Clifton v. Federal Election ( 1997 )

No. 96-1812
ROBIN CLIFTON and MAINE RIGHT TO LIFE COMMITTEE, INC.,
Plaintiffs, Appellees,
v.
FEDERAL ELECTION COMMISSION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
David Kolker, with whom Lawrence M. Noble and Richard B.
Bader were on brief, for appellant.
James Bopp, Jr., with whom Paul R. Scholle, Bopp, Coleson &
Bostrom, Daniel M. Snow, and Pierce Atwood were on brief, for
appellees.
June 6, 1997
BOUDIN,
Circu
it Judge. The plaintiff Maine Right to Life
Committee ("Maine Committee") brought this action in the
district
court to challenge the validity of new regulations of
the
Federal
Election Commission ("FEC"). The Maine Committee
is a nonprofit membership corporation, exempt under the
Internal Revenue Code, which engages in various activities in
opposition to abortion. It accepts donations from other
corporations for its general fund.
Among its activities thus funded is the publication of
voter guides describing the position of congressional
candidates on "pro-life" issues and the publication of
congressional voting records on the same issues. Its co-
plaintiff Robin Clifton is a recipient and reader of these
publications. The FEC regulations, effective March 13, 1996,
purport
to
regulate voter guides and voting records in several
different respects pertinent here.
Voting
records. The new FEC regulation on voting records
not only prohibits corporations and unions from expressly
advocating the election or defeat of particular identified
candidates--a
restriction
not challenged by the plaintiffs--but
also provides that even without such advocacy "[t]he decision
on
content
and the distribution of voting records shall not be
coordinated with any candidate, group of candidates or
political
party." 11 C.F.R. S 114.4(c)(4). "Coordination" is
not defined.
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Voter guides. Along with the restriction on express
advocacy, the regulation on voter guides provides that either
a
corporation or union publishing a guide must have no contact
at
all
with
any candidate or political committee regarding the
preparation, contents and distribution of the voter guide or,
if there is such contact, (1) it must be only through written
questions and written responses, (2) each candidate must be
given
the
same
prominence and space in the guide, and (3) there
must
be
no
"electioneering message" conveyed by any scoring or
rating system used, or otherwise. 11 C.F.R. S 114.4(c)(5).
The
district
court granted a declaratory judgment holding
the regulations just described, apart from the ban on express
advocacy, "invalid as not authorized" by the Federal Election
Campaign Act of 1971, 2 U.S.C. S 431 et seq. ("the Act"),
"because they restrict issue advocacy in connection with
expenditures." Clifton v. FEC, 927 F. Supp. 493, 500 (D. Me.
1996). Some of the district court's reasoning is directed to
the
statute,
and some to a right of corporate "issue advocacy"
set
forth
in
FEC v. Massachusetts Citizens for Life, Inc., 479
U.S. 238 (1986).
We
begin
with the statute, partly because of the district
court's reliance on it and partly because of the general
precept against deciding constitutional issues unless
necessary. The provision of the Act on which the FEC relies
for authority is 2 U.S.C. S 441b. In pertinent part it
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prohibits
any corporation or union from making "a contribution
or
expenditure in connection with any" federal presidential or
congressional
election
or primary. The Act does permit limited
activities of this kind from "segregated" funds that are
heavily regulated and are typically known as political action
committees (PACs). See Massachusetts Citizens, 479 U.S. at
253-54.
In Massachusetts Citizens, the Supreme Court held that
section 441b prohibits corporate and union contributions but,
as
to
expenditures
other
than contributions, the Court narrowly
construed
the
statutory
ban as limited to "express advocacy" of
the election or defeat of a candidate. Id. at 249. Thus, as
glossed by the Supreme Court to avoid "overbreadth," id. at
248,
the
statute does not prevent corporations and unions from
engaging
in
issue
advocacy including publication of the records
and positions of federal election candidates.
Previously, the FEC adopted a regulation under the same
section that required voter guides to be "nonpartisan": they
could
describe the candidates' positions but could not express
the
organization's
opinion on the issues presented. This court
held
the
new
limitation to be a straightforward restriction on
issue
advocacy
and
therefore beyond the scope of the statute as
construed
by
the Supreme Court. Faucher v. FEC, 928 F.2d 468,
471 (1st Cir.), cert. denied, 502 U.S. 820 (1991).
