All the Justices
VIRGINIA SOCIETY FOR HUMAN LIFE,
INCORPORATED, ET AL.
JUSTICE LAWRENCE L. KOONTZ, JR.
June 5, 1998
DONALD S. CALDWELL, ATTORNEY FOR
THE COMMONWEALTH OF VIRGINIA FOR
THE CITY OF ROANOKE, ETC., ET AL.
Record No. 972659
UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
Pursuant to our Rule 5:42, the United States Court of
Appeals for the Fourth Circuit certified a question of Virginia
law to this Court which we accepted by order entered January 16,
The question involves the construction of various
provisions of the Campaign Finance Disclosure Act (the Act),
Code §§ 24.2-900 to -930, and Code § 24.2-1014, a penalty
provision applicable to certain activities governed by the Act.
The Act, in pertinent part, requires certain individuals or
organizations that give money and services of any amount, and
any other thing of value over $100, “for the purpose of
influencing the outcome of an election,” Code § 24.2-901, to
file a statement of organization, Code § 24.2-908, and to report
their expenditures toward that purpose to the State Board of
Elections, Code § 24.2-910.
In addition, any writing made “for
the purpose of influencing the outcome of an election for public
office” is required to include an identification of the author
under Code § 24.2-1014.
This statute further provides civil and
criminal penalties for the failure to identify the author of
The following facts are set forth in the order of
certification from the Court of Appeals.
The Virginia Society
for Human Life, Incorporated (VSHL) is a nonprofit organization
that conducts issue advocacy by periodically preparing and
distributing “voter guides” that do not expressly advocate the
election or defeat of any candidate but, rather, state the views
of candidates on public issues. 1
In an initial 1995 complaint
asserting that these statutes, as enacted prior to 1996, have
been used in the past to impose unconstitutional prior
restraints on issue advocacy, VSHL sought, pursuant to 42 U.S.C.
§ 1983, to bar their future enforcement through declaratory and
injunctive relief from the United States District Court for the
Western District of Virginia. 2
VSHL contended that these
statutes placed an impermissible burden on its First Amendment
For purposes of this opinion, we adopt the assumption of
the Fourth Circuit that VSHL “conducts only issue advocacy.”
Andrea Sexton, a Virginia resident and a member of VSHL,
was also a plaintiff in the suit. The suit was filed against
Donald S. Caldwell, Attorney for the Commonwealth of Virginia
for the City of Roanoke, in his official capacity as a
representative of the class of Attorneys for the Commonwealth of
Virginia, and Pamela M. Clark, Dr. George M. Hampton, Sr., and
M. Bruce Meadows, in their official capacities as officers of
the State Board of Elections.
See Buckley v. Valeo, 424 U.S. 1, 78-80 (1976)(per
curiam); McIntyre v. Ohio Elections Commission, 514 U.S. 334,
While the complaint was pending in the district court, the
Virginia General Assembly enacted amendments to the specific
statutes in question during its 1996 session.
filing of an amended complaint challenging these statutes as
amended, the district court ruled that the current statutes
could be narrowly construed so as to avoid any constitutional
infirmity by limiting their application to individuals or
organizations advocating the election or defeat of a clearly
See Buckley, 424 U.S. at 80.
this construction of the statutes, the district court ruled that
because VSHL engaged only in issue advocacy, it lacked standing
to challenge the enforcement of the statutes and dismissed the
suit on that ground.
VSHL appealed the ruling of the district court to the Court
of Appeals which, seeking an authoritative construction of the
statutes in question, certified the following question of law to
Whether Va. Code Ann. §§ 24.2-901, -908, -910 & -1014
apply to issue advocacy groups, or whether the use of
the phrase “for the purpose of influencing the outcome
of an election” and related phrases limits the
application of those statutes to groups that expressly
advocate the election or defeat of a particular
In light of certain concerns expressed in the order of
certification and in order to conform to our policy of
responding to certified questions in the affirmative or the
negative, we will exercise our discretion under Rule 5:42(d) to
restate the question as follows:
Whether the use of the phrase “for the purpose of
influencing the outcome of an election” in Code
§§ 24.2-901, -908, -910, and –1014 may be narrowly
construed to limit the application of those statutes
to groups that expressly advocate the election or
defeat of a clearly identified candidate.
Within the statement supporting the determinative nature of
the certified question, Rule 5:42(b)(6), the Court of Appeals
has expressed grave doubts as to the method used by the district
court in arriving at the narrowing construction of these
The district court found that the phrase “for the
purpose of influencing the outcome of an election” as used in
these statutes “is a term of art whose well-established meaning
excludes issue advocacy” based upon the rationale of Buckley.
