Full opinion text
OPINION AND ORDER JOYCE HENS GREEN, District Judge. This enforcement action was brought by the Federal Election Commission (“FEC” or “Commission”) alleging that the Christian Coalition (“the Coalition”) violated federal campaign finance laws during congressional elections in 1990, 1992 and 1994, and the presidential election in 1992. The Coalition is a corporation, and this case presents two novel issues concerning restrictions on corporate campaign-related activity. Federal campaign finance law prohibits corporations and labor unions from using general treasury funds to make contributions — in cash or in kind — to a candidate for federal office. But corporations and unions can make independent expenditures that are related to a federal election campaign so long as those expenditures are not for communications that expressly advocate the election or defeat of a clearly identified candidate for federal office. The first issue is one of first impression in this Circuit and has created a moderate division of opinion among other Circuits. The question presented is whether “express advocacy” by corporations and labor organizations is limited to communications that use specified phrases, such as “vote for Smith” or “support Robinson,” or whether a more substantive inquiry into the clearly intended effect of a communication is permissible. The FEC advocates a substantive inquiry and alleges that the Coalition used general corporate funds to expressly advocate the election or defeat of certain candidates through a speech made by the Coalition’s then-Executive Director, Ralph Reed, and by certain of the Coalition’s direct-mail communications. The second novel issue relates to how an in-kind campaign contribution is to be defined. According to the FEC, the Coalition spent considerable general corporate funds in coordination with the election campaigns of certain Republican candidates and the National Republican Senatorial Committee — the FEC refers to this spending as “coordinated expenditures”— to produce and distribute millions of “voter guides,” and “Congressional Scorecards” comparing candidates’ or incumbents’ positions on certain issues. Although these materials made clear which candidates the Coalition preferred, the FEC acknowledges that most of the voter guides did not expressly advocate the election or defeat of any particular candidate. The FEC’s theory is not that the election materials themselves violated the “express advocacy” limitation on independent corporate expenditures but that the Coalition’s extensive consultations with the campaign staff of certain candidates regarding the distribution of its voter guides and other materials turned otherwise permissible campaign-related materials into illegal in-kind campaign contributions. The FEC and the Coalition each have filed a motion for summary judgment. Giving new meaning to the saying “politics makes strange bedfellows,” the Coalition’s position regarding “coordinated expenditures” is supported by amici, the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) and the American Civil Liberties Union (“ACLTJ”). Having considered all the briefs, oral argument, and the entire record in this matter, the Court will grant both motions in part and deny both motions in part. The FEC is entitled to a civil penalty for the Coalition’s express advocacy of House Speaker Newt Gingrich’s reelection in 1994 and for the Coalition having provided the senatorial campaign of Oliver North with a valuable mailing list. The FEC is not entitled to injunctive relief. Three issues are left to be determined: (1) the fair market value of the mailing list; (2) whether the Coalition coordinated its selection of issues on its 1994 Virginia senatorial voter guide with Oliver North’s campaign; and (3) the amount of civil penalty to which the FEC is entitled. While the Court rejects some of the Coalition’s legal contentions, in all other respects, judgnent is in favor of the Coalition. I. ProCedural History A. The Parties The FEC is the independent agency of the United States government with exclusive primary jurisdiction over the administration, interpretation and civil enforcement of the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-455. The FEC is authorized to institute investigations of possible violations of the Act and has exclusive jurisdiction to initiate civil actions in the United States district courts to obtain judicial enforcement of the Act. Id. §§ 437c(b)(l), 437d(e). The Christian Coalition was and is a corporation incorporated under the laws of the Commonwealth of Virginia which transacts business in the District of Columbia. The Coalition had its roots in the unsuccessful 1988 presidential campaign of Marion G. “Pat” Robertson (“Robertson”). Robertson was and is well known as the host of the “700 Club” television program, which during the relevant periods herein aired on Robertson’s Christian Broadcasting Network (“CBN”). In the aftermath of the election Robertson sought to create an organization that would provide a voice in the public arena for Christians and other “people of faith.” Robertson discussed his interest in creating such an organization with Ralph E. Reed, Jr. (“Reed”) at a dinner given by Students for America during President Bush’s 1989 inauguration. Reed submitted a proposal to Robertson and a meeting was held in the fall of 1989 with Reed, Robertson, and various other participants, many of whom were supporters of Robertson’s 1988 presidential campaign. The Coalition was formed soon thereafter. The Coalition’s Articles of Incorporation were signed on October 2, 1989. Robertson is the corporation’s Chairman of the Board and former President. The Coalition is a nonprofit, non-stock corporation financed by voluntary contributions obtained through fund raising and telemarketing activities. The Coalition has five stated purposes: (1) to represent Christians before local councils, state legislatures and the United States Congress; (2) to train Christians for effective political action; (3) to inform Christians of timely issues and legislation; (4) to speak out in the public arena and the media; (5) to protest anti-Christian bigotry and defend the legal rights of Christians. See CC Ex. 11 at 2-302 — 306, 314. Reed served as the Executive Director of the Coalition from October 2, 1989 until June 11, 1997. Reed also joined the Board of Directors in 1994. As Executive Director, Reed supervised the day-to-day operations of the Coalition and formulated policy for legislative projects. Reed was responsible for fund raising activities and publications, press communications, and various other supervisory tasks. The voter guides, congressional scorecards and training sessions were all the brainchild of Reed. The Coalition began as a centralized, national organization, but five regional directors, working under the supervision of a national field director, were soon hired and assigned to establish separate state affiliates. There are currently Coalition affiliates in every state except Utah. Each state affiliate is a separate corporation and each has a written affiliation agreement with the Coalition. The affiliation agreements contain guidelines requiring the state affiliates to answer to the Coalition on certain matters. The affiliates