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In
response
to
Faucher
,
the FEC has issued the voter guide
regulation at issue in the present case and has chosen a
different tack. Instead of claiming any direct authority to
regulate issue advocacy--a claim rejected by Massachusetts
Citizens and Faucher--the FEC defends its new regulations as
defining,
or
at least enforcing, section 441b's prohibition on
contributions
. It reasons that a voting record or voter guide
publication
that fails to comply with its regulation is either
a
contribution or can be banned in the interests of preventing
prohibited contributions.
The claim that noncomplying publications are therefore
contributions is untenable. The Supreme Court has said, in
discussing related statutory provisions, that expenditures
directed by or "coordinated" with the candidate could be
treated
as
contributions, see Buckley v. Valeo, 424 U.S. 1, 46
(1976);
but
"coordination" in this context implied some measure
of
collaboration
beyond
a mere inquiry as to the position taken
by a candidate on an issue. Id. at 46-47 & n.53; see also
Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct.
2309, 2319 (1996) (opinion of Breyer, J.).
On its face, the FEC's voter guide regulation bars non-
written contact not merely regarding the preparation and
distribution of voter guides, but also regarding their
contents. 11 C.F.R. S 114.4(c)(5)(i), (ii)(A). Thus, the
regulation expressly prohibits a simple oral inquiry by the
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Maine
Committee as to a candidate's position; and the district
court
tells
us
that
the
FEC's counsel admitted at oral argument
that
the
FEC
similarly interprets its ban on "coordination" of
voting
record publications. 927 F. Supp. at 498. The FEC can
construe terms but it cannot rewrite the dictionary and
classify
a
simple
inquiry as a contribution. See Ernst & Ernst
v. Hochfelder, 425 U.S. 185, 198-99 (1976); cf. Colorado
Republican, 116 S. Ct. at 2319, 2321-22 (opinions of Breyer,
J., and Kennedy, J.).
But
if
ordinary
standards of agency power are applied, the
FEC has a stronger claim--constitutional limitations aside--
that it can on prophylactic grounds ban oral contacts for
voting records and voter guides, and perhaps require similar
amounts of coverage of candidates in voter guides. True, not
all oral contacts or different allocations of space will
involve collaboration with the candidate. But some will, and
the
FEC's
restrictions may reduce the risk of collaboration by
making
it
easier to detect and less effective where it occurs.
Normally
an
agency with rulemaking power has a measure of
latitude where it is dealing with the regulated entity (here,
corporations and unions) and where the rule is reasonably
designed to achieve the statute's goal (here, to prohibit
certain types of contributions). The FEC has such rulemaking
power. 2 U.S.C. S 437d(a)(8); Buckley, 424 U.S. at 110.
Agencies often are allowed through rulemaking to regulate
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beyond the express substantive directives of the statute, so
long as the statute is not contradicted. See Mourning v.
Family
Publications Serv., 411 U.S. 356, 369-71 (1973); United
States
v.
Sou
thwestern Cable Co., 392 U.S. 157, 177-78 (1968);
Alexander v. Trustees of Boston Univ., 766 F.2d 630, 636-38
(1st Cir. 1985).
We think it is thus not altogether easy to avoid
approaching the question whether what the FEC is doing is
constitutional. True, one could say that it is regulating
issue advocacy while claiming to regulate contributions. But
in a sense the FEC is doing both at the same time; and the
statute,
it
should be noted, does not itself forbid reasonable
regulation of contributions that happens also to burden issue
advocacy.
As
a
statutory matter, the Act simply stops short of
prohibiting issue advocacy. Massachusetts Citizens, 479 U.S.
at 249; Faucher, 928 F.2d at 471.
Turning then to constitutional issues, we face at the
outset the claim of the Maine Committee that it has a
constitutional right of issue advocacy that is unreasonably
burdened by the regulations here at issue. In Massachusetts
Citizens, the Supreme Court not only narrowed section 441b by
construction but also recognized a First Amendment right to
issue advocacy, on behalf of a nonprofit corporation fairly
similar
to
the
Maine
Committee, that extends to the publication
of voter guides. 479 U.S. at 263.
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The difficulty is that in that same case, the Supreme
Court stressed as "essential" the fact that the anti-abortion
not accept contributions from business
orporations
or
unions.
Id. at 264. This was important to the
Court
because
it
had
previously sustained the right of Congress
to limit the election influence of massed economic power in
corporate
or
union form. FEC v. National Right to Work Comm.,
group
there
involved
did
c
459 U.S. 197, 207-10 (1982). And somewhat later, the Court
upheld a state statute that barred campaign-related issue
advocacy,
out
of
general
funds, by a nonprofit entity funded by
business
corporations.