Citing Boos v. Barry, 485 U.S. 312, 330 (1988), the Court
of Appeals notes that federal courts may not “‘adopt a narrowing
construction of a state statute unless such a construction is
reasonable and readily apparent.’”
Continuing, the Court of
Appeals expressed doubts that a narrowing construction of these
statutes is readily apparent and that the structure and history
of the Act suggest that it applies to issue advocacy groups such
The Court of Appeals correctly notes, however, that
under the broader rules of statutory construction available in
this Court we “may impose a narrowing construction upon these
statutes if [we determine] that such a construction would be
For the reasons that follow, we conclude that such is
the case here.
The rules of statutory construction pertinent to our
analysis here are firmly settled.
Principal among these rules
is that we determine, and adhere to, the intent of the
legislature reflected in or by the statute being construed.
an initial and primary proposition, that intent is to be
determined by the words in the statute.
See Marsh v. City of
Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987).
words used in the statute are not sufficiently explicit, we may
determine the intent of the legislature “from the occasion and
necessity of the statute being passed [or amended]; from a
comparison of its several parts and of other acts in pari
materia; and sometimes from extraneous circumstances which may
throw light on the subject.”
Richmond v. Sutherland, 114 Va.
688, 691, 77 S.E. 470, 471 (1913).
Additionally, when, as here, the constitutionality of a
statute is challenged, our determination of legislative intent
is guided by the recognition that “[a]ll actions of the General
Assembly are presumed to be constitutional.”
Hess v. Snyder
Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 820 (1990).
“a statute will be construed in such a manner as to avoid a
constitutional question wherever this is possible."
Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940); see also
Jacobs v. Meade, 227 Va. 284, 287, 315 S.E.2d 383, 385 (1984).
In this context, we will narrowly construe a statute where such
a construction is reasonable and avoids a constitutional
Pedersen v. City of Richmond, 219 Va. 1061, 1065,
254 S.E.2d 95, 98 (1979).
The parties do not dispute, and it is readily apparent,
that absent a narrowing construction of the phrase “for the
purpose of influencing the outcome of an election” as used by
the General Assembly in the statutes in question, these statutes
would apply to individuals and groups that engage solely in
issue advocacy, and, thus, would be unconstitutionally
VSHL asserts that without an ambiguity in the language of
the statutes in question we may not resort to extrinsic aids of
construction. See Wall v. Fairfax County School Board, 252 Va.
156, 159, 475 S.E.2d 803, 805 (1996). This assertion is without
merit in the present case. While an ambiguity of language may
serve as the basis for rejecting an unconstitutional
interpretation of a statute in favor of one that survives
constitutional scrutiny, see, e.g., Miller v. Commonwealth, 172
Va. 639, 648, 2 S.E.2d 343, 347 (1939), a finding of ambiguity
is not a prerequisite for applying a narrowing construction to
preserve a statute’s constitutionality. To the contrary, we may
construe the plain language of a statute to have limited
application if such a construction will tailor the statute to a
constitutional fit. Gooding v. Wilson, 405 U.S. 518, 520
However, a narrowing construction is reasonable
because it is consistent with the manner in which the United
States Supreme Court construed very similar federal election
statutes in Buckley.
Moreover, a narrowing construction avoids
a constitutional infirmity and is consistent with the
legislative intent that we are able to determine from the words
used by the General Assembly under the circumstances existing at
the time these statutes were enacted or amended.
Each of the statutes in question has either been enacted or
amended subsequent to the decision in Buckley.
question, the General Assembly is presumed to have knowledge of
decisions of the United States Supreme Court on constitutional
issues that bind actions of the states when enacting statutes
that potentially invoke such issues.
Accordingly, here the
General Assembly is presumed to have had knowledge that the
Buckley decision narrowly construed the phrase “for the purpose
of influencing” as used in federal election laws to apply only
to expenditures used to advocate the election or defeat of a
clearly identified candidate and, thus, to exclude groups that
engage solely in issue advocacy.
Similarly, that presumption of
knowledge extends to the more recent McIntyre decision that a
state statute cannot constitutionally prohibit anonymous issue
advocacy by groups that engage solely in issue advocacy.
Additionally, the General Assembly, when amending a
statute, is presumed to have knowledge of the Attorney General’s
interpretation of that statute in its existing form.
