Vote Choice v. Di Stefano ( 1993 )

September 28, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1171
VOTE CHOICE, INC., ET AL.,
Plaintiffs, Appellees,
v.
JOSEPH DiSTEFANO, ETC., ET AL.,
Defendants, Appellees.
ELIZABETH LEONARD,
Plaintiff, Appellant.
No. 93-1236
VOTE CHOICE, INC., ET AL.,
Plaintiffs, Appellees,
v.
JOSEPH DiSTEFANO, ETC., ET AL.,
Defendants, Appellants.
ERRATA SHEET
ERRATA SHEET
The order of the court issued on August 31, 1993 is
corrected as follows:
On page 24, lines 14, 15 and 16 replace the cite to
"Adams v. Watson, . . . slip op. at 7 n.8]." with "Association of
Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)."
[SYSTEMS NOTE: Appendix available at Clerk's Office]
August 31, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1171
VOTE CHOICE, INC., ET AL.,
Plaintiffs, Appellees,
v.
JOSEPH DiSTEFANO, ETC., ET AL.,
Defendants, Appellees,
ELIZABETH LEONARD,
Plaintiff, Appellant.
No. 93-1236
VOTE CHOICE, INC., ET AL.,
Plaintiffs, Appellees,
v.
JOSEPH DiSTEFANO, ETC., ET AL.,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Selya, Cyr and Boudin, Circuit Judges.
Neal J. McNamara, with whom Matthew F. Medeiros was on
brief, for plaintiff Elizabeth Leonard (No. 93-1171) and for
plaintiffs-appellees (No. 93-1236).
Donald J. Simon, with whom Sonosky, Chambers, Sachse &
Endreson was on brief for Common Cause and Common Cause of R.I.,
amici curiae (No. 93-1171).
Anthony J. Bucci, Jr., with whom Licht & Semonoff was on
brief, for defendants Joseph DiStefano, et al.
Donald J. Simon, with whom Sonosky, Chambers, Sachse &
Endreson, Roger M. Witten, Carol F. Lee, W. Hardy Callcott, Eric
J. Mogilnicki, and Wilmer, Cutler & Pickering were on brief, for
Common Cause and Common Cause of R.I., amici curiae (No. 93-
1236).
SELYA, Circuit Judge. These consolidated appeals,
SELYA, Circuit Judge.
which implicate various aspects of Rhode Island's campaign
finance law, necessitate the exploration of largely uncharted
constitutional terrain. One appeal, prosecuted on behalf of the
state, seeks to reinstate a statute requiring certain political
action committees (PACs)1 to disclose information about all
their contributors. The other appeal, prosecuted by an
unsuccessful gubernatorial candidate, Elizabeth Leonard, inveighs
against state statutes that bestow special advantages on
candidates who comply with eligibility requirements for public
campaign financing. At the end of our journey across terra
incognita, we conclude that the district court acted
appropriately both in striking down the first dollar disclosure
requirement and in upholding the incentive provisions.
Therefore, we affirm.
I. BACKGROUND
I. BACKGROUND
Before addressing the merits, we offer an overview of
Rhode Island's campaign finance law and a brief synopsis of the
proceedings below. In so doing, we strive to place each
challenged provision in its overall statutory context and to
1Rhode Island law defines a PAC as
any group of two (2) or more persons which
accepts any contributions to be used for
advocating the election or defeat of any
candidate or candidates or to be used for
advocating the approval or rejection of any
question or questions submitted to the
voters.
R.I. Gen. Laws 17-25-3(j) (Supp. 1992).
3
describe the nature of the disagreement surrounding it.
A. Statutory Framework: The State's Appeal.
A. Statutory Framework: The State's Appeal.
Rhode Island has a set of laws regulating the financing
of state and local election campaigns. See R.I. Gen. Laws 17-
25-1 to 17-25-30.1 (1988 & Supp. 1992). The entity charged with
primary responsibility for implementing these laws is the Rhode
Island Board of Elections. See id. at 17-25-5.
Rhode Island law directs all PACs and candidates to
file reports with the Board of Elections at regular intervals.
See id. at 17-25-11. The Board then "prepare[s] and make[s]
available for public inspection . . . summaries of all reports."
Id. at 17-25-5(a)(4). The reports are to include the name,
address, and place of employment of every person or entity
contributing more than $100 to the reporting PAC or candidate.
See id. at 17-25-7.
In 1992, the Rhode Island General Assembly, desirous of
ensuring that the voting public possesses accurate information
about organizations whose contributions and expenditures may
influence elections, devised extra reporting obligations for
PACs. Every PAC now must file a notice listing its goals and
purposes, the positions it plans to advocate on ballot questions,
the names of any candidates it intends to support, and the names
and addresses of its officers. See id. at 17-25-15(a).
Moreover, every PAC must report the name and address of all
persons to whom it makes expenditures, indicating the amount and
purpose of each such payment. See id. at 17-25-15(c)(2). The
4
Board of Elections is empowered to halt PACs from using names
which are misleading or which do not accurately identify a
committee's membership and contributor base. See id. at 17-25-
15(d).
Under the neoteric amendments, PACs must also "include
in each report required to be filed . . . [t]he source and amount
of all funds received." Id. at 17-25-15(c)(1). This added
requirement of "first dollar disclosure" the duty to disclose
the identity of, and the amount given by, every contributor, no
matter how modest the contribution applies to most PACs, but
does not apply in the same way to PACs sponsored by labor unions
or those which are funded through payroll checkoff plans. See
id. The requirement does not apply to candidates at all.
B. Statutory Framework: Leonard's Appeal.
B. Statutory Framework: Leonard's Appeal.
In addition to regulating campaign contributions, Rhode
Island also affords public funding to gubernatorial candidates.2
See id. at 17-25-18. Candidates may elect whether or not to
accept such funds. See, e.g., id. at 17-25-19. If a candidate
elects to participate, and meets the law's eligibility
requirements,3 the state will match money raised from private
2From and after January 1, 1993, candidates for certain
other statewide offices are also eligible to receive public
funding. See R.I. Gen. Laws 17-25-20. Withal, because
Leonard's appeal arises in the context of the 1992 elections, we
limit our discussion to gubernatorial candidates.
3The eligibility criteria are set forth in R.I. Gen. Laws
17-25-20. We attach a statutory appendix that includes key
provisions of Rhode Island's campaign finance law as they stood
in the time frame of the 1992 elections.
5
sources up to a maximum of $750,000. See id. In return, the
state requires participants to observe certain restrictions on
campaign spending and related activities.
A candidate must signify a desire to use public funds
for campaign purposes upon formally declaring his or her
candidacy for office.4 See id. A candidate choosing this
option must sign a sworn statement pledging to comply with the
various terms and conditions of the grant. See id. at 17-25-
20(1). Once made or omitted, the election and pledge are
irrevocable. See id. at 17-25-19, 17-25-20(1). Thereafter, a
participating candidate must meet the law's threshold
requirements, limit the use of public funds received to certain
4Under Rhode Island law, persons seeking state elective
office must file formal declarations of candidacy in June of the
year in which the election is to be held. See R.I. Gen. Laws
17-14-1. For purposes of the campaign finance act, however, a
person may be considered a candidate at an earlier time:
The term "candidate" means any
individual who undertakes any action, whether
preliminary or final, which is necessary
under the law to qualify for nomination for
election, or election to public office,
and/or any individual who receives a
contribution or makes an expenditure or gives
his or her consent for any other person to
receive a contribution or make an expenditure
with a view to bringing about his or her
nomination or election to any public office,
whether or not the specific public office for
which he or she will seek nomination or
election is known at the time the
contribution is received or the expenditure
is made and whether or not he or she has
announced his or her candidacy or filed a
declaration of candidacy at that time.
