PRESS RELEASE
Monday, September 24, 2001
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
jboppjr@abcs.com, www.jamesmadisoncenter.org

The Fourth Circuit Affirms FEC "Express Advocacy" Regulation
is Unconstitutional in Virginia Society for Human Life
v. Federal Election Commission

On September 17, 2001, the United States Court of Appeals for the Fourth Circuit affirmed a federal district court's
holding that an FEC election regulation, which expansively defined "express advocacy", was unconstitutional. At
issue was the constitutionality of a sweeping express advocacy definition which imposed additional restrictions
upon constitutionally protected speech. This is the third time the regulation has been found unconstitutional by a federal court.

The Virginia Society for Human Life (VSHL) initially sued the FEC in the United States District Court for the Eastern
District of Virginia. The district court found the regulation "blatantly unconstitutional" because of its potential to chill "public debate concerning significant issues." The district court granted VSHL summary judgment and held the regulation unconstitutional while enjoining the FEC from enforcing it nationwide. The FEC appealed the matter to the U.S. Court of Appeals for the Fourth Circuit and VSHL cross-appealed. While the court of appeals affirmed that the regulation was unconstitutional, it held the district court's injunction was too broad and also denied VSHL's cross-appeal to order the FEC to open rulemaking regarding the regulation in question. Specifically, the court of appeals sent the case back to the district court to narrow the injunction so that the FEC is barred from enforcing the regulation against VSHL.

In reaching its decision, the court of appeals noted that the regulation's definition of express advocacy had shifted to a standard which was explicitly prohibited against in prior United States Supreme Court case law. The court noted its prior decisions citing the Supreme Court's seminal Buckley v. Valeo case and described the danger of the "constitutional pitfalls in subjecting a speaker's message to the unpredictability of audience interpretation." Fearing the expansive definition of express advocacy would "curtail the right of free expression," the court openly questioned the constitutionality of the regulation. The court of appeals then held the regulation unconstitutional because it "shifts the focus of the express advocacy determination away from the words themselves to the overall impressions of the hypothetical, reasonable listener or viewer." In doing so, the court noted that the regulation "goes too far" and consequently violates the First Amendment.

VSHL attorney James Bopp Jr. hailed the decision as an "Overwhelming reaffirmation of the right of our citizens to engage in political speech; a right which lies at the core of our protected First Amendment liberties." Furthermore, Bopp stated that the decision was consistent with the recognized requirement that the FEC may only constitutionally regulate communications which contain express or explicit words of advocacy as described in Buckley v. Valeo. Bopp called for the repeal of the FEC regulation by noting, "If they're not going to enforce it, they should repeal it." Because the regulation is in direct contradiction with the First Amendment and decisions of the Supreme Court, the FEC should act responsibly and repeal the unconstitutional regulation.

A copy of Virginia Society for Human Life, Inc. v. FEC in .pdf form