FEC v. Christian Action Network , 110 F.3d 1049 ( 1997 )


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  •                                                 Filed:   May 5, 1997
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 95-2600
    (CA-94-82-L)
    Federal Election Commission,
    Plaintiff - Appellant,
    versus
    Christian Action Network, Inc., et al,
    Defendants - Appellees.
    O R D E R
    The Court amends its opinion filed April 7, 1997, as follows:
    On page 8, first paragraph, line 4 -- "Brief for Respondent in
    Opposition" is corrected to read "Brief in Opposition."
    On page 13, second full paragraph, line 5 -- the parenthetical
    ("Opp. Mem.") after the word "Fees" is deleted.
    On page 15, first paragraph, lines 4-5 -- the lines are
    changed to read ". . . Appellant's Opposition to Fees at 8, and
    upon the timing of the communication, see 
    id. at 10
    . . . ."
    On page 17, first paragraph, line 1 after indented quotation
    -- "Opp. Mem." is changed to read "Appellant's Opposition to Fees."
    - 2 -
    On page 28, footnote 13, line 1 -- the spelling is corrected
    in "sleight-of-hand."
    On page 29, first full paragraph, line 10 -- "FEC's Opposition
    to Certiorari" is changed to read "FEC Opposition to Certiorari."
    On page 30, first full paragraph, line 25 -- "Opp. Mem." is
    changed to read "Appellant's Opposition to Fees."
    For the Court - By Direction
    /s/ Patricia S. Connor
    Clerk
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    FEDERAL ELECTION COMMISSION,
    Plaintiff-Appellant,
    v.
    CHRISTIAN ACTION NETWORK,
    INCORPORATED; MARTIN MAWYER,
    No. 95-2600
    Defendants-Appellees.
    DEMOCRATIC NATIONAL COMMITTEE;
    AMERICAN CIVIL LIBERTIES UNION OF
    VIRGINIA,
    Amici Curiae.
    Appeal from the United States District Court
    for the Western District of Virginia, at Lynchburg.
    James C. Turk, District Judge.
    (CA-94-82-L)
    Submitted: November 29, 1996
    Decided: April 7, 1997
    Before RUSSELL and LUTTIG, Circuit Judges, and
    CHAPMAN, Senior Circuit Judge.
    _________________________________________________________________
    Fees and other expenses awarded and case remanded by published
    opinion. Judge Luttig wrote the opinion, in which Judge Russell and
    Senior Judge Chapman joined.
    _________________________________________________________________
    COUNSEL
    Lawrence M. Noble, General Counsel, Richard B. Bader, Associate
    General Counsel, David Brett Kolker, FEDERAL ELECTION COM-
    MISSION, Washington, D.C., for Appellant. David William T. Car-
    roll, II, Columbus, Ohio; Frank M. Northam, WEBSTER,
    CHAMBERLAIN & BEAN, Washington, D.C., for Appellees. Ste-
    phen B. Pershing, Legal Director, AMERICAN CIVIL LIBERTIES
    UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for
    Amicus Curiae ACLU. Joseph E. Sandler, General Counsel, DEMO-
    CRATIC NATIONAL COMMITTEE, Washington, D.C.; Donald B.
    Verrilli, Paul M. Smith, Washington, D.C.; Daniel H. Bromberg,
    Washington, D.C., for Amicus Curiae Committee.
    _________________________________________________________________
    OPINION
    LUTTIG, Circuit Judge:
    The Supreme Court of the United States held in Buckley v. Valeo,
    
    424 U.S. 1
    (1976), and reaffirmed in FEC v. Massachusetts Citizens
    For Life, Inc., 
    479 U.S. 238
    (1986), that corporate expenditures for
    political communications violate 2 U.S.C. § 441b(a) only if the com-
    munications employ "explicit words," "express words," or "language"
    advocating the election or defeat of a specifically identified candidate
    for public office. In the underlying litigation, the Federal Election
    Commission advanced the position that the Christian Action Network
    violated section 441b(a) through corporate expenditures for a com-
    mercial in which the following text was read by a narrator:
    Bill Clinton's vision for America includes job quotas for
    homosexuals, giving homosexuals special civil rights,
    allowing homosexuals in the armed forces. Al Gore supports
    homosexual couples' adopting children and becoming foster
    parents. Is this your vision for a better America? For more
    information on traditional family values, contact the Chris-
    tian Action Network.
    Although conceding that the Christian Action Network's advertise-
    ments did not employ "explicit words," "express words," or "lan-
    guage" advocating the election or defeat of a particular candidate for
    public office, the FEC nonetheless contended that the Network's
    expenditures for these advertisements violated section 441b(a)
    2
    because the advertisements "unmistakably""expressly advocated" the
    defeat of then-Governor Clinton in the presidential election of 1992,
    through the superimposition of selected imagery, film footage, and
    music, over the nonprescriptive background language.
    On the authority of Buckley v. Valeo and FEC v. Massachusetts
    Citizens For Life ("MCFL"), the district court dismissed the FEC's
    action against the Network for failure to state a claim upon which
    relief could be granted, holding that, as "issue advocacy intended to
    inform the public about political issues germane to the 1992 presiden-
    tial election," the advertisements were "fully protected as `political
    speech' under the First Amendment." Federal Election Commission
    v. Christian Action Network, 
    894 F. Supp. 946
    , 948 (W.D. Va. 1995).
    In so holding, the district court refused the FEC's invitation to exam-
    ine the "meaning behind the images" which appear in the Network's
    television commercial.1 
    Id. at 958.
    We, in turn, summarily affirmed
    on the reasoning of the district court, characterizing the interpretation
    advanced by the Commission as "unsupportable." Federal Election
    Commission v. Christian Action Network, 
    92 F.3d 1178
    , 
    1996 WL 431996
    (4th Cir. 1996) (per curiam) (adopting district court 
    opinion, 894 F. Supp. at 959
    ). Before us now is a request by the Network, pur-
    suant to the Equal Access to Justice Act, 28 U.S.C. § 2412, for fees
    and costs incurred in connection with the FEC's prosecution and
    appeal of this matter. Because the position taken by the FEC in this
    litigation was foreclosed by clear, well-established Supreme Court
    caselaw, and it is apparent from the Commission's selective quotation
    from and citation to those authorities that the agency was so aware,
    _________________________________________________________________
    1 The FEC argues that the district court accepted the Commission's the-
    ory that "imagery" can constitute "express advocacy," but merely
    rejected the agency's specific contention in this case that the imagery in
    the video expressly advocated the defeat of Governor Clinton. See
    Appellant's Br. at 9; Opposition to Defendant-Appellee's Application for
    Fees at 4. This is simply incorrect. While one sentence in the district
    court's opinion, if read in isolation, would permit such a reading, 
    see 894 F. Supp. at 948
    ("The advertisements at issue do not contain explicit
    words or imagery advocating electoral action."), the district court repeat-
    edly emphasized that it "[could not] accept the FEC's invitation to delve
    into the meaning behind the image. To expand the express advocacy
    standard enunciated in Buckley in this manner would be to render the
    standard meaningless," see 
    id. at 958.
    3
    we conclude that the Commission's position, if not assumed in bad
    faith, was at least not "substantially justified" within the meaning of
    28 U.S.C. § 2412(d)(1)(A), and therefore that the Christian Action
    Network is entitled to the requested fees and costs under the Equal
    Access to Justice Act.2
    I.
    A.
    In Buckley v. Valeo, in order to eliminate what otherwise would
    have been the unconstitutional overbreadth of the Federal Election
    Campaign Act of 1971, as amended in 1974, the Supreme Court inter-
    preted the statutory phrase "relative to," see 18 U.S.C. § 608(e)(1)
    (repealed in 1976),3 so that the section would only prohibit corporate
    expenditures for "express advocacy" -- "communications that include
    explicit words of advocacy of election or defeat of a candidate," 
    id. at 43
    (emphasis added), or "communications containing express
    words of advocacy of election or defeat," 
    id. at 44
    n.52 (emphasis
    added). See also 
    id. at 80
    n.108. That is, the Court held that the Fed-
    eral Election Campaign Act could be applied consistently with the
    First Amendment only if it were limited to expenditures for communi-
    cations that literally include words which in and of themselves advo-
    cate the election or defeat of a candidate. The Court even provided an
    illustrative list of the kinds of "express words of advocacy" the use
    of which in corporately-funded communications could violate section
    608(e)(1):
    _________________________________________________________________
    2 Because disposition of the merits of Christian Action Network's
    motion for fees and expenses (as opposed to the amounts of such fees
    and expenses awardable) entails a simple, straightforward application of
    clear principles of law announced by the Supreme Court, and the district
    court's view of the FEC's position is evident in the court's thorough
    opinion, we are satisfied that, in this particular case, the merits of the
    motion are most appropriately resolved in this forum in the interest of
    judicial economy.
    3 Section 608(e)(1) provided in relevant part that "no person may make
    any expenditure . . . relative to a clearly identified candidate during a cal-
    endar year which, when added to all other expenditures made by such
    person during the year advocating the election or defeat of such candi-
    date, exceeds $1,000."
    4
    This construction [of section 608(e)(1)] would restrict the
    application of [the provision] to communications 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. at 44
    n.52.
    The Court adopted the bright-line limitation that it did in Buckley
    in order to protect our cherished right to political speech free from
    government censorship. Recognizing that "the distinction between
    discussions of issues and candidates [on the one hand] and advocacy
    of election or defeat of candidates [on the other] may often dissolve
    in practical application," 
    id. at 42,
    the Court concluded, plain and sim-
    ple, that absent the bright-line limitation, the distinction between issue
    discussion (in the context of electoral politics) and candidate advo-
    cacy would be sufficiently indistinct that the right of citizens to
    engage in the vigorous discussion of issues of public interest without
    fear of official reprisal would be intolerably chilled. Thus, the Court
    reasoned:
    [W]hether words intended and designed to fall short of invi-
    tation would miss that mark is a question both of intent and
    of effect. No speaker, in such circumstances, safely could
    assume that anything he might say upon the general subject
    would not be understood by some as an invitation. In short,
    the supposedly 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 consequently of whatever
    inference may be drawn as 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.
    
