20 Va. Soctety FoR HUMAN Lire v. FEC

too far because it shifts the determination of what is “express advo-
cacy" away from the words “in and of themselves" to “the unpredict-
ability of audience interpretation." CAN //, 110 F.3d at 1051, 1057.
For that reason, we hold that the regulation violates the First Amend-
ment.

B.

The FEC ends its argument that 1] C.F.R. § 100.22(b) is constitu-
tional with the following comment: "if the express advocacy require-
ment is read too narrowly, the prohibitions of 2 U.S.C. [§] 441b will
require little more than careful diction and will do almost nothing to
prevent millions of dollars from the general treasuries of unions and
corporations from directly influencing federal elections, and from
doing so without disclosing to the public the source of the influence.”
Opening Br. for FEC at 58. That is a powerful statement, but we are
bound by Buckley and MCFL, which strictly limit the meaning of "ex-
press advocacy.” If change is to come, it must come from an imagina-
tive Congress or from further review by the Supreme Court.

Vv.

The next issue we must address is whether the scope of the district
court’s injunction is too broad. As a general matter, we review the
grant of a permanent injunction for abuse of discretion. Of course,
underlying factual findings are reviewed for clear error, and legal
conclusions are reviewed de novo. See Lone Star Steakhouse &
Saloon, Inc. v. Alpha of Va:, Inc., 43 F.3d 922, 939 (4th Cir. 1995).
Because the FEC challenges the scope of the district court's injunc-
tion, our review is for abuse of discretion. See Tuttle v. Arlington
County Sch. Bd., 195 F.3d 698, 703 (4th Cir. 1999). We conclude that
the district court abused its discretion by issuing a nationwide injunc-
tion, an injunction that prevents the FEC from enforcing the regula-
tion against any party anywhere in the United States. This injunction
is broader than necessary to afford full relief to VSHL. The injunction
also encroaches on the ability of other circuits to consider the consti-
tutionality of 11 C.F.R. § 100.22(b).

-"(Tajunctive relief should be no more burdensome to the defendant
than necessary to provide complete relief to the plaintiffs." Califano


seo 2a e

weeds

14 Va. Society FoR HUMAN Lire v. FEC

and comment rulemaking. Cf, Chamber of Commerce v. FEC, 69 F.3d
600, 603 (D.C. Cir. 1995) ("The rule constitutes the purported legal
norm that binds the class regulated by statute."). Instead, the policy
is recorded in FEC minutes that do not carry the binding force of Jaw.
The Commissioners who adopted the policy might be replaced with
ones who disagree with it, or some of the Commissioners who voted
might change their minds. A simple vote of the Commission, in other
words, could scuttle the policy, See id. ("Nothing . . . prevents the
Commission from enforcing its rule at any time with, perhaps, another
change of mind of one of the Commissioners."). But see Salvation
Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 191-94 (3d Cir. 1990)
(booklet granting exemptions to certain statutory provisions was
enough to make controversy nonjusticiable).

In any event, we do not have to decide whether the FEC’s policy
is so easy to change that the regulation’s continuing presence chills
constitutionally protected speech, making it reasonable for VSHL to
refrain from engaging in its planned communications. Even if the
FEC’s policy statement remains in place, it is too narrow to fully pro-
tect VSHL because the policy is limited to the Fourth Circuit. VSHL
alleges that during the 2000 election it intended to engage in issue
advocacy outside of the Fourth Circuit. To assist in getting its mes-
sage to residents of the northern Virginia metropolitan area, VSHL
planned to place its advertisements on at least one radio station whose
broadcast is received in the District of Columbia. This would have
required the use of a radio station physically located either in northern
Virginia or in the District. VSHL intends to engage in similar adver-
tising activity outside of this circuit in the future. The FEC has in the
past prosecuted groups in the judicial districts where they distributed
advertising materials, as opposed to the states where they are char-
tered or headquartered. See, e.g., FEC v. Pub. Citizen, Inc., 64 F.
Supp. 2d 1327 (N.D. Ga. 1999) (D.C. organization prosecuted in
Georgia for "Boot Newt" television advertisement that aired in
Atlanta and for distribution of postcards to Georgia voters); FEC v.
Nat'l Conservative Political Action Comm., 647 F. Supp. 987
(S.D.N.Y. 1986) (D.C. organization prosecuted in New York for
activities related to campaign to defeat Senator Daniel Patrick Moyni-
han).“The FEC has not given any assurances that it will refrain from
enforcing 11 C.F.R. § 100.22(b) in the District of Columbia.


a)
n

Va. Society FoR Human Lite v. FEC 5
IL.

The issues in this appeal are better understood with a review of the
case law leading up to and following the promulgation in 1995 of 11
C.F.R. § 100.22. Our starting point is Buckley v. Valeo, 424 U.S. J
(1976), where the Supreme Court first introduced the concept of “ex-
press advocacy." The constitutionality of various provisions of FECA
were at issue in Buckley. One of these provisions was 2 U.S.C.
§ 434(e), which required that "[e]very person (other than a political
committee or candidate) who makes contributions or expenditures,
other than by contribution to a political committee or candidate, in an
aggregate amount in excess of $100 within a calendar year shall file
with the supervisory officer a statement containing the information
required by [this] section." Federal Election Campaign Act of 1971,
Pub. L. No. 92-225, § 305, 86 Stat. 3, 16 (amended 1974). "Contnbu-
tion" and "expenditure" were defined in § 431(e)(1) and (f)(1) as
using money or other things of value “for the purpose of influencing
the nomination for election, or election, of any person to Federal
office." § 301, 86 Stat. at 11-12.