generally conduct their own affairs, however, on matters not covered by the written agreement. Funding is provided to the state affiliates from the Coalition’s state project fund, which receives 15 percent of the Coalition’s direct mail revenue. Some of the alleged FECA violations at issue in this case involve actions by the Coalition’s state affiliates. The Coalition asserted that it could not be held responsible for the affiliates’ actions because they were separate corpoi-ate entities. However, because the Coalition was unable to meet its discovery obligations with respect to information about Coalition-affiliate relations, the Coalition stipulated, for purposes of this action, that it controls and is legally responsible for its state/and or local affiliates’ activities regarding, referring or relating to (i) all voter identification activities, get-out-the-vote activities, and voter guide preparation and distribution activities for federal elections held in 1990, 1992 and 1994, and (ii) all other correspondence and communications that use the term “Christian Coalition” with the general public and/or with candidates for federal office and for federal elections held in 1990, 1992 and 1994, (iii) except for specific actions by officials or agents of state affiliates that the Christian Coalition shows to have been ultra vires. Stipulation for Partial Dismissal ¶ 5. The Coalition conducts many activities to further its purposes. It engages in polling and telemarketing survey research, it operates training and leadership schools, it conducts voter registration within the churches, it encourages members to contact their legislators on certain issues, it makes get-out-the-vote calls during election years to supporters and members. The Coalition maintains two membership files. The “house file” consists of everyone who has contributed to the Coalition or who has contacted the Coalition in some fashion. In 1992, the house file was used mainly for soliciting contributions, informing supporters about legislative issues, educating supporters about candidates and issues, and encouraging them to vote. The other file is the voter identification database, or “voter file,” which consists of names purchased or obtained by the Coalition of people who are believed to be “pro-life” voters, and names obtained from grassroots voter canvassing. The FEC claims that the voter identification database is used to mail voter guides to people in particular districts or states. The Coalition claims that the voter file was “maintained so that when [the Coalition is] mailing [] voter guides to a particular district or state, [the voter file] is available to be accessed and mailed if [ ] so desired.” CC Ex. 133 at 117. The Coalition claims that it usually does not have the funds to mail to both the voter list and the house list because the voter list now contains almost 1.6 million names. See id. Between 1991 and 1994, the Coalition held four annual Road to Victory conferences. These conferences served educational, informational and organizational purposes with the goal of ultimately seeing election victory for candidates who shared the Coalition’s values. The agenda for the conference is set by the Executive Director and the staff of the Coalition. The conference has attracted high-profile speakers such as President Bush in 1992, Vice President Quayle in 1991 as well as Members of Congress and senior executive branch officials. B. Administrative Proceedings On February 27, 1992, the Democratic Party of Virginia filed an administrative complaint with the FEC alleging that the Coalition had violated the FECA. Eight months later the Democratic National Committee also filed a complaint with the FEC against the Coalition, and the FEC merged the two complaints for enforcement purposes. The FECA establishes a multi-step confidential administrative process through which the FEC must go to enforce the Act’s provisions. If at the end of that process the FEC has not been able to resolve a matter, it may file a civil action in federal district court. Compliance with many of the administrative requirements is necessary for the Court to have jurisdiction over the matter. In this case, the FEC has complied with all necessary administrative requirements. While the administrative investigative stage can be quite lengthy in its own right, the process was lengthened in this ease by the intervening decision of our Court of Appeals, holding that the Commission’s composition violated the principle of separation of powers because the Secretary of the Senate and the Clerk of the House of Representatives, or their designees, were part of the Commission as non-voting ex officio members. See FEC v. NRA Political Victory Fund, 6 F.3d 821, 824 (D.C.Cir.1993) (“NRA”), cert. dismissed for leant of jurisdiction, 513 U.S. 88, 115 S.Ct. 537, 130 L.Ed.2d 439 (1994). The NRA court concluded that the Commission, as then structured, lacked authority to prosecute an enforcement suit. Following the NRA decision, the voting members of the Commission voted to reconstitute itself as a six-member Commission without ex officio members, conforming with the Court of Appeals’ decision. The new Commission ratified the decision to investigate the Coalition. After finding probable cause and attempting to conciliate with the Commission, the FEC filed this lawsuit in 1996. Shortly after this lawsuit was filed, the Coalition moved for partial dismissal on statute of limitations grounds. That motion was granted in part and denied in part. See Federal Election Com’n v. The Christian Coalition, 965 F.Supp. 66, 72 (D.D.C.1997). Discovery commenced, and was lengthy. On various occasions the Coalition was unable to meet its discovery obligations, requiring that discovery be extended and that certain depositions be reopened. The Coalition’s repeated inability to comply with reasonable discovery requests led Magistrate Judge Alan Kay, who oversaw discovery, to impose sanctions. Additionally, in response to an FEC motion, the Coalition abandoned one of its central affirmative defenses, stipulating that it did not qualify for the exemption on corporate expenditures reserved for certain “ideological corporations.” When discovery finally closed, the parties filed cross motions for summary judgment. II. Relevant Feca Background The following background on the legal principles governing federal campaign finance in the Federal Election Campaign Act, 2 U.S.C. §§ 431-455, provides a necessary frame of reference for understanding the facts in this case. Congress enacted the FECA in 1971 in response to revelations during the congressional investigation of the campaign-related activities of senior officials in President Nixon’s Administration. The FECA was enacted to prevent “corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.” Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). The FECA, as substantially amended in 1974 and 1976, was the most comprehensive regulation of the federal electoral process in history. The 1974 amendments to the Act created the Federal Election Commission to regulate the federal electoral process and to enforce the Act’s limitations. Shortly after passage, a constitutional challenge against numerous FECA provisions was launched. That attack culminated in the United States Supreme Court’s lengthy per curiam Buckley opinion, which provided a partial First Amendment blueprint for restrictions on campaign finance while striking down or scaling back various FECA provisions. A. Contributions vs. Expenditures In the Act Congress sought to restrict campaign “contributions” and “expenditures” equally. However, the Buckley Court read the First Amendment to require substantially different treatment of “contributions” and independent “expenditures.” The Buckley Court observed that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” Buckley, 424 U.S. at 19, 96 S.Ct. 612. From that observation, the Court reached its holding that restrictions on campaign contributions and expenditures are restrictions on political speech. See Buckley, 424 U.S. at 19, 96 S.Ct. 612. Such restrictions are permissible only if they survive strict judicial scrutiny. After defining and balancing the relevant interests at stake, the Buckley Court concluded that the First Amendment permitted limits on campaign contributions but not on independent expenditures by individuals. 1. Contributions Buckley recognized a compelling governmental interest in preventing corruption, or the appearance of corruption, spawned by large campaign contributions. To determine whether the limitations on contributions and expenditures were narrowly tailored to that interest, the Court considered the degree and type of protected speech burdened by the legislation, as well as the burden on the right of free association. The Court concluded that the limitation on campaign contributions was permissible because such contributions involved only a limited degree of protected speech — ’“symbolic expression of support,” id. at 21, 96 S.Ct. 612 — and that the legislation was narrowly tailored because it directly addressed its anti-corruption interest, i.e., the specter of large campaign contributions leading to a legislative quid pro quo. Id. at 28-29, 96 S.Ct. 612. 2. Independent Expenditures — “Express Advocacy” As to expenditures made independent of any campaign, however, the Court’s analysis proceeded in two steps. Of particular significance in this case, the Court first determined that the statutory limit on “expenditures relative to a clearly identified candidate,” see 18 U.S.C. § 608(e)(1) (repealed), was impermissibly vague. The Court recognized that Congress intended this phrase to sweep broadly, but held that First Amendment concerns overrode congressional intent in the context of independent expenditures or else the phrase “relative to” might be construed to imper-missibly limit lobbying and other non-campaign-related political speech. Buckley, 424 U.S. at 41-44, 96 S.Ct. 612. Thus, the Court created the “express advocacy” test by limiting the cap on independent expenditures “relative to” a candidate to apply only to independent expenditures on communications “that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” Buckley, 424 U.S. at 44, 96 S.Ct. 612. In a footnote that has grown in significance, the Court elaborated: “This construction would limit the application of [§ ] 608(e)(1) to communications containing 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 47 n. 52, 96 S.Ct. 612; see also id. at 80 n. 108, 96 S.Ct. 612. In the second step, after so narrowing the statute, the Buckley Court determined that the spending cap violated the First Amendment because it directly infringed on a speaker’s independent political speech while being only tangentially related to the Government’s interest in preventing corruption. Id. at 47-48, 96 S.Ct. 612. However, the Court sustained § 434’s requirement that independent expenditures on communications containing express advocacy be reported to the FEC. See id. at 80, 96 S.Ct. 612. B. Speech by Corporations and Labor Unions Buckley’s analysis did not explicitly extend to the FEC A provision limiting corporate and union expenditures at issue in this case, a legal provision with a long history. See Federal Election Comm’n v. Massachusetts Citizens For Life, 479 U.S. 238, 246-48, 107 S.Ct. 616, 98 L.Ed.2d 539 (1986) [hereafter MCFL ]. That provision, § 441b, declares in pertinent part: It is unlawful for ... any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any [federal election]. 2 U.S.C. § 441b(a) (emphasis added). A “contribution or expenditure” shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value ([except a regular bank loan]) to any candidate, campaign committee, or political party or organization, in connection with any [federal election]. Id. § 441b(b)(2) (emphasis added). In analyzing a First Amendment challenge to § 441b, the MCFL Court followed Buckley’s two-step analysis. MCFL first declared that the “express advocacy” limitation also applies to § 441b’s restriction on independent expenditures. MCFL, 479 U.S. at 249, 107 S.Ct. 616. In the second step, the Court reached a different result than in Buckley because the nexus between the Government’s anti-corruption interest and the ban on corporate and union independent expenditures is much closer than was the case with individuals. III. COUNT III: Alleged Violation Of § 441B’s Ban On Express AdvocaCY Relying on these holdings of Buckley and MCFL, the FEC, in Count III, contends that the Coalition violated § 441b by using general treasury funds to finance communications that expressly advocated the election or defeat of a clearly identified candidate on three occasions: (1) a 1992 speech made by the Coalition’s Executive Director Ralph Reed in Montana; (2) a 1994 national mailing entitled “Reclaim America”; and (3) a 1994 mailing by the Coalition’s Georgia affiliate. The facts, although voluminous, are not genuinely disputed. A. Reed’s 1992 Montana Speech On January 24 and 25, 1992, Christian Coalition of Montana and the Montana Family Coalition jointly sponsored a conference (“Montana conference”) open to the public in Helena, Montana. The invitation to the Montana conference and its agenda listed Ralph Reed as a scheduled speaker and identified him as the “National Executive Director of Christian Coalition.” The FEC alleges that the Coalition violated the FECA in connection with Reed’s speech because the Coalition made an expenditure from general corporate funds — to fly Reed to Montana and compensate him for his time — and that Reed expressly advocated the defeat of the incumbent, Representative Pat Williams, a member of the Democratic Party who represented Montana’s First District in the United States House of Representatives. When introducing Reed, the moderator reminded the audience “[tjhat we heard [Reed] say last night, he’s gonna be here at least two more times before the election.” CC Ex. 130 at 2-3. Reed spoke for approximately 45 minutes. His speech was entitled “Address and Challenge.” Reed opened with a partisan jibe at Senator Hartón, a presidential candidate at the time, and then announced that Reed’s purpose was “to feed you and nourish you in terms of strategy and tactics for the pro-family movement.” Id. at 5. Much of the next portion of the speech was dedicated to references to the Bible in conjunction with a cataloguing of numerous perceived social ills. Summing up this portion of the speech, Reed said “[a]nd without getting into advocating election or defeat of anybody, I’d have to say that the last three years