PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGINIA SOCIETY FOR HUMAN LIFE, 

INCORPORATED,

Plaintiff-Appellee,  No. 00-1252

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellant. 

VIRGINIA SOCIETY FOR HUMAN LIFE, 

INCORPORATED,

Plaintiff-Appellant,  No. 00-1332

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee. 

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.
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 COMMISSION, 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, COLESON & 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 Federal 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 regulation against all parties in the United States, is too broad. The injunction will be limited to barring the FEC from proceeding against

2 VA. SOCIETY FOR HUMAN LIFE v. FEC
VSHL. Last of all, we reject VSHL’s cross-appeal for an order requiring 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. 

I.

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 particular, VSHL planned to distribute "voter guides," which would indicate 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 abortion. VSHL wanted to target Virginia residents in the northern Virginia 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 station 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 regulation had already been struck down in the First Circuit and the Southern 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 indiVA. SOCIETY FOR HUMAN LIFE v. FEC 3
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 rulemaking. 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 eastern

Virginia seeking declaratory and injunctive relief. VSHL sought a

declaration that the FEC’s failure to act on VSHL’s petition was contrary 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 policy 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 Circuit. (emphasis added). Based on this expression of policy, the FEC

moved to dismiss VSHL’s complaint for lack of subject matter jurisdiction 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 dissipate 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 regulation. The FEC appeals the ruling on standing and the scope of the

injunction. VSHL cross-appeals on the rulemaking issue. 

4 VA. SOCIETY FOR HUMAN LIFE v. FEC
II.

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. 1

(1976), where the Supreme Court first introduced the concept of "express 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). "Contribution" 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.’" Id. 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 regulating "issue discussion and advocacy of a political result." Id. 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." Id. at 80, 82. 

Congress amended FECA in 1976. See Pub. L. No. 94-283, 90 Stat.

475. One of the 1976 provisions prohibits corporations from making

"a contribution or expenditure in connection with any [federal] election" if the contribution or expenditure comes out of the corporation’s

VA. SOCIETY FOR HUMAN LIFE v. FEC 5
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." Id. at 249. Specifically, the "discussion of issues and candidates" should be distinguished from "more pointed exhortations to

vote for particular persons." Id.1

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 mentioned. 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 limited to expenditures that "expressly advocat[e] 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 public funds."; "His meanness of spirit is divisive and reckless McCarthy1MCFL arose out of an enforcement action that the FEC brought

against MCFL for its distribution of a "Special Edition" newsletter before

the September 1978 primary elections. The publication, entitled "EVERYTHING 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 "Special Edition" newsletter also contained photographs of thirteen candidates 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 traditional compelling justification of limiting corporate power in the political

arena. See id. at 263-64. 

6 VA. SOCIETY FOR HUMAN LIFE v. FEC
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 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 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 advocacy." 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, provides:

Expressly advocating means any communication that—

(a) Uses phrases such as "vote for the President," "re-elect

your Congressman," "support the Democratic nominee,"

VA. SOCIETY FOR HUMAN LIFE v. FEC 7
"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 Pro-Life 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 word(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 "Nixon’s

the One," "Carter ’76," "Reagan/Bush" or "Mondale!"; or 

(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 unmistakable, 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 district court). The First Circuit held that 11 C.F.R. § 100.22(b) was contrary to FECA, whose reach had been limited to "express advocacy"

by the Supreme Court and a prior First Circuit case. The court’s specific reasoning is as follows. First, although subpart (b) of the regulation "appears to be a very reasonable attempt to deal with [the]

vagaries of language," it has the potential to intrude on issue advo8 VA. SOCIETY FOR HUMAN LIFE v. FEC
cacy because it will still require the speaker, before he speaks, to

"pause to debate the shades of meaning in language." Id. 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. Id. at 13. Therefore, the court

struck down § 100.22(b), holding that the regulation chilled the plaintiff’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." Id. at 253. The regulation’s definition, the

court found, "encompass[es] substantially more communication than

is permissible" for the FEC to regulate. Id. at 254. The FEC decided

not to appeal to the Second Circuit. 

We are now the third court to be presented directly with the question of whether 11 C.F.R. § 100.22(b) is constitutional.2

III.