R.I. Gen. Laws 17-25-3(a).
6
enumerated purposes, compare R.I. Gen. Laws 17-25-20(7) & (8)
(listing permissible uses) with id. at 17-25-7.2 (describing
permissible uses of privately raised funds), abide by overall
expenditure ceilings and fundraising caps,5 see, e.g., id. at
17-25-20(2), and return a percentage of any unexpended funds.
See id. at 17-25-25.
To make the offer of public financing more attractive
and thereby increase participation, the 1992 amendments included
a contribution cap gap. A candidate can ordinarily receive up to
$1,000 from any given person or PAC in a single calendar year.
See id. at 17-25-10.1. The amendment doubled this limit for
publicly funded candidates, see id. at 17-25-30(3), and, in the
bargain, created a cap gap between privately and publicly funded
candidates. At the same time, the legislature ordained that
candidates who comply with the eligibility criteria for public
financing would be
[e]ntitled to an additional benefit of free
time on community antenna television to be
allocat[ed] pursuant to rules determined by
the administrator for the division of public
utilities.
Id.; see also id. at 17-25-30.1 (obligating state public
utilities administrator to formulate relevant rules). Such
candidates are also entitled to "free time on any public
5A publicly financed candidate may exceed these limits if a
privately funded opponent exceeds them. See R.I. Gen. Laws
17-25-24. Nevertheless, the publicly financed candidate
confronts a temporal impediment; he or she may raise additional
money only in proportion to the amount already expended by a
privately funded opponent. See id.7
broadcasting station operating under the jurisdiction of the
Rhode Island public telecommunications authority." Id. at 17-
25-30(2).
C. Proceedings Below.
C. Proceedings Below.
Two PACs (Vote Choice and Gun Owners PAC), certain
individuals who wish to contribute anonymously to each, and the
Rhode Island affiliate of the American Civil Liberties Union
brought suit in the district court seeking to enjoin the Board of
Elections from enforcing R.I. Gen. Laws 17-25-15(c)(1). They
posited that the provision self-destructed on three separate
bases, viz., (1) the first amendment bars any attempt to mandate
first dollar disclosure of political contributors' identities;
(2) Rhode Island's first dollar disclosure law, when placed in
its statutory context, places an impermissible burden on
associational rights; and (3) the proviso denies the plaintiffs
equal protection. The Board and two amici, Common Cause and
Common Cause of Rhode Island, eventually took up the cudgels in
defense.
In the same complaint, Leonard sought to enjoin the
Board of Elections, the Rhode Island Division of Public
Utilities, and the Rhode Island Public Telecommunications
Authority from implementing the contribution cap gap and the
free-television-time incentive provisions.6 She argued that
6The chief executive officer of each entity, sued in his
official capacity, is a named defendant. Clearly, however, the
state is the real party in interest. We treat the appeals
accordingly.
8
these enactments violate the first amendment in a variety of
ways, and, moreover, that federal law, specifically 47 U.S.C.
315 (1988), preempts the statutory grant of free television time.
The state resisted these exhortations on the merits and also
contended that Leonard lacked standing because she did not face a
publicly funded opponent in the general election.7 The amici
supported the state's position.
The district court merged the hearing on preliminary
injunction with trial on the merits. See Fed. R. Civ. P.
65(a)(2). After taking testimony, the court held first dollar
disclosure, in and of itself, to be unconstitutional and
invalidated R.I. Gen. Laws 17-25-15(c)(1) on that basis. See
Vote Choice v. DiStefano, 814 F. Supp. 195, 199-202 (D.R.I.
1993). The court also ruled that, although Leonard had standing
to mount a constitutional challenge, id. at 204, her contentions
were impuissant. See id. at 207. The Board appeals from the
district court's nullification of the first dollar disclosure
rule and Leonard appeals from the court's refusal to outlaw the
contribution cap gap and the free-television-time incentives.
II. THE STATE'S APPEAL
II. THE STATE'S APPEAL
The first amendment is incorporated into the fourteenth
amendment and, in that way, constrains state action. See New
York Times Co. v. Sullivan, 376 U.S. 254, 276-77 (1964) (ruling
7Leonard sought the Republican nomination for governor
without party endorsement. She prevailed in the primary election
and carried the party's standard in the general election. She
did not opt for public funding. Her opponent in the general
election, Governor Sundlun, likewise eschewed public funding.
9
that the free speech clause applies to the states through the
fourteenth amendment; collecting cases). Accordingly, our
consideration of R.I. Gen. Laws 17-25-15(c)(1) starts with a
discussion of whether first dollar disclosure provisions are
always repugnant to the first amendment. Concluding (contrary to
the court below) that they are not, we then examine whether the
particular first dollar disclosure provision here at issue passes
the test of constitutionality.
A. The Per Se Challenge.
A. The Per Se Challenge.
The district court struck down R.I. Gen. Laws 17-25-
15(c)(1) as per se violative of the first amendment, concluding
that a state legislature "must establish at least some [non-zero]
minimum threshold for public disclosure of contributions to
PACs." Vote Choice, 814 F. Supp. at 202. Because this holding
deals with a matter of law rather than fact it rests squarely
on the district court's sculpting of the first amendment's
contours our review is plenary. See LeBlanc v. B.G.T. Corp.,
992 F.2d 394, 396 (1st Cir. 1993).
It is old hat that compelled disclosure of information
about a person's political contributions "can seriously infringe
on [the] privacy of association and belief guaranteed by the
First Amendment." Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per
curiam) (collecting cases). Thus, courts routinely subject
statutes mandating revelation of contributors' identities in the
arena of political speech to exacting scrutiny. See, e.g.,
Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539,
10
546 (1963). A disclosure statute may survive such scrutiny only
if it satisfies a two-part test: (1) the statute as a whole must
serve a compelling governmental interest, and (2) a substantial
nexus must exist between the served interest and the information
to be revealed. See Brown v. Socialist Workers '74 Campaign
Comm., 459 U.S. 87, 91-92 (1982); Buckley, 424 U.S. at 64.
With respect to the test's first prong, no fewer than
three governmental interests have proven sufficient, in varying
circumstances, to justify obligatory disclosure of contribution-
related information. Thus, forced disclosure may be warranted
when the spotlighted information enhances voters' knowledge about
a candidate's possible allegiances and interests, inhibits actual
and apparent corruption by exposing large contributions to public
view, or aids state officials in enforcing contribution limits.
See Brown, 459 U.S. at 92; Buckley, 424 U.S. at 66-68. Because
R.I. Gen. Laws 17-25-15(c)(1), read as part of an integrated
whole, plainly satisfies this prong of the test indeed, the
Rhode Island statute appears to advance the three interests we
have mentioned in much the same fashion as did the statute before
the Buckley Court we proceed directly to the difficult question
of whether a substantial relationship exists between the precise
modicum of information required to be disclosed and some
compelling state interest.
