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UNITED STATES*DISTRICT COURT 

rOR THE DISTRICT-or COLUMBIA ,." 

JON EPSTEIN,
 

Plaintiff,
 -L
 _r,


v. "."l~f Civil Action No. 81-0336 

FEDERAL ELECTION COMMISSION,.: " FI LE D 

Defendant. 

SEP 2 4 1981 

MEMORANi3U~ UAMES E. DAVEY. CLERI\ 

Plaintiff brought th~t~on to seek review of
 

'defendant's dismissal of plaintiff's administrative complaint,
 . ·;\~:f",1~.;··
 

filed pursuant to 2 U.S.C. S ~~alleging violation of the
 

rederal Election Campaign Act,.as amended, 2 U.S.C. SS 431 et 'fl'M,,!;1:' ­

~. ("the Act·). The admini~~~~~ve complaint alleged that the 

.'y,*"p" 

Reader's Digest Association, Ir£~~.publisher of a magazine of the
 ;).'f:<''''~-'-<
 

same name, violated the Act Whe,~~.Placed an advertisement in an
 

edition of the Washington Post on August 27, 1980 that inter alia '"~'C:" -----­

advocated the election of. var~~~~~didates for the United 

States Congress in the NovembeI~~lections. The Commission :~ .,..~, ', ". 

dismissed the complaint upon finding no reason to believe that 

Reader's Digest had violated the Act. In the Matter of Reader's 

Diqest Association, Inc., MUR 1283 (Mar. 24, 1981). The matter 

is now before the Court on defendant's motion for summary 

judgment. 

Plaintiff claims here that dismissal of the 

administrative complaint was ·contrary to law,· 2 U.S.C. S 

437g (a)(8)(C), a~d that he is thus entitled to declaratory 

relief. The Court concludes that defendant's decision was not 

·contrary to law,· and grants defendant's motion. 

It has already been established that there are no 

material facts in dispute. Epstein v. Federal Election 

Commission, Civil Action No. 81-0336 (July 20, 1981). The 

advertisement in question vas a large black-and-white display 
•• . :l .'~' ".. 

-2­

that excerpted "7~,,rtiCleS pub Lfahed in the September 1980 

edition of,ReaderJs" Digest that had been writ ten by members of 

""'~ Congress. ':',~t~"~~.,;",,Of one article, bearing the name of a 

prominent Re,p~~ii~~~s~ngressman, recommended election of a 

Republican majority",to the new Congress. The excerpt of another ;'<~'~~x

article, attributed to a leading Democratic Congressman, .: ,<::;'41,1\1IX"', t 

recommended e,lec,~",i~,~~mOcratic majority. A third section 

of the advertisement'summarized material from other articles in '~"~:?~::r:;/";
 

the same issu~" 0;. Reader 's Digest on public affairs•
 • ~<- "";~~~""

Introductory and,concluding copy in the advertisement called the . " . - "-'~~~;:;"'

Reader's Digest ~~.,,~orum for ideas that deeply concern the • -';,.,Y" 

community at large" and "America's biggest town meeting." , ·k;...• . ,.~.:

Plaintiff's Exhibit 1. 

'i!!f/C 

The artic!~s excerpted were clearly identified as part 

of the September i~~ue of Reader's Digest. A notice at the 

bottom of the advertisement offered copies of the articles to 

-f::tifi; 

readers of the ~.""The excerpts themselves had the headings, iF?'i$_'-~

·why You Sho~ld V,~';i"RePUblican· and ·Why You Should Vote
 

Democratic." They did not mention the names of particular
 

individuals, other than President Carter and the late Adlai
 

Stevenson. The only names of candidates for Congress mentioned
 

in the advertisement were those of the authors, Rep. Jack Kemp,
 

and Rep. Jim Wright, whose names appeared in the passages
 

introducing the excerpts. The main heading of the entire
 

display, in type twice the size of the excerpts' headings, read, 

·which Political Party Should Lead the Next Congress?" and, 

directly underneath, ·Why Bureaucrats Are Handing Out Unspent 

Cash So Fast." Plaintiff's Exhibit 1. 

The administrative complaint claimed that the 

advertisement was a campaign expenditure within the terms of 11 

C.F.R. 5 109, and that it amOunted to an illegal campaign 

contribution under 2 U.S.C. 5 441b and 11 C.F.R. 55 114.1, 

114.2. The Commission, however, accepted the advice of a General 
·.'
 

Counsel's Report, dated Marc~981, that the advertisement had 

the purpose of promoting the"Reader's Diqest among readers of the ~-... washinqton Post. The Genera,~sel recommended that under a 

"p"rpose" test applied by th~~tssion in similar cases, the 

advertisement was therefore .~,unlawfUl expenditure. The 

Commission memorandum adopting t~e, General Counsel's proposal to ,.,~".,?

" dismiss plaintiff's comPlain;~ that the vote within the
 

Commission was 5 to 1, but it~J~~not offer a statement of
 

reasons for the action and contained no statement from the
 ",~~~,~

dissenting Commissioner, 

The standard for review "t
of Commission decisions to :!~~tr;

dismiss administrative complai~ynder 2 U.S.C. S 437g (a)(8)(C) 

reqUires that a court setting aside a decision find it to be ,~.~~:::.,

"contrary to law.' Defendant's action may be overturned only if t~,

it "acted in a manner which was arbitrary or capricious" or 

'''';\' committed 'an abuse of discretion.~ Hampton v. Federal Election
 ·~;ft"
 

Com'n, Fed. Elec. Camp, Fin. Guide,(CCR) , 9036 (D.D.C. 1~77), at
 -- y.:i'jJi~

50,440, aff'd, no. 77-1546 (D.C. Cir., July 21. 1978). The - -11' :;',:,
 

decision whether to investigate,a charge may depend upon a
 .C:""';-,r-, 

variety of factors, and "[t)he sensitive nature of the 

Commission's deciSion •• , calls for jUdicial deference to the 

expertise of the agency which Congress has empowered to enforce 

the election laws.' In re Federal Election Campaign Act 

Litigstion, 474 F.Supp. 1044, 1046 (D.D.C. 1~79).