The Buckley Court limited § 434(e) "to reach only funds used for
communications that expressly advocate the election or defeat of a
clearly identified candidate." 424 U.S. at 80 (footnote omitted). In
other words, the communications had to contain "express words of
advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’
‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,
‘reject.’" fd. at 80 n.108 (citing id. at 44 n.52). This limitation ensured
that Congress was only regulating "spending that is unambiguously
related to the campaign of a particular federal candidate" and not reg-
ulating "issue discussion and advocacy of a political result." /d. at
79-80. After adopting this construction of § 434(e), the Court upheld
the provision against a constitutional attack, reasoning that it "bears
a sufficient relationship to a substantial government interest,” that is,
"furthering First Amendment values by opening the basic processes
of our federal election system to public view." /d. at 80, 82.

Congress amended FECA in 1976. See Pub. L. No. 94-283, 90 Stat.
475. Qne of the 1976 provisions prohibits corporations from making
"a contribution or expenditure in connection with any [federal] elec-
tion” if the contribution or expenditure comes out of the corporation's


Va. Society For HuMAN Lire v. FEC 21

v. Yamasaki, 442 U.S. 682, 702 (1979). An injunction should be care-
fully addressed to the circumstances of the case. See Hayes v. N. State
Law Enforcement Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993)
("Although injunctive relief should be designed to grant the full relief
needed to remedy the injury to the prevailing party, it should not go
beyond the extent of the established violation."); Consolidation Coal
Co. v. Disabled Miners, 442 F.2d 1261, 1267 (4th Cir. 1971) (calling
an injunction an “extraordinary writ" which "should be tailored to
restrain no more than what is reasonably required to accomplish its
ends"). Nationwide injunctions are appropriate if necessary to afford
relief to the prevailing party. See Bresgal v. Brock, 843 F.2d 1163,
1170-71 (9th Cir. 1988). For instance, in Richmond Tenants Org. v.
Kemp, 956 F.2d 1300 (4th Cir. 1992), a nationwide injunction prohib-
iting the eviction of public housing tenants without notice and a hear-
ing was appropriate because the plaintiffs were tenants from across
the country. See id. at 1302, 1309.

In this case VSHL is the only plaintiff. An injunction covering
VSHL alone adequately protects it from the feared prosecution. See
Right to Life of Dutchess County Inc. v. FEC, 97 Civ. 2614 (SHS)
(S.D.N.Y. July 20, 1998) (order clarifying that injunction shall only
apply to the plaintiff). Preventing the FEC from enforcing 11 C.F.R.
§ 100.22(b) against other parties in other circuits does not provide any
additional relief to VSHL. Cf Meinhold v. United States Dep't of
Def., 34 F.3d 1469, 1480 (9th Cir. 1994) (holding that discharged ser-
viceman challenging ban on gays in the military was entitled only to
reinstatement and an injunction prohibiting military from applying the
ban to him).

There is another reason why a nationwide injunction prohibiting
the FEC from proceeding against any other party is inappropriate in
this case. The broad scope of the injunction has the effect of preclud-
ing other circuits from ruling on the constitutionality of 11 C.F.R.
§ 100.22(b). Such a result conflicts with the principle that a federal
court of appeals’s decision is only binding within its circuit. See
United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994); Right to
Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248, 252
(S.D.N.Y. 1998) (RLDC) (refusing to view the First Circuit’s decision
as binding on it). A contrary policy would "substantially thwart the
development of important questions of law by freezing the first final


Va. Society For Human Lire v. FEC 23

injunction that prohibits the FEC from enforcing the regulation
against VSHL.

VIL.

In sum, we conclude that VSHL has standing and that its case is
ripe for review. On the merits, we affirm the district court’s order
awarding summary judgment to VSHL on the ground that 11 C.F.R.
§ 100.22(b) is unconstitutional. However, we vacate the nationwide
injunction covering all parties in the United States, and we remand for
an amendment of the injunction that limits its protection to VSHL.
Finally, we reject VWSHL's cross-appeal for a rulemaking because
VSHL is already receiving complete relief.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED


or a. a ae

18 Va. Society FoR Human Lire v. FEC

Above in part II we noted that the Supreme Court in Buckley v.
Valeo, 424 U.S. 1, 80 (1976), limited the reach of FECA § 434(e) to
corporate expenditures for "express advocacy," that is, "communica-
tions that include explicit words of advocacy of election or defeat of
a candidate." /d. at 43. We also noted in part {I that in MCFL, 479
U.S. 238, 249 (1986), the Court imposed Buckley's "express advo-
cacy" limitation upon FECA § 441b(a), the section that underlies the
regulation at issue here. MCFL, of course, drew a sharp distinction
between “express advocacy” ("more pointed exhortations to vote for
particular persons") and "issue advocacy” ("discussion of issues and
candidates"). /d.

Again, our decision in CAN // did not consider whether 11 C.F.R.
§ 100.22(b) is constitutional. CAN // does nevertheless reveal how
narrowly and strictly our circuit reads the "express advocacy” limita-
tion of Buckley and MCFL. We summed up Buckley's holding as fol-
lows: “the Federal Election Campaign Act [can] be applied
consistently with the First Amendment only if it [is] limited to expen-
ditures for communications that literally include words which in and
of themselves advocate the election or defeat of a candidate." CAN JI,
110 F.3d at 1051 (emphasis added). This holding, we said, confirms
the Supreme Court’s "commitment to an interpretation of the Consti-
tution that permits the prohibition only of corporate political commu-
nications that employ express words of advocacy." /d. at 1052. We
stressed in CAN // that the Supreme Court in Buckley “opted for the
clear, categorical limitation, that only expenditures for communica-
tions using explicit words of candidate advocacy are prohibited, so
that citizen participants in the political processes would not have their
core First Amendment rights to political speech burdened by appre-
hensions that their advocacy of issues might later be interpreted by
the government as, instead, advocacy of election result." /d. at 1051.
Our discussion in CAN // then moved to MCFL. In MCFL, we said.
the Court engrafted Buckley's “explicit words of advocacy” limitation
onto § 441b(a) because of "Buckley's rationale, that the divide
between discussion of issues and candidates and election advocacy is
so obscure as to require a prophylactic definition in order to give the
widest, berth to First Amendment freedoms." /d. at 1052. All in all,
we concluded, Buckley and MCFL make it “indisputable that the
Supreme Court limited the FEC’s regulatory authority to expenditures