We agree with the plaintiffs that, in certain respects,
the fit required to meet the test's second prong is lacking. As
the disclosure threshold drops toward zero, the bond between the
11
information revealed and the governmental interests involved
becomes weaker and, therefore, more tenuous. See, e.g., Buckley,
424 U.S. at 83-84. Common sense suggests that information about
the source of a $1 contribution does not advance the state's
interest in deterring actual or apparent corruption because such
a donation has a limited (perhaps nonexistent) potential to exact
an illegal or unethical quid pro quo. Similarly, such
information bears little discernible relation to the state's
interest in enforcing contribution limits that dip no lower than
$1,000: few persons will donate $1 to a PAC on more than 1,000
separate occasions and those that try will likely grow arm-
weary in the process.
But, viewed from another, equally proper, angle, the
fit is quite comfortable: signals are transmitted about a
candidate's positions and concerns not only by a contribution's
size but also by the contributor's identity. See Goland v.
United States, 903 F.2d 1247, 1261 (9th Cir. 1990); FEC v.
Furgatch, 807 F.2d 857, 862 (9th Cir.), cert. denied, 484 U.S.
850 (1987); see also First Nat'l Bank v. Bellotti, 435 U.S. 765,
791-92 & n.32 (1978) (discussing required disclosure of corporate
advertisers' names). Since the identity of a contributor is
itself informative, quite apart from the amount of the
contribution, a candidate's ideological interests may often be
discerned as clearly from a $1 contribution as from a $100
contribution. Hence, we conclude that there is a substantial
link between data revealed by first dollar disclosure and the
12
state's compelling interest in keeping the electorate informed
about which constituencies may command a candidate's loyalties.8
Buckley buttresses this conclusion. There, in
evaluating whether a $10 recordkeeping threshold and a $100
disclosure threshold passed constitutional review, the Court
admonished that decisions about "the appropriate level at which
to require recording and disclosure" are "necessarily . . .
judgmental" and, therefore, best left to legislative discretion.
Buckley, 424 U.S. at 83. Consequently, so long as legislatively
imposed limitations are not "wholly without rationality," courts
must defer to the legislative will. Id. We think that this
approach is fully transferable to the instant case. Because the
notion of first dollar disclosure is not entirely bereft of
rationality as we have already indicated, such a requirement
relates to at least one sufficiently cogent informational goal
any general embargo against first dollar disclosure statutes
would be inconsistent with the Buckley Court's insistence upon
judicial deference to plausible legislative judgments.
Nor does Buckley stand alone in support of the
conclusion that the Constitution does not prohibit all first
8In this respect, the goal of enhancing voter awareness
about the interests to which a candidate may be responsive is
separate and distinct from the goal of thwarting corruption. The
former is best served by compulsory disclosure of data about all
the various sorts of philosophical and ideological interests to
which a candidate may be sensitive while the latter is equally
well served by targeting a particular form of quid pro quo
"responsiveness." See generally Buckley, 424 U.S. at 66-68.
While first dollar disclosure furthers the former goal, it does
not meaningfully advance the latter goal.
13
dollar disclosure statutes. Other trail markers, like spoor for
the cognoscenti, lead in the same direction. See, e.g., Brown,
459 U.S. at 89 & n.2 (specifically noting that a statute mandated
first dollar disclosure, yet failing to identify any potential
constitutional infirmity); Citizens Against Rent Control v. City
of Berkeley, 454 U.S. 290, 300 (1981) (stating that "if it is
thought wise, legislation can outlaw anonymous contributions")
(dictum); cf. California Bankers Ass'n v. Schultz, 416 U.S. 21,
55-56 (1974) (holding that the first amendment does not create a
per se rule forbidding disclosure of contributor names in all
situations); Oregon Socialist Workers 1974 Campaign Comm. v.
Paulus, 432 F. Supp. 1255, 1260 (D. Or. 1977) (three-judge court)
(upholding first dollar recordkeeping and partial public
disclosure threshold).
We hold that first dollar disclosure is not, in all
cases, constitutionally proscribed. Because the court below
struck down R.I. Gen. Laws 17-25-15(c)(1) on this very ground
it said, in essence, that first dollar disclosure necessarily
leaves insufficient breathing room for first amendment freedoms,
see Vote Choice, 814 F. Supp. at 202 our consideration of the
statute's constitutionality must probe the plaintiffs' other
rationales. After all, a judgment, although arrived at by faulty
reasoning, still can be sustained on some other ground made
manifest by the record. See, e.g., Martel v. Stafford, 992 F.2d
1244, 1245 (1st Cir. 1993); Chongris v. Board of Appeals, 811
F.2d 36, 37 n.1 (1st Cir.), cert. denied, 403 U.S. 1021 (1987).
14
We turn, then, to the plaintiffs' next theory a theory that
shifts from an exclusive focus on whether first dollar disclosure
provisions are ever permissible to a more holistic focus on
whether Rhode Island's disclosure requirement, considered in
light of the state's overall campaign finance law, withstands
constitutional scrutiny.
B. The Contextual Challenge.
B. The Contextual Challenge.
It is apodictic that courts, when passing upon the
constitutionality of a statutory provision, must view it in the
context of the whole statutory scheme. See Storer v. Brown, 415
U.S. 724, 737 (1974); Williams v. Rhodes, 393 U.S. 23, 34 (1968).
Here, plaintiffs' contextual challenge centers on the disparity
between the first dollar disclosure threshold applicable to those
who choose to pool money by making contributions to PACs and the
$100 disclosure threshold applicable to those who choose to act
alone by making direct contributions and expenditures. Compare
R.I. Gen. Laws 17-25-15(c)(1) with id. at 17-25-7.
Plaintiffs say that this disparity not only burdens PAC
contributors' first amendment rights of association but also
undermines Rhode Island's boast that first dollar disclosure of
PAC contributions represents a rationally selected device geared
toward achieving a compelling state interest. We find
plaintiffs' analysis to be convincing.
The first amendment frowns upon laws which burden
associational rights, particularly in the sphere of political
speech. The more lopsided the burdens, the more probable it is
15
that a constitutional infirmity looms. Thus, in Berkeley, the
Supreme Court struck down a limitation on contributions to PACs,
resting its holding not on the impermissibility of the limits per
se, but, rather, on the disparity between those limits and the
limits applicable to persons who, for one reason or another,
preferred not to pool their resources:
To place a Spartan limit or indeed any
limit on individuals wishing to band
together to advance their views on a ballot
measure, while placing none on individuals
acting alone, is clearly a restraint on the
right of association. [Laws which] do[] not
seek to mute the voice of one individual . .
. cannot be allowed to hobble the collective
expressions of a group.
Berkeley, 454 U.S. at 296.
We believe that this passage enunciates three
fundamental precepts. First, any law that burdens the rights of
individuals to come together for political purposes is suspect
and must be viewed warily. Second, burdens which fall
exclusively on those who choose to exercise their right to band
together, leaving individual speakers unbowed, merit heightened
scrutiny. Third, measures which hinder group efforts to make
independent expenditures in support of candidates or ballot
initiatives are particularly vulnerable to constitutional attack.