    Id. at 43
    (quoting Thomas v. Collins, 
    323 U.S. 516
    , 535 (1945)). The
    Court opted for the clear, categorical limitation, that only expendi-
    tures for communications using explicit words of candidate advocacy
    are prohibited, so that citizen participants in the political processes
    5
    would not have their core First Amendment rights to political speech
    burdened by apprehensions that their advocacy of issues might later
    be interpreted by the government as, instead, advocacy of election
    result. See Buckley at 43 ("The constitutional deficiencies described
    in Thomas v. Collins can be avoided only by reading § 608(e)(1) as
    limited to communications that include explicit words of advocacy of
    election or defeat of a candidate.") (emphasis added). The Court could
    have drawn the line between permissible and impermissible expendi-
    tures differently, but a different line would have come at the cost of
    expanded regulatory authority in a sphere where government regula-
    tion, if it is to be permitted at all, must be viewed with the utmost sus-
    picion -- a cost the Court had no difficulty concluding was too high
    for the incremental additional "benefits" that would be obtained by
    vesting broader power in the government, and in particular in the
    FEC.
    The Court's commitment to a limited role for the government in
    the regulation of corporate political expenditures, and specifically its
    commitment to an interpretation of the Constitution that permits the
    prohibition only of corporate political communications that employ
    express words of advocacy, was reaffirmed a full decade after
    Buckley, in MCFL. There, the Court interpreted section 441b of the
    Federal Election Campaign Act, 2 U.S.C. § 441b(a), "the more intru-
    sive provision" of the Act, see 
    MCFL, 479 U.S. at 249
    , which prohib-
    its corporations from using treasury funds to make any "contribution
    or expenditure in connection with" any federal election. Observing
    that Buckley's rationale, that the divide between discussion of issues
    and candidates and election advocacy is so obscure as to require a
    prophylactic definition in order to give the widest berth to First
    Amendment freedoms, was equally applicable to expenditures under
    section 441b(a), the Court unanimously engrafted onto section
    441b(a) Buckley's "express advocacy" limitation. Citing to footnote
    52 in Buckley, the Court reiterated its holding that "a finding of
    `express advocacy' depend[s] upon the use of language such as `vote
    for,' `elect,' `support,' etc." 
    Id. (quoting Buckley,
    424 U.S. at 44 n.52)
    (emphasis added). And, consistent with its reaffirmation of Buckley's
    "explicit words of advocacy" standard, the Court concluded that
    "[j]ust such an exhortation" appeared in the voter guides at issue in
    that case, which identified particular pro-life candidates by name and
    6
    with photographs and urged voters to vote for those candidates
    through the "explicit directive" "VOTE PRO-LIFE." 
    Id. at 243,
    249.
    That the Court in Buckley and MCFL unambiguously limited the
    Federal Election Commission's regulatory authority over corporate
    expenditures to those for communications that use explicit words of
    advocacy has been uniformly recognized by the lower courts.
    In one of the first appellate cases following Buckley, the Second
    Circuit flatly rejected the FEC's definition of"express advocacy."
    FEC v. Central Long Island Tax Reform Immediately Committee, 
    616 F.2d 45
    (2nd Cir. 1980) (en banc) ("CLITRIM"). The Second Circuit
    found the FEC's position, which, like that urged by the FEC in this
    case, would have allowed the FEC to regulate "implied" communica-
    tions that "encourag[ed]" election or defeat, to be "totally meritless."
    
    Id. at 53.
    Admonishing that the Supreme Court's interpretations of
    sections 434(e) and 441d "clearly establish that, contrary to the posi-
    tion of the FEC, the words `expressly advocating' mean exactly what
    they say," the court warned that the FEC's position would effectively
    "nullify" the Supreme Court's decision in Buckley. 
    Id. Seven years
    later, and less than a month following the Court's deci-
    sion in MCFL, the Ninth Circuit in FEC v. Furgatch, 
    807 F.2d 857
    (9th Cir.), cert. denied, 
    484 U.S. 850
    (1987), could not have been
    clearer that it, too, shared this understanding of the Court's decision
    in Buckley.4 Although the court declined to "strictly limit" express
    advocacy to the "magic words" of Buckley's footnote 52 because that
    footnote's list does "not exhaust the capacity of the English language
    to expressly advocate election or defeat of a candidate," 
    id. at 862-63,
    _________________________________________________________________
    4 Curiously, the Ninth Circuit never cited or discussed the Supreme
    Court's opinion in MCFL, notwithstanding that MCFL was argued in the
    Supreme Court three months prior to the decision in Furgatch and
    decided by the Court almost a month prior to the Court of Appeals' deci-
    sion. The Ninth Circuit does discuss the First Circuit's opinion in MCFL,
    but without noting that certiorari had been granted to review the case.
    
    See 807 F.2d at 861
    . Thus, the Furgatch court relied upon Buckley alone,
    without the reaffirmation provided by the Court in MCFL, for its conclu-
    sion that explicit "words" or "language" of advocacy are required if the
    Federal Election Campaign Act is to be constitutionally enforced.
    7
    the entire premise of the court's analysis was that words of advocacy
    such as those recited in footnote 52 were required to support Commis-
    sion jurisdiction over a given corporate expenditure. See, e.g., FEC
    Brief in Opposition to Certiorari in Furgatch at 4
    (explaining that the Ninth Circuit's opinion "emphasize[s] that the
    statute was narrowly limited to communications containing language
    `susceptible of no other reasonable interpretation but as an exhorta-
    tion to vote for or against a specific candidate.'" (emphasis added)).
    In fact, it is only because the court believed that the word combina-
    tions that could constitute express advocacy were many that it
    rejected the suggestion that "the `express advocacy' language of
    Buckley . . . [drew] a bright and unambiguous line," 
    Furgatch, 807 F.2d at 861
    .
    The court explained that individual words or sentences of the mes-
    sage cannot be considered in isolation, but, rather, must be considered
    together with the other words and sentences that appear in the com-
    munication, in determining whether the message is one of election
    advocacy:
    A proper understanding of the speaker's message can best
    be obtained by considering speech as a whole. Comprehen-
    sion often requires inferences from the relation of one part
    of speech to another. The entirety may give a clear impres-
    sion that is never succinctly stated in a single phrase or sen-
    tence. Similarly, a stray comment viewed in isolation may
    suggest an idea that is only peripheral to the primary pur-
    pose of speech as a whole. Furgatch would have us reject
    intra-textual interpretation and construe each part of speech
    independently, requiring express advocacy from specific
    phrases rather than from speech in its entirety.
    We reject the suggestion that we isolate each sentence and
    act as if it bears no relation to its neighbors. This is not to
    say that we will not examine each sentence in an effort to
    understand the whole. We only recognize that the whole
    consists of its parts in relation to each other.
    