10 Va. Society FoR Human Lire v. FEC
A.

The FEC'’s first justiciability argument is that VSHL lacks standing
to sue. To establish standing, a plaintiff must show three things: (1)
an injury in fact, (2) a causal connection between the plaintiff's injury
and the defendant’s conduct, and (3) a likelihood that the injury will
be redressed by a decision favorable to the plaintiff. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An "injury in
fact" is "an invasion of a legally protected interest which is (a) con-
crete and particularized, and (b) actual or imminent, not conjectural
or hypothetical." /d. at 560 (internal quotation marks and citations
omitted). When a party, like VSHL in this case, brings a preenforce-
ment challenge to a statute or regulation, it must allege “an intention
to engage in a course of conduct arguably affected with a constitu-
tional interest." and there must exist “a credible threat of prosecution"
under the statute or regulation. Babbitt v. United Farm Workers Nat'l
Union, 442 U.S. 289, 298 (1979). The fear of prosecution cannot be
imaginary or wholly speculative. See id. at 298, 302.

The FEC argues that VSHL faces no credible threat of prosecution
because the FEC has adopted a policy of not enforcing 11 C.F.R.
§ 100.22(b) in the Fourth Circuit. The FEC maintains that it adopted
this policy because our decision in FEC v. Christian Action Network,
Inc., 110 F.3d 1049 (4th Cir. 1997) (CAN //), in effect invalidated the
regulation. Although we were critical of 11 C.F.R. § 100.22(b) in
CAN II, our discussion of the regulation was dicta. And whatever the
true force of the FEC’s policy statement, there are other reasons why
VSHL faces a credible threat of civil enforcement action or prosecu-
tion for the advocacy communications it intends to undertake.

We begin with our CAN // decision, which the FEC says forecloses
it from enforcing the regulation in the Fourth Circuit. But CAN I/ did
not strike down 11 C.F.R. § 100.22. The communications leading to
the CAN case took place before the FEC promulgated the regulation.
The FEC brought an enforcement action against CAN for violating
various provisions of FECA. See FEC v. Christian Action Network,
894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, No. 95-2600,
1996 WL 431996 (4th Cir. Aug. 2, 1996) (CAN J). One of the provi-
sions*the FEC invoked against CAN was 2 U.S.C. § 441b(a), which,
after MCFL, 479 U.S. 238, 249 (1986), prohibits only corporate


Va. Society FOR HUMAN Lire v. FEC 7

ism at its worst."; "If he succeeds the country will be burdened with
four more years of incoherencies, ineptness and illusion, as he leaves
a legacy of low-level campaigning." See id. at 858-59.

The Ninth Circuit in Furgatch developed a standard for defining
"express advocacy” under FECA:

{S]peech 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 candi-
date. This standard can be broken into three main compo-
nents. 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 plausible meaning. Second, speech may only be
termed "advocacy" if it presents a clear plea for action, and
thus speech that is merely informative is not covered by the
Act. Finally, it must be clear what action is advocated.
Speech cannot be “express advocacy of the election or
defeat of a clearly identified candidate" when reasonable
minds could differ as to whether it encourages a vote for or
against a candidate or encourages the reader to take some
other kind of action.

Id. at 864. Applying this standard, the Ninth Circuit concluded that
Furgatch’s ads constituted express advocacy of the defeat of President
Carter. See id. at 864-65.

Drawing on Buckley, MCFL, and Furgatch, the FEC in 1995
adopted a new regulation, revising its definition of "express advo-
cacy." See Express Advocacy; Independent Expenditures; Corporate
and Labor Organization Expenditures, 60 Fed. Reg. 35292, 35294
(July 6, 1995). The new definition, found at 11 C.F.R. § 100.22, pro-
vides:

«Expressly advocating means any communication that—
(4) Uses phrases such as “vote for the President,” "re-elect
your Congressman,” "support the Democratic nominee,"


rs Va. Society FOR HuMAN Lire v. FEC

general treasury. 2 U.S.C. § 441b(a). In FEC v. Mass. Citizens for
Life, Inc., 479 U.S. 238 (1986) (MCFL), the Supreme Court used the
principles it had laid out in Buckley to hold that “an expenditure must
constitute ‘express advocacy’ in order to be subject to the prohibition
of § 441b." /d. at 249. Specifically, the "discussion of issues and can-
didates" should be distinguished from "more pointed exhortations to
vote for particular persons." /d.'

