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Koerber v. FEC

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Koerber v. FEC
Case Summary

On October 2, 2008, Committee for Truth in Politics, Inc. (CTP) and Holly Lynn Koerber (collectively the Plaintiffs) filed suit against the FEC in the U.S. District Court for the Eastern District of North Carolina. The suit challenges the constitutionality of the FEC’s disclaimer and reporting requirements for electioneering communications (ECs) that "may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate," as described by the Supreme Court in FEC v. Wisconsin Right to Life (WRTL). The Plaintiffs also challenge the constitutionality of the Commission’s "enforcement policy" 1 on political committee status. The CTP asks the court to declare that the ads described in their complaint are neither express advocacy nor electioneering communications subject to the prohibition on corporate treasury funding under WRTL, that the Federal Election Campaign Act’s disclosure requirements for such ECs are unconstitutional and that the FEC’s "PAC enforcement policy" is unconstitutional and beyond FEC authority under the Administrative Procedure Act.

Background

An electioneering communication (EC) is defined by the Federal Election Campaign Act (the Act) and FEC regulations as any broadcast, cable or satellite communication that refers to a clearly identified federal candidate and is publicly distributed within 30 days of a primary election or 60 days of a general election for the office sought by the candidate, and is targeted to the relevant electorate. 11 CFR 100.29(a). The Act and FEC regulations require disclosure of ECs that aggregate more than $10,000 in a calendar year. 2 U.S.C.§434(f)(1). In WRTL, the Supreme Court held that corporations and labor organizations cannot be prohibited from using treasury funds to make an EC unless the EC is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." 127 S.Ct. at 2667.

CTP is a nonstock, nonprofit North Carolina corporation that incorporated in September 2008. CTP states that it is presently engaging in "issue advocacy" advertising and that it has broadcast one ad that mentions Senator Barack Obama within 60 days of the November 2008 general election and that it intends to broadcast another ad before the election. CTP states that it is currently including disclaimers on the ads, but is not disclosing them under the Act’s disclosure requirements for ECs. The complaint states that Holly Lynn Koerber is a resident of Elizabeth City, NC, one of the places where CTP is broadcasting its ads, who wishes to exercise her "First Amendment right to continue hearing CTP’s issue-advocacy speech."

Complaint

The Plaintiffs seek a declaration from the court that the ads that CTP has run do not constitute express advocacy, as defined in Commission regulations at 11 CFR 100.22. CTP also maintains that the ads are ECs that are not subject to financing restrictions under the WRTL rule because they do not constitute an appeal to vote for or against a particular candidate.

The Plaintiffs also seek a declaration from the court that the electioneering communication disclosure requirements are unconstitutionally overbroad as applied to ads that WRTL held are not subject to the EC financing restrictions.

CTP maintains that is not a political committee under the relevant law because it is neither controlled by a candidate nor does it have the "major purpose" of primarily engaging in regulable, election-related speech. CTP maintains that its activities will be nonpolitical intervention, including social welfare activities and lobbying. CTP seeks a declaration from the court that the FEC’s PAC status enforcement policy is unconstitutional on its face and as applied and void for being beyond statutory authority.

FOOTNOTE:

1 The complaint references the FEC’s Supplemental Explanation and Justification of its Political Committee Status rules, 72 FR 5595 (February 7, 2007).

Source:   FEC Record -- November 2008 [PDF].

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Court Decisions and Related Documents


Appeals Court (4th Circuit) (08-2257)

Court Decision:
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District Court (ED of No. Carolina) (08-00039)

Court Decision:
 
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