    Id. at 863.
    Then, although noting how "[w]ords derive their meaning
    from what the speaker intends and what the reader understands," the
    8
    court declined to place too much importance on intent because "to
    fathom [the speaker's] mental state would distract [the court] unnec-
    essarily from the speech itself." 
    Id. And, finally,
    although the court
    refused to foreclose resort to contextual considerations external to the
    words themselves, it explained that external context must necessarily
    be an "ancillary" consideration because it is "peripheral to the words
    themselves," 
    id., and it
    pointedly noted that such "context cannot sup-
    ply a meaning that is incompatible with, or simply unrelated to, the
    clear import of the words," 
    id. at 864.
    Having established that the emphasis must always be on the literal
    words of the communication, with little if any weight accorded exter-
    nal contextual factors, the court proceeded to outline what it consid-
    ered to be "a more comprehensive approach to the delimitation of
    `express advocacy.'" 
    Id. at 862.
    In so doing, the court repeatedly
    emphasized that the message of candidate advocacy must appear in
    the speech, in the words, of the communication if the expenditure of
    corporate funds for that communication is to be prohibited:
    We conclude that speech need not include any of the words
    listed in Buckley to be express advocacy under the Act, but
    it [the speech] must, when read as a whole, and with limited
    reference to external events, be susceptible of no other rea-
    sonable interpretation but as an exhortation to vote for or
    against a specific candidate.
    
    Id. at 864
    (emphases added). The court's almost exclusive focus on
    "speech," and specifically "speech" defined as the literal words or text
    of the communication, could not have been any clearer, as the follow-
    ing passage in explanation of its conclusion confirms:
    This standard can be broken into three main components.
    First, even if it is not presented in the clearest, most explicit
    language, speech is "express" for present purposes if its
    message is unmistakable and unambiguous, suggestive of
    only one plausible meaning. Second, speech may only be
    termed "advocacy" if it presents a clear plea for action, and
    thus speech that is merely informative is not covered by the
    Act. Finally, it must be clear what action is advocated.
    Speech cannot be "express advocacy of the election or
    9
    defeat of a clearly identified candidate" when reasonable
    minds could differ as to whether it encourages a vote for or
    against a candidate or encourages the reader to take some
    other kind of action.
    We emphasize that if any reasonable alternative reading of
    speech can be suggested, it cannot be express advocacy sub-
    ject to the Act's disclosure requirements.
    
    Id. (emphases added).5
    Indeed, the simple holding of Furgatch was that, in those instances
    where political communications do include an explicit directive to
    voters to take some course of action, but that course of action is
    unclear, "context" -- including the timing of the communication in
    relation to the events of the day -- may be considered in determining
    whether the action urged is the election or defeat of a particular candi-
    date for public office. See 
    id. at 865
    ("We hold . . . that this failure
    to state with specificity the action required does not remove political
    speech from the coverage of the Campaign Act when it is clearly the
    kind of advocacy of the defeat of an identified candidate that Con-
    _________________________________________________________________
    5 Contrary to its assertions, the Commission's regulatory definition of
    "express advocacy" does not parallel this test. According to the FEC:
    [l]ike the first prong in Furgatch, the Commission's regulation
    requires the "electoral portion of the communication [to be]
    unmistakable, unambiguous, and suggestive of only one mean-
    ing" (11 C.F.R. § 100.22(b)(1)). Like the second and third
    prongs, the Commission's regulation requires that"[r]easonable
    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" (11 C.F.R.
    § 100.22(b)(2)).
    Appellant's Reply Br. at 9 (footnote omitted). It is plain that the FEC has
    simply selected certain words and phrases from Furgatch that give the
    FEC the broadest possible authority to regulate political speech (i.e., "un-
    mistakable," "unambiguous," "suggestive of only one meaning," "encour-
    
    age[ment]", 807 F.2d at 864
    ), and ignored those portions of Furgatch,
    quoted above, which focus on the words and text of the message.
    10
    gress intended to regulate."). As the FEC described Furgatch in
    opposing a grant of certiorari in that case:
    The court of appeals' assessment of Mr. Furgatch's adver-
    tisement under [the "express advocacy"] standard turns upon
    the particular facts of this case, and thus does not necessar-
    ily indicate how courts will assess other communications in
    other circumstances. Such a fact-dependent determination
    does not warrant plenary review by this Court, particularly
    since the Court discussed the proper application of the
    express advocacy standard only last Term in FEC v.
    Massachusetts Citizens for Life, 
    Inc., 107 S. Ct. at 623
    , and
    applied it in a manner consistent with that of the court of
    appeals in this case.
    FEC Opposition to Certiorari in Furgatch at 7.
    In emphasis of the language of the communication, the court's
    analysis focused on the words of the advertisement at issue in the
    case, "DON'T LET HIM DO IT," and, specifically, on the words
    "DON'T LET HIM." 
    Furgatch, 807 F.2d at 864
    ; see also FEC Oppo-
    sition to Certiorari in Furgatch at 4 ("The court found that the
    language of Mr. Furgatch's advertisement left`no doubt that the ad
    asks the public to vote against Carter.'" (emphasis added)). The court
    characterized these words as "simple and direct" words of "com-
    mand," which "`expressly advocate[d]' action of some kind."
    
    Furgatch, 807 F.2d at 864
    . Although acknowledging that whether the
    words constituted express advocacy was a "very close call," 
    id. at 861,
    the court ultimately held that "[r]easonable minds could not dis-
    pute that [the] advertisement urged readers to vote against Jimmy
    Carter . . . [because] [t]his was the only action open to those who
    would not `let him do it,'" 
    id. at 865
    . It noted the fact that the adver-
    tisement appeared one week before the 1980 presidential election;
    however, the court explained, that fact only served to "reinforce" its
    determination based upon the language of the advertisement. Id.6
    _________________________________________________________________
    6 The Ninth Circuit did use other, "soft" language when describing the
    framework within which the express advocacy determination is to be
    made. For example, the court stated broadly that it "must read section
    11
    Bridging the decade between Furgatch and today, the First Circuit,
    in Maine Right to Life Committee v. FEC, recently even invalidated
    that portion of the FEC's new regulatory definition of "express advo-
    cacy" which, in substance, is the definition the FEC urged upon us.7
    And, it did so on the authority of Buckley and MCFL -- indeed, in
    express reliance upon the very district court opinion that we affirmed
    in the litigation underlying the present application. See 
    98 F.3d 1
    (1st
    Cir. 1996) (affirming per curiam "for substantially the reasons set
    forth" by the district court in 
    914 F. Supp. 8
    (D. Maine 1996))
    _________________________________________________________________
    434(c) so as to prevent speech that is clearly intended to affect the out-
    come of a federal election from escaping, either fortuitously or by
    design, the coverage of the Act," 
    id. at 862.
    Under the facts of the case,
    these broader observations were obviously dicta. As the FEC said in
    opposing certiorari in Furgatch:
    [Petitioner Furgatch] takes issue with a number of the lower
    court's general statements regarding law and policy, taken out of
    their context in a lengthy and discursive opinion. . . . Petitioner's
    disagreements with the Ninth Circuit's general discussion of
    express advocacy provide no basis for granting plenary review.
    See FEC Opposition to Certiorari at 9 (emphases added). But, to the
    extent that they do represent an intentional departure by the Ninth Circuit
    from the standard set forth by the Supreme Court in Buckley and MCFL,
    they were just that.
    7 In relevant part, the FEC's new regulatory definition of "express
    advocacy," which became effective October 5, 1995, provides,
    Expressly advocating means any communication that . . .
    (b) When taken as a whole and with limited reference to exter-
    nal events, such as the proximity to the election, could only be
    interpreted by a reasonable person as containing advocacy of the
    election or defeat of one or more clearly identified candidate(s)
    because --
    (1) The electoral portion of the communication is unmistak-
    able, unambiguous, and suggestive of only one meaning; and
    (2) Reasonable minds could not differ as to whether it encour-
    ages actions to elect or defeat one or more clearly identified
    candidate(s) or encourages some other kind of action.
    11 C.F.R. § 100.22(b).
    12
    ("MRLC"). The court even awarded costs to the Maine Right to Life
    Committee in connection with its defense of the FEC's suit. MRLC,
    
    98 F.3d 1
    . Reasoning that the "bright line" created by the Supreme
    Court's insistence upon explicit words of advocacy for the election or
    defeat of a particular candidate permits free discussion of "things that
    affect the election process, but at all costs avoids restricting, in any
    way, discussion of public issues," the First Circuit held, as have we,
    that both Buckley and MCFL unequivocally require "express" or "ex-
    plicit" "words of advocacy of election or defeat of a candidate."
    