One circuit case, FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987),
decided before 11 C.F.R. § 100.22 was adopted, should also be men-
tioned. In Furgatch the FEC brought an enforcement action against
Harvey Furgatch under 2 U.S.C. § 434(c) for failing to report his
expenditures for political advertisements he placed in The New York
Times and The Boston Globe the week before the 1980 presidential
election. Section 434(c)’s reporting requirements are expressly lim-
ited to expenditures that "expressly advocate] the election or defeat
of a clearly identified candidate.” 2 U.S.C. § 431(17). Furgatch’s ads,
which were aimed at President Carter, were captioned and ended with
the statement, "DON’T LET HIM DO IT." They included disparaging
comments about President Carter, including: "The President of the
United States continues degrading the electoral process and lessening
the prestige of the office."; "In recent weeks, Carter has tried to buy
entire cities, the steel industry, the auto industry, and others with pub-
lic funds."; "His meanness of spirit is divisive and reckless McCarthy-

'MCFL arose out of an enforcement action that the FEC brought
against MCFEL for its distribution of a "Special Edition” newsletter before
the September 1978 primary elections. The publication, entitled "EV-
ERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE," identified
every candidate for state and federal office in Massachusetts as either
supporting or opposing MCFL's positions on abortion issues. The “Spe-
cial Edition” newsletter also contained photographs of thirteen candi-
dates whose views mirrored those of MCFL. Finally, the newsletter
included a clippable coupon that voters could remove and take with them
to the polls as a reminder of the candidates’ positions. See id. at 243-44.
The Court considered this newsletter “express advocacy." See id. at 249-
50. However, it held that § 441b’s restrictions were unconstitutional as
applied to MCFL because MCFL was more like a voluntary political
association than a business entity. Thus, the restrictions lacked the tradi-
tionaMcompelling justification of limiting corporate power in the political
arena. See id. at 263-64.


Va. Society For Human Lire v. FEC 19

which, through explicit words, advocate the election or defeat of a
specifically identified candidate.” /d. at 1062.

Under the regulation in question, 11 C.F.R. § 100.22(b), "Expresslv
advocating means any communication that... (w]hen taken as a
whole . . . could only be interpreted by a reasonable person as con-
taining advocacy of the election or defeat of one or more clearly iden-
tified candidate(s) ...." The regulation thus shifts the focus of the
express advocacy determination away from the words themselves to
the overall impressions of the hypothetical, reasonable listener or
viewer. This is precisely what Buckley warmed against and prohibited.
Buckley recognized that the distinction between "express advocacy"
and "issue advocacy” can easily "dissolve in practical application.”
Buckley, 424 U.S. at 42, In no event, the Court said, could the distinc-
tion depend on the understanding of the audience. This, the Court
said, would put “‘the speaker . . . wholly at the mercy of the varied
understanding of his hearers.’" /d. at 43 (quoting Thomas v. Collins,
323 U.S 516, 535 (1945)). Relying on audience impression to deter-
mine the advocacy category would "compel{ ] the speaker to hedge
and trim" and curtail the right of free expression. /d. (quoting
Thomas, 323 U.S. at 535). See also CAN II, 110 F.3d at 1057 (noting
that the Supreme Court in Buckley “warned of the constitutional pit-
falls in subjecting a speaker’s message to the unpredictability of audi-
ence interpretation"). This led the Supreme Court to make the
speaker’s words the focus of the inquiry and to limit the FEC’s regu-
latory authority to expenditures for "express words of advocacy." As
the district judge in Maine, whose reasoning in striking down the reg-
ulation was adopted by the First Circuit, said: "What the Supreme
Court did was draw a bright line that may err on the side of permitting
things that affect the election process, but at all costs avoids restrict-
ing in any way, discussion of public issues." MRLC, 914 F. Supp. 8,
12 (D. Me.), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996).

11 C.F.R. § 100.22(b) defines express advocacy with reference to
the reasonable listener’s or reader’s overall impression of the commu-
nication. That is prohibited by Buckley and MCFL, which limit the
meaning of "express advocacy” to clear words that “directly fit the
term,"*MRLC, 914 F. Supp. at 12, “such as ‘vote for,’ ‘elect,’ ‘sup-
port, ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’
‘defeat,’ ‘reject,"" Buckley, 424 U.S. at 44 n.52. The regulation goes


Va. Society FOR AUMAN Lire v. FEC 9

cacy because it will still require the speaker, before he speaks, to
“pause to debate the shades of meaning in language." /d. at 11-12.
Second, "the speaker must continually re-evaluate his or her words as
the election approaches” because the regulation’s scope is dependent
on the timing of the communication. /d. at 13. Therefore, the court
struck down § 100.22(b), holding that the regulation chilled the plain-
tiff's First Amendment rights. See id.

The next challenge to subpart (b) of the regulation came in Right
to Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y.
1998) (RLDC). There, the court held that by omitting any requirement
that the communications include express words of advocacy, 11
C.F.R. § 100.22(b) ran afoul of the First Amendment. See id. at 253-
54. Like the MRLC court, the RLDC court reasoned that Buckley's
“bright-line requirement of ‘express’ or ‘explicit’ words of advocacy
of election or defeat of a candidate is necessary to avoid prohibitions
on ‘issue discussions,’ which are plainly protected from regulation by
the First Amendment." fd. at 253. The regulation’s definition, the
court found, "“encompass[es] substantially more communication than
is permissible” for the FEC to regulate. /d. at 254. The FEC decided
not to appeal to the Second Circuit.

We are now the third court to be presented directly with the ques-
tion of whether 11 C.F.R. § 100.22(b) is constitutional.”

II.

Before considering the merits of the case, we must decide whether
we are presented with a justiciable controversy. The FEC argues that
VSHL has no standing to bring this action and that the case is not ripe
for review. We review these issues de novo. See Marshall v. Mead-
ows, 105 F.3d 904, 905-06 (4th Cir. 1997). We hold that VSHL has
standing to sue because it faces a credible threat of prosecution. We
also hold that VSHL’s allegations are sufficient to create a mpe con-
troversy.

"In FEC vy, Christian Action Network, Inc., 110 F.3d 1049 (4th Cir.
1997) (CAN IT, we considered the “express advocacy” limitation
imposad by Buckley, but not in the context of whether 11 C.F.R.
§ 100.220) is constitutional.


PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VirnGINiIA Society FOR HUMAN Lire.
INCORPORATED,

Plaintiff-Appellee,

Vv

Feperat Evection Commission,

Defendant-Appellant.

r No. 00-1252

Viramsia Society FOR HUMAN LIFE,
INCORPORATED,

Plaintiff-Appellant,

v

Feperat Evection Commission,

Defendant-Appellee.

, No. 00-1332

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-99-559)

Argued: February 26, 2001

Decided: September 17, 2001

Before WILLIAMS and MICHAEL, Circuit Judges, and
Cynthia H. HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,

sitting by designation.



12 Va. Soctety For Human Life v. FEC

tion. CAN IJ, 110 F.3d at 1054. This statement, read in context, can
be taken as criticism of the definition of "express advocacy” con-
tained in 11 C.F.R. § 100.22(b). The purpose of the statement, how-
ever, was to show that MRLC is just another indication that the FEC
did not have “substantial justification” for its expansive approach in
determining what constitutes “express advocacy." The statement
about § 100.22(b) did not decide the question before us today —
whether the regulation is constitutional. Indeed, prior to the time
VSHL filed this case and the FEC adopted its nonenforcement policy
in the Fourth Circuit, the FEC took the position that CAN //’s limited
discussion about the regulation was dicta. See Defendant Federal
Election Commission's Reply to Plaintiff's Opposition to the Com-
mission's Motion to Amend Judgment at 4 n.1, Right to Life of
Dutchess County Inc. v. FEC, 97 Civ. 2614 (SHS) (S.D.N.Y. July 20,
1998). Our decision in CAN JI does not defeat VSHL’s standing to
challenge the regulation.

Our decision in CAN // aside, the FEC argues that its policy state-
ment removes any threat of prosecution. VSHL, in turn, relies on N.C.
Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) (NCRL),
to argue that the FEC’s policy statement is not entitled to any weight.
In NCRL a nonprofit corporation that advocates the pro-life position
challenged the constitutionality of various provisions of North Caro-
lina law relating to elections and campaign finance. One of these pro-
visions required political committees to register and file regular
reports with the state and to maintain detailed accounts of contribu-
tions and expenditures. See id. at 709 (citing N.C. Gen. Stat. §§ 163-
278.7(b), .8, .9, .11). NCRL was concerned that it would be consid-
ered a political committee because it distributed voter guides. See id.
(citing N.C. Gen. Stat. § 163-278.6(14)). It therefore challenged the
definition of "political committee" on the ground that it encompassed
groups that engaged in issue advocacy. North Carolina argued that
there was no case or controversy because the state had interpreted the
statute to allow for voter guide distribution, as long as the guide did
not contain candidate endorsements. North Carolina emphasized that
it had never applied the definition to an issue advocacy group in the
twenty-five years since the statute’s enactment. See id. at 710

" We rejected North Carolina’s argument. We first noted that when
a Statute on its face restricts a party from engaging in expressive


Va. Society FoR HumaN Lire v. FEC 1

expenditures for express advocacy in connection with a federal elec-
tion. CAN, a nonprofit corporation that "seeks to inform the public
about issues which it believes affect ‘traditional Christian family val-
ues,’" 894 F. Supp. at 948, had used its general treasury funds to pro-
duce television and print advertisements in the weeks before the 1992
presidential election. These ads criticized then-candidates Bill Clinton
and Al Gore for what CAN considered their "militant homosexual
agenda.” /d. The FEC argued that the imagery and nonverbal compo-
nents of the ads, as opposed to the actual words, amounted to express
advocacy for the defeat of Clinton and Gore. The district court dis-
missed the lawsuit, holding that the ads did not constitute express
advocacy and that it was inappropriate to interpret the meaning
behind the images. See id. at 957-59. We affirmed on the district
court’s reasoning. See 1996 WL 431996.

CAN then filed an application with us for the fees and costs it
incurred in defending the FEC's prosecution and appeal of the case.
CAN applied under 28 U.S.C. § 2412, the section dealing with fees
and costs when the United States is a party. Under this provision "a
court shal] award to a prevailing party other than the United States
fees and other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action . . . unless the
court finds that the position of the United States was substantially jus-
tified or that special circumstances make an award unjust.”
§ 2412(d)(1)(A). We held that CAN was entitled to fees and costs
because the FEC’s position that the imagery of CAN’s advertisements
made them express advocacy was not substantially justified "in light
of the Supreme Court’s unambiguous pronouncements in Buckley and
MCFL that explicit words of advocacy are required." CAN IJ, 110
F.3d at 1061. We also pointed out that the FEC lacked substantial jus-
tification for its position in the CAN case in light of the "string of
losses" it had suffered "in [lower court] cases between the FEC and
issue advocacy groups over the meaning of the phrase ‘express advo-
cacy’ and the permissible scope of the FEC’s regulatory authority
over corporate political speech." /d. at 1055. We mentioned several
of these cases, including MRLC, 914 F. Supp. 8 (D. Me.), aff'd per
curiam, 98 F.3d | (Ist Cir. 1996). We noted that MRLC had "invali-
dated ahat portion of the FEC’s new regulatory definition of ‘express
advocacy’ {in 11 C.F.R. § 100.22(b)] which, in substance, is the defi-
nition the FEC urged upon us" and the district court in the CAN litiga-


8 Va. Society ror Human Lire v. FEC

“cast your ballot for the Republican challenger for U.S. Sen-
ate in Georgia," "Smith for Congress," "Bill McKay in '94,"
"vote Pro-Life" or "vote Pro-Choice" accompanied by a list-
ing of clearly identified candidates described as Pro-Life or
Pro-Choice, “vote against Old Hickory," "defeat" accompa-
nied by a picture of one or more candidate(s), "reject the
incumbent," or communications of campaign slogan(s) or
individual word(s), which in context can have no other rea-
sonable 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 "Nixon's
the One," "Carter ’76," "Reagan/Bush” or "Mondale!"; or

