The Commissioners 

Staff Director 

Deputy Staff Director 

General Counsel 

Office of the Commission Secreta 

December 8,2888 

Statement of Reasons .for MUR 4922 

*.- Attached is a copy of the Statement of Reasons for MUR 4922 signed ai, .‘. 

by Commissioner David M. Mason, and Commissioner Bradley 44. Smith. 

This was received in the Commission Secretary’s Office on 

fhursdav. Decernlber 7,aOOQ at 429 0)m. 

cc: Vincent J. Cmvery. Jr. 

Press Ofice 

Public Information 

Public Disclos;ure 

Attachment 
FEDERAL ELECTION COMMISSION 

WASHINGTON. 0 C 20463 

BEFORE THE FEDERAL ELECTION COMMlSSION 

1 

1 

In re Suburban O’Hare Commission ) MUR 4922 

STATEMENT OF &ASON§ 

On November 7,2000, the Commission rejected the General Counsel”s 

recommendation in MUR 4922 that it find Reason to Believe that respondent Suburban 

O’Hare Commission violated 2 U.S.C. Sections 441(b), 434(c), and 441d. Instead, the 

Commission divided 3-3 on whether to find Reason to Believe, and accordingly closed its 

file.’ We believe that the Complaint fails to allege a violation of the Act, as the 

Respondent did not engage in the express advocacy necessary to subject its activities to 

the terms of the Federal Election Campaign Act (FECA); alternatively, even iif the Act 

were violated, we would have voted to dismiss this matter as an exercise of our 

prosecutorial discretion. 

I. Complaint and Response 

The Complaint2 alleges that the Suburban O’Hare Commission, a consortium of 

approximately 15 lllinois municipal corporations organized to represent the interests of 

citizens affected by O’Hare International Airport, and funded by assessments, levied upon 

its member municipalities and grants from the state of Illinois, engaged in express 

advocacy on behalf of US. Representative Hemy Hyde in the 1998 general election? 

This alleged express advocacy took the form of a publication entitled “SOC ]News, 

distributed on or about October 30, 1998. A partial copy of the publication was attached 

to the Complaint, and a full copy to the Response. It’s contents are also discussed at 

’ Vice Chairman McDonald and Commissioners Thomas and Sandstrom voted in favor of the General 

Counsel’s recommendations. Chairman Wold and Comrnissioners Mason and Smith voted against the 

recommendations. 

opponent in the 2000 election. Another complaint filed by Mr. Christensen against the Subiurban O’Hare 

Commission, MUR 4896, was dismissed by the Commission in February 2000, using its prosecutorial 

discretion. ’ Complaint, pant. 1-2.4,g-g. 

The complaint was filed on September 3, 1999, by Brent Christensen, US. Representative Henry Hyde’s 
Statement of Reasons, NUR 4922 

Commissioners Mason & Smith 

P. 2 

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length in the First General Counsel’s Report? Respondent argues that the SOC News did 

not rise to the level of express advocacy under any standard. It &her argues that even if 

it did engage in express advocacy as defined in 11 C.F.R. 100.22(b), that section of the 

Commission’s regulations is unconstitutiona~.~ 

11. Analysis 

.. A. Express Advocacy 

1. General Standards 

As the First General Counsel’s Report notes: Section &Id, by its terms, and 

Sections 434(c) and 44lb, as interpreted by the Supreme Court: apply to independent 

expenditures only when they include “express words of advocacy,” of the election or 

defeat of a clearly identified candidate. In Buckley v. Vuleo, 424 U.S. 1 at 44., n. 52, the 

Supreme Court indicated that “express words of advocacg.” would be limited to 

expressions “such as ‘vote for,’ ‘elect,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote 

against,’ ‘defeat,’ ‘reject.”’ 

Following the Supreme Court’s decisions in Buckley v. Vale0 and FEC v. 

Massachusetts Citizens for Life, 479 U.S. 238 at 249 (“MCFZ”), the Commission’s 

regulations define “expressly advocating” as any communication that: 

“(a) Uses phrases such as ‘vote for the President,’ ‘re-elect 

your Congressman,’ ‘support the Democratic nominee,’ 

‘cast your ballot for the Republican challenger for U.S. 

