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The Real Truth About Abortion, Inc. v. Federal Election Commission

United States Court of Appeals for the Fourth Circuit
Decided: June 12, 2012 (2012)
ELI5:

Rule of Law:

Campaign finance regulations that trigger disclosure requirements are subject to exacting scrutiny, and it is constitutionally permissible for a regulation to define 'express advocacy' based on a communication's functional equivalent and for an agency to use a multi-factor, case-by-case analysis to determine if an organization’s 'major purpose' is campaign activity.


Facts:

  • The Real Truth About Abortion, Inc. (Real Truth) was organized as a non-profit '527' organization.
  • Its stated purpose was to provide information about the public policy positions of then-Senator Barack Obama, and it claimed it would not expressly advocate for the election or defeat of any candidate.
  • Real Truth created two radio advertisements, titled 'Change' and 'Survivor,' that were highly critical of Senator Obama's positions on abortion.
  • The organization planned to spend over $1,000 to broadcast these advertisements within the 60-day period preceding the 2008 general election.
  • Real Truth feared that airing these ads would cause the FEC to classify its spending as 'independent expenditures' and deem the organization a 'political committee' (PAC), subjecting it to disclosure requirements and other regulations.

Procedural Posture:

  • Real Truth sued the FEC and the Department of Justice in the U.S. District Court for the Eastern District of Virginia (a federal trial court), seeking a preliminary injunction.
  • The district court denied the preliminary injunction.
  • Real Truth appealed to the U.S. Court of Appeals for the Fourth Circuit, which affirmed the district court's denial.
  • The U.S. Supreme Court granted certiorari, vacated the Fourth Circuit's judgment, and remanded the case for reconsideration in light of its decision in Citizens United v. FEC.
  • On remand from the Supreme Court, the Fourth Circuit remanded the case back to the district court.
  • On cross-motions for summary judgment, the district court granted summary judgment in favor of the FEC, holding the challenged regulation and policy were constitutional.
  • Real Truth appealed this final judgment to the U.S. Court of Appeals for the Fourth Circuit.

Locked

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Issue:

Does a Federal Election Commission (FEC) regulation defining 'expressly advocating' based on a communication's functional equivalent, and the FEC's policy of using a multi-factor, case-by-case analysis to determine an organization's 'major purpose,' violate the First and Fifth Amendments as unconstitutionally vague and overbroad?


Opinions:

Majority - Niemeyer

No. The FEC regulation and policy do not violate the First and Fifth Amendments. The court held that because the challenged rules primarily impose disclosure requirements rather than prohibiting speech, they are subject to the less stringent 'exacting scrutiny' standard, not strict scrutiny. The regulation defining 'expressly advocating,' 11 C.F.R. § 100.22(b), is constitutional because it aligns with the Supreme Court's 'functional equivalent' test from cases like Wisconsin Right to Life, which allows regulation of speech that is susceptible to no reasonable interpretation other than as an appeal to vote for or against a candidate, even without 'magic words' like 'vote for.' Similarly, the FEC’s multi-factor, case-by-case policy for determining an organization's 'major purpose' is a permissible exercise of agency discretion. The Supreme Court in Buckley v. Valeo established the 'major purpose' test but did not mandate a specific methodology, and determining an organization's primary goal is an inherently comparative and contextual task that justifies a flexible approach over a rigid, bright-line rule.



Analysis:

This decision solidifies the constitutionality of the 'functional equivalent' standard for express advocacy, confirming that regulators can look beyond the mere absence of 'magic words' to determine if a communication is campaign-related for disclosure purposes. It grants significant deference to the FEC's administrative choice to use a flexible, multi-factor analysis for determining PAC status, strengthening the agency's ability to regulate issue advocacy groups that function as political committees. The ruling reinforces the two-tiered scrutiny for campaign finance laws: while outright expenditure bans face strict scrutiny, disclosure requirements need only survive the more lenient 'exacting scrutiny' standard, making them much easier to defend against First Amendment challenges.

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