[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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, (202) 219-3690 or (800) 424-9530. 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, (202) 219-4140 or toll-free (800) 424-9530. Interested persons may also obtain a copy by dialing the Commission's FAXLINE service at (202) 501-3413 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