Senate in Georgia,’ ‘Smith for Congress,’ ‘Bill McKay in 

’94,’ ‘vote Pro-Life’ or ‘vote Pro-Choice’ accompanied by 

a listing of clearly identified candidates described as ProLife or Pro-Choice, ‘vote against Old Hickory,’ ‘defeat’ 

accompanied by a picture of one or more candidate(s), 

’reject the incumbent,’ or communications of campaign 

slogan(s) or individual words(s) which in context can have 

no other reasonable meaning than to urge the election or 

defeat of one or more clearly identified candidate(s), such 

as posters, bumper stickers, advertisements, etc. which say 

‘ MLX 4922, First General Counsel’s Report filed October 23,2000, at 14-16 (hereinafter “First General 

Counsel’s Report”). 

Response at 10-15. 

First General Counsel’s Report at 4, 9. 

Buckley v. Yaleo, 424 US. 1,44 n. 52 (1976); FEC v. Massachusetts Citizens for Life. Inc., 419 US. 238, 

We need not address in this MUR whether or not coordinated expendihues which do not contain express 

I 

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249 (1986). 

advocacy are subject to these provisions of the Act, as there is no claim or evidence of coordlination. 
Statement of Reasons, MUR 4922 

Conrmissionee Mason $i Smith 

P. 3 

‘Nixon’s the One,’ ‘Carter ’76,’ ‘ReagMush,’ or 

‘Mondale! ’” . . . 

9 

However, the Commission’s regulations go on to offer a second, alternative deifinition of 

“expressly advocating” at 1 1 C.F.R. 100.22@). This section defines as “exprrssly 

advocating” any communications that: .. 

“@) When taken as a whole and with limited refererice to 

external events, such as the proxirnity 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) hecause - 

(1) The electoral portion of the communication is 

mistakable, unambiguous, and suggestive of only one 

meaning; and 

(2) Reasonable minds could not differ as 60 whether it 

encourages actions to elect or defeat one or more clearly 

identified candidate(s) or encourages some other kind 

of action.”” 

On its face, the complaint in this MLTR seems to allege that the commiunication at 

issue included express advocacy as defined in part (b) of the regulation. The complaint 

does not cite to this or any other specific section of the Act or our Regulations, but 

paragraph eight of the complaint states, “‘SOC News’ as herein alleged, when read in its 

totality and drawing all reasonable inferences, expressly advocated the electioln of several 

candidates including Henry Hyde . . .,” a standard which seems to suggest m analysis 

under 11 C.F.R. 180.22@). Thus we consider it first. 

2. Analvsis Under 11 C.F.R. 100.22b) 

11 C.F.R. 100.22(b) has been a source of controversy since it was promulgated. 

The specific regulation has been found to be unconstitutional by the US. Court of 

Appeals for the First Circuit and in effect by the U.S. Court of Appeals for the Fourth 

Circuit,” and by a Federal District Court in the Second Circuit.’* Additionally, an Iowa 

state statute using identical language has been held to be mconstitutional by the U.S. 

Court of Appeals for the Eighth Circuit.l’ Indeed, in January of 2000, the United States 

District Court for the Eastern District of Virginia issued a nationwide injunction 

11 C.F.R. 100.22(a). 

Io 11 C.F.R. 100.22(b) 

I‘ Maine Right to Life v. FEC, 98 F.3d 1 (1“ Cir. 1996); FEC v. Christian Action Network, 11 10 F.3d 1049 

(4* Cir. 1997). 

‘’ Iowa Right to Lqe Committee. Inc. v. WiUiams, 187 F. 3d 963 (8’ Cir. 1999). 

Right to Lfe ojDurchess County, Inc. v. FEC, 6 F. SUQP. 2d 248 (S.D.N.Y. 1998). 11 
Statement of Reasons, MUR 4922 

Commissioners Mason & Smith 

P. 4 

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prohibiting the Commission from enforcing Section (b).I4 It is tempting to argue that the 

existence of this nationwide injunction should settle any question of proceediiig under 

Section (b)’s definition of express advocacy. However, we believe it best not to end 

there. The injunction is presently under appeal before the U.S. Court of Appeials for the 

Fourth Circuit. Thus, the injunction could be lifted before the statute of limitations would 

run in this case.” The injunction prohibits the Commission from “enforcing” the 

regulation;I6 however, a mere finding of Reason to Believe based on Section ((b) may be 

proper in facilitating internal administration of the caseload during the pendency of the 

Commission’s appeal, without amounting to “enforc[ment]” of the regulation. Thus we 

believe it appropriate to address Section 110.22(b). 