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. Meadows, 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 ripe controversy. 

2

In FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4th Cir.

1997) (CAN II), we considered the "express advocacy" limitation

imposed by Buckley, but not in the context of whether 11 C.F.R.

§ 100.22(b) is constitutional. 

VA. SOCIETY FOR HUMAN LIFE v. FEC 9
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) concrete and particularized, and (b) actual or imminent, not conjectural

or hypothetical." Id. at 560 (internal quotation marks and citations

omitted). When a party, like VSHL in this case, brings a preenforcement challenge to a statute or regulation, it must allege "an intention

to engage in a course of conduct arguably affected with a constitutional 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 II), 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 prosecution for the advocacy communications it intends to undertake. 

We begin with our CAN II decision, which the FEC says forecloses

it from enforcing the regulation in the Fourth Circuit. But CAN II 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 I). One of the provisions the FEC invoked against CAN was 2 U.S.C. § 441b(a), which,

after MCFL, 479 U.S. 238, 249 (1986), prohibits only corporate

10 VA. SOCIETY FOR HUMAN LIFE v. FEC
expenditures for express advocacy in connection with a federal election. CAN, a nonprofit corporation that "seeks to inform the public

about issues which it believes affect ‘traditional Christian family values,’" 894 F. Supp. at 948, had used its general treasury funds to produce 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." Id. The FEC argued that the imagery and nonverbal components of the ads, as opposed to the actual words, amounted to express

advocacy for the defeat of Clinton and Gore. The district court dismissed 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 shall 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 justified 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 II, 110

F.3d at 1061. We also pointed out that the FEC lacked substantial justification 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 advocacy’ and the permissible scope of the FEC’s regulatory authority

over corporate political speech." Id. at 1055. We mentioned several

of these cases, including MRLC, 914 F. Supp. 8 (D. Me.), aff’d per

curiam, 98 F.3d 1 (1st Cir. 1996). We noted that MRLC had "invalidated that portion of the FEC’s new regulatory definition of ‘express

advocacy’ [in 11 C.F.R. § 100.22(b)] which, in substance, is the definition the FEC urged upon us" and the district court in the CAN litigaVA. SOCIETY FOR HUMAN LIFE v. FEC 11
tion. CAN II, 110 F.3d at 1054. This statement, read in context, can

be taken as criticism of the definition of "express advocacy" contained in 11 C.F.R. § 100.22(b). The purpose of the statement, however, 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 II’s limited

discussion about the regulation was dicta. See Defendant Federal

Election Commission’s Reply to Plaintiff’s Opposition to the Commission’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 II does not defeat VSHL’s standing to

challenge the regulation. 

Our decision in CAN II aside, the FEC argues that its policy statement 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 Carolina law relating to elections and campaign finance. One of these provisions required political committees to register and file regular

reports with the state and to maintain detailed accounts of contributions 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 considered 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

12 VA. SOCIETY FOR HUMAN LIFE v. FEC
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." Id.

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 indicate 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 attorneys have any intention of refraining 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 registering 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 provision’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 disclosures, 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 assurances that NCRL would not be prosecuted did not overcome the presumption 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 during litigation by the State in NCRL. On the other hand, the FEC’s policy is not contained in a final rule that underwent the rigors of notice

VA. SOCIETY FOR HUMAN LIFE v. FEC 13
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 law.

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 protect 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 message 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 advertising 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 chartered 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 Moynihan). 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. 

14 VA. SOCIETY FOR HUMAN LIFE v. FEC
Finally, the FEC maintains that VSHL’s allegations are too speculative 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 prosecution 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. Defenders 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 advertisements. Furthermore, federal elections recur every two years, making 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 continue 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 argument, that VSHL’s allegations about its planned activities are not sufficiently 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 disagreements over administrative policies." Abbott Labs. v. Gardner,

387 U.S. 136, 148 (1967). A court must "evaluate both the fitness of

VA. SOCIETY FOR HUMAN LIFE v. FEC 15
the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. 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. Id. 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 communications 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 serious penalties attached to noncompliance, access to the courts . . . must

be permitted . . . .").3

3Even 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."). 