4 (b) When taken as a whole and with limited reference to
4 external events, such as the proximity 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) because—

v (1) The electoral portion of the communication is unmis-
a takable, unambiguous, and suggestive of only one meaning;
=) and

(2) 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 regulation went into effect on October 5, 1995. See Final rules:
Announcement of Effective Date, 60 Fed. Reg. 52069 (Oct. 5, 1995).
Soon after, pro-life groups began to challenge the constitutionality of
subpart (b). The first case was Me. Right to Life Comm., Inc. v. FEC,
914 F. Supp. 8 (D. Me.) (MRLC), aff'd per curiam, 98 F.3d 1 (1st Cir.
1996) (affirming "for substantially the reasons set forth" by the dis-
trict court). The First Circuit held that 11 C.F.R. § 100.22(b) was con-
trary to FECA, whose reach had been limited to "express advocacy"
by the Supreme Court and a prior First Circuit case. The court’s spe-
cific reasoning is as follows. First, although subpart (b) of the regula-
tion “appears to be a very reasonable attempt to deal with [the]
vagaries of language," it has the potential to intrude on issue advo-


22 Va. Society FoR HUMAN LiFe v. FEC

decision rendered on a particular legal issue." United States v. Men-
doza, 464 U.S. 154, 160 (1984). It would also deprive the Supreme
Court of the benefit of decisions from several courts of appeals. See
id.

VSHL argues for a nationwide injunction based on the language of
the "Scope of review" section of the Administrative Procedure Act
(APA), which provides that agency action can be set aside if it is "ar-
bitrary, capricious, an abuse of discretion, or otherwise not in accor-
dance with law." 5 U.S.C. § 706(2)(A). VSHL maintains that pursuant
to this section the proper scope of injunctive relief is an order setting
aside the unconstitutional regulation for the entire country. Nothing
in the language of the APA, however, requires us to exercise such far-
reaching power. See RLDC, 6 F.Supp. 2d at 253. Furthermore,
accepting WSHL’s argument would result in the same harm as
upholding the nationwide injunction. The FEC would no longer be
allowed to defend its regulation in front of other courts of appeals.
We would in effect be imposing our view of the law on all the other
circuits. See Bresgal, 843 F.2d at 1170 (“The courts have not pre-
vented agencies from applying varying interpretations in different cir-
cuits . . . ."); RLDC, 6 F.Supp. 2d at 253 (rejecting the same
argument because of the "well-settled principle" that "decisions in one
circuit are not binding on district courts in another circuit"). We must
allow the FEC, if it chooses, to press its position in those circuits that
have not yet ruled on the constitutionality of 11 C.F.R. § 100.22(b).

For these reasons, we remand the case to the district court for a
modification of the injunction. The amended injunction should be
limited to enjoining the FEC from enforcing 11 C.F.R. § 100.22(b)
against VSHL alone anywhere in the country.

V1.

VSHL cross-appeals because the district court did not award it all
of the relief it sought. Specifically, the district court did not order the
FEC to open a rulemaking to consider the repeal of 11 C.F.R.
§ 100.22(b). (VSHL had sought such a rulemaking in its petition to
the FBC.) We reject VSHL's request that we order the FEC to open
a rulemaking because VSHL is receiving complete relief. We have
held that the regulation is unconstitutional, and we have authorized an


nv

.]
“
y

4 Va. Society FoR HUMAN Lire v. FEC

viduals or organizations submitted comments, five in favor of the
petition and two in opposition. On April 29, 1999, the FEC voted 3-
3 on two motions involving VSHL’s petition. The first 3-3 vote came
on a motion to adopt the General Counsel's recommendation that the
Commission decline to open a rulemaking. The second split vote
came on a motion to direct the General Counsel to initiate a rulemak-
ing. Because neither motion received an affirmative vote of four
Commissioners as required by 2 U.S.C. § 437c(c), the FEC
announced that it was taking no further action on VSHL’s petition.
See 64 Fed. Reg. 27478 (May 20, 1999).

On August 9, 1999, VSHL sued the FEC in federal court in eastem
Virginia seeking declaratory and injunctive relief. VSHL sought a
declaration that the FEC's failure to act on VSHL’s petition was con-
trary to law and that 11 C.F.R. § 100.22(b) is unconstitutional. In
addition, VSHL requested an injunction ordering the FEC to grant its
petition for rulemaking and prohibiting the FEC from bringing an
enforcement action under 11 C.F.R. § 100.22(b). On September 22,
1999, six weeks after VSHL sued, the FEC voted 6-0 to adopt a pol-
icy that 11 C.F.R. § 100.22(b) would not be enforced in the First or
Fourth Circuits because the regulation "has been found invalid” by the
First Circuit and "has in effect been found invalid" by the Fourth Cir-
cuit. (emphasis added). Based on this expression of policy, the FEC
moved to dismiss VSHL’s complaint for lack of subject matter juris-
diction on the ground that VSHL had no standing to sue. The district
court denied the motion, reasoning that VSHL's activities extend
beyond the Fourth Circuit, that private citizens can initiate FECA
enforcement, and that the FEC’s nonbinding policy vote does not dis-
sipate the chill created by the existence of the regulation. Next, the
parties filed cross-motions for summary judgment. In ruling on these
motions the district court held that the regulation ran afoul of the First
Amendment because it regulates issue advocacy, not just express
advocacy. In addition, the district court enjoined the FEC "from
enforcing 11 C.F.R. [§] 100.22(b) against the VSHL or against any
other party in the United States of America.” The court, however,
declined to order the FEC to open a rulemaking to repeal the regula-
tion. The FEC appeals the ruling on standing and the scope of the
injunction. VSHL cross-appeals on the rulemaking issue.