A
ustin v. Michigan Chamber of Commerce,
494 U.S. 652, 664-65 (1990).
The Maine Committee does accept contributions from other
corporations,
Clifton
,
927 F. Supp. at 494, and falls somewhere
between
the
entity
protected in Massachusetts Citizens and that
held unprotected in Austin. It is unclear what the Supreme
Court would say about the existence or extent of a
constitutiona
l right of campaign-related issue advocacy (using
unsegregated funds) claimed by the Maine Committee. Nor does
the record permit us to disregard Austin on the ground that
corporate
contributions
to the Maine Committee are de minimis.1
1Despite Austin, two circuits have ruled that entities
might still obtain the protection of Massachusetts Citizens
where
business
contributions were in fact minor even though not
strictly banned by the organization. FEC v. Survival Educ.
Fund,
Inc.,
65
F.3d
285,
292 (2d Cir. 1995); Day v. Holahan, 34
F.3d 1356, 1364 (8th Cir. 1994), cert. denied, 115 S. Ct. 936(1995). We take no view as to the correctness of these
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If the Maine Committee had the same constitutional right
to issue advocacy as its Massachusetts counterpart, the two
principal rules at issue might well fail under a strict-
scrutiny standard. As we will see, the limit on oral contact
and the obligation to provide equal space are significant
burdens and, as merely prophylactic rules that go beyond the
threat
(unauthorized
corporate contributions), the rules likely
would not meet the narrow tailoring requirement. FEC v.
National Conservative Political Action Comm., 470 U.S. 480,
496, 498-500 (1985). But the Court may hold that the Maine
Committee's
acceptance
of corporate contributions brings Austin
into play.
We think that the present case can be decided on grounds
that
do
not
require us to decide whether Austin applies to the
Maine Committee, an issue only the Supreme Court can resolve
definitively. For even apart from their impact on issue
advocacy, the two main FEC rules at issue curtail
constitutional rights that corporations unquestionably do
possess. Whether the curtailment goes too far as a
constitutional matter need not be decided: it is enough that
it undermines the FEC's claim of authority for its rules.
Starting with the FEC rule requiring substantially equal
space
and
prominence, we begin with the proposition that where
public issues are involved, government agencies are not
decisions.
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normally
empowered
to
impose and police requirements as to what
p
s
abhorrent to the First Amendment, whether the compulsion is
directed against individuals or corporations.2 And while no
case
is
an
exact match for this one, Miami Herald comes pretty
close.
There, the Supreme Court struck down Florida's "right of
reply" statute that guaranteed a political candidate equal
space
to
reply to newspaper attacks or criticism. 418 U.S. at
256. The Court said that even if no additional costs were
imposed by "compulsory access," nevertheless
[t]he
choice
of material to go into a newspaper, and
made as to limitations on the size and
rivate
citizens may say or write. Commercial labeling aside,
the Supreme Court has long treated compelled speech a
the
decisions
content
of
the paper, and treatment of public issues
and public officials--whether fair or unfair--
constitute the exercise of editorial control and
judgment.
Id. at 258. The statute failed even though the state did not
dictate
the
content
of
the reply, nor did the newspaper purport
to
endorse
it.
Reaffirming Miami Herald, the Supreme Court not
2See McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511,
1519-20 (1995); Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 115 S. Ct. 2338, 2347 (1995); Riley
v.
Nat'l
Fed'n of the Blind, 487 U.S. 781, 795 (1988); Pacific
Gas
&
Elec.
Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 16
(1986) (plurality opinion); Wooley v. Maynard, 430 U.S. 705,
714
(1977);
M
iami Herald Publ'g Co. v. Tornillo, 418 U.S. 241,
256 (1974); West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 642 (1943).
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long ago described that case as involving a law that altered
"content." Riley, 487 U.S. at 795.
It seems to us no less obnoxious for the FEC to tell the
Maine Committee how much space it must devote in its voter
guides to the views of particular candidates. We assume a
legitimate
FEC interest in preventing disguised contributions;
but Florida's interest in fair coverage that prompted its
"right
of
reply"
statute
was hardly trivial. The point is that
the
interest
cannot
normally be secured by compelling a private
entity to express particular views or by requiring it to
provide "balance" or equal space or an opportunity to appear.