or so of policy have not been good ones with respect to pulling us out of this.” Id. at 16. Reed then characterized a growing Christian movement rising up to respond to the perceived social ills as an “army” in need of a “strategy.” Reed offered “five effective keys to a winning strategy for the pro-family movement that I’ve drawn from Sun Tsu [author of THE ART OF WAR].” See id. at 20-21. The first strategy was “secrecy.” We’re involved in a war. It’s not a war fought with bullets. It’s a war fought with ballots. [YJou’ve got to ... move secretively.... This is sort of the opposite of what the pro-family movement did for most of the 1980s. Here was a typical national pro-family strategy tvhen it came to knocking off somebody like Pat Williams. Fly Jerry Falwell or Pat Robertson in, hold a news conference with his opponent in front of a bank of microphones, announce that Pat Williams is one of your top targets in the entire nation, and then give a big bear hug to the other guy and say, this was the guy you were supporting. Id. at 22 (emphasis added). Reed advised that the second strategy was “safety,” which he translated into avoiding “the totally unwinnable race.” The third principle was to “know yourself and your enemy.” He admonished that in the past: Too often what we have done as a pro-family movement is gone out and decided we wanted to get somebody because we just couldn’t stand their voting record. And that was all. We just didn’t like them. We wanted to get rid of them. We didn’t do any polling. We didn’t do any opposition research. Id. at 31. Reed then gave an example in which the Coalition had applied this principle in a recent state senate election in Virginia: “We knocked off a guy who was about to run for lieutenant governor or attorney general.” Id. at 32. In closing, Reed quickly reviewed the fourth and fifth principles (unity and persistence, respectively) and finished with the following remarks: And what I said, this is my first time in Montana, but I can assure you, it will not be my last. We’re going to see Pat Williams sent bags packing back to Montana in November of this year. And I’m going to be here to help you. Thank you. Id. at 37 (emphasis added). As it turned out, Reed did not return to Montana prior to the general election in November 1992. B. “Reclaim America” Mailing In 1994, the Coalition spent approximately $930,000 to produce and distribute a direct mail package (“Reclaim America mailing”) to targeted constituents. The Coalition did not report to the FEC any of its expenditures for the Reclaim America mailing as independent expenditures. The mailing focused on the upcoming general congressional election in 1994. The package was comprised of a six-page letter signed by Pat Robertson as Founder and President of the Coalition; a “1994 National Referendum on the Clinton Presidency”; and a “Christian Coalition Congressional Scorecard.” The FEC argues that the following portions of the Reclaim America package constitute prohibited express advocacy. a.Excerpt from Robertson’s Second Letter In fact, the 1991 elections for Congress . ■.. will give Americans their first opportunity to deliver their verdict on the Clinton Presidency. If America’s 40 million eligible Christian voters are going to make our voices heard in the elections this November ... we must stand together, we must get organized, and we must start now. FEC Ex. 119 (emphasis added). b. Excerpts from Robertson’s First Letter In other words, America’s 40 MILLION Christian voters have the potential to. make sweeping changes in our government ... IF Christians get to the ballot box and IF Christians have accurate information about how their elected representatives are voting. That’s what our RECLAIM AMERICA CAMPAIGN is all about. Elsewhere in the letter Robertson explained that the Reclaim America mailing was meant to give Christians a “chance to make the politicians in Washington feel the power of the Christian vote.” c. The Christian Coalition Congressional Scorecard Robertson’s letter indicates that the Coalition publishes its Congressional Scorecard four times per year. Of the two “Scorecards” in the record, each listed and characterized several issues about which Congress had voted, stated the Coalition’s position on each, and reported how each incumbent candidate had voted on each one. Each vote was judged with a rating “ + + ” or “ — ”, followed by an overall percentage for each Senator and Representative. On the “Scorecard” was an explanation that the “index ... includes a total score for each member of Congress. A score of 100% means the Congressman supported Christian Coalition’s position on every vote. A score of 0% means the Congressman never supported a Christian Coalition position.” The names of Members of Congress from the Republican Party were printed in upper case letters while the names of Members from the Democratic Party were printed in upper and lower case letters. The average score for Republicans was higher than the average score for Democrats. Robertson’s first letter explained that the Coalition’s “new CONGRESSIONAL SCORECARD [is] designed to give Christian voters the facts they need to hold their Congressmen accountable.” The letter also claimed that the “Scorecard” “will give America’s Christian voters the facts they need to distinguish between GOOD and MISGUIDED Congressmen.” d. Robertson’s Solicitation After alerting the reader to the fact that the Democratic National Committee had filed a complaint with the FEC regarding the Coalition, Robertson’s second letter sought monetary gifts to “help [the Coalition] survive the legal attack we’re under from the Democratic National Committee, which is trying to close down the Christian Coalition in an effort to silence Christian voices and suppress the Christian vote in November.” C. Georgia State Coalition — 1994 Mailing The FEC also alleges that the Coalition engaged in express advocacy when, prior to the July 1994, primary election in Georgia, Christian Coalition of Georgia sent a cover letter from Patrick M. Garland, State Chan-man, containing the heading “State Coalition Update — July 1994,” accompanied by one of the two versions of the “Christian Coalition Congressional Scorecard” contained in the Reclaim America mailing. Garland’s letter stated in part: “The Primary Elections are here! On Tuesday, July 19, Georgians will nominate Democratic and/or Republican candidates for the offices of: Governor, Lt. Governor, Insurance Commissioner, Congress, Public Service Commissioner, and the State Legislature. To help you prepare for your trip to the voting booth, we have enclosed a complementary voter ID card. This personalized card lists your Congressional district and your State House and State Senate districts. We have also enclosed a Congressional Scorecard which you may take to the voting booth. The only incumbent Congressman who has a Primary election is Congressman Newt Gingrich — a Christian Coalition 100 percenter/[] Make sure that you save this scorecard for November, however, because all other Congressmen are opposed in the General Election. FEC Ex. 118. The expenditures made by Christian Coalition of Georgia to print and distribute the Georgia Congressional Scorecard and Georgia Coalition Update were not reported to the FEC as independent