16 VA. SOCIETY FOR HUMAN LIFE v. FEC
IV.

A.

We turn 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

II, 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 II,

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 II did not consider the constitutionality 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 unmistakable, 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. SOCIETY FOR HUMAN LIFE v. FEC 17
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, "communications that include explicit words of advocacy of election or defeat of

a candidate." Id. at 43. We also noted in part II that in MCFL, 479

U.S. 238, 249 (1986), the Court imposed Buckley’s "express advocacy" 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"). Id.

Again, our decision in CAN II did not consider whether 11 C.F.R.

§ 100.22(b) is constitutional. CAN II does nevertheless reveal how

narrowly and strictly our circuit reads the "express advocacy" limitation of Buckley and MCFL. We summed up Buckley’s holding as follows: "the Federal Election Campaign Act [can] be applied

consistently with the First Amendment only if it [is] limited to expenditures for communications that literally include words which in and

of themselves advocate the election or defeat of a candidate." CAN II,

110 F.3d at 1051 (emphasis added). This holding, we said, confirms

the Supreme Court’s "commitment to an interpretation of the Constitution that permits the prohibition only of corporate political communications that employ express words of advocacy." Id. at 1052. We

stressed in CAN II that the Supreme Court in Buckley "opted for the

clear, categorical limitation, that only expenditures for communications 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 apprehensions that their advocacy of issues might later be interpreted by

the government as, instead, advocacy of election result." Id. at 1051.

Our discussion in CAN II 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." Id. 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

18 VA. SOCIETY FOR HUMAN LIFE v. FEC
which, through explicit words, advocate the election or defeat of a

specifically identified candidate." Id. at 1062. 

Under the regulation in question, 11 C.F.R. § 100.22(b), "Expressly

advocating means any communication that . . . [w]hen taken as a

whole . . . could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified 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 warned 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 distinction 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.’" Id. at 43 (quoting Thomas v. Collins,

323 U.S. 516, 535 (1945)). Relying on audience impression to determine the advocacy category would "compel[ ] the speaker to hedge

and trim" and curtail the right of free expression. Id. (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 pitfalls in subjecting a speaker’s message to the unpredictability of audience interpretation"). This led the Supreme Court to make the

speaker’s words the focus of the inquiry and to limit the FEC’s regulatory authority to expenditures for "express words of advocacy." As

the district judge in Maine, whose reasoning in striking down the regulation 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 restricting 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 communication. 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,’ ‘support,’ ‘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 HUMAN LIFE v. FEC 19
too far because it shifts the determination of what is "express advocacy" away from the words "in and of themselves" to "the unpredictability of audience interpretation." CAN II, 110 F.3d at 1051, 1057.

For that reason, we hold that the regulation violates the First Amendment. 

B.

The FEC ends its argument that 11 C.F.R. § 100.22(b) is constitutional with the following comment: "if the express advocacy requirement 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 "express advocacy." If change is to come, it must come from an imaginative Congress or from further review by the Supreme Court. 

V.

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 injunction, 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 injunction, an injunction that prevents the FEC from enforcing the regulation 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 constitutionality of 11 C.F.R. § 100.22(b). 

"[I]njunctive relief should be no more burdensome to the defendant

than necessary to provide complete relief to the plaintiffs." Califano

20 VA. SOCIETY FOR HUMAN LIFE v. FEC
v. Yamasaki, 442 U.S. 682, 702 (1979). An injunction should be carefully 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 prohibiting the eviction of public housing tenants without notice and a hearing 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 serviceman 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 precluding 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 LIFE v. FEC 21
decision rendered on a particular legal issue." United States v. Mendoza, 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 "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 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 farreaching power. See RLDC, 6 F. Supp. 2d at 253. Furthermore,

accepting VSHL’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 prevented agencies from applying varying interpretations in different circuits . . . ."); 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. 

VI.

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 FEC.) 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

22 VA. SOCIETY FOR HUMAN LIFE v. FEC
injunction that prohibits the FEC from enforcing the regulation

against VSHL. 

VII.

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 VSHL’s cross-appeal for a rulemaking because

VSHL is already receiving complete relief.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

VA. SOCIETY FOR HUMAN LIFE v. FEC 23