The first two precepts derive in part from the importance of
group expression as a method of amplifying the voices of those
with meager means. See FEC v. National Conservative Political
Action Comm., 470 U.S. 480, 493-94 (1985) (collecting cases);
Buckley, 424 U.S. at 65-66. The last precept derives in part
16
from the fact that independent expenditures, because they have a
more attenuated connection with a particular candidate, are a
less likely source for quid pro quo corruption and a questionable
indicator of candidate loyalties. See Buckley, 424 U.S. at 39(noting that independent expenditures are "at the core of our
electoral process and of the First Amendment freedoms") (citation
and internal quotation marks omitted).
In Berkeley, these three precepts coalesced to scuttle
a contribution cap. See 454 U.S. at 296. The case at bar is a
fair congener. Here, as in Berkeley, the challenged enactment
hobbles collective expression by mandating that groups disclose
contributors' identities and the extent of their monetary
support, no matter how tiny. This, in itself, is a red flag.
See Buckley, 424 U.S. at 64 (observing that "compelled
disclosure, in itself, can seriously infringe on privacy of
association and belief"); id. at 83 (observing that
"[c]ontributors of relatively small amounts are likely to be
especially sensitive to recording or disclosure of their
political preferences"). Here, as in Berkeley, the statute has a
much less stringent rule for those who prefer individual
expression to collective expression. Here, as in Berkeley, the
statute imposes its one-sided burden regardless of whether a
group's members have banded together to contribute directly to a
candidate or to make independent expenditures concerning a
17
candidate or referendum.9 We think that these three points of
comparison accurately foretell that here, as in Berkeley, the
statute cannot stand.
The state strives valiantly to avoid the force of this
comparison. It says that, even if section 17-25-15(c)(1) burdens
associational rights to some moderate extent, the law
nevertheless merits enforcement under the rubric of legislative
prerogative. We disagree. While legislative judgments must be
given a wide berth, judicial deference should never be confused
with outright capitulation. Federal courts would abdicate their
constitutional responsibility if they were to rubber-stamp
whatever constructs a state legislative body might propose. And,
in any event, judicial deference to legislative line-drawing
diminishes when the lines are disconnected, crooked, or uneven.
So it is here: the Rhode Island General Assembly has made a
series of conflicting judgments about appropriate disclosure
thresholds without offering any legally satisfactory explanation
for its pererrations.
This zigging and zagging is of especial concern
because, when citizens engage in first amendment activity
affecting elections, the state's interest in disclosure is
generally a constant, that is, the state's interest "is the same
whether or not [the individual actors] are members of an
9Under Rhode Island law, PACs may form for the exclusive
purpose of promoting or opposing ballot questions. See R.I. Gen.
Laws 17-25-15(f). A PAC formed for such a purpose is subject
to the first dollar disclosure requirement.
18
association." Minnesota State Ethical Practices Bd. v. National
Rifle Ass'n, 761 F.2d 509, 513 (8th Cir. 1985), cert. denied, 474
U.S. 1082 (1986); see also New Jersey Citizens Action v. Edison
Township, 797 F.2d 1250, 1265 (3d Cir. 1986) (requiring that
government demonstrate a special risk stemming from a particular
form of first amendment activity in order to justify disclosure
requirements for that form of activity), cert. denied, 479 U.S.
1103 (1987). Rhode Island, in one fell swoop, not only departed
from the usual rule of constancy but also imported a particularly
virulent strain of unevenness into its statutory scheme: most
PACs must disclose the identity of every contributor, regardless
of amount, while individual candidates need disclose the
identities only of contributors who donate upwards of $100.
This imbalance does not cater to any cognizable
government interest. It does not serve the state's interest in
combatting corruption because corruption can as easily spring
from direct contributions to candidates as from contributions
that flow through PACs. And, if the danger that tiny
contributions will foment corruption is not great enough to
justify significant inroads on first amendment rights, see supra
Part II(A), it is certainly not great enough to justify disparate
treatment of PACs. Similarly, the unevenness does not serve the
state's interest in enforcing its contribution limits; after all,
the district court found no evidence that PAC contributors might
try to subvert the $1,000 cap by an endless stream of $1
donations. See Vote Choice, 814 F. Supp. at 202.
19
Finally, the interest in an informed citizenry cannot
justify the disparity at issue here. To be sure, when
contributors' identities are made public, the name of a PAC,
standing alone, could in some states have little meaning to a
large segment of the electorate. See California Medical Ass'n v.
FEC, 453 U.S. 182, 201 (1981) (observing that "entities hav[ing]
differing structures and purposes . . . may require different
forms of regulation in order to protect the integrity of the
electoral process"); see also Austin v. Michigan St. Chamber of
Commerce, 494 U.S. 652, 668 (1990); FEC v. National Right to Work
Comm., 459 U.S. 197, 210 (1982). But, Rhode Island has guarded
against this contingency by requiring that PACs reveal a wide
array of information about their goals and purposes. See R.I.
Gen. Laws 17-25-15(a); see also supra pp. 3-4. The obvious
result of Rhode Island's legislative mosaic is that when a
candidate discloses that a particular PAC has given to his or her
cause, state law ensures that this fact will signify more about
the candidate's loyalties than the disclosed identity of an
individual contributor will ordinarily convey. We think this
circumstance is properly considered, see Storer, 415 U.S. at 743(explaining that other state requirements may be considered in
evaluating whether a disclosure requirement is sufficiently
essential to repel a constitutional challenge); see also
Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 637 &
n.11 (1980); Let's Help Fla. v. McCrary, 621 F.2d 195, 200-01
(5th Cir. 1980), aff'd mem., 454 U.S. 1130 (1982), and it weighs
20
heavily in our conclusion that the claimed justification for the
added (first dollar disclosure) burden that Rhode Island imposes
on PACs and PAC contributors is more illusory than real.
In sum, R.I. Gen. Laws 17-25-15(c)(1) has at least
three grave weaknesses. First, by mandating public revelation of
all PAC contributors, it burdens the rights of individuals to
band together for the purpose of making either independent
election expenditures or direct political contributions. Second,
by imposing this burden on PACs and PAC contributors while
regulating candidates and certain of their financial backers
(viz., individuals who contribute directly to candidates rather
than to PACs) more loosely, the statute compounds the unfairness
of the burden. Finally, the disparity between the two disclosure
thresholds (one for PACs and the other for individuals), and,
hence, the net burden imposed solely on associational rights,
bears no substantial relation to the attainment of any important
state interest. Their cumulative effect compels the conclusion
that the statute abridges the first amendment.10
We have one more stop to make before leaving this
subject. The amici invite us to limit any determination of
10In light of this determination, we need not address a
further statutory anomaly: that, while most PACs are held to
first dollar disclosure under Rhode Island law, a select group of
PACs enjoys preferential treatment. See R.I. Gen. Laws 17-25-
15(c)(1) (exempting PACs sponsored by labor unions and those
which are funded through payroll checkoff plans from first dollar
disclosure requirements). Similarly, because we decide that
Rhode Island's first dollar disclosure provision impermissibly
burdens the right to association, we need not determine whether
it also violates the equal protection clause.
