4 Feperat Eveotion Comms. v. Curistiay Action Network

tutes advocacy for. or against. that candidate. we affirm on the reason-
ing of the district court.

AFFIRMED


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Feperal ELECTION COMMISSION,
Plaintiff-Appellant,

v.

Curistias ActION NETWORK,
INCORPORATED: MARTIN MIAWYER. No. 95-2600
Defendants-Appellees.

Democratic National ComMMITTEE:
American Civit Linerties UNtoN oF
VIRGINIA,

Antici Curiae.

Appeal from the United States District Court
for the Westem "District of Virginia. at Lynchburg.
James C. Turk. District Judge.
(CA-94-82-L)

Argued: May 10, 1996
Decided: August 2. 1996

Before RUSSELL and LUTTIG. Circuit Judges, and CHAPMAN,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: David Brett Kolker, FEDERAL ELECTION COMMIS-
SION, Washington, D.C.. for Appellant. David William T. Carroll, II,


2 Feperat ELecnon Comms, v. CHRISTIAN ACTION NETWORK

Columbus. Ohio. for Appellees. ON BRIEF: Lawrence M. Noble.
General Counsel. Richard B. Bader. Associate General Counsel.
FEDERAL ELECTION COMMISSION. Washington. D.C.. lor
Appellant. Frank M. Northam. WEBSTER. CHAMBERLAIN &
BEAN, Washington. D.C.. for Appellees. Slephen B. Pershing. Legal
Director, AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF VIRGINIA, Richmond. Virginia, for Amicus Curiae ACLU.
Joseph E. Sandler, General Counsel. DEMOCRATIC NATIONAL
COMMITTEE. Washington. D.C.: Donald 8. Verrilli. Pau! M. Smith.
Washington. D.C.: Daniel H. Bromberg. Washington. D.C.. for
Amicus Curiae Committee.

Unpublished opinions are not binding precedent in this circuit. Sce
Local Rule 36(¢).

OPINION
PER CURIAM:

Appellant Federal Election Commission brought this civil enforce-
ment action against Appellees Christian Action Network. Inc.. and its
president and chicf execuuve officer. Martin Mawyer, (collectively,
"CAN"), alleging violations of the Federal Election Campaign Act of
1971, as amended, 2 U.S.C. § 431 et seq., alter Appellees sponsored
newspaper and television advertisements shortly before the |992 pres-
idenuial election depicting then-Governor Clinton's stance on homo-
sexual issues. The television advertisement begins with a picture of
President Clinton before an American flag; the picture fades to a neg-
ative image of the President, and then the camera cuts away to a scries
of four scenes of marchers in a "gay pride’ parade carrying placards
with a variety of slogans supporting Homosexual rights as the
announcer states:

Bill Clinton's vision for a better America includes: job quo-
tas for homosexuals; giving homosexuals special civil
rights; allowing homosexuals in the armed forces. Al Gore


Feoerau ELectios Comm'n. v. CHRISTIAN ACTION NETWORK 3

supports homosexuz! couples adopting children und becom-
ing foster parents. Is this your vision for a better America?
For more information on traditional family values, contact
the Christian Action Network.

The newspaper advertisements convey a similar message. and cite the
sources for the positions attributed to candidates Clinton and Gore in
the tclevision advertisement.

The Federal Election Campaign Act makes it “unlawlul.. . for any
corporation whatsoever... to make 4 contribution or expenditure in
connection with any clection" for federal office. 2 U.S.C. § 441b(a),
although a corporation is permitted to establish a political action com-
mittee and to make such expenditures through that committee, subject
to various reporting requirements, see 42 U.S.C. § 434(c). In order to
prevent the statute from impermissibly infringing on First Amend-
ment rights, however, the Supreme Court held in FEC v.
Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), that the
only expenditures subject to the statutory prohibition are those that
“expressly advocate" the election or defeat of a clearly identified fed-
eral candidate, id. at 249 (citing Buckley v. Valeo, 424 U.S. 1, 80
(1976)), by the use of such words as "vote for." "clect." "support."
“cast your ballot tor," "Smith tor Congress." "vote against," "defeat,"
and "reject." Buckley, 424 U.S. at 44 0.52. The express advocacy
requirement was subsequently codified at 2 U.S.C. § 431(17), where
“independent expenditures” are defined as "expenditure[s] by a person
expressly advocating the election or defeat of a clearly identified can-
didate . . . ." (emphasis aided).

Because the adveriserrents at issue here did not expressly advo-
cate the election or defeat of Clinton, Gore, or any other candidate,
the district court granted CAN’s motion to dismiss.

We have read the briefs, heard oral argument, and given full con-
sideration to the parties’ ccntentions. Finding no error in the thorough
opinion of the court below, Federal Election Commission v. Christian
Action Network, 894 F. Supp. 946 (W.D. Va. 1995), and believing
that it would be mappropriate for us, as a court, to even inquire
whether the identification of a candidate as pro homosexual consti-