    MRLC, 914 F. Supp. at 10-12
    .
    And the First Circuit's rejection of the FEC's arguments as to the
    meaning of "express advocacy" is only the most recent in a string of
    losses in cases between the FEC and issue advocacy groups over the
    meaning of the phrase "express advocacy" and the permissible scope
    of the FEC's regulatory authority over corporate political speech. See,
    e.g., FEC v. Christian Action Network, 
    894 F. Supp. 946
    (W.D. Va.),
    aff'd per curiam, 
    92 F.3d 1178
    , 
    1996 WL 431996
    (4th Cir. 1996);
    FEC v. Survival Education Fund, No. 89 Civ. 0347, 
    1994 WL 9658
    (S.D.N.Y. Jan. 12, 1994), aff'd in part and rev'd in part on other
    grounds, 
    65 F.3d 285
    , 290 (2nd Cir. 1995); FEC v. Colorado Repub-
    lican Federal Campaign Committee, 
    839 F. Supp. 1448
    (D. Co.),
    rev'd on other grounds, 
    59 F.3d 1015
    (10th Cir.), vacated on other
    grounds, 
    116 S. Ct. 2309
    (1996); Faucher v. FEC, 
    928 F.2d 468
    (1st
    Cir.), cert. denied, 
    502 U.S. 820
    (1991); FEC v. National Organiza-
    tion for Women, 
    713 F. Supp. 428
    (D.D.C. 1989); FEC v. Central
    Long Island Tax Reform Immediately Committee, 
    616 F.2d 45
    (2nd
    Cir. 1980); FEC v. American Federation of State, County and Munic-
    ipal Employees, 
    471 F. Supp. 315
    (D.D.C. 1979).
    B.
    Against this overwhelming weight of (and, in the case of the
    Supreme Court decisions, dispositive) authority, the FEC argued
    before the district court and before us the concededly "novel" posi-
    tion, see Appellant's Opposition to Defendant-Appellees' Application
    For Fees at 13, that, even though the Christian Action
    Network's advertisements did not include any explicit words or lan-
    guage advocating Governor Clinton's defeat, the expenditure of cor-
    porate funds for these advertisements nonetheless violated section
    13
    441b because, considered as a whole with the imagery, music, film
    footage, and voice intonations, the advertisements' nonprescriptive
    language unmistakably conveyed a message expressly advocating the
    defeat of Governor Clinton. That is, the FEC argued the position that
    "no words of advocacy are necessary to expressly advocate the elec-
    tion of a candidate," Appellant's Br. at 25 (emphasis in original), that
    an advertisement which does not include any "express words of advo-
    cacy" may nevertheless constitute "express advocacy" as defined by
    the Supreme Court in Buckley and MCFL, provided it unmistakably
    conveys a message urging action with respect to a particular candidate
    for public office.
    Thus, according to the Commission's arguments, it could regulate
    under the standard of "express advocacy" any "terms," any "commu-
    nications," which "unmistakably" or "unambiguously" "encourage"
    voters to take "some kind of action" for or against a candidate,
    whether or not those communications take the form of "words" or
    "language" "expressly" or "explicitly" "advocating" the election or
    defeat of a particular candidate at the polls. See Appellant's Br. at 11;
    11 C.F.R. § 100.22(b). Buckley's requirement of "explicit words"
    would be satisfied by the use of non-verbal "terms." See Appellant's
    Br. at 23. MCFL's (and Buckley's) insistence upon "language" of
    advocacy would be satisfied by any communicative form of expres-
    sion. See 11 C.F.R. § 100.22(b). And, where "express" "advocacy"
    has been required, "unmistakable" "encouragement" would suffice.
    See also Brief of Amicus Curiae Democratic National Committee in
    Support of Appellants ("DNC Br.") at 10 (arguing that federal regula-
    tion applies to "speech that is unambiguously aimed at influencing
    voters").
    Stripped of its circumlocution, the FEC's argument was (and is)
    that the determination of whether a given communication constitutes
    "express advocacy" depends upon all of the circumstances, internal
    and external to the communication, that could reasonably be consid-
    ered to bear upon the recipient's interpretation of the message. The
    right to engage in political speech would turn on an interpretation of
    the "imagery" employed by the speaker. See Appellant's Br. at 26-27
    ("Symbols, pictures, and images can have the same potent communi-
    cative effect as [ ] verbal expressions."). It would depend upon the
    perceived "charge" of the "rhetoric" used, see Appellant's Br. at 12-
    14
    13, 37 n.18 (noting FEC's belief that the controversial and provoca-
    tive character of a communication is an "important factor" in demon-
    strating that the communication has an unmistakable electoral
    message); Appellant's Opposition to Fees at 8, and upon the timing
    of the communication, see 
    id. at 10
    (stressing the importance of
    the "context and timing" of speech). The right would be contingent
    upon one's mere identity or association, as the following exchange
    between the court and FEC counsel reveals:
    The Court: And [the advertisement is] only bad if you
    believe that the voters disagree with the message about
    homosexuality there. For those voters who agree with the
    message, why is it a negative ad?
    Mr. Kolker: Well, I think, I think it's clear to a reasonable
    person that the Christian Action Network thinks these things
    are bad . . . . I think that the ardent gay rights activist would
    view this ad as a message from the Christian Action Net-
    work to vote against Clinton. That they believe his views on
    homosexuals are wrong . . . .
    The Court: That's only if you bring to the table an under-
    standing of what the Christian Action Network is.
    ***
    Mr. Kolker: It's a self-defined group using the label Chris-
    tian Action.
    Oral Arg. Trans. at 11-13. The FEC thus argues that "[w]hen included
    as part of the message, the speaker's identity becomes part of the
    communication itself, and what matters is not what the viewer or the
    courts will infer about the speaker's intent, but what a reasonable per-
    son, informed about the speaker's identity (and thus potential biases
    and passions), understands the communication to mean." Appellant's
    Br. at 36-37; see also 
    id. at 42
    ("The very fact that an organization
    professing `traditional family values' chooses to broadcast images
    that they themselves plainly find offensive sends a powerful message
    about the measures that are appropriate to prevent Clinton's `vision'
    15
    from becoming the policy of the United States."); 
    id. at 13
    ("Ordinary
    viewers seeing that a `Christian' group has deliberately chosen to
    broadcast -- shortly before election day -- provocative images of gay
    men parading in black leather clothing, could not fail to understand
    that the video is espousing extreme measures to prevent Clinton from
    implementing his national agenda."). Under certain circumstances, as
    the following exchange shows, the right could even be withdrawn
    merely because the speaker expresses disagreement with a candidate
    over a particular issue:
    Mr. Kolker: . . . If all you're doing is mentioning an issue
    to say that their candidate's position on it is wrong, it is not
    a real discussion of the issue, the focus of the ad is the can-
    didate --
    The Court: -- So you can't link the candidate with the
    issue, that's what --
    Mr. Kolker: No, I think you can but not if all you're doing
    is saying the candidate believes X and X is the wrong posi-
    tion. . . .
    ***
    Mr. Kolker: [I]t's clear from the ad that the way that final
    [rhetorical] question [in the television ad] forcefully is spo-
    ken, that from the speaker's perspective, it's the wrong
    vision. And what I'm saying is the candidate has a position,
    he's wrong on the position. There's no real issue discussion.
    It's just an attack on the candidate.
    Oral Arg. Trans. at 15-16.
    To quote the following passage, in which the FEC articulates some
    of the multitude of factors that would be considered under its interpre-
    tation in determining whether a given communication was prohibited,
    is to appreciate the breadth of power that the FEC would appropriate
    to itself under its definition of "express advocacy":
    16
    [E]xpress electoral advocacy [can] consist[ ] not of words
    alone, but of the combined message of words and dramatic
    moving images, sounds, and other non-verbal cues such as
    film editing, photographic techniques, and music, involving
    highly charged rhetoric and provocative images which,
    taken as a whole, sen[d] an unmistakable message to oppose
    [a specific candidate].
    Appellant's Opposition to Fees at 8. This is little more than an
    argument that the FEC will know "express advocacy" when it sees it.
    C.
    The FEC's enforcement action against the Christian Action Net-
    work in this case brings into relief the extent to which, under the
    FEC's interpretation of "express advocacy," political speech would
    become hostage to the vicissitudes of the Commission, because,
    although a viewer could interpret the Network's video as election
    advocacy of the defeat of Governor Clinton, another viewer could just
    as readily interpret the video as issue advocacy on the question of
    homosexual rights. Indeed, the commercial and advertisements that
    the FEC here contend fall squarely within its regulatory purview are
    precisely the kinds of issue advocacy that the Supreme Court sought
    to protect in Buckley and MCFL; and the FEC's interpretation of these
    advertisements is exactly that contemplated by the Court when it
    warned of the constitutional pitfalls in subjecting a speaker's message
    to the unpredictability of audience interpretation, see 
    Buckley, 424 U.S. at 43
    . Cf. Appellant's Reply Br. at 8 (conceding that Network's
    television commercial and newspaper advertisements "[took] a posi-
    tion against Clinton's purported positions on gay rights and thus con-
    tain issue advocacy," but contending that these communications "also
    contain[ed] express electoral advocacy"); Appellant's Br. at 13 ("[The
    advertisement's] explicit focus was on Clinton's presidential cam-
    paign agenda, not a more general discussion of gay rights.").8
    _________________________________________________________________
    8 The district court described the Christian Action Network's television
    commercial as follows:
    The television advertisement consisted of a thirty second spot
    entitled "Clinton's Vision for a Better America." [footnote omit-
    17
    The text of the television advertisement is nonprescriptive, taking
    no position whatever, implied or otherwise, on the candidacy of Gov-
    ernor Clinton and Senator Gore, or even on the issue of homosexual
    rights. In its entirety, the text reads as follows:
    Bill Clinton's vision for America includes job quotas for
    homosexuals, giving homosexuals special civil rights,
    _________________________________________________________________
    ted.] It opens with a full-color picture of candidate Bill Clinton's
    face superimposed upon an American flag, which is blowing in
    the wind. Clinton is shown smiling and the ad appears to be
    complimentary. However, as the narrator begins to describe
    Clinton's alleged support for "radical" homosexual causes, Clin-
    ton's image dissolves into a black and white photographic nega-
    tive. The negative darkens Clinton's eyes and mouth, giving the
    candidate a sinister and threatening appearance. [citation omit-
    ted.] Simultaneously, the music accompanying the commercial
    changes from a single high pitched tone to a lower octave.
    The commercial then presents a series of pictures depicting
    advocates of homosexual rights, apparently gay men and lesbi-
    ans, demonstrating at a political march. While the narrator dis-
    cusses the candidates' alleged agenda for homosexuals, short
    captions paraphrasing their positions are superimposed on the
    screen in front of the marchers. These images include: marchers
    carrying a banner saying "Libertarians for Gay and Lesbian Con-
    cerns" accompanied by the superimposed text "Job Quotas for
    Homosexuals"; the same banner accompanied by the superim-
    posed text "Special Rights for Homosexuals"; two individuals
    with their arms around each others shoulders and text saying
    "Homosexuals in the Armed Forces"; and a man wearing a shirt
    which reads "Gay Fathers" with the text "Homosexuals Adopting
    Children." [citation omitted.]
    As the scenes from the march continue, the narrator asks in rhe-
    torical fashion, "Is this your vision for a better America?" There-
    after, the image of the American flag reappears on the screen,
    but without the superimposed image of candidate Clinton. At the
    same time, the music changes back to the single high pitched
    tone. The narrator then states, "[f]or more information on tradi-