21
unconstitutionality to the two plaintiff PACs. However, the
cases relied on by the amici, see, e.g., FEC v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238 (1986); Brown, 459 U.S. 87,
involve explicit as-applied challenges to particular statutes.
Here, in contrast, plaintiffs mounted a facial attack on R.I.
Gen. Laws 17-25-15(c)(1) and the case proceeded below on this
theory. Moreover, the reason we invalidate the statute concerns
the disparate treatment of PACs qua PACs, and, thus, obtains with
equal vigor regardless of which particular PAC may be involved.
This is a salient consideration in determining what remedy is
appropriate, see, e.g., Sec'y of State v. Joseph H. Munson Co.,
467 U.S. 947, 967-68 (1984); City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 799-800 (1984), as is the
fact that our reasoning does not derive its force from situation-
specific features. See, e.g., National Treas. Employees Union v.
United States, 990 F.2d 1271, 1277-78 (D.C. Cir. 1993). Finally,
only the amici have advocated the limitation-of-remedy position
and "[w]e know of no authority which allows an amicus to
interject into a case issues which the litigants, whatever their
reasons might be, have chosen to ignore." Lane v. First Nat'l
Bank, 871 F.2d 166, 175 (1st Cir. 1989); accord McCoy v.
Massachusetts Inst. of Technology, 950 F.2d 13, 23 n.9 (1st Cir.
1991), cert. denied, 112 S. Ct. 1939 (1992). For these reasons,
we decline the amici's invitation.11
11For many of the same reasons, we cannot employ the
statute's severability provision, R.I. Gen. Laws 17-25-17, to
rescue any portion of the first dollar disclosure.
22
To recapitulate, then, we reject both Rhode Island's
appeal and the amici's importuning that we apply a Band-Aid in
lieu of surgically excising the malignancy. Consequently, we
uphold the permanent injunction barring enforcement of R.I. Gen.
Laws 17-25-15(c)(1). In striking down the statute, however, we
take a narrower path than did the court below. As legislatures
must tread carefully in this complicated area, so, too, must
courts. We decline to rule out categorically the legislative
tool of first dollar disclosure; that tool may in certain
contexts although not here serve sufficiently compelling
government interests to be upheld.
III. LEONARD'S APPEAL
III. LEONARD'S APPEAL
We have arrived at Leonard's appeal. Before addressing
the merits, we resolve the question of standing.
A. Standing.
A. Standing.
Standing doctrine involves "a blend of constitutional
requirements and prudential considerations." Valley Forge
Christian Coll. v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464, 471 (1982). On the constitutional
side, Article III limits federal court adjudication to matters
which achieve the stature of justiciable cases or controversies.
Ordinarily, this means that a party invoking the court's
authority must show: (1) that he or she has suffered some actual
or threatened injury as a result of the defendant's putatively
illegal conduct, (2) that the injury may fairly be traced to the
23
challenged action, and (3) that a favorable decision will likely
redress the injury. See Riverside v. McLaughlin, 111 S. Ct.
1661, 1667 (1991); Valley Forge, 454 U.S. at 472. We have
cautioned that "[t]he ingredients of standing are imprecise and
not easily susceptible to concrete definitions or mechanical
application." United States v. AVX Corp., 962 F.2d 108, 113 (1st
Cir. 1992).
When declaring her candidacy, Leonard had to make an
irrevocable commitment either to shun or to embrace public
financing. Leonard's testimony suggests that, having decided to
forgo the embrace, she had to structure her campaign to account
for her adversaries' potential receipt of television time,
fundraising advantages, and the like. Her opponent in the
Republican primary, Mayor Levesque, opted for public financing.
Leonard testified that Levesque accepted contributions over
$1,000 while she had to turn away similar contributions. What is
more, because one of the two major candidates in the Democratic
gubernatorial primary also opted for public funding, Leonard had
to plan for the possibility that a publicly financed candidate
would oppose her in the general election.
Based on this and other evidence, the district court's
finding that the coerced choice between public and private
financing "colored [Leonard's] campaign strategy from the
outset," Vote Choice, 814 F. Supp. at 204, seems unimpugnable.
In our view, such an impact on the strategy and conduct of an
office-seeker's political campaign constitutes an injury of a
24
kind sufficient to confer standing. See Buckley, 424 U.S. at 12
& n.10 (determining that standing existed in a case where certain
candidates challenged disparate rules and contribution caps);
Storer, 415 U.S. at 738 n.9 (noting that simply being subjected
to election law requirements, even indirectly, may constitute
cognizable injury); see also AVX Corp., 962 F.2d at 113-14(defining "injury"). Therefore, Leonard satisfies the first
furculum of the test.
Leonard also possesses the remaining attributes of
constitutional standing. The injury she suffered can be traced
directly to the state's actions: the statutory provisions, and
the Board's implementation of them, caused the harm of which
Leonard complains. As to redressability, Leonard seeks a
permanent injunction against continued enforcement of the very
statutes which caused her injury. This produces the necessary
causal connection between the injury alleged and the relief
requested.12 See, e.g., Allen v. Wright, 468 U.S. 737, 753
n.19 (1984).
Over and above its constitutional requisites, "the
12The Board suggests that this causal link snapped once the
general election concluded, thereby rendering the case moot. We
disagree. There is a recognized exception to the mootness
doctrine for matters capable of repetition yet evading review.
This is such a case. The injury Leonard seeks to palliate was
too fleeting to be litigated fully prior to the climax of the
gubernatorial campaign and, since there is a reasonable
expectation that Leonard will encounter the same barrier again
after all, she has not renounced possible future candidacies, and
politicians, as a rule, are not easily discouraged in the pursuit
of high elective office the exception applies. See Democratic
Party of the U.S. v. Wisconsin, 450 U.S. 107, 115 n.13 (1981);
Bellotti, 435 U.S. at 774.
25
doctrine of standing also embodies prudential concerns regarding
the proper exercise of federal jurisdiction." AVX Corp., 962
F.2d at 114. Leonard's case qualifies on this score as well. In
the interest of expedition, we refer the reader who hungers for
detail to the district court's erudite discussion of this point.
See Vote Choice, 814 F. Supp. at 204. We add only that Leonard
is asserting her own rights and interests (not someone else's);
that her grievances are particularized and concrete; and that her
claim falls well within the zone of interests protected by the
first amendment. No more is exigible. See, e.g., Allen, 468
U.S. at 751; Warth v. Seldin, 422 U.S. 490, 499-500 (1975);
Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150,
153 (1970). Thus, Leonard has standing to pursue her quest.
B. The Contribution Cap Gap.
B. The Contribution Cap Gap.
Leonard has questioned several different provisions of
the statute. We turn initially to her claim that the
contribution cap gap is inimical to the first amendment.13 In
reaching this issue, we stress that Leonard assails only the
disparity between the two caps; she voices no in vacuo challenge
to the $1,000 cap applicable to candidates, such as herself, who
eschew public funding.
Leonard's serenade has two themes. Her major theme is
13Under Rhode Island law, contributions to political
campaigns are customarily capped at $1,000 per donor. See R.I.
Gen. Laws 17-25-10.1. However, a candidate who qualifies for
public funds is entitled to receive contributions in amounts up
to $2,000 per donor. See id. at 17-25-30(3). This disparity
constitutes the contribution cap gap of which Leonard complains.