expenditures. Christian Coalition of Georgia was unable to provide an itemized accounting of the funds spent on the Coalition Update and Congressional Scorecard. It reported spending approximately $50,000 on printing and postage in 1994, but its itemiza-tions were limited. IV. Applying The “Express Advocacy” Standard As limited by the Supreme Court, § 441b(a) makes a corporation or labor union’s independent expenditure from general treasury funds illegal only if it: (1) pays for a communication; (2) that expressly advocates the election or defeat; (3) of a clearly identified candidate. The most difficult element to apply is the second — “express advocacy.” Because this Court finds that application of the second element is dispositive with respect to all three challenged communications, it is either assumed or undisputed that the FEC has established the first and third elements as to all three communications. A. Precedent The leading decision applying the “express advocacy” test is MCFL, 479 U.S. at 249, 107 S.Ct. 616. In MCFL, the speech at issue was a “Special Edition” of the newsletter published by Massachusetts Citizens For Life, Inc. Readers were exhorted to “Vote Pro-Life” and were provided with a coupon to take to the voting booth with the names of the “pro-life” candidates. The Court held: The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than “Vote for Smith” does not change its essential nature. Id. at 249, 107 S.Ct. 616. The MCFL Court’s succinct holding left open questions as to how the FECA expenditure provisions, as narrowed by the “express advocacy” limitation, apply. These include whether “express advocacy” is measured by the speaker’s subjective intent or the recipient’s objective understanding and whether context outside the communication itself may be considered when divining whether a communication’s “essential nature” transcends discussion of issues and public policy and enters the realm of express advocacy. Most courts that have considered the issue understand Buckley and MCFL to have separated permissible “issue advocacy” from impermissible “express advocacy” by a “bright line.” So-called bright-line rules of law are those that give the clearest possible advance (ex ante) guidance to distinguish permissible from impermissible conduct, leaving little room for after-the-fact (post hoc) case-by-case considerations. However, even those courts characterizing the “express advocacy” standard as a “bright line” recognize that the context-dependent nature of language introduces ambiguities requiring certain case-specific considerations. These courts nevertheless find that, while factors such as proximity of the communication to an election appear relevant, the “express advocacy” test brightly illuminates the difference between permissible and impermissible communication by prohibiting only those communications that contain specific icords of advocacy which unmistakably exhort the recipient to support the election or defeat of a clearly identified candidate. E.g., CAN II, 110 F.3d at 1051. Under this formulation, the presence of explicit words of advocacy is a constitutional requirement. But see Furgatch, 807 F.2d at 863 (rejecting a “magic words” approach because “[ijndependent campaign spenders working on behalf of candidates could remain just beyond the reach of the Act by avoiding certain key words while conveying a message that is unmistakably directed to the election or defeat of a named candidate.”) In moderate contrast to this position is that taken by the Ninth Circuit, which held: [Sjpeech 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. Furgatch, 807 F.2d at 864. This more context-sensitive approach to “express advocacy” is supported by language in MCFL, holding that the “Special Edition” at issue “provide[d] in effect an explicit directive” and that the fact that it was “marginally less direct than “Vote for Smith” [did] not change its essential nature.” MCFL, 479 U.S. at 249, 107 S.Ct. 616 (emphasis added). After the events in this case took place, the FEC promulgated a regulation that quotes, and in some instances extends, Furgatch. See 11 C.F.R. § 100.22 (1999). That regulation has been held invalid as beyond the scope of the FEC’s authority by the First and Fourth Circuits and a District Court in the Second Circuit. In this Court the FEC argues directly from Furgatch. Our Circuit has not had an opportunity to apply the “express advocacy” standard in a reported decision. Indeed the issue seems to appear in this District Court on only a decennial basis. See NOW, 713 F.Supp. 428 (D.D.C.1989) (Robinson, C.J.); Federal Election Comm’n v. American Fed. of State, County and Municipal Employees, 471 F.Supp. 315 (D.D.C.1979) (Smith, J.). B. Synthesis Having considered the relevant precedent, this Court understands the following attributes to be necessary to the application of § 441b’s prohibition on independent expenditures containing “express advocacy.” First, the communication must in effect contain an explicit, directive. MCFL, 479 U.S. at 249, 107 S.Ct. 616. That effect is determined first and foremost by the words used. More specifically, the “express advocacy” standard requires focus on the verbs. See, e.g., Furgatch, 807 F.2d at 864-65 (when contemplating phrase “don’t let him do it,” shifting from district court’s focus on “it” to “don’t let him”). For a communication to contain, in effect, an explicit directive it must use an active verb (or its functional equivalent, e.g., “Smith for Congress” or, perhaps, an unequivocal symbol). Second, that verb or its immediate equivalent — considered in the context of the entire communication, including its temporal proximity to the election — must unmistakably exhort the reader/viewer/listener to take electoral action to support the election or defeat of a clearly identified candidate. The most obvious electoral action is to vote for or against the candidate. But as the Buckley Court recognized when it included the verb “support” in its nonexclusive list, see 424 U.S. at 44 n. 52, 96 S.Ct. 612, express advocacy also includes verbs that exhort one to campaign for, or contribute to, a clearly identified candidate. Finally, application of the “express advocacy” standard is, as former Chief Judge Aubrey E. Robinson, Jr. held, a pure question of law. See NOW, 713 F.Supp. at 433. While in other contexts application of such a legal standard would likely be considered a mixed question of law and fact, the First Amendment requires that the issue of whether a reasonable person would understand a communication to expressly advocate a candidate’s election or defeat must be decided solely as a matter of law. Cf. Bose Corp. v. Consumers Union of Am., 466 U.S. 485, 505-06, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). The only predicate factual determinations are identification of the speaker and the communication’s contents. Once those have been made, a communication can be held to contain express advocacy only if no reasonable person could understand the speech in question— and in particular the verbs in question — to, in effect, contain an explicit directive to take electoral action in support of the election or defeat of a clearly identified candidate. See MCFL, 479 U.S. at 249, 107 S.Ct. 616, cf FED. R. Civ. P. 12(b)(6), 50(a), 56(c). Thus, the “express advocacy” standard covers only a narrow class of communications. While some have complained that “express advocacy” cannot be so limited as to be easily avoided by linguistic sleight-of-hand, e.g. Furgatch, 807 F.2d at 863; Thomas, Courts Cookpd the FECA?, 1069 PLI/Corp at 554, this Court must conclude that that is precisely how the Supreme Court has narrowed the Act. In Buckley, the Court held that, as written, the FECA had too much bite. The Court recognized that the result of its narrowing construction rendered the FECA’s limitations on independent expenditures largely toothless: It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate’s campaign. Buckley, 424 U.S. at 45, 96 S.Ct. 612. C. Application Turning to the three alleged acts of “express advocacy” at issue in this case, the Court finds that -with respect to two communications, Reed’s Montana speech and the “Reclaim American” mailing, the Coalition steered clear of § 441b(a)’s prohibition. However, the Coalition’s Georgia affiliate, for whose speech the Coalition is responsible in this action, engaged in prohibited express advocacy. 1. Reed’s Montana Speech Reed’s speech was made ten months before the 1992 general election. When introducing Reed, the moderator announced that Reed would twice return before the election, providing some context that would raise expectations that Reed’s speech was to be election-related. As it turned out, a very large portion of the speech focused on issues that were not directly i*elated to the election by any measure. There were, however, some explicit references to the Democratic incumbent, Pat Williams. It can be readily inferred that Reed knew of the “express advocacy” limitation on his speech, e.g., CC Ex. 130 at 16 (“without getting into advocating the election or defeat of anybody”), and Reed carefully avoided such advocacy. For example, some of Reed’s verb choices, if phrased a bit differently, may well have crossed into express advocacy: “Here was a typical national pro-family strategy when it came to knocking off somebody like Pat Williams.” CC Ex. 130 at 22 (emphasis added). Although implicit, Reed avoided providing an explicit directive to “knock off Pat Williams. Reed then described how in the past members of the “movement” “just wanted to get rid of’ candidates they did not like, but that statement was descriptive rather than prescriptive and was not made in relation to Pat Williams or any other clearly identified candidate. Finally, Reed closed by predicting that in the war to be “fought with ballots:” CC Ex. 130 at 37. Although the implicit message is unmistakable, in explicit terms this is prophecy rather than advocacy. Reed predicts that victory “will be” ours and that “[w]e’re going to see” Pat Williams defeated in the November election. Neither of these verbs expressly directs the audience to do anything; the speaker has announced that this will come to be without any further action. Making the issue closer is Reed’s final statement that he would return “to help you.” For Reed to “help” there must be some action taking place for him to assist. However, that action — “sending” the candidate “bags packing” — comes just shy of referring to the campaigning and voting against Pat Williams necessary to bring that about. Though the message is clear, it requires one inferential step too many to be unequivocally considered an explicit directive Bound, as this Court is, by Buckley and MCFL, it can only be concluded that Reed exhibited precisely the “ingenuity and re-' sourcefulness” in his verb choice that the Buckley Court envisioned possible to circumvent the prohibition on express advocacy. As others have acknowledged, results such as this appear unsatisfyingly formalistic, allowing precisely the sort of communications Congress sought to prohibit to remain immune from liability. E.g., MRLC, 914 F.Supp. at 12. But the Supreme Court felt that the First Amendment required a choice between a toothless provision and one with an overbite; results such as this flow directly from that choice. “[Victory] will be ours here in Montana. And it will be ours all across America. .... We’re going to see Pat Williams sent bags packing back to Montana in November of this year. And I’m going to be here to help you.” 2. Reclaim America Robertson’s second cover letter in the Reclaim America mailing explicitly refers to “the 1994 elections for Congress” and explains that “If Christian voters ... are going to make our voices heard in the elections this November ... we must stand together, we must get organized, and we must start now.” While acknowledging that this expression by itself does not refer to clearly identified candidates, the FEC argues that when read in conjunction with the “Christian Coalition Congressional Scorecard,” Robertson’s statements can only be understood to direct the reader to support the election of those incumbents rated favorably in the Scorecard and the defeat of those rated unfavorably in the November 1994 elections. This Court cannot agree for two reasons. First, it is true that certain explicit directives are present: “stand together,” “get organized,” “start now” all for the purpose of “mak[ing] our voices heard in the elections.” It is likely that the reader is to make his voice be heard by voting. But in the context of the entire mailing, which focuses on the importance of raising the profile of issues important to “Christian voters,” a reasonable person could understand Robertson’s statement to be a directive to engage in issue advocacy with all candidates in the upcoming election. Second, the “Scorecard” resembles both the John Birch Society publication at issue in CLITRIM (which did not contain express advocacy) and the “Special Edition” in MCFL (which did). It informs the reader as to how a Member of Congress voted on select bills and how the Coalition believes he should have voted. Unlike the “Special Edition,” however, the Scorecard does not identify which incumbents are candidates in the 1994 elections, nor does it provide a baseline level of agreement indicating the Coalition’s electoral endorsement. Cf. MCFL, 479 U.S. at 243-44, 107 S.Ct. 616. For example, while a preference for the Republican incumbents is clearly implied, a reasonable reader would not know whether the Coalition sought the election or defeat of an incumbent who agreed with the Coalition 59 percent of the time on the issues selected without knowing how the opponent rated. The same problem plagues the FEC’s argument with respect to Robertson’s statement that “Christian voters have the potential to make sweeping changes in our government ... IF Christians get to the ballot box and IF Christians have accurate information about how their elected representatives are voting.” While these voters “have the potential to make sweeping changes” by going to the ballot box, neither Robertson’s letter nor the Scorecard explicitly direct the reader as to how to vote in any given election. Similarly, Robertson’s statement that the upeoming elections represent a “chance to make the politicians in Washington feel the power of the Christian vote” does not explicitly direct the reader as to what action is necessary to “make the politicians ... feel” the power. As to the Scorecard itself, for the reasons stated, it does not