    tional family values, contact the Christian Action Network."
    [footnote and citation omitted.]
    Christian Action 
    Network, 894 F. Supp. at 948-49
    .
    18
    allowing homosexuals in the armed forces. Al Gore supports
    homosexual couples' adopting children and becoming foster
    parents. Is this your vision for a better America? For more
    information on traditional family values, contact the Chris-
    tian Action Network.
    Absent the final sentence, which adds nothing of advocacy to the pre-
    ceding text, these words could well have appeared in a commercial
    approved by Governor Clinton himself and advocating his own elec-
    tion; it is a matter of public record that then-Governor Clinton and
    now-President Clinton considers expanded homosexual rights as an
    important part of his vision for the Country. The FEC's own brief
    quotes President Clinton in a May 1992 speech to a gay and lesbian
    audience as promising that "I have a vision, and you are part of it".
    See Appellant's Br. at 41 n.21.9
    The video's nonprescriptive language is no more incontrovertibly
    an exhortation to vote against Governor Clinton when spoken with the
    _________________________________________________________________
    9 See also, Steven A. Holmes, Clinton Would Outlaw Job Bias Against
    Gays, Ft. Lauderdale Sun-Sentinel, Oct. 20, 1995 (quoting October 1995
    letter from President Clinton to Senator Kennedy that "[t]hose who face
    this kind of job discrimination have no legal recourse . . . . This is
    wrong."); Michael Isikoff, Gays Mobilizing for Clinton as Rights Become
    an Issue, The Washington Post, Sept. 28, 1992 (reporting that "[Clinton]
    released formal position papers on gay issues that essentially pledged
    him to virtually the entire mainstream gay political agenda . . . [includ-
    ing] sign[ing] an executive order ending the U.S. military policy discrim-
    inating against homosexuals, support[ing] legislation to amend federal
    civil rights laws to include sexual orientation,`appoint[ing] gays and les-
    bians to major positions' in his administration and launch[ing] a
    `Manhattan-type Project' to find a cure for AIDS."); Thomas L. Fried-
    man, Clinton to Lift Ban on Gays[,] He Reassures Military, Veterans
    He'll be Tough on National Security, The Kansas City Star, Nov. 12,
    1992 (reporting that "President-elect Clinton said Wednesday that he
    plans to lift the ban on homosexuals in the military after he takes office
    in January"); Paul Taylor, Democratic Rivals Back Tougher S. Africa
    Sanctions, The Washington Post, April 13, 1988 (reporting April 1988
    Democratic Presidential Primary debate where three candidates, includ-
    ing "Sen. Albert Gore Jr. (D-Tenn.)[,] . . . supported . . . the right of
    homosexuals to serve as foster parents").
    19
    inflection and overlaid with the imagery, music, and film footage
    which served as the backdrop for the text. Entitled"Clinton's Vision
    for a Better America," the video opens with a complimentary, full-
    color photograph of Governor Clinton, which quickly fades into a
    black-and-white photographic negative and then almost immediately
    disappears, as a narrator recites the above text and as three pictures
    of pro-homosexual rights parades rapidly flash across the screen. The
    very short advertisement concludes with the narrator asking rhetori-
    cally, "Is this your vision for a better America? For more information
    on traditional family values, contact the Christian Action Network."
    This is simply not express advocacy of the defeat of Governor Clin-
    ton; the advertisement urges no action upon viewers at all, beyond
    contacting the network for more information on traditional family val-
    ues should they wish, much less action at the polls. Far from a com-
    mercial that would be "instantly recognizable by any voter as a
    negative ad against the candidacy of Bill Clinton," see Appellant's Br.
    at 13, the video could just as readily be viewed as passionate issue
    advocacy on the important question of homosexual rights -- the very
    kind of speech which the Supreme Court has held the First Amend-
    ment jealously protects.
    The two print advertisements, which the FEC urges that we con-
    sider in tandem with the television video, are even less susceptible to
    characterization as election advocacy.10 Moreover, they tend, if any-
    _________________________________________________________________
    10 The district court described the print advertisements in this way:
    Shortly after the CAN's television commercial began airing, the
    Chairman of the Democratic National Committee, Ron Brown,
    wrote a letter to various television stations and cable operators.
    In his letter, Chairman Brown asked the television media to dis-
    continue running the commercial because he believed it to be
    "patently offensive" and "false." In response to this letter, CAN
    published a full page advertisement on October 15, 1992 in the
    Richmond Times-Dispatch. This date was approximately two
    weeks after the television commercial had begun airing. It also
    coincided with a nationally televised debate among the 1992
    presidential candidates, which was held that evening in Rich-
    mond, Virginia. The newspaper advertisement was entitled "An
    Open Letter To: Gov. Bill Clinton, Democratic Presidential Can-
    didate [and] Mr. Ron Brown, Democratic Party Chairman", and
    20
    thing, to confirm that the video not only was, but was intended to be,
    more issue advocacy on the question of homosexual rights than elec-
    _________________________________________________________________
    stated that it was "paid for by the Christian Action Network.
    . . ." Importantly, however, the advertisement failed to state whether it
    was authorized by any candidate or committee. The body of the letter
    reads as follows:
    The Christian Action Network is now airing television ads
    in Richmond, VA informing the voting public of Gov. Bill
    Clinton's support of the "gay rights" political agenda.
    The voting public has a right to know that Gov. Bill Clin-
    ton's agenda includes (1) job quotas for homosexuals, (2)
    special civil rights for homosexuals and (3) allowing homo-
    sexuals in the U.S. Armed Forces.
    Not surprisingly, the Democratic leadership has opposed
    our television ads.
    That's why Ron Brown, chairman of the Democratic
    National Committee, is now sending letters to television and
    cable operators asking them not to run our advertisement.
    In his letter, Mr. Brown accuses our ads of being"patently
    offensive" and "false." But the letter fails to point out any
    "false" or "patently offensive" information in our ad cam-
    paign.
    Here are the documented facts in defense of our ads which
    have also aired in Los Angeles, Houston, Cincinnati, Wash-
    ington, D.C., Atlanta, San Diego, Seattle, Dallas, Santa
    Rosa, Cleveland, Chicago and other major cities.
    First, Gov. Clinton supports civil rights laws for homosex-
    uals.
    From a Clinton/Gore campaign paper titled, "Issues of
    Concern to Gays and Lesbians" are these words: "A Clin-
    ton/Gore Administration will support a federal gay civil
    rights bill." This position paper was received from the Dem-
    ocratic National Committee and paid for by the "Clin-
    ton/Gore '92 Committee."
    Second, Gov. Clinton will allow homosexuals in the mili-
    tary.
    From the same position paper cited above: "Bill Clinton
    will issue executive orders to repeal the ban on gays and les-
    bians from military and foreign service."
    21
    tion advocacy for the defeat of the Governor. These advertisements,
    which were entitled "An Open Letter to Gov. Clinton, Democratic
    _________________________________________________________________
    Third, Gov. Clinton supports job quotas for homosexuals.
    The Democratic Party Platform states it will "provide civil
    rights protection for gay men and lesbians."
    George Stephanopoulos, Mr. Clinton's spokesman, said
    Gov. Clinton supports affirmative action for gays and lesbi-
    ans because laws were needed to protect workers' rights.
    Gov. Clinton has also promised that he will "appoint gays
    and lesbians to major positions in his administration."
    [Washington Post September 28, 1992]
    The Christian Action Network has informed Gov. Bill
    Clinton and DNC Chairman Ron Brown that it will change
    its commercial if Clinton will publicly dispute any point
    made in CAN's commercial, promise as president to veto
    legislation that gives gays specific protection under the Civil
    Rights Act and oppose affirmative action for gays.
    The Christian Action Network has yet to hear verbal or
    written communication from Gov. Clinton, Mr. Brown or
    any other official of the Democratic National Party.
    During tonight's debate -- or anytime thereafter-- I,
    Martin Mawyer, president of the Christian Action Network,
    call upon Gov. Bill Clinton to clearly state his position on
    gay rights and publicly state what is "patently offensive" and
    "false" in our television commercial.
    When the Clinton/Gore campaign committee publicly and
    unequivocally retract their commitments to the "gay rights"
    community, the Christian Action Network will halt its televi-
    sion campaign. [citation omitted] (emphasis added).
    CAN never received a response from the Clinton election team
    or any member of the Democratic National Committee. As a
    result, on October 26, 1992, the Defendants placed another full
    page newspaper ad. This time the advertisement was published
    in the Washington Times and was entitled"Since You Did Not
    Respond to Our Ad in Richmond; An Open Letter To: Gov. Bill
    Clinton, Democratic Presidential Candidate [and] Mr. Ron
    Brown, Democratic Party Chairman." The second newspaper ad
    was substantively identical to its predecessor. However, the sec-
    ond ad contained a statement that it was not authorized by any
    candidate. Furthermore, it failed to state that it was a paid politi-
    cal advertisement.
    Christian Action 
    Network, 894 F. Supp. at 949-50
    .
    22
    Presidential Candidate [and] Mr. Ron Brown, Democratic Party
    Chairman" and "Since You Did Not Respond to Our Ad in Rich-
    mond; An Open Letter to Gov. Clinton, Democratic Presidential Can-
    didate [and] Mr. Ron Brown, Democratic Party Chairman," and
    which appeared in the Richmond Times-Dispatch on October 15,
    1992, and the Washington Times on October 26, 1992, respectively,
    were written in response to criticism by Ron Brown that the Christian
    Action Network's television commercial was untrue. These advertise-
    ments essentially repeated in print the text of the television advertise-
    ment, adding specific citations for the assertions made, and then
    concluded with the promise that the network would
    change its commercial if Clinton will publicly dispute any
    point made in CAN's commercial, promise as president to
    veto legislation that gives gays specific protection under the
    Civil Rights Act and oppose affirmative action for gays . . . .
    When the Clinton/Gore Campaign committee publicly and
    unequivocally retract their commitments to the "gay rights"
    community, the Christian Action Network will halt its tele-
    vision campaign.
    Like the television video, these letters are, at most, "openly hostile to
    the [pro-homosexual rights] proposals believed to have been endorsed
    by" candidates Clinton and Gore. Christian Action Network, 894 F.
    Supp. at 953; see also Brief of Amicus Curiae American Civil Liber-
    ties Union of Virginia in Support of Appellees ("ACLU Br.") at 21.
    The only action they urge is that Governor Clinton, Senator Gore, and
    Mr. Brown abandon their positions on the various public issues con-
    cerning homosexual rights, as the district court found. See Christian
    Action 
    Network, 894 F. Supp. at 954
    ("any call for action encom-
    passed in the advertisements was directed at the candidates and Chair-
    man Brown, not the voting public.").
    In sum, unlike even the advertisement in Furgatch, which was
    "bold in calling for action, but fail[ed] to state expressly the precise
    action called for," 
    Furgatch, 807 F.2d at 865
    ; see also FEC Opposi-
    tion to Certiorari in Furgatch at 8 (noting that Furgatch's advertise-
    ment included "explicit exhortation"), in neither the video nor in the
    print advertisements at issue in this case is there any action urged with
    23
    respect to any candidate. There are no words expressly advocating the
    defeat of Governor Clinton in the 1992 presidential election, or, for
    that matter, any words urging voters to take any action whatsoever as
    to the Governor. As the district court found, these advertisements are
    simply "devoid of any language that directly exhorted the public to
    vote" for or against any particular candidate. See Christian Action
    