26
that regulatory disparities of this type are inherently
impermissible. Her minor theme is that the cap gap burdens her
first amendment rights without serving a corresponding
governmental interest. We consider these asseverations
sequentially, affording plenary review. See LeBlanc, 992 F.2d at
396.
1. The Per Se Challenge. Leonard's per se challenge
1. The Per Se Challenge.
to the contribution cap gap boils down to the assertion that,
whenever government constructs incentives for candidates to
accept fundraising limits, it departs from its required role as
an umpire and becomes a player in the electoral process, much
like, say, a referee who eases the rules for one team and not the
other. The most immediate barrier to the success of this
argument is that the Supreme Court has upheld a very direct and
tangible incentive: the provision of public funds to candidates
who agree to place decreased reliance on private campaign
contributions. See Buckley, 424 U.S. at 85-109; see also
Republican Nat'l Comm. v. FEC, 487 F. Supp. 280, 283-86
(S.D.N.Y.) (three-judge court) (RNC I), aff'd mem., 445 U.S. 955(1980); Republican Nat'l Comm. v. FEC, 616 F.2d 1, 2 (2d Cir.)
(en banc) (adopting reasoning of RNC I in parallel proceeding),
aff'd mem., 445 U.S. 955 (1980).
In a Briarean effort to scale this barrier, Leonard
attempts to distinguish the public financing cases on the ground
that they involve the propriety of conferring benefits in
contrast to imposing penalties. She is fishing in an empty pond.
27
For one thing, the distinction that Leonard struggles to draw
between denying the carrot and striking with the stick is, in
many contexts, more semantic than substantive. This case
illustrates the point. The question whether Rhode Island's
system of public financing imposes a penalty on non-complying
candidates or, instead, confers a benefit on those who do comply
is a non-issue, roughly comparable to bickering over whether a
glass is half full or half empty. After all, there is nothing
inherently penal about a $1,000 contribution cap.
For another thing, to the degree that the question does
have a concrete answer, the answer appears contrary to the one
Leonard suggests. Leonard has adduced no legislative history or
other evidence suggestive of punitive purpose. Moreover, the
Rhode Island statute sets up a $1,000 cap as the norm and doubles
the cap only if a candidate meets certain conditions. Logic
suggests that the higher cap is, therefore, a premium earned by
meeting statutory eligibility requirements rather than a penalty
imposed on those who either cannot or will not satisfy the
requirements.
Third, the blurred line between benefit denials and
penalties is singularly unhelpful in the zero-sum world of
elective politics. Because a head-to-head election has a single
victor, any benefit conferred on one candidate is the effective
equivalent of a penalty imposed on all other aspirants for the
same office. In the last analysis, then, Leonard's fancied
distinction proves too much.
28
While these three reasons spell defeat for Leonard's
attempt to distinguish the public financing cases as different in
kind from this case, Leonard also proffers a difference-in-degree
distinction. Even if some regulatory incentives may be
permissible, she says, Rhode Island's incentives are so strong
that they destroy the voluntariness of the public financing
system and, therefore, cannot be condoned.
We agree with Leonard's main premise: voluntariness
has proven to be an important factor in judicial ratification of
government-sponsored campaign financing schemes. See, e.g.,
Buckley, 424 U.S. at 95; RNC I, 487 F. Supp. at 285. Coerced
compliance with fundraising caps and other eligibility
requirements would raise serious, perhaps fatal, objections to a
system like Rhode Island's. Furthermore, there is a point at
which regulatory incentives stray beyond the pale, creating
disparities so profound that they become impermissibly coercive.
It is, however, pellucid that no such compulsion occurred here.
Rhode Island's law achieves a rough proportionality
between the advantages available to complying candidates
(including the cap gap) and the restrictions that such candidates
must accept to receive these advantages.14 Put another way,
14Indeed, the specific facts of Rhode Island's 1992
gubernatorial contest support the conclusion that the state's
catalog of incentives is neither overly coercive nor even
especially attractive. Both Leonard and Governor Sundlun (who
prevailed in the Democratic primary and eventually won the
general election) resisted the temptations of public funding
despite facing (a) an opponent in the primary who had opted for
public funding and (b) a substantial possibility that the other
party's candidate in the general election would be receiving such
29
the state exacts a fair price from complying candidates in
exchange for receipt of the challenged benefits. While we agree
with Leonard that Rhode Island's statutory scheme is not in exact
balance we suspect that very few campaign financing schemes
ever achieve perfect equipoise we disagree with her claim that
the law is unfairly coercive. Where, as here, a non-complying
candidate suffers no more than "a countervailing denial," the
statute does not go too far. Buckley, 424 U.S. at 95.
To sum up, the implication of the public funding cases
is that the government may legitimately provide candidates with a
choice among different packages of benefits and regulatory
requirements. Rhode Island has done nothing more than implement
this principle. We see no sign that the state has crossed into
forbidden territory; the contribution cap gap, as structured by
the Rhode Island General Assembly, neither penalizes certain
classes of office-seekers nor coerces candidates into
surrendering their first amendment rights. In short, Leonard has
identified no inherent constitutional defect in the state's
voluntary, choice-increasing framework.
2. The Burden/Justification Matrix. Leonard keeps on
2. The Burden/Justification Matrix.
trucking. She asserts that, even if the cap gap does not
penalize or coerce, it nonetheless burdens her first amendment
rights without sufficient justification. The assertion stalls.
In the first place, we have difficulty believing that a
statutory framework which merely presents candidates with a
funds.
30
voluntary alternative to an otherwise applicable, assuredly
constitutional, financing option imposes any burden on first
amendment rights. In choosing between the ordinary methods of
financing a campaign methods which are themselves subject to
certain restrictions and the public funding alternative which
limits both fundraising and expenditures a candidate will
presumably select the option which enhances his or her powers of
communication and association. See Buckley, 424 U.S. at 92-93;
RNC I, 487 F. Supp. at 285. Thus, it seems likely that the
challenged statute furthers, rather than smothers, first
amendment values.
In the second place, even if the cap gap burdens a non-
complying candidate's first amendment rights to some small
extent, and assuming for argument's sake that the state bears the
devoir of persuasion in respect to whether the statutory
framework is both in service to a compelling governmental
interest and tailored in a sufficiently narrow manner, we would
still find Leonard's thesis unpersuasive. The state need not be
completely neutral on the matter of public financing of
elections. When, as now, the legislature has adopted a public
funding alternative, the state possesses a valid interest in
having candidates accept public financing because such programs
"facilitate communication by candidates with the electorate,"
Buckley, 424 U.S. at 91, free candidates from the pressures of
fundraising, see id., and, relatedly, tend to combat corruption.
See id.; see also RNC I, 487 F. Supp. at 285-86. Establishing
31
unequal contribution caps serves this multifaceted network of
interests by making it more probable that candidates will choose
to partake of public financing. Equally important, the gap
appears to reflect a carefully calibrated legislative choice
anent the differential risk of quid pro quo corruption in the two
instances. In the state's view, the many eligibility
requirements for public financing make it less likely that a
given contribution will tend to corrupt a candidate.15 That
view, too, is plausible. Ergo, the contribution cap gap stands
on reasonably solid theoretical footing.