Plaintiff suggests that deference is inappropriate when, 

as in this case, the Commission's memorandum of decision does not 

explain, independently of the General Counsel's memorandum, its 

reasons for finding no violation of the Act. Yet the Court has 

before it a record as complete as that usually involved in review 

pursuant to 2 U.s.c. S 437g (a)(8). The General Counsel's 

Memorandum alone, if it is complete enough to have prOVided a 

basis for the Commission decision to accept the General Counsel's 

recommendation, will be adequate for judicial review under 
"; I ' I .. ,e -4­

section 437g (a) (8). Cf. Archie Brown v. Federal Election 

Commission, No. 79-0940 (D.D.C.·, July 17, 1980), appeal docketed, 

No. 80-2108, slip op.at 3-4. 

The General Counsel's report focused on what it deemed 

the primary purpose of the advertisement: promotion of the 

Reader's Digest magazine. In doing so, it relied upon a growing 

body of decisions by the Commission that remove advertisements 

and other forms of publicity from the Act's prohibition if they 

have a purpose distinct from political assistance of candidates 

whose campaigns are covered by the Act. An advertisement 

intended to sell magazines will not ordinarily be denounced under 

U.S.C. S 44lb even though it may also have political aspects. 

See, ~' In the Matter of Penthouse Magazine, MUR 296 

(76)(December 22, 1976). While the contours of the "purpose 

test" for application of section 44lb remain indistinct, its 

intuitive appeal has been recognized by the courts. ~'~'

Federal Election com'n v. Phillips Publishing, Inc ... Fed. Elec. 

Camp. Fin. Guide (CCR) t 9156 (D.D.C. 1981) at 51.226: Reader's 

Digest Ass'n v. Federal Election Com'n, 509 F.Supp. 1210, 1215 

(S.D. N.Y. 1981). There seems to be no basis. given the record 

in the present case, to hold the purpose test inherently 

arbitrary. As the courts in Phillips PUblishing and Reader's 

Digest have recognized, the Commission may r~asonably determine 

that expenditures on publicity that have a purpose other than 

assistance of political candidates covered by the Act were not 

intended by Congress to be punished under the Act. Particularly 

is this so when the "major purpose" of the publicity is selfevidently not to advocate the election of candidates, but to 

promote the organization paying for the publicity. See generally 

In the Matter of Congo Les Aspin, MUR 1051 (Nov. 16, 1979): First 

General Counsel's Report, HUR 1051 (October 22. 1979). The Court 

therefore rejects plaintiff's argument that the "purpose test" 

developed by the Commission is so flawed an approach to section 
.. • >.1 ·:1 

-5­

441b of the Act es to be "contrary to la'f" on its face. 

Applying the ~purpose test" In this case, the General 

Counsel found, and the Commission apparently agreed, that 'the 

purpose of the advertisement is to sell the magazine by enticing 

potential readers with excerpts from the articles and to promote 

Reader's Disest as a magazine that deals with issues of political 

importance." Defendant's Exhibit 4 at 4. The General Counsel 

determined that the advertisement tended not to favor either of 

the arguments advanced in the two excerpts, and merely provided 

what purported to be a sample of the material available to 

·readers	 of the magazine's September issue. Review of the record 

in this c~se de~on8trates that the General Counsel's assessment. 

of the advertisement was reasonable, and that his application Of 

the ·purpose test' was not arbitrary. 

This conclusion is not altered by the fact that the 

Digest offered commentary in the advertisement only from 

representatives of the two major parties. The Commission appears 

never to have conditioned application of its 'purpose test" On 

the narrowness, or diversity, of the political views Or 

candidacies mentioned in pUblicity challenged under the Act. 

There is nothing unreasonable in that refusal to consider such 

factors, since what matters is whether the challenged pUblicity, 

whatever its content, has no partisan purpose. Furthermore, at 

worst, this pUblicity was bipartisan. Attributing to the 

Commission the findings and rea.oning in the General Counsel's 

Report whose recommendation the Commission accepted, the Court 

has determined that the dismissal of plaintiff's administrative 

complaint was lawful, and that plaintiff is therefore not 

entitled	 to declaratory relief under 2 U.S.C. 437g (a)(a,(C). 

An appropriate order aCcompanies this memorandum. 

Date: o£;~~ UNITED STATESD1STCT JUDGE
 
.0' ·1 I), '~ a ',) .~ " . . 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICor OF COLUMBIlI 

JON EPSTEIN. )

•


Plaintiff, ) 

) 

) 

v , ) Civil Action No. 81-0336 

) 

FEDERAL ELECTION COMMISSION, )
 FI LED
 

) 

Defendant. ) SEf'241981 

ORDER ~AMES F. DAVEY, CLERK 

For the reasons stated in an accompanying memorandum, 

it is this d~day of September 1981 hereby 

ORDERED: that defendant's motion for summary judgment 

is granted. 

ITEDSTATES 15ISTRIJUDGE