contain an explicit directive to take specified electoral action. Robertson’s first letter explained that the Coalition’s “new CONGRESSIONAL SCORECARD [is] designed to give Christian voters the facts they need to hold their Congressmen accountable,” explaining elsewhere that the Scorecard “will give America’s Christian voters the facts they need to distinguish between GOOD and MISGUIDED Congressmen.” It may well be that the implicit message is that “Christian voters” should “hold their Congressmen .accountable” and “distinguish” which Congressmen support the Coalition’s views by voting in favor of those with a high percentage of agreement and in favor of the opponent of those with a low percentage of agreement. But in the context of the entire communication, these calls to action can also be understood to be exhorting the reader to lobby incumbents on certain issues. Even if it were unmistakable that the Scorecard, in context, was an explicit directive, it remains unclear precisely what electoral action with respect to which incumbents is contemplated. Finally, Robertson’s second cover letter exhorting the reader to “help [the Coalition] survive the legal attack we’re under from the Democratic National Committee, which is trying to close down the Christian Coalition in an effort to silence Christian voices and suppress the Christian vote in November” cannot be said to direct the reader to take electoral action. The statement seeks funds to provide support for the Coalition. In the context of the entire mailing, it is not “express advocacy.” 3.Georgia Mailing Unlike the above two communications, the Georgia mailing was expressly directed at the reader-as-voter. The cover letter announces that “The Primary Elections are here!” and then provides two items “[t]o help you prepare for your trip to the voting booth.” The second item was the above-discussed “Congressional Scorecard which you may take to the voting booth.” While the Scorecard leaves ambiguous which candidates the Coalition supports, the following sentence of the letter removed all doubt about the purpose of the Coalition’s mailing with respect to one election. The only incumbent Congressman who has a Primary election is Congressman Newt Gingrich — a Christian Coalition 100 percenter. Make sure that you save this scorecard for November, however, because all other Congressmen are opposed in the General Election. FEC Ex. 118 (emphasis added). The Coalition concedes that a reasonable reader could only have understood the term “Christian Coalition 100 percenter” as describing a congressional incumbent who supported Christian Coalition’s position on every vote noted in the “Scorecard” included in the mailing. Moreover, use of the word “however” is significant. It distinguishes how the reader should treat the Scorecard with respect to the primary and general elections. After explaining that the Scorecard was for use in the voting booth, the letter makes clear that the reader need not bring it for the congressional primary election because only one incumbent is being challenged, Newt Gingrich, and he is a “100 percenter.” The letter does not mention the name of Gingrich’s challenger. The unmistakable meaning of the letter is that because Newt Gingrich has voted as the Coalition would have wanted him to on every vote the Coalition considered significant, the reader should vote for him in the primary election. “However,” with respect to the general election, all other incumbents faced contested elections, requiring reference to the Scorecard. While marginally less direct that saying “Vote for Newt Gingrich,” the letter in effect is explicit that the reader should take with him to the voting booth the knowledge that Speaker Gingrich was a “Christian Coalition 100 percenter” and therefore the reader should vote for him. While the “express advocacy” standard is susceptible of circumvention by all manner of linguistic artifice, merely changing the verb “vote” into the noun, “trip to the voting booth” is insufficient to escape the limited reach of “express advocacy.” 4.The MCFL Exception Under MCFL, once it has been determined that a corporation has violated § 441b(a) by making independent expenditures for “express advocacy,” a second inquiry with respect to certain “ideological corporations” is appropriate to determine whether § 441b is unconstitutional as applied to such a corporation. In MCFL, a slim majority held that § 441b cannot apply to a corporation that (1) “was formed for the express purpose of promoting political ideas;” (2) “has no shareholders or other persons affiliated so as to have a claim on its assets or earnings;” and (3) “was not established by a business corporation or labor union and [has as] its policy not to accept contributions from such entities.” See MCFL, 479 U.S. at 263-64, 107 S.Ct. 616; id. at 265-66, 107 S.Ct. 616 (O’Connor, J., concurring in part and concurring in the judgment). Subsequently, a sharply divided Supreme Court held that the MCFL exception does not extend to a non-profit corporation which was organized for numerous non-political purposes, had numerous business corporations as members, and which relied heavily on financial input from business corporations. Austin, 494 U.S. at 661-665, 110 S.Ct. 1391. In this case, the Coalition asserted the MCFL exception as an affirmative defense and counterclaim. However, during discovery the Coalition was unable to, or deliberately chose not to, provide the FEC with responsive information concerning its eligibility for the MCFL exception. In response to a motion by the FEC, the Coalition dropped its MCFL defense and stipulated: The Christian Coalition will not attempt to reassert any affirmative defense or counterclaim in this litigation based on the holding of [MCFL ]. This stipulation and order will apply only to this litigation and The Christian Coalition is not precluded in any future litigation from seeking to prove such defense or counterclaim. See Stip. and Order of Feb. 17, 1998 ¶ 1. Regardless of whether the MCFL defense is properly asserted by affirmative defense or counterclaim (in which case the party asserting the defense bears the burden of proof), the Court understands the stipulation to mean that the parties agree that § 441b can constitutionally be applied to the Coalition. Consequently, because one of the three communications complained of contains prohibited “express advocacy,” the FEC’s motion as to Count III will be granted in part and denied in part, as will the Coalition’s. V. COUNTS I AND II: Facts Concerning Coordinated Expenditures In addition to alleging that the Coalition engaged in prohibited express advocacy, the FEC also alleges that the Coalition violated the FECA in relation to other communications — principally its voter guides. The FEC acknowledges that these guides, which compare candidates’ positions on select issues, did not contain express advocacy. However, the FEC asserts that the voter guides were not protected independent expenditures because the Coalition shared information with various campaigns, including the 1992 reelection campaign of President Bush, to such an extent that the Coalition voter guides should be treated for FECA purposes as literature distributed on behalf of the campaign and paid for by the Coalition. On this view, the