We are in agreement with those courts which have held that 11 C.F.R. 100.22(b) 

is unconstitutional. The regulation purports to be based on the decision of the U.S. Court 

of Appeals for the Ninth Circuit in FEC v. Furgulch, 807 F. 2d 857 (9th Cir. 1987). 

However, in fact the regulation is based on an incomplete and selective interpretation of 

Furgatch. In Furgatcii, the Court held that: 

We conclude that speech need not include any of the words 

listed in Buckley to be express advocacy under the Act, but 

it must, when read as a whole, and with limited reference to 

external events, be susceptible of no other reasonable 

interpretation but as an exhortation to vote for or against a 

specific candidate. 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 meaning. Second, 

speech may only be termed “advocacy” if it presents a clear 

plea for action, and thus speech that is merely infomative 

is not covered by the Act. Finally, it must be clear what 

action is advocated.” 

Section 100.22(b), however, omits Furgatch ’s requirement that there be a “clear plea for 

action,”” and, unlike Furgutch, fails to exempt speech that is “merely informative.” 

Thus, it goes quite fiu-ther than Furgatch itself, providing for the regulation of much 

I‘ Virginiu Society for Human Lfe, lnc. v. FEC, 83 F.Supp.2d 668 (E.D. Va. 2000). 

The General Counsel has calculated that the statute of limitations would run on October 30,2003. First 

General Counsel’s Repon ar 1. We note that it would not be necessary for the Fourth Circuit to reverse its 

prior holding in FEC Y. Christian Action Neiwork, 110 F. 3d 1049 (4* Cir. 1997). finding i,hat section (b) is 

an unconstitutional infringement on First Amendment rights, for it to lift rhe nationwide injunction, thereby 

allowing enforcement of the regulation in other circuits. 

l6 83 F. Supp. 2d at 677. 

” 807 F. 2d at 864. 

IS 

See Virginia Society for Human Lfe, Inc. v. FEC, 83 F.Supg.2d 677. 18 
Statement of Reasons, MUR 4922 

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P. 5 

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speech that does not expressly advocate the election or defeat of a clewly identified 

candidate. We believe that if Furgatch remains good law, it cannot justi@ this broad 

regulation. As the Fourth Circuit has stated: 

“[Tlhe simple holding of Furgatch was that, in those 

instances where political communications do include an 

explicit directive to voters IO 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 

candidate for public ~ffice.’~ 

No federal appellate court has cited Furgulch approvingly for anything more. Some 

federal courts have argued that Furgatch was wrongly decided under any circumstances?’ 

However, if Furgatch has any validity, such validity is contingent, it appears, on this 

narrow reading. Section 100.22@), however, goes much fbrther. The regulation includes 

within the broad sweep of “express advocacy“ all communications clearly understood to 

be for or against one or more candidates. This goes beyond the language of Fzrrgatch and 

beyond the constitutional constraints set out by the Supreme Court in Buckley and 

Massachusetts Citizens for Lge. 

Proponents of a more expansive definition of express advocacy, such as that 

provided in Section 100.22@), assert that such a test is needed in the “real world” in order 

to separate “sham issue advocacy” from “real issue advocacy.” We believe that this 

misinterprets the purpose of the express advocacy test. The test does not exist to provide 

guidelines for government officials to separate “sham” speech from authentic issue 

speech. It is not intended to be a carehlly wielded regulatory scalpel. Rat$er,, the 

purpose of the express advocacy test is to provide groups and individuals with a bright 

line for determining in advance, with a very high level of certainty, whether th.eir speech 

is protected, or whether their intended speech might subject them to expensive litigation. 

The absence of such a bright line distinction, said the Court in Buckley: 

“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 

”FEC v. Christian Action Network, 110 F.Pd at 1054 (emphasis in original). 

