A. Raymond Randolph, D.C. Circuit, Election 2012, Election Law, English Grammar and Usage, Harry Edwards, Janice Rogers Brown, Politics

Pol Dancing: D.C. Circuit Plays Words With Friends

Take the words “all contributors.” Now close your eyes and contemplate what those words mean in plain English. This exercise serves two purposes, by both focusing your mind on the definition and simulating exactly how much the D.C. Circuit thinks you should know about the political process. How did they come to their decision, you might ask? By twisting, turning, and bending the words of the English language in a way that’s still illegal in nine states.

I mean, what more can you say about an opinion that calls dictionaries an “optical illusion?” Seriously…

Yesterday a three-judge panel of the D.C. Circuit — Judges Brown, Edwards, and Randolph, to be exact — issued a per curiam decision allowing advocacy organizations creating election advertising to withhold the identities of their donors. In this case, “advocacy groups” refers to those non-Super-PAC groups that act like Super PACs while claiming to be “social welfare organizations” (e.g., Karl Rove’s American Crossroads GPS or the Koch Brothers’ Americans For Prosperity) or “trade organizations” (e.g., the U.S. Chamber of Commerce). Groups that mostly produce election ads but have other purposes (like advancing the societal good of Karl Rove’s checking account).

This overturns Judge Amy Berman Jackson’s earlier decision that required these groups to disclose the identities of every donor providing more that $1,000 to the group. Judge Jackson looked at the original statute, the Bipartisan Campaign Reform Act, which stated that every advocacy group who funds “electioneering communications” must disclose “all contributors,” 2 U.S.C. § 434(f). Since Judge Jackson has a grasp of the English language, she understood “all contributors” to mean… well, “all contributors,” and declared that the FEC lacked the authority per Chevron to limit a requirement explicitly declared in the statute.

Specifically, the FEC had issued a rule declaring that if the contributor did not explicitly earmark their money for the purpose of creating ads, then there was no requirement to disclose the identity of that contributor. In other words, the FEC determined that the “all contributor” requirement only applied if the contributor attached a note to their check that reads:

Dear Karl,

Please use this $100,000 explicitly for making ads attacking Barack Obama. Hope to see you after my weekend hunting trip with Vice President Cheney! Thx.

But the D.C. Circuit said “Sorry Miss Jackson,” dug up Webster’s New International Dictionary, and pointed to its definition of “contribute,” meaning “to give or grant in common with others (as to a common fund or for a common purpose)” and concluded that the statute had therefore left open the opportunity for the FEC to refine and the definition of “contributors” in the phrase “all contributors.” Makes sense, right? I mean, Bill Clinton once told us that we didn’t realize what the definition of “is” is, too.

The opinion cites a journal article by Judge Randolph himself that says “citing to dictionaries creates a sort of optical illusion, conveying the existence of certainty — or ‘plainness’ — when appearance may be all there is.” When did Judge Randolph become Derrida?

“All contributors to a group… Contributors means ‘for a purpose or fund’… Ads can be a purpose… All contributors to a group means all contributors for ads to a group.”

This citation to “illusion” is appropriate, since the definition provided by the D.C. Circuit opinion is classic misdirection. In the statute, the words “all contributors” apply to the organization, not the decision to produce an ad. The definition “as to a common fund” actually reinforces the district court decision that the statutory requirement that “all contributors” to an organization (a common fund, if you will) must be disclosed if the fund begins producing election advertising.

Playing word games is a lot of fun (in the world of competitive debate I always enjoy judging a good semantic “Topicality” argument), but there are basic canons to interpreting meaning, and a whole lot of them revolve around context. When you put “all” in front of “contributors” and then say “to the [organization] making the [advertising] disbursement,” you can’t really blow that context off like the “Chaos Theory Guy” from South Park.

Words have to mean something in context. They can’t all be illusions.

Joe Patrice is the author of Recess Appointment, a blog about political rhetoric, and he’ll be dropping in occasionally to write about the intersection of law and politics. To answer the question that you’re probably about to ask, he got his J.D. at NYU and spent ten years working at a Biglaw firm and a white-collar defense boutique. His favorite word is sesquipedalian.

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