    Network, 894 F. Supp. at 953
    . They presented viewers "with the can-
    didates' views on homosexual rights and told [them] that [those
    views] sharply contrasted with those held by the[Christian Action
    Network][,] [but] [t]he only immediate action called for by the com-
    mercial was for viewers to contact CAN if they agreed with the [Net-
    work's] opposition to a `gay rights agenda,'" 
    id. at 954,
    and the only
    action called for by the newspaper advertisements was for candidates
    Clinton and Gore to repudiate their positions with respect to homo-
    sexual rights. Just as the FEC argued in opposition to certiorari in
    Furgatch that "[t]he only exhortation in the leaflet" at issue in FEC
    v. Central Long Island Tax Reform Immediately Committee, 
    616 F.2d 45
    (2nd Cir. 1980) (en banc) ("CLITRIM"), "called for communica-
    tion with the congressman on the issue of taxes, not action against
    him," see FEC Opposition to Certiorari at 8 n.4, the advertisements
    here called only for viewers to contact the Christian Action Network
    and for Governor Clinton and Senator Gore to abandon their positions
    on homosexual rights, not for election action against these candidates.
    Yet, the FEC would have us confer power upon it to regulate these
    advertisements because, in its assessment,
    [t]o the ordinary viewer in 1992, the CAN video unmistak-
    ably encourages voters to defeat Bill Clinton. The video
    communicates the following: A group explicitly aligning
    itself with Christian, heterosexual, and traditional family
    values graphically depicts a specific presidential candidate
    supporting homosexual men vividly asserting their sexual
    preferences; the message attacks Clinton's moral judgment
    and alleged policy agenda; those positions involve steps that
    only a federal elected official could take; the message is
    delivered to viewers who live in states where Governor
    Clinton has no contemporaneous authority to set policy; the
    message is televised shortly before the presidential election;
    and the message employs powerful symbolism and persua-
    24
    sive devices unique to the medium of video . . . . The video
    admittedly contains no literal phrase such as "Defeat Bill
    Clinton." But it contains a special kind of charged rhetoric
    and symbolism that exhorts more forcefully and unambigu-
    ously than mere words.
    Appellant's Br. at 37-38. Or, because, in the words of the "expert"
    whom the FEC retained to assist it in its action against the Christian
    Action Network:
    [T]his 30 second television spot expressly advocated the
    defeat of candidates Clinton and Gore in the upcoming pres-
    idential general election. It did so by employing the tech-
    niques of audio voice-overs, music, visual text, visual
    images, color, codewords, and editing. In their totality, these
    techniques said voters should defeat Clinton and Gore
    because these candidates favor extremist homosexuals and
    extremist homosexuals are bad for America.
    See J.A. at 65, 77 (Prof. Darrell M. West, Brown University, An Anal-
    ysis of Ads Run by the Christian Action Network, Inc. in 1992).
    Even absent binding Supreme Court precedent, we would bridle at
    the power over political speech that would reside in the FEC under
    such an interpretation. The American Civil Liberties Union observes
    in its amicus brief in support of the Christian Action Network that if
    the FEC's interpretation were to prevail, "ads attacking an identified
    candidate's political positions during a campaign[would] virtually
    always, if not per se, amount to `express advocacy' of that candi-
    date's defeat at the polls." ACLU Br. at 3. And, from the Commis-
    sion's argument that advertisements which "make it absolutely clear
    that [the group sponsoring the ads] considers homosexual behavior
    and the support of additional rights for gay men and lesbians to be
    abhorrent" can "only reasonabl[y]" be interpreted as "asking others
    to join its fight to defeat Clinton and thereby foreclose his asserted
    homosexual rights agenda," see Appellant's Br. at 40, this would
    appear to be precisely the consequence of the agency's interpretation.
    D.
    Whether we would agree with the FEC's interpretation of its
    authority under the Federal Election Campaign Act, or find its inter-
    25
    pretation reasonable, were this a matter of first impression, however,
    is not ultimately the question. The question for us is only whether the
    FEC was "substantially justified" in taking the position it did, in light
    of the Supreme Court's unambiguous pronouncements in Buckley and
    MCFL that explicit words of advocacy are required if the Commission
    is to have standing to pursue an enforcement action. The simple
    answer to this question must be that it was not so justified. As we
    stated in adopting the district court's opinion, the FEC's position was
    based not only "on a misreading of the Ninth Circuit's decision in
    Furgatch," but also on a "profound misreading" of the Supreme
    Court's decisions in both Buckley and MCFL. Christian Action
    