2o FEC v. Christian Action Network, 110 F. 3d 1049; Virginia Sociery for Human Life, Inc. v. FEC, 83 

F.Supp.2d at 668 
Statement of Reasons, MUR 4922 

Commissioners Mason & Smith 

P. 6 

whatever may be said. It compels the speaker to hedge and 

trim.’r21 

The Buckley Court was well aware that the express advocacy test would allow much 

speech which migbt influence federal elections to go unregulated, adding, “It vvould 

naively underestimate the ingenuity and resourcehlness of persons and groups desiring to 

buy influence to believe that they would have much difficulty devising expenditures that 

skirted the restriction on express advocacy of election or defmt but nevertheless benefited 

the candidate’s canipaign.”’* 

think is untenable under the constitutional principles of BuckZey and MussachnsetLs 

Citizens for L$e. The purpose of the express advocacy standard announced in those cases 

was to avoid such subjectivity. Thus we agree with the First, Fourth, and Eighth Circuits, 

and the Southern District of New York, that Section 100.22(b) is unconstitutional. 

Section 100.22@) attempts to put in place a reasonable person standard that we 

We do not take lightly our obligation to enforce regulations, even those that seem 

to us to be misguided, so long as they remain on the books. However, we, too, have taken 

an oath to uphold the Constitution. Where a regulation appears to us to be 

unconstitutional, and where our interpretation has found unanimous support from each of 

those federal courts which have ruled on the issue,23 we believe it a betrayal of our public 

trust to continue to enforce that regulation. 

Finally, even if 11 C.F.R. 100.22@) were a constitutional standard for defining 

express advocacy, we are not convinced that the standard has been met. The standard 

calls for reading the communication “as a whole,” among other things, and requires that 

“reasonable minds could not differ as to whether it encourages actions to elect or defeat 

one or more clearly identified candidates.” We recognize that the SOC News favorably 

describes Rep. Hyde’s proposal for a new airport, and refers to the congressman as a 

“tenacious and aggressive fighter oil our behalf on the issues of O’Hare expansion.” It 

also urges the reader, at the bottom of each page, “Vote on Nov. 3.” However, nowhere 

does the newsletter urge specific action as it regards Rep. Hyde. Rather, it states only that 

“it is essential that we have a strong and knowledgeable advocate on this issuie as our 

Congressman,” a description not necessarily limited to Rep. Kyde, nor denied to his 

opponent. If we are to read the communication as a “whole,” we note that page 4 of the 

publication prominently features a scorecard of “candidates’ positions on O’Hare 

Expansion vew Runways) and New Regional Airport.” The scorecard does not even list 

2’ Buckley v. Valeo, 424 US. at 43 (quoting Thomas v. Collins, 323 US. 516 (1945)). 

22 Id. at 45. 

” Several other federal courts have issued rulings which, while not ruling on the specific language of 11 

C.F.R. Sec. 100.22(b), support a standard for determining express advocacy which we believe is 

incompatible with Sec. 100.22(b). See e.g. FEC v. Central Long Island Tux Reform Inmediately 

Committee, 616 F. 2d 45 (2d Cir. 1980); FEC v. Survival Education Fund. Inc., 1994 U.S. Dist. Lexis 210 

(S.D.N.Y. 1994). afirmed in part and reversedin part on orhergrounds, 59 F. 3d 1015 (Id Cir. 1995); 

FEC v. American Federation of State. County 6; Municipal Employees, 471 F. Supp. 3 15 (D.D.C. 1979). 
Statement of Reasons, MUR 4922 

Commissioners Mason & Smith 

P. 7 

candidates for Congress, neither Rep. Hyde nor others. It also includes a disclaimer 

stating that the SOC “does not endorse any particular candidate.” The letter states that, 

“we believe it is critical that you know the positions of the major candidates on these 

issues and equally important that you vote on November 3.”” But readers are not asked 

to vote solely on this issue or any other. We would compare this with the facts of 

Fiirgafch, the erstwhile basis for Section 100.22(b). In Furgulch, the defendant had 

placed an ad criticizing President Carter’s record, stating that he would c0ntinu.e to do the 

things in question if re-elected, and exhorted voters, “Don’t let him do it.”25 Unlike that 

communication, the one at issue here includes no exhortation, but merely relates 

information on issues and urges voters to consider that information. Thus there is more 

room for “reasonable minds” to “differ.” We note that the Ninth Circuit considered 

Furgafch a “very close 

Thus, while we consider the sounder analysis to be one which avoids any reliance 

on Section 100.22(b), due to the our belief that the section is unconstitutional, we do not 

agree that even under the standard of that section, this case fits the definition of express 

advocacy. 