For these reasons, we find Rhode Island's contribution
cap gap narrowly tailored and logically related, in scope, size,
and kind, to compelling governmental interests.16 That being
15To cite an example, once it is clear that a publicly
financed candidate's campaign can reach the overall fundraising
limits, see R.I. Gen. Laws 17-25-20(2), any single contributor
to that campaign becomes less important because the contributor
can be "replaced" at no marginal cost. In other words, the fact
that the campaign seems bound to reach the fundraising ceiling
means that a given contributor is occupying a contribution slot
that could as easily be occupied by someone else. With this
distinction in the importance of individual contributors comes a
corresponding diminution in the risk of corruption and,
therefore, a diminished justification for stringent contribution
limits. See, e.g., Buckley, 424 U.S. at 91, 96.
16We add a caveat. We do not in any way imply that the
contribution cap gap is constitutionally mandated. A state
legislature could certainly conclude that a $2,000 contributor to
a campaign complying with the spending limits actually holds a
greater sway with the candidate than does a $1,000 contributor to
an unlimited campaign because the former contribution represents,
in most cases, a greater percentage of the candidate's kitty than
does the latter. But, the legislature must have a certain amount
of operating room in this sphere. The first amendment does not
require the courts to choose sides, at this level of
particularity, in the flux and reflux of policy considerations.
32
so, it would be unduly meddlesome, hence, wrong, for us to
substitute our own assessment of either an incentive's value or
the perceived risks to which it is addressed for the considered
judgment of a state legislature. See Nat'l Right to Work, 459
U.S. at 210 (expressing reluctance to "second-guess a legislative
determination as to the need for prophylactic measures where
corruption is the evil feared"); Baker v. City of Concord, 916
F.2d 744, 750 (1st Cir. 1990) (discussing impropriety of federal
courts second-guessing a state's legislative judgments).
3. Recapitulation. We hold that states may sometimes
3. Recapitulation.
legitimately confront candidates with the option of choosing
among different packages of benefits and regulatory requirements.
We hold further that such a permissible choice occurs where, as
here, there is no credible evidence of a penalizing purpose, the
choice between the packages is real, uncoerced, and available to
all, the status quo option, standing alone, raises no red flags,
and the challenged disparity is narrowly tailored and logically
related, in scope, size, and kind, to compelling governmental
interests. See, e.g., Buckley, 424 U.S. at 29, 35-36 (upholding
disparate contribution caps for individuals and PACs). Because
Rhode Island's contribution cap gap does not penalize, coerce, or
unjustifiably burden first amendment rights, the district court
appropriately upheld the challenged provision.17
17We do not tarry over Leonard's claim that the contribution
cap gap violates her right to equal protection. First, the
statute does not impose unequal treatment but gives candidates an
authentic choice. Second, the statute treats candidates
differently on the basis of their actions rather than their
33
C. The Free-Television-Time Provisions.
C. The Free-Television-Time Provisions.
We now examine Leonard's remonstrance against Rhode
Island's offer of free television time to candidates who comply
with the eligibility criteria for public financing. Since the
issues are purely legal, we afford plenary review.
1. Setting the Stage. To understand the free-
1. Setting the Stage.
television-time incentives that have raised Leonard's hackles, a
further exegesis is helpful. Under this heading, Leonard attacks
two different grants of in-kind assistance to gubernatorial
candidates who accept public financing. One such incentive is
limned in R.I. Gen. Laws 17-25-30(1), which entitles a
complying candidate to "free time on community antenna
television" pursuant to rules to be formulated by the state
Division of Public Utilities (DPU).18 The second such
beliefs actions which, as we have seen, possess differing
implications for the integrity and effectiveness of the electoral
process. The equal protection clause does not interdict such
classifications. See, e.g., Bray v. Alexandria Women's Health
Clinic, 113 S. Ct. 753, 760-62 (1993) (collecting cases
illustrating courts' denials of equal protection claims despite
statutes' unintended disparate effects on protected classes);
Buckley, 424 U.S. at 95 (upholding against equal protection
attack a system which actually excluded minority party
candidates); Jenness v. Fortson, 403 U.S. 431, 441-42 (1971)
(rejecting equal protection challenge to election law and
observing that "[s]ometimes the grossest discrimination can lie
in treating things that are different as though they were exactly
alike").
18Community antenna television (CATV) is a form of
television cablecasting regulated by the state DPU. See R.I.
Gen. Laws 39-19-6. Under current regulations and applicable
franchise agreements, cable operators dedicate one or more CATV
channels to the state to ensure public access. See DPU Rules
Governing CATV Systems, 14.1 (Jan. 14, 1983 rev.). The parties
do not dispute the DPU's authority to write additional
regulations implementing section 17-25-30(1) by providing free
34
incentive is outlined in R.I. Gen. Laws 17-25-30(2), which
entitles a complying candidate to "free time on any public
broadcasting station" operating under the jurisdiction of the
Rhode Island Public Telecommunications Authority (PTA).19
2. Preemption. Leonard's attack on the free-
2. Preemption.
television-time provisions proceeds on two fronts. Initially,
she contends that the Federal Communications Act (FCA) preempts
conflicting state laws, and that R.I. Gen. Laws 17-25-30 comes
within this proscription.20 We find no such irreconcilable
conflict.
The FCA reads in relevant part:
If any licensee shall permit any person who
is a legally qualified candidate for public
office to use a broadcasting station [or CATV
system], he shall afford equal opportunities
to all other such candidates for that office
in the use of such broadcasting station [or
CATV system].
47 U.S.C. 315(a), (c). This guarantee of equal opportunity has
CATV time to candidates. By like token, the parties do not
dispute that, if the DPU did promulgate such regulations, federal
communications law would apply.
19The state, through the PTA, owns and controls the air time
provided by section 17-25-30(2). The PTA is a public corporation
empowered to hold property and licenses in trust for the state.
See R.I. Gen. Laws 16-61-2. As such, the PTA is required to
"establish, own and operate" public broadcasting in the state, to
"apply for, receive and hold" the necessary licenses from the
Federal Communications Commission, and to exercise control over
programming on public television stations. See id. at 16-61-6.
We take judicial notice that the PTA currently operates WSBE-TV,
Channel 36.
20Leonard does not argue that Congress preempted state
regulation by occupying the entire communications field. See,
e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988);
French v. Pan Am Express, Inc., 869 F.2d 1, 4 (1st Cir. 1989).
35
both quantitative and qualitative dimensions. See Paulsen v.
FCC, 491 F.2d 887, 889 (9th Cir. 1974). Among other things, it
"encompasses such elements as hour of the day, duration, and
charges." Kennedy for President Comm. v. FCC, 636 F.2d 432, 438
(D.C. Cir. 1980).
Whether this federal guarantee preempts Rhode Island's
free-television-time provisions depends upon how one interprets
state law. Leonard argues that in explicitly guaranteeing state-
controlled television time to qualifying candidates at no cost,
the state intends to exclude all other (non-publicly-funded)
candidates from receiving comparable treatment. Any alternate
interpretation of the statute, she claims, would render it
purposeless.