    Network, 894 F. Supp. at 958-59
    .
    From the foregoing discussion of Buckley and MCFL, it is indispu-
    table that the Supreme Court limited the FEC's regulatory authority
    to expenditures which, through explicit words, advocate the election
    or defeat of a specifically identified candidate. In the portion of
    Buckley in which the Court addresses the overbreadth of the Federal
    Election Campaign Act and adopts its limiting construction of section
    608(e)(1)'s term "relative to," the Court does not even use the phrase
    "express advocacy," upon the purported "ambiguity" of which the
    FEC builds its diffuse definition. In this most important portion of the
    opinion, cf. DNC Br. at 5, the Court only refers to "explicit words of
    advocacy," "express terms," and "express words of advocacy." See
    
    Buckley, 424 U.S. at 43
    -44. It is not until the Court interprets the stat-
    utory term "expenditure" in section 434(e) to include the same limita-
    tion as in section 608(e)(1), forty pages later in the opinion, that the
    Court even uses the phrase "express advocacy," see 
    id. at 80
    . But even
    there, the Court confirms through footnote 108's cross-reference to
    footnote 52, in which the Court lists the kinds of words that would
    warrant exercise of the FEC's regulatory authority, that it meant by
    the phrase "express advocacy" nothing more or less than "express
    words of advocacy."11 In other words, the Court itself in Buckley con-
    _________________________________________________________________
    11 The textual sentence in which the footnote call for note 108 appears
    reads as follows: "To insure that the reach of § 434(e) is not impermiss-
    ibly broad, we construe `expenditure' for purposes of that section in the
    same way we construed the terms of § 608(e)-- to reach only funds used
    for communications that expressly advocate the election or defeat of a
    clearly identified 
    candidate." 424 U.S. at 80
    (footnote 108 omitted). The
    26
    firmed that it intended the phrase "express advocacy" simply as a
    shorthand for the "explicit words of advocacy of election or defeat"
    "of a clearly identified candidate for federal office," which it had held
    earlier in the opinion were required in order to save the Act from
    constitutional infirmity.
    Were this alone not sufficient to establish that the Court meant by
    "express advocacy" "express words of advocacy," then the Court's
    subsequent discussion in MCFL removes all doubt. There, because it
    was interpreting the statutory term "expenditure," the Court cited to
    Buckley's discussion of section 434(e), rather than to that case's dis-
    cussion of section 608(e)(1), and used the shorthand phrase "express
    advocacy." See 
    MCFL, 479 U.S. at 248-49
    . The Court then went on
    to define "express advocacy," again through citation to its footnote 52
    in Buckley, to mean "express words of advocacy." See 
    id. at 249
    (cit-
    ing 
    Buckley, 424 U.S. at 44
    n.52). It even stated that in Buckley it had
    concluded "that a finding of `express advocacy' depend[s] upon the
    use of language such as `vote for,' `elect,' `support,' etc." 
    MCFL, 479 U.S. at 249
    (citing 
    Buckley, 424 U.S. at 44
    n.52) (emphasis added).12
    The FEC is fully aware that the Supreme Court has required
    explicit words of advocacy as a condition to the Commission's exer-
    cise of power, as evidenced by its own dissembling before this court.
    _________________________________________________________________
    footnote call for note 108 appears immediately after the words "expressly
    advocate." Footnote 108, cross-referencing note 52, reads in full as fol-
    lows: "See n. 
    52, supra
    [,]" 
    id., which, it
    bears repeating, reads that the
    construction of section 608(e)(1) adopted by the Court would restrict
    application of that section "to communications 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,'" 
    Buckley, 424 U.S. at 44
    n.52.
    12 The FEC argues throughout its submissions that the Supreme Court
    "never suggested that communications can constitute express advocacy
    only if they include specific words from a special list." Appellant's Br.
    at 23. This is true, but it is a red-herring. Most certainly, the Court never
    said this. But, just as certainly, the Court never suggested that communi-
    cations with no words of advocacy at all can nonetheless be considered
    "express advocacy." In fact, as we show, it actually held precisely the
    opposite.
    27
    See generally Thomasson v. Perry, 
    80 F.3d 915
    , 939-41 (4th Cir.
    1996) (Luttig, Circuit Judge, concurring); Commonwealth v. Riley,
    