B. Analysis Under 11 C.F.R. 100.22(a) 

Although the complaint seems to rely on Section 100.22(b), we are assured by the 

General Counsel that this MUR may proceed under 11 C.F.R. 100.22(a), with the 

communication constituting express advocacy even under that more confining definition 

of the phrase.27 We disagree. 

The General Cornsel makes no attempt to suggest that the SOC News contains 

the type of explicit words that appear as examples of express advocacy in Buckley - 

words such as “vote for,” “elect,” etcy* However, the Counsel suggests to us that the 

SOC News is similar to the facts found in Massachusetts Citizens for Lqe, in which the 

Court found express advocacy 

In MCFL, the defendant published a “special edition” of the Massachusetts 

Citizens for Life Newsletter in May, 1978, before the state’s primary elections. The front 

page was headlined, “EVERYTHDJG ‘YOU NEED TO KNOW TO VOTE PRO-LIFE,” 

and readers were admonished that “no pro-life candidate can win in November without 

your vote.” “VOTE PRO-LIFE’ was printed in large bold letters on the back page, with a 

coupon provided to be clipped and taken to the polls to remind voters of the names of 

“pro-life” candidates. A scorecard noted whether or not the candidates agreed with 

MCFL on three key issues. Additionally, certain candidates were marked with an asterisk, 

Response, Exhibit I. 24 

’’ 807 F.2d at 858. 

26 Id. at 861. 

2’ First General Counsel’s Report ai 18. 

28 424 U.S. 1 at 44, n.52. 
Statement of Reasons, MUR 4922 

Commissioners Mason & Smith 

P. 8 

those being incumbents who had made “a special contibution to the unborn in 

maintaining a 100% pro-life voting record.. ..” Of over 400 candidates whose voting 

records were listed, 13 were identified with photos. All thirteen had perfect ratings on the 

scorecard.29 The Court found this to be express advocacy because, “the publication not 

only urges voters to vote for ‘pro-life’ candidates, but also identifies and provides 

photographs of specific candidates fitting that des~ription.”~~ 

Unlike the newsletter in MCFL, the SOC News never urges readers to vote in any 

particular manner. It is true that readers are urged to “Vote on Nov. 3.” It is true that 

readers are told that “the new Governor, the new United States Senator, and our 

Congressman will be key players in the decisions as to O’Hare expansion.” They are told 

that “your vote on November 3 for candidates for these offices will decide your future.” 

Voters are told that SOC wants them to know “the positions of the major candidates on 

these issues.” The newsletter describes at length the alleged problems of O’Hare and 

SOC’s favored solution, the “Hyde-Jackson” proposal. 31 But at no point are readers 

urged to “vote for candidates who oppose airport expansion,” or anything similar. No 

candidates are pictured, or specifically identified as being “pro-SOC,” for example. 

Ultimately, then, the General Counsel’s report comes to rely on this paragraph: 

“Congressman Hyde has been a tenacious and aggressive 

fighter on our behalf on the issues of O’Hare expansion. He 

recently single-handedly defeated attempts to add more 

than 60 new slots at O’Hare. Congress has announced that 

next year will be the ‘Year of Aviation’ in Congress. The 

debate over O’Hare expansion and construction of a new 

regional airport will be at the center of the action. It is 

essential that we have a strong and knowledgeable advocate 

on this issue as our C~ngressman.”~’ 

The General Counsel argues that this is the equivalent of claiming, “Congressman Hyde 

is pro-life,” as in MCFL.” However, unlike the newsletter in MCFL, readers are not 

asked to vote in any particular way. Candidates, including Mr. Hyde, are not specifically 

identified as “pro-SOC” and voters are not asked to vote “pro-SOC.” 

While the case does bear similarities to MCFL. we believe that a better 

comparison is ultimately found in FEC v. Central Long Island Tax Reform Imniediately 

Committee, 616 F.2d 45 (2d Cir. 1980) (CLITRIM). In that case, the defendants 

distributed a “scorecard” which, after making clear “CLITRIM’s stand against higher 

*’ 479 U.S. at 243-44. 