Coalition’s expenditures on its voter guides were illegal in-kind corporate contributions. A. Expenditures for 1992 Presidential Election President George Bush and Pat Robertson are both the sons of United States Senators. They came to know each other while Bush was Vice President. At Bush’s invitation, Robertson joined him in a relief mission to Sudan in 1985. In 1988, then-Vice President Bush and Robertson both sought the Republican nomination to run for President of the United States. After Robertson withdrew from the race, he endorsed Bush’s candidacy and spoke on Bush’s behalf on several occasions, including at the 1988 Republican National Convention in New Orleans. Bush and Robertson each testified that they were “friends.” See FEC Ex. 7 (Bush Dep.) at 11; FEC Ex. 63 (Robertson Dep.) at 74. George Bush was elected President of the United States in the November 1988 general election. President Bush and Vice President Quayle were candidates for reelection in 1992. In late 1990 or early 1991, Robertson contacted then-White House Chief of Staff John Sununu and requested a meeting with President Bush. Robertson subsequently met with President Bush, Sununu and Leigh Ann Metzger, Deputy Assistant to the President for Public Liaison, in the Oval Office on January 9, 1991, immediately prior to the Persian Gulf War. During the meeting, Robertson offered his personal support for Bush’s reelection campaign and pledged to support the President’s reelection efforts in 1992. On the same day, Reed sent a brief follow-up letter on Christian Coalition stationery to Metzger. See FEC Ex. 035-0112 (“Pat said the meeting with the President today went very well. We are looking forward to helping in any way we can.”). Robertson publicly endorsed Bush’s candidacy for reeleetion in early 1991. Despite Robertson’s personal support for President Bush, the Coalition continued to vigorously lobby the Administration. For example, in April 25, 1991, Reed wrote to Special Assistant to the President Ronald Kaufman concerning funding by the National Endowment for the Arts of art the Coalition considered to be offensive. After advising Kaufman of the Coalition’s lobbying of . Governor Chiles in Florida concerning state funding of similar projects, Reed chastised: “It is somewhat ironic that we are getting more action on this issue from a liberal Democratic Governor than we have seen out of the Bush administration.” FEC Ex. 035-0255. At a June 26, 1991 Coalition Board of Directors meeting, the Board identified as strategic goals the need to (1) control the Republican National Convention, to prevent the party from removing the “pro-life plank” from its platform; (2) control the Republican National Committee for the same reasons; and (3) distribute voter guides in “swing” senatorial elections; that is, in elections that were considered close. The Coalition’s focus on voter guide distribution had grown. The Coalition had distributed voter guides in seven states during the 1990 elections and in two states in 1991. The Coalition had ambitious plans to distribute voter guides nationwide during the 1992 elections. In an August 1991 memorandum to the Coalition’s state directors entitled “Legal Compliance In The Printing And Distribution Of Voter Guides,” Reed cautioned that because the state affiliates were corporations, Coalition-funded voter guides could not expressly advocate the election or defeat of specific candidates. Reed also advised that voter guides not be distributed only in churches and that voter guides include candidate positions on ten to twelve issues. Reed informed them of the MCFL exception for independent expenditures on express advocacy but warned: [U]nder FEC law and most state election laws, the expenditure must be truly independent, which generally means no communication, coordination, or cooperation with the candidate, the campaign, or an officer or staff member of the campaign. This often places unrealistic strictures on grassroots volunteer organizations (whose members are often also working on behalf of the candidate as volunteers). It also places you at the mercy of the FEC or state elections regulatory agency to determine whether or not you have communicated with or coordinated your activities with the candidate or his campaign. FEC Ex. 004-1350-52. In November 1991, the Coalition sponsored its first annual “Road to Victory” conference in Virginia Beach, Virginia. At Robertson’s invitation, Vice President Quayle addressed the conference. Reed consulted with Quayle’s speechwriter and spoke in general terms about what Quayle would say. In his opening remarks, Quayle stated: “[B]ecause of you, and your dedication, and your commitment, once again you will join me, Pat and others in making sure that the liberals are defeated and George Bush is elected to the Presidency once again.” FEC Ex. 87 at 13. In late 1991 and early 1992, Robertson lobbied various senior officials of the Bush-Quayle ’92 campaign, such as its chairman, Robert Teeter, and campaign manager, Fred Malek, to appoint Coalition members to leadership positions in the campaign within their respective states. On February 11, 1992, shortly before President Bush announced his candidacy for reelection, Robertson met privately with the President. Metzger met with Robertson immediately thereafter and recorded her understanding in a memorandum to Chief of Staff Samuel Skinner that Robertson had raised issues such as “education choice, pro-life platform for the GOP convention, and specific pro-family economic proposals.” See FEC Ex. 035-000095. In the memorandum to Skinner, Metzger advised that Robertson sought to meet with Skinner to discuss, among other things, a: Proposal for a private, quiet meeting with 10-12 key evangelical leaders in Chicago on September 25th. The purpose of this would be to bring in several leaders who have expressed a desire to distribute the Christian Coalition voter guides. Many of these leaders for one reason or another have never meet [sic] with the President and this would solidify their commitment to participate in the program. Id. The Republican party presidential primary elections began in February 1992. One of the early or “second wave” primary elections was the March 3, 1992 election in Georgia. Bush-Quayle ’92 viewed the Georgia primary election to be of particular importance for two reasons. First, President Bush was being challenged by Patrick Buchanan in Georgia. Bush-Quayle ’92 viewed Buchanan as appealing to “the Christian Evangelical voter,” a constituency the Bush campaign considered important. Second, the Georgia election would be viewed as a bellwether for the eleven primary elections scheduled for “Super Tuesday” on March 10, 1992. To counteract the Buchanan challenge in Georgia, Bush-Quayle ’92 sought the endorsement of leaders that would appeal to the “Christian Evangelical voter,” including Pat Robertson, who could influence a number of voters by virtue of his role as a television personality and his leadership of the Coalition. Robertson authorized Bush-Quayle ’92 to send a February 27, 1992 letter over Robertson’s signature expressly advocating Bush’s election in the Georgia primary, which was less than a week away, and in the November general election. The campaign paid for the production and distribution of the letter