    106 F.3d 559
    , 565-66 (4th Cir. 1997). The FEC's extensive submis-
    sions in this case include notably little discussion of the legal analysis
    in either Buckley or MCFL. Throughout the FEC's entire 69 pages of
    briefing on the merits of this case, it never once quotes any of the
    numerous passages in Buckley and MCFL referring to "explicit
    words" or "express words" or "language" of advocacy. Nor does it
    once quote Buckley's footnote 52. Compare DNC Br. at 5 (quoting
    footnote 52 in full, including Buckley's"express words" locution).
    The significance of this omission is illustrated by the fact that not a
    single district court or court of appeals opinion has ever addressed
    Buckley's "express advocacy" standard without quoting one or more
    of these passages or at least referring to Buckley's requirement of
    "words" of advocacy. The agency even goes so far as to quote the
    very sentence from page 80 of Buckley in which the Court uses the
    phrase "express advocacy" and defines that phrase in the sentence's
    footnote 108 to mean "express words of advocacy," see 
    note 11 supra
    ,
    but to omit any reference, by parenthetical or otherwise, to the fact
    that footnote 108 appears in that sentence. Compare DNC Br. at 4, 10
    (quoting sentence and noting that footnote was omitted).13 The agency
    does make a single reference to Buckley's phrase "express terms" of
    advocacy so that it can advance the argument that the term "terms"
    includes "modes of expression" other than"words," an argument in
    support of which it cites "Webster's II New Riverside University Dic-
    tionary." Appellant's Br. at 22-23 ("`Terms' means `language or a
    mode of expression used' and is not limited to expression through
    words.") (emphasis added; footnote omitted). But, even then, the
    _________________________________________________________________
    13 The FEC resorts to the same sleight-of-hand in its discussion of the
    Ninth Circuit's decision in Furgatch. According to the FEC, the court of
    appeals in that case said that "courts must take care to avoid an unneces-
    sarily narrow application of express advocacy to prevent `eviscerating
    the Federal Election Campaign Act.'" Appellant's Br. at 18. In fact, what
    the Ninth Circuit said was that "[a] test requiring the magic words `elect,'
    `support,' etc., or their nearly perfect synonyms for a finding of express
    advocacy would preserve the First Amendment right of unfettered
    expression only at the expense of eviscerating the Federal Election Cam-
    paign 
    Act." 807 F.2d at 863
    . In light of our discussion herein, the differ-
    ence is of enormous significance.
    28
    Commission fails to note that the very sentence in which this phrase
    appears is the sentence to which footnote 52 is appended.
    That the Commission knows well the Court's holdings in Buckley
    and MCFL is further confirmed by the agency's subsequent action in
    Furgatch, which we referenced supra at 8-11. Because Furgatch,
    despite its narrow holding, does include broad dicta which can be
    read (or misread) to support the FEC's expansive view of its authority,14
    the agency vigorously opposed certiorari in the case. Wishing to have
    the opinion preserved intact, the Commission in its submissions there,
    in contrast to its submissions before this court, quoted Buckley as "re-
    quir[ing] `explicit words of advocacy of election or defeat of a candi-
    date.'" FEC Opposition to Certiorari at 9 n.5 (quoting 
    Buckley, 424 U.S. at 43
    ) (emphasis added). The Commission even took the position
    that Furgatch did, as we noted above, interpret the Federal Election
    Campaign Act's corporate disclosure statutes as"narrowly limited to
    communications containing language `susceptible to no other reason-
    able interpretation but as an exhortation to vote,'" 
    id. at 4
    (quoting
    
    Furgatch, 807 F.2d at 864
    ) (emphasis added); see also 
    id. ("The court
    found that the language of Mr. Furgatch's advertisements left `no
    doubt that the ad asks the public to vote against Carter.'" (emphasis
    added)). Moreover, the FEC argued to the Supreme Court that
    Furgatch was fully consistent with Buckley and MCFL precisely
    because the opinion focused on the specific language of Furgatch's
    advertisement and concluded that express advocacy existed only
    because the advertisement "explicitly exhorted" voters to defeat then-
    President Carter. Thus, there is no doubt the Commission understands
    that its position that no words of advocacy are required in order to
    support its jurisdiction runs directly counter to Supreme Court prece-
    dent.
    _________________________________________________________________
    14 See FEC Opposition to Certiorari at 9-10:
    [Petitioner Furgatch] takes issue with a number of the lower
    court's general statements regarding law and policy, taken out of
    their context in a lengthy and discursive opinion. It is well set-
    tled, however, that "[t]his Court . . . reviews judgments, not
    statements in opinions." . . . Petitioner's disagreements with the
    Ninth Circuit's general discussion of express advocacy provide
    no basis for granting plenary review.
    29
    II.
    In the face of the unequivocal Supreme Court and other authority
    discussed, an argument such as that made by the FEC in this case, that
    "no words of advocacy are necessary to expressly advocate the elec-
    tion of a candidate," simply cannot be advanced in good faith (as the
    disingenuousness in the FEC's submissions attests), much less with
    "substantial justification." See e.g., Pierce v. Underwood, 
    487 U.S. 552
    , 568-71 (1988) (holding that "views expressed by other courts on
    the merits," and in particular "a string of losses," together with the
    "actual merits of the Government's litigating position," are central to
    issue of whether position was "substantially justified"). It may be that
    "[i]mages and symbols without words can also convey unequivocal
    meaning synonymous with literal text." Appellant's Br. at 28. It may
    well be that "[m]etaphorical and figurative speech can be more
    pointed and compelling, and can thus more successfully express advo-
    cacy, than a plain, literal recommendation to `vote' for a particular
    person[,]" and that "it would indeed be perverse to require FECA reg-
    ulation to turn on the degree to which speech is literal or figurative,
    rather than on the clarity of its message," "[g]iven that banal, literal
    language often carries less force." Appellant's Br. at 25-26. It may
    even be, as the FEC contends in this particular case, that "the com-
    bined message of words and dramatic moving images, sounds, and
    other non-verbal cues such as film editing, photographic techniques,
    and music, involving highly charged rhetoric and provocative images
    . . . taken as a whole[ ] sent an unmistakable message to oppose [Gov-
    ernor Clinton]." Appellant's Opposition to Fees at 8. But the Supreme
    Court has unambiguously held that the First Amendment forbids the
    regulation of our political speech under such indeterminate standards.
    "Explicit words of advocacy of election or defeat of a candidate,"
    "express words of advocacy," the Court has held, are the constitu-
    tional minima. To allow the government's power to be brought to bear
    on less, would effectively be to dispossess corporate citizens of
    their fundamental right to engage in the very kind of political issue
    advocacy the First Amendment was intended to protect -- as this case
    well confirms.
    For the reasons stated, the case is remanded to the district court for
    a determination of the amount of fees and costs properly awardable
    to the Christian Action Network under the authority of the Equal
    Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), such amounts to
    30
    include the relevant fees and costs incurred before the district court
    and this court, including those fees and costs incurred in pursuing the
    motion presently before us, see Commissioner, Immigration and Nat-
    uralization Service v. Jean, 
    496 U.S. 154
    , 160 (1990).
    SO ORDERED
    31
    

Document Info

Docket Number: 95-2600

Citation Numbers: 110 F.3d 1049

Filed Date: 5/5/1997

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (18)

Sandra Faucher and Maine Right to Life Committee, Inc. v. ... , 928 F.2d 468 ( 1991 )

Maine Right to Life Committee, Inc. v. Federal Election ... , 98 F.3d 1 ( 1996 )

commonwealth-of-virginia-department-of-education-v-richard-w-riley , 106 F.3d 559 ( 1997 )

federal-election-commission-v-central-long-island-tax-reform-immediately , 616 F.2d 45 ( 1980 )

federal-election-commission , 59 F.3d 1015 ( 1995 )

federal-election-commission-plaintiff-counterdefendant-appellant-v , 65 F.3d 285 ( 1995 )

Buckley v. Valeo , 96 S. Ct. 612 ( 1976 )

Thomas v. Collins , 65 S. Ct. 315 ( 1945 )

Federal Election Commission v. Harvey Furgatch , 807 F.2d 857 ( 1987 )

paul-g-thomasson-lieutenant-united-states-navy-v-william-j-perry , 80 F.3d 915 ( 1996 )

Federal Election Commission v. Massachusetts Citizens for ... , 107 S. Ct. 616 ( 1986 )

Federal Election Commission v. American Federation of State,... , 471 F. Supp. 315 ( 1979 )

Maine Right to Life Committee, Inc. v. Federal Election ... , 914 F. Supp. 8 ( 1996 )

Federal Election Commission v. National Organization for ... , 713 F. Supp. 428 ( 1989 )

Pierce v. Underwood , 108 S. Ct. 2541 ( 1988 )

Commissioner, Immigration & Naturalization Service v. Jean , 110 S. Ct. 2316 ( 1990 )

Colorado Republican Federal Campaign Committee v. Federal ... , 116 S. Ct. 2309 ( 1996 )

Federal Election Commission v. Christian Action Network , 894 F. Supp. 946 ( 1995 )

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