” Id. at 249. 

” See First General Counsel’s Report at 14-15. ’* See First General Counsel’s Report at 16, and Exhibit 1 to Complaint. 

First General Counsel’s Report at 17. 
Statement of Reasons, MUR 4922 

Commissioners Mason & Smith 

P. 9 

taxes and ‘Big Government’ in favor of lower taxes and ‘Less Government’,” set forth the 

incumbent congressman’s record on 24 issues, recording each vote as either “For Lower 

Taxes and Less Government,” or for “Higher Taxes and More Government.” On 21 of 

the 24 issues, the congressman was marked for “higher taxes and more govenunent.” The 

congressman’s photo accompanied the ranking. As in this MUR, his opponent was not 

discussed, although the leaflet also made no mention of the coming election. Readers 

were told to “keep an eye on how your representative votes on measures which increase 

your total taxes,’’ and reminded that, “You are the boss. And don’t ever let your 

representative forget it.” The scorecards were distributed shortly before the election.34 

The primary difference we see between MCFL and CLITRIM is the exhortation to 

“vote pro-life,” and the identification of specific candidates as being “pro-life,” in MCFL. 

In MUR 4922 there is an exhortation, but it is the generic language, “vote,” not the 

specific exhortation to vote for particular candidates or even for particular views, as in 

MCFL. As such, this case occupies something of a middle ground. The General Counsel 

would have this exhortation to general civic duty subject the speech involved - which is 

otherwise clearly issue speech - to regulation. We think that this is dangerous, however, 

because organizations such as the League of Women Voters and other non-partisan civic 

groups often publish voter guides which explicitly urge citizens to “vote” and which then 

include language describing the positions of candidates on important issues. The 

subjective effect of these responses on particular readers may be to lead readers to believe 

that one candidate or another is favored. But we do not believe that issue advocacy 

should be turned into “express advocacy” merely because, in another portion of the same 

flyer, readers are urged generically to do a civic duty. In short, what makes for express 

advocacy in MCFL is the exhortation to vote for specifically identified “pro-life” 

candidates - not to vote generally. Such is the case whenever express advocacy is found. 

For example, in Furgutch the exhortation was not to “let him do ii,.’ where “him” clearly 

referred to candidate Jimmy Carter, and “do it,” referred to Carter’s agenda: in other 

words, specific action relative to a specific candidate. 

The potential results of the General Counsel’s pro-regulatory interpretation are 

apparent in this MUR. Leaving aside the newsletter’s description of Congressman Hyde 

as “a tenacious and aggressive fighter on onr behalf on the issues of O’Hare expansion,” 

the remaining text of the newsletter, in the context of discussing issues, necessarily 

praises Hyde because it endorses the “Hyde-Jackson” plan to solve the problem. The 

reader is informed that “Congressman Henry Hyde and Congressman Jesse Jackson, Jr. - 

a Republican and a Democrat - have offered a bipartisan “WINNVIN” solution.. .. The 

Hyde-Jackson proposal keeps all the economic benefits associated with air traffic growth 

in the metropolitan Chicago region.” Bold letters state, “What’s the Solution - the HydeJackson Partnership.” This is clear issue advocacy of the purest sort, yet obviously it 

could certainly dispose readers to favor Representative Hyde. This potential for issue ads 

to influence voting was recognized by the Buckiey Court, which noted that, “the 
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Statement of Reasons, MUR 4922 

Commissioners Mason & Smith 

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distinction between discussion of issues and candidates and the advocacy of election or 

defeat of candidates may often dissolve in practical appli~ation.”~’ We do not believe 

that protected issue advocacy of this sort, in a publication discussing a number of 

candidates, becomes express advocacy for one specific candidate merely because the 

civic-minded reminder to “Vote on Nov. 3” is written across the bottom of the page. The 

purpose of the express advocacy test, we stress again, is to make it unnecessary for 

speakers to divine the effects of their message on voters, or for govement officials to 

make judgment calls of this kind as to whose speech is protected. 

We are left to conclude that while this is indeed a close call, both precedent and 

the policy behind adoption of the express advocacy test point against a finding of express 

advocacy in the SOC News. 