Va. Soctety For Human Lire v. FEC 15

Finally, the FEC maintains that VSHL’s allegations are too specu-
lative to confer standing. To establish standing for a preenforcement
challenge to a regulation, it is enough to “allege[] an intention to
engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a [regulation]." Babbitt v. United Farm
Workers Nat'l Union, 442 U.S. 289, 298 (1979). VSHL has alleged
an intention to engage in constitutionally protected activities that
would fall within the reach of the regulation. It would engage in some
of these activities outside of the Fourth Circuit, where its fear of pros-
ecution is even more reasonable than within the Fourth Circuit. The
allegations of future intentions cannot be speculative or imaginary, of
course, see id., and the injury must be imminent, see Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 560 (1992). At the time that VSHL filed
suit, the 2000 election was only fifteen months away. VSHL’s injury
— its fear of prosecution — was not only imminent but immediate
because it needed to plan the substance and placement of its adver-
tisements. Furthermore, federal elections recur every two years, mak-
ing VSHL’s injury ongoing. Cf id. at 564 (holding that injury was not
imminent because plaintiffs’ affidavits only stated that they would
return to previously visited places "some day" and gave no concrete
descriptions of their plans). VSHL has alleged that it "intends to con-
tinue to spend money to communicate with the general public as it has
in the past." VSHL’s intended activities both inside and outside the
Fourth Circuit are concretely described, and they further support its
credible fear of prosecution.

For all of these reasons, we hold that VSHL has standing to bring
this lawsuit against the FEC.

B.

The FEC’s second justiciability argument is that the case is not ripe
for review. Here, the FEC maintains, like it did in its standing argu-
ment, that VSHL’s allegations about its planned activities are not suf-
ficiently concrete. Ripeness concerns the “appropriate timing of
judicial intervention.” Renne v. Geary, 501 U.S, 312, 320 (1991). The
doctrine’s “basic rationale is to prevent the courts, through avoidance
of premature adjudication, from entangling themselves in abstract dis-
agreements over administrative policies." Abbott Labs. v. Gardner,
387 U.S. 136, 148 (1967). A court must "evaluate both the fitness of


eee eee eee

Va. Society FoR Human Lire v. FEC 17

IV.
A.

We tum now to the merits of this case—whether 11 U.S.C.
§ 100.22(b) is unconstitutional. In district court the FEC ultimately
conceded that the regulation is invalid in this circuit because of CAN
IT, 110 F.3d 1049 (4th Cir. 1997). The district court undertook its own
analysis and held that the regulation violates the First Amendment. In
its brief to us the FEC argues that the regulation is constitutional.
However, the FEC says that because this panel is bound by CAN J/,
the constitutionality of § 100.22(b) "can only become a live issue in
this case if this Circuit hears the matter en banc, or if the Supreme
Court grants a petition for a writ of certiorari." Opening Br. for FEC
at 50. As we have already said, CAN // did not consider the constitu-
tionality of the regulation, so we are free to decide that issue.

The regulation under challenge provides:

Expressly advocating means any communication that—

(b) When taken as a whole and with limited reference to
external events, such as the proximity 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) because—

(1) The electoral portion of the communication is unmis-
takable, unambiguous, and suggestive of only one meaning;
and

(2) 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.

-

11 C.F.R. § 100.22(b).


Va. Soctety ror Human Lire v. FEC 3

VSHL. Last of all, we reject VSHL’s cross-appeal for an order requir-
ing the FEC to initiate rulemaking to consider repeal of the regulation.
Our holding that the regulation is unconstitutional and the injunction
that we have authorized give VSHL complete relief.

1.

VSHL is a Virginia-based nonprofit corporation established "to
promote the pro-life cause." VSHL spends money from its treasury
for communications to the public that promote its views. As the 2000
federal elections were approaching, VSHL was interested in spending
money on communications it regarded as "issue advocacy." In partic-
ular, VSHL planned to distribute "voter guides," which would indi-
cate federal candidates’ positions and VSHL’s own position on
particular abortion-related issues. VSHL also planned to produce
radio advertisements that would air one week before the election.
These ads would compare the records and positions of the candidates
for President and U.S. Senator for Virginia on issues relating to abor-
tion. VSHL wanted to target Virginia residents in the northem Vir-
ginia metropolitan area. In order to reach this audience, VSHL
intended to place the ads on at least one radio station whose broadcast
was received by listeners in the District of Columbia. The radio sta-
tion selected would be located either in northern Virginia or in the
District.

On January 6, 1999, VSHL submitted a petition for rulemaking to
the FEC, requesting that it repeal 11 C.F.R. § 100.22(b), which
defines "express advocacy" for purposes of the corporate expenditure
prohibitions found in FECA. VSHL claimed that because
§ 100.22(b)’s definition of "express advocacy" was overly broad,
some of the group’s planned issue advocacy communications might
constitute improper election expenditures. VSHL noted that the regu-
lation bad already been struck down in the First Circuit and the South-
em District of New York. The FEC should repeal the regulation,
VSHL urged, so that groups distributing nationwide messages would
not be judged by different rules in different locales. On February 3,
1999, the FEC published a notice in the Federal Register informing
the public of VSHL’s petition and opening a month-long comment
period. See Rulemaking Petition: Definition of "Express Advocacy”:
Notice of Availability, 64 Fed. Reg. 5200 (Feb. 3, 1999). Seven indi-


2 Va. Society FoR HUMAN LiFe v. FEC

Affirmed in part, vacated in part, and remanded by published opinion
Judge Michael wrote the opinion, in which Judge Williams and
Senior Judge Hall joined.

