differ as to whether it encourages actions to elect or defeat 
one or more clearly identified candidate(s) or encourages some other 
kind of action.''
    The Fourth Circuit reached a similar conclusion in FEC v. Christian 
Action Network (``CAN''), 92 F.3d 1178 (4th Cir. 1997). However, the 
Ninth Circuit earlier reached a contrary result in FEC v. Furgatch, 807 
F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 (1987), the decision on 
which 11 CFR 100.22(b) is largely based. Thus there is a conflict among 
the circuits on this issue.
    The Commission published a Notice of Availability on the Petition 
on November 6, 1997, 62 FR 60047. In response, the Commission received 
comments from American Target Advertising, Inc.; the Brennan Center for 
Justice; Common Cause; Alan Dye, of Webster, Chamberlain & Bean; the 
Attorney General for the State of Hawaii; the Attorney General for the 
State of Iowa; the Attorney General for the Commonwealth of Kentucky; 
U.S. Senator Carl Levin; the National Voting Rights Institute; the 
Attorney General for the State of New Mexico; the Attorney General for 
the State of Oklahoma; the Republican National Committee; and the State 
of Vermont. After reviewing these comments and other information, the 
Commission has decided not to open a rulemaking in response to this 
Petition.
    First, the Supreme Court has repeatedly admonished ``that denial of 
a petition for certiorari imports nothing as to the merits of a lower 
court decision.'' Griffin v. United States, 336 U.S. 704, 716 (1949), 
reh. denied, 337 U.S. 921. This is especially true where, as here, the 
Court has declined to review decisions from different circuits that 
reach different results on the same question.
    Consistent with this reasoning, while Supreme Court decisions are 
binding nationwide, the rule of stare decisis requires only that a 
decision by a circuit court of appeals be followed within the circuit 
in which it is issued. Since government agencies typically operate 
nationwide, it is not unusual for an agency to find that different 
courts have interpreted its statutes or rules in different ways.
    The Supreme Court has recognized that, when confronted with this 
situation, an agency is free to adhere to its preferred interpretation 
in all circuits that have not rejected that interpretation. It is 
collaterally estopped only from raising the same claim against the same 
party in any location, or from continuing to pursue the issue against 
any party in a circuit that has already rejected the agency's 
interpretation.

[[Page 8364]]

United States v. Mendoza, 464 U.S. 154 (1984). Indeed, the Mendoza 
Court encouraged agencies to seek reviews in other circuits if they 
disagree with one circuit's view of the law, since to allow ``only one 
final adjudication would deprive this Court of the benefit it receives 
from permitting several courts of appeals to explore a difficult 
question before this Court grants certiorari.'' Id. at 160 (citations 
omitted). Thus, Petitioner's assertion that the Commission's action in 
declining to follow one Circuit Court's decision nationwide is 
``unprecedented'' is incorrect. Rather, it is the norm.
    However, the primary reason for the Commission's decision not to 
open a rulemaking in response to this Petition is its continued belief 
that the definition of ``express advocacy'' found at 11 CFR 100.22(b) 
is constitutional. A communication that is ``unmistakable, unambiguous, 
and suggestive of only one meaning,'' where ``reasonable minds could 
not differ as to whether it encourages actions to elect or defeat one 
or more clearly identified candidate(s) or encourages some other kind 
of action'' can be read consistently with both Buckley v. Valeo, 424 
U.S. 1 (1976), and FEC v. Massachusetts Citizens for Life, 238, 249 
(1986) (``MCFL'').
    While the Buckley Court gave specific examples of words it found to 
convey express advocacy, it made clear that the list was not 
exhaustive. Buckley, 424 U.S. at 44 n.52. Further, in discussing the 
reporting requirements triggered by independent expenditures made to 
fund ``express advocacy'' communications, the Court noted that this 
portion of the Federal Election Campaign Act, 2 U.S.C. 434(c), reaches 
``only funds that expressly advocate the election or defeat of a 
clearly identified candidate,'' adding that ``[t]his reading is 
directed precisely to that spending that is unambiguously related to 
the campaign of a particular federal candidate.'' Id. at 80 (footnote 
omitted). In MCFL, the Court held that materials that were ``marginally 
less direct than `Vote for Smith' '' were, nevertheless, express 
candidate advocacy, even though the materials themselves stated that 
they were not endorsing particular candidates. MCFL, 479 U.S. at 249. 
One commenter, who believes that Furgatch correctly held that a ``short 
list of words * * * does not exhaust the capacity of the English 
language'' to advocate the election or defeat of a candidate, 807 F.2d 
at 863, noted that, under the change proposed by the Petitioner, ``only 
those who lacked the minimal wherewithal to choose some words other 
than `vote for' or the like would be subject to the regulation.''
    In sum, both because it is well settled that a decision by one 
Circuit Court of Appeals is not binding in other circuits, and because 
the Commission believes the challenged regulation is constitutional, 
the Commission has decided not to open a rulemaking in response to this 
Petition.
    Therefore, at its open meeting of February 12, 1998, the Commission 
voted not to initiate a rulemaking to revise the Commission's 
definition of express advocacy found at 11 CFR 100.22. Copies of the 
General Counsel's recommendation on which the Commission's decision is 
based are available for public inspection and copying in the 
Commission's Public Records Office, 999 E Street, N.W., Washington, 
D.C. 20463, [phone] or toll-free [phone]. Interested 
persons may also obtain a copy by dialing the Commission's FAXLINE 
service at [phone] and following its instructions. Request 
document
# 232.

    Dated: February 13, 1998.
Joan D. Aikens,
Chairman, Federal Election Commission.
[FR Doc. 98-4166 Filed 2-18-98; 8:45 am]
BILLING CODE 6715-01-P