B. Exercise of Prosecutorial Discretion 

Even if we believed that the SOC News contained express advocacy, we would 

vote to close the file in this matter, in the exercise of our prosecutorial discretion under 

Heckler v. Chaney, 470 U.S. 821 (1985). 

Under the Supreme Court’s ruling in MCFL, Section 441b’s prohibition on 

express advocacy independent expenditures from a corporation’s general treasury cannot 

be constitutionally applied to a class oforganizations that, although corporate in form, do 

not present the dangers that 441b is designed to prevent. To meet this exemption, 

corporations should have been formed for the express purpose of promoting political 

ideas; they should not engage in business activities; they must not have shareholders or 

other persons with a claim on assets and earnings; they should not have been established 

by a corporation or labor union; and they should have a policy of not accepting 

contributions from corporations or unions.36 FEC regulations at 11 C.F.R. 114.10(c) 

track this criteria, adding as a final criteria that the corporations be organized under 26 

U.S.C. Section 501(c)(4). Even if SOC qualified for this exemption, it could still be 

required to report to the FEC if its independent express advocacy expenditures exceeded 

$250 in the calendar year in question. 

As noted in the First General Counsel’s Report, a review of available documents 

indicates that SOC was not formed by a corporation or union, and was formed to promote 

“political ideas.” It appears to be financed by both cash and in-kind contributions from 

its member muni~ipalities.~’ The General Counsel notes that “it is not known at this time 

whether the SOC has accepted, directly or indirccily, funding from any corporations or 

labor organizations.. . or had a policy of not doing But there is no evidence now on 

file, and no allegation in the complaint, that it does so, and we believe it would be odd if 

’’ 424 US. at 42. 

36 419 US. at 264. 

” First General Counsel’s Report at 20-21. 18 Id. at 21. 
Statement of Reasons, MUR 4922 

Commissioners Mason & Smith 

p. 11 

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that were the case for this type of organization. Nor is there any evidence that it engages 

in business acti~ities.’~ While it is possible that the organization spent over $250 to 

produce and mail the SOC News, there is no evidence now on file nor any allegation in 

the complaint that it did so. In any case, we doubt that the amount spent was large. We 

note that the race for Representative Hyde’s seat was not competitive - Mr. Hyde 

ultimately won with 67 percent of the vote, compared to 64 percent in 1996 and 73 

percent in 1994:’ It is highly doubtful that the SOC News had any serious effect on that 

race. Moreover, it appears to us, from the overall flyer and in particular the fact that the 

congressional candidates are not listed on the scorecard part of the flyer, that SOC’s main 

concern was not with the congressional race at all. Finally, the complaint was filed nearly 

one year after the election in question, and there is no evidence that SOC continues to 

engage in such activities. 

For a!] of these reasons, we believe the matter to be one of low significance and 

priority. Because of the difficult legal issues outlined in Part II-A, we believe that a 

prosecution in this case would involve substantial resources with at best a modest 

prospect of success, for a matter of relatively little importance. 

Thus, following Heckler, we would decline to pursue this matter further even if 

we believed that express advocacy existed, and even if we were not under an injunction 

not to enforce our definition of express advocacy at 11 C.F.R. 100.22(b). //1 

David M. Mason, Commissioner Date 

A US. Appellate Court has recently held that a non-profit, political corporation may qualify for the 

MCFL exemption from state law despite accepting “an insignificant amount” of corporate contributions 

and engaging in incidental business activities, Norrh Carolina Rig& to L@ Y. Bartleff, 168 F.3d 705 (4” 

Cir. 1999). The US. District Court for the Eastern District of North Carolina has more recently applied this 

reasoning to corporations subject to federal campaign finance law. Beaumont Y. FEC, (2:00-CV-2-80(2), 

E.D.N.C., Oct. 3, 2000). This latter decision is on appeal. While these decisions are not dispositive in this 

case, they add to oui hesitation in pursuing this matter, as it appears to us doubtful, given the lack of 

allegations or evidence to the contrary, that SOC engages in significant business activity or accepts 

substantial corporate contributions. 

CQ’s Politics in America 2000,438 (Philip D. Duncan & Brian Nutting, eds.) 40