Gardens Arlington Limited Partnership v. Arlington County Board,
250 Va. 534, 540, 463 S.E.2d 646, 649 (1995).
In 1995, the
Attorney General, in response to an inquiry concerning the
constitutionality of Code § 24.2-1014 in light of the McIntyre
decision, issued a formal opinion, consistent with prior
opinions on related issues, expressly construing the phrase “for
the purpose of influencing” as having the same definition as
that adopted in Buckley.
See 1995 Op. Va. Att’y Gen. 170.
In light of the General Assembly’s knowledge of the
opinions in Buckley and McIntyre and the Attorney General’s
opinion adopting a narrowing construction of the broad sweep of
the phrase “for the purpose of influencing” at the time the
General Assembly enacted or amended the statutes in question, we
conclude that the General Assembly intended to limit that phrase
and related phrases so as to have no application to individuals
or groups that engage solely in issue advocacy and that do not
expressly advocate the election or defeat of a clearly
We now consider the effect of this narrowing construction
on each of the statutes in question.
In doing so we will
address only those provisions of the Act pertinent to the
Code § 24.2-901(A) provides definitions for various terms
used throughout the Act that control the meaning of specific
“Contribution” is defined as “money . . . given . . .
for the purpose of influencing the outcome of an election” and
“Expenditure” is defined as “money . . . paid . . . for the
purpose of influencing the outcome of an election.”
“Independent expenditure” is defined as “an expenditure made by
any person or political committee which is not made to . . . a
candidate” or generally on behalf of a candidate.
committee” is defined as a “person or group of persons which
receives contributions or makes expenditures for the purpose of
influencing the outcome of any election.”
We first apply these definitions to Code § 24.2-908, which
requires a “political committee which anticipates receiving
contributions or making expenditures in excess of $200 in a
calendar year” to file a statement of organization with the
State Board of Elections.
As narrowly construed, a group that
engages solely in issue advocacy and does not receive
“contributions” or make “expenditures” to expressly advocate the
election or defeat of a clearly identified candidate is not a
“political committee” as defined in Code § 24.2-901(A), and,
consequently, is not included in the mandate of Code § 24.2-908.
The same rationale applies to the provisions of Code § 24.2910(B) that require any group that “is not a political committee
and who makes independent expenditures” to report these
expenditures to the State Board of Elections.
expenditure” contemplated by this section and as defined in Code
§ 24.2-901(A) excludes expenditures made solely for issue
Similarly, Code § 24.2-1014, when narrowly construed
in this manner, requires identification of authorship only on
writings “made for the purpose of influencing the outcome of an
election for public office” and excludes writings that are
limited to issue advocacy.
Finally, we consider the terms of Code § 24.2-901(B) that
have evoked express concerns by the Court of Appeals in its
order of certification and are asserted by VSHL to prohibit the
narrowing construction we adopt in this case.
For the purpose
of applying the filing requirements of Code § 24.2-908 and the
reporting requirements of Code § 24.2-910, Code § 24.2-901(B)
expressly excludes from the definition of a “political
committee” “an organization holding tax-exempt status under
§ 501(c)(3) of the United States Internal Revenue Code which, in
providing information to voters, does not advocate or endorse
Because we construe Code § 24.2-910(B) to exclude
expenditures made solely for issue advocacy, we find no
inconsistency in the language of subsections (B)(1) and (B)(2).
the election or defeat of a particular candidate, group of
candidates, or the candidates of a particular political party.”
Citing the maxim expressio unius est exclusio alterius,
that is, the expression of one thing is the exclusion of
another, the Court of Appeals questions whether this express
statement would not result in the definition of a “political
committee” necessarily including organizations, such as VSHL,
which do not have § 501(c)(3) status, but which nonetheless
provide information to voters that “does not advocate or endorse
the election or defeat of a particular candidate, group of
candidates, or the candidates of a particular political party.” 5
Assuming that this is a correct application of this maxim of
construction, it does not preclude the application of a
narrowing construction to the definition of a “political
committee” as contemplated by the General Assembly.
conclude that even if organizations lacking § 501(c)(3) status,
such as VSHL, are subsumed within that definition, under the
narrowing construction such groups would be subject to its
application elsewhere in the Act only if their activities were
to exceed the bounds of issue advocacy.
VSHL does enjoy tax-exempt status under § 501(c)(4) of the
United States Internal Revenue Code.
Accordingly, we hold that the phrase “for the purpose of
influencing the outcome of an election,” as used in Code
§§ 24.2-901, -910, and –1014, as well as its implication for
terms used in Code § 24.2-908, may be narrowly construed to
limit the application of those statutes to groups that expressly
advocate the election or defeat of a clearly identified
Certified question answered in the affirmative.