COUNSEL

ARGUED: David Brett Kolker, FEDERAL ELECTION COMMIS-
SION, Washington, D.C., for Appellant. James Bopp, Jr., BOPP,
COLESON & BOSTROM, Terre Haute, Indiana, for Appellee. ON
BRIEF: Lawrence M. Noble, General Counsel, Richard B. Bader,
Associate General Counsel, FEDERAL ELECTION COMMISSION.
Washington, D.C., for Appellant. James R. Mason, III, BOPP, COLE-
SON & BOSTROM, Terre Haute, Indiana; VIRGINIA SOCIETY
FOR HUMAN LIFE. Richmond, Virginia, for Appellee.

OPINION
MICHAEL, Circuit Judge:

The Virginia Society for Human Life, Inc. (VSHL) sued the Fed-
eral Election Commission (FEC), seeking a declaration that 11 C.F.R.
§ 100.22(b), a regulation defining "express advocacy” for purposes of
the Federal Election Campaign Act (FECA), is unconstitutional.
VSHL also sought an injunction prohibiting the FEC from enforcing
the regulation and an order directing the FEC to open a rulemaking
to consider repeal of the regulation. The district court ruled in favor
of VSHL, holding that the regulation is unconstitutional and enjoining
the FEC from enforcing the regulation against VSHL or any other
party in the United States. On appeal the FEC raises standing and
ripeness arguments, which we reject because VSHL faces a credible
threat of prosecution under the regulation. On the merits of VSHL's
claim, we hold that the regulation is unconstitutional because it is not
limited to communications that contain express words of advocacy as
required by Buckley v. Valeo, 424 U.S. 1 (1976). However, the
nationwide injunction, preventing the FEC from enforcing the regula-
tion against all parties in the United States, is too broad. The injunc-
tion will be limited to barring the FEC from proceeding against


Va. Society FOR Human Lire v. FEC 13

activity, there is a presumption of a credible threat of prosecution. See
id. "This presumption is particularly appropriate when the presence of
a statute tends to chill the exercise of First Amendment rights." /d.
We then pointed out that the North Carolina statute facially restricts
NCRL's present and future expressive activities. In dealing with
North Carolina’s argument that there was no threat of prosecution, we
said:

The State’s litigation position—that it does not interpret
section 163-278.6(14) to encompass issue advocacy—fails
to alter our analysis in this case. The record does not indi-
cate that the Board has promulgated a rule exempting from
its definition of political committee those entities that
engage in issue advocacy only. Nor does the record indicate
that the local district attomeys have any intention of refrain-
ing from prosecuting those who appear to violate the plain
language of the statute.

NCRL is left, therefore, with nothing more than the
State’s promise that NCRL's officers will face no criminal
penalties if NCRL distributes its voter guide without regis-
tering as a political committee. NCRL’s First Amendment
rights would exist only at the sufferance of the State Board
of Elections. It has no guarantee that the Board might not
tomorrow bring its interpretation more in line with the pro-
vision’s plain language. Without such a guarantee, NCRL
will suffer from the reasonable fear that it can and will be
prosecuted for failing to register and file the necessary dis-
closures, and its constitutionally protected speech will be
chilled as a result.

Id. at 710-11 (citations omitted). Because the statute’s plain language
prohibited NCRL’s activities, North Carolina's nonbinding assur-
ances that NCRL would not be prosecuted did not overcome the pre-
sumption of a credible fear of prosecution.

The FEC’s policy of nonenforcement, adopted by the FEC in a
closed.meeting, is somewhat more formal than the promise made dur-
ing litrgation by the State in NCRL. On the other hand, the FEC’s pol-
icy is not contained in a final rule that underwent the rigors of notice


16 Va. Society FoR Human Lite v. FEC

the issues for judicial decision and the hardship to the parties of with-
holding court consideration.” /d. at 149

The issue in this case is fit for judicial decision at this stage. VSHL
is bringing a facial challenge to a regulation that has the force of law
and carries stiff criminal and civil penalties. The case presents a
"purely legal” issue and further factual development will not assist us
in our resolution. /d. at 149. See also Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 581 (1985); Chamber of Commerce v.
FEC, 69 F.3d 600, 604 (D.C. Cir. 1995). Moreover, VSHL will face
a significant impediment if we delay consideration of the regulation’s
constitutionality. The presence of the regulation requires VSHL "to
adjust [its] conduct immediately." Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 891 (1990) (noting that these types of “substantive rule(s]"
are ‘ripe’ for review at once"). It must refrain from distributing com-
munications that fall within 11 C.F.R. § 100.22(b) or risk prosecution.
Our decision today is not an abstract interpretation, but a clarification
of the conduct that VSHL can engage in without the threat of penalty.
Therefore, we hold that the controversy is ripe for review. See Abbott
Labs., 387 U.S. at 153 ("Where the legal issue presented is fit for
judicial resolution, and where a regulation requires an immediate and
significant change in the plaintiffs’ conduct of their affairs with seri-
ous penalties attached to noncompliance, access to the courts... must
be permitted... .").3

*Even though VSHL's intended communications were geared towards
an election that has already passed, there is no mootness problem. This
case falls under the exception for a case that is capable of repetition yet
evades review because of the length of time required for the courts to
resolve the matter. See DeFunis v. Odegaard, 416 U.S. 312, 318-19
(1974). In addition, VSHL has alleged that it "intends to continue to
spend money to communicate with the general public as it has in the
past." See Ark. AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th Cir. 1993)
("The parties must demonstrate a reasonable expectation that the event
complained of will recur with respect to themselves.").

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