We think Leonard's argument is deeply flawed. When a
statute provides a benefit to some, it does not necessarily bar
receipt of the benefit by others. Cf., e.g., Bowen v. Owens, 476
U.S. 340, 347 (1986) (explaining that a legislative body "may
take one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind")
(citation and internal quotation marks omitted); Baker, 916 F.2d
at 748 (holding that a state legislature may constitutionally
elect to address "only one aspect or a few aspects of a
multifaceted problem"). Put in concrete terms applicable to this
case, the Rhode Island statute grants free television time to
candidates who embrace public funding but it does not purport
to prevent privately financed candidates from reaping the same
36
benefit if some other law here, the FCA requires equal
treatment.
It is, moreover, axiomatic that, when a state
legislature has sounded an uncertain trumpet, a federal court
charged with interpreting the statute ought, if possible, choose
a reading that will harmonize the statute with constitutional
understandings and overriding federal law. See 1A Norman J.
Singer, Sutherland Statutory Construction 23.21 (4th ed. 1985 &
Supp. 1993) (collecting Supreme Court cases); EEOC v.
Massachusetts, 987 F.2d 64, 70 (1st Cir. 1993). We believe these
principles apply full bore to R.I. Gen. Laws 17-25-30.
We refuse to read Rhode Island's provision of in-kind
benefits in the overbold fashion that Leonard envisions.
Instead, we interpret the statute to mean what it says and only
what it says: it entitles publicly funded candidates to use
state-controlled television channels without charge but it does
nothing to interfere with, and does not contemplate interfering
with, the rights of privately financed candidates who wish to
petition for equal time and treatment under 47 U.S.C. 315.
Contrary to Leonard's suggestion, this interpretation does not
emasculate R.I. Gen. Laws 17-25-30(1) & (2); indeed, by
harmonizing the statutory provisions with federal law and
avoiding possible preemption, the interpretation lends
considerable vitality to the will of the state legislature. What
is more, the provisions, so construed, further a substantial
purpose: subsidizing all publicly funded candidates by providing
37
them with access to free television time. In other words, the
state law makes the public financing program more attractive not
because complying candidates receive something which their non-
complying counterparts do not, but, rather, because complying
candidates can be confident that the expenditure limits imposed
in consequence of the acceptance of public financing will not
prevent them from getting their message to the voters.
The bottom line reads as follows: there are no
indications textual or otherwise that Rhode Island's free-
television-time provisions aim to preclude non-complying
candidates from seeking either equal time or equal treatment;
there is a plausible interpretation of the state enactment which
reconciles it with overriding federal law; and this
interpretation gives the statute meaning without jeopardizing its
validity. Because we read the state law in this way,21 47
U.S.C. 315 does not preempt R.I. Gen. Laws 17-25-30(1) & (2).
3. Excessive Entanglement. Leonard has one last shot
3. Excessive Entanglement.
in her sling. She urges that the provision of in-kind benefits,
such as free television time, has a dangerous tendency to
entangle government in the internal workings of political
campaigns.
The electoral process is guided by legislatively
21This interpretation of R.I. Gen. Laws 17-25-30 requires
that we reject three other disparity-presuming contentions
advanced by Leonard. Read in the manner that we deem fitting,
the statute neither (1) penalizes a candidate for exercising his
or her right to boycott public financing, (2) denies equal
protection of the laws to such a candidate, nor (3) destroys the
voluntariness of the public financing program.
38
articulated rules designed to ensure fairness. A fine, but
important, line exists between this salutary rulemaking and
meddlesome interference in the conduct of elections. There is a
point where government involvement in the operation of political
campaigns may become so pervasive as to imperil first amendment
values. Were a state to loan out its workers as campaign
consultants, for example, voters and candidates might
legitimately complain that it had gone beyond laying down general
rules for office-seekers and begun tampering with, or even
manipulating, the electoral process. Such entanglement could
conceivably prevent the first amendment from accomplishing its
fundamental mission in respect to political speech: "to secure
the widest possible dissemination of information from diverse and
antagonistic sources, and to assure unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people." Buckley, 424 U.S. at 49 (citations and
internal quotation marks omitted). In short, entanglement of
this insidious stripe runs too great a risk of creating a
convergence of pro-government voices.
Mindful of these concerns, courts must carefully review
legislative enactments that potentially entangle government in
partisan political affairs. In-kind incentives carry the seeds
of potential overinvolvement, especially when they implicate
access to state-run organs of communication. Nevertheless, the
first amendment does not rule out all in-kind offerings simply
because some of them may be too entangling. See, e.g., id. at 93
39
n.127 (noting that the government's extension of postal
privileges furthers first amendment values). Legislative bodies
(and, ultimately, courts) must separate wheat from chaff,
recognizing that, while some in-kind benefits may be excessively
entangling, others represent valid and innovative attempts to
confront new concerns in the ever-changing world of democratic
elections.
In our view, there is a spectrum of government
subsidization ranging from pure white and light gray a range
that would include such relatively unintrusive measures as
supplying public funding on politically neutral terms to jet
black and navy blue a range that would subsume such relatively
intrusive measures as furnishing campaign workers to specific
candidates. The closer an arrangement trenches to the non-
intrusive end of the spectrum, the less likely it is to fall prey
to a facial challenge grounded in the first amendment. After
all, so long as interference is slight, offering in-kind benefits
actually furthers first amendment values by increasing
candidates' available choices and enhancing their ability to
communicate. See id. at 92-93.
In this case, Leonard has advanced no concrete reason
for believing that the free-television-time provisions will
excessively entangle the state in the day-to-day details and
decisions of the campaign. Because applicable federal laws and
regulations require equal time and treatment for all competing
candidates insofar as the electronic media are concerned, there
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is no appreciable danger of lopsided state involvement in the
intricate process of scheduling television appearances. By like
token, there is no demonstrable risk that state power will
influence candidates' speech in a way that undermines first
amendment values. Accordingly, there is no excessive
entanglement. See, e.g., id. at 93 n.126 (concluding that claims
of excessive governmental involvement in respect to public
funding of political campaigns were "wholly speculative and
hardly a basis for [facial] invalidation").
IV. CONCLUSION
IV. CONCLUSION
In its journey to ensure the integrity of the electoral
process, a state legislature must march across the hallowed
ground on which fundamental first amendment rights take root.
The terrain must be negotiated with circumspection and care:
disparities, in whatever guise, are not casually to be condoned.
Here, the Rhode Island General Assembly traversed the
minefield with mixed results. The disclosure threshold for PAC
contributors, as contrasted with the different disclosure
threshold for contributors to candidates, creates an
impermissible disparity violative of associational rights. A
second claimed disparity, involving the contribution cap gap is,
in part due to its relatively small size, non-penalizing, non-
coercive, justifiable, and, hence, constitutional. For all
intents and purposes, the third claimed disparity is virtually
non-existent: given the imperatives of extant federal law, the
free-television-time provisions of the state statute do not
produce significant differences in the benefits available to
various candidates for the same office. Thus, we, like the court
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below, find that R.I. Gen. Laws 17-25-15(c)(1) is
unconstitutional, but that the plaintiffs' challenges to other
portions of Rhode Island's campaign finance law are bootless.
Nihilo ulterius requiremus pergere. The judgment below
will be
Affirmed.
Affirmed.
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