See, e.g., Hurley, 115 S. Ct. at 2347; Miami Herald, 418 U.S.
at 256.
First
Amendment concerns may be less where the government
requires balance or access than where it dictates the precise
viewpoint
to
be
expressed. But, unlike "time, place and manner"
limitations, the FEC's equal space or prominence requirement,
even if mechanically applied, does affect the content of the
Maine Committee's voting guide. Thus, the Maine Committee
could be compelled to devote substantial space to describing
the
position
of a candidate with whom it deeply disagrees. As
the Supreme Court said unanimously in Hurley, 115 S. Ct. at
2347:
this
general
rule, that the speaker has the right to
tailor the speech, applies not only to expressions
of value, opinion, or endorsement, but equally to
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statements of fact that the speaker would rather
avoid, McIntyre, . . . Riley . . . .
Few, if any, rights are absolute, but there is a strong
First Amendment presumption against content-affecting
government
regulation
of
private citizen speech, even where the
government
does
not
dictate the viewpoint. See Riley, 487 U.S.
at
797-98;
Pa
cific Gas, 475 U.S. at 16; Miami Herald, 418 U.S.
at 256. Indeed, even for broadcasters and cable monopolies,
the Supreme Court has upheld equal coverage and "must carry"
provisions
only
because
of the unique control that broadcasters
and cable operators have over public access to programming.
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 655-57
(1994);
Red
Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392-94
(1969). That rationale has no conceivable application to the
Maine Committee.
The other rule principally at issue is the limitation on
oral contact with candidates. We think that this is patently
offensive to the First Amendment in a different aspect: it
treads heavily upon the right of citizens, individual or
corporate, to confer and discuss public matters with their
legislative
representatives or candidates for such office. As
we have explained, the regulations bar non-written contact
regarding the contents, not merely the preparation and
distribution, of voter guides and voting records; thus,
inquiries
to
candidates
and incumbents about their positions on
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issues
like
abortion
are
a precise target of the FEC's rules as
applied here.3
It is hard to find direct precedent only because efforts
to
restrict
this right to communicate freely are so rare. But
we think that it is beyond reasonable belief that, to prevent
corruption or illicit coordination, the government could
prohibit voluntary discussions between citizens and their
legislators and candidates on public issues. The only
difference between such an outright ban and the FEC rule is
that the FEC permits discussion so long as both sides limit
themselves to writing. Both principle and practicality make
this an inadequate distinction.
It
is
no
business of executive branch agencies to dictate
the form in which free citizens can confer with their
legislative representatives. Further, the restriction is a
real handicap on intercourse: the nuances of positions and
votes can often be discerned only through oral discussion; as
any
courtroom
lawyer
knows, stilted written interrogatories and
answers
are
no
substitute for cross-examination. A ban on oral
communication
, solely for prophylactic reasons, is not readily
defensible.
3Indeed, the chilling effect of such a restriction would
extend well beyond any discussion directed to a particular
voter guide; any inquiry by the Maine Committee to a local
representative or candidate regarding his or her position on
such issues would be vulnerable even if no mention whatever
were made of any voter guide. Cf. Riley, 487 U.S. at 794.
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The Supreme Court has echoed this view, albeit in dicta.
In upholding the Attorney General's refusal to grant a
temporary visa to a foreign journalist invited to participate
in academic conferences in the United States, the Court said,
The Government also suggests that the First
Amendment is inapplicable because appellees have
free access to Mandel's ideas through his books and
speeches, and because "technological developments,"
such as tapes or telephone hook-ups, readily
supplant his physical presence. This argument
overlooks what may be particular qualities inherent
in sustained, face-to-face debate, discussion and
questioning. . . . [W]e are loath to hold on this
record that existence of other alternatives
extinguishes altogether any constitutional interest
on
the
part
of the appellees in this particular form
of access.
Kleindienst
v.
Mandel
,
408 U.S. 753, 765 (1972). See also Pell
v. Procunier, 417 U.S. 817, 825 (1974).
Such
writing-only restrictions have sometimes been upheld
in the context of commercial speech, e.g., Ohralik v. Ohio
State Bar Ass'n, 436 U.S. 447, 467 (1978) (limiting in-person
attorney
solicitation
of
clients); but the Court has never even
remotely approved such a restriction of political expression.
In
fact,
in
a companion decision to Ohralik, the Supreme Court
found such prophylactic rules unconstitutional as applied to
solicitations by nonprofit organizations offering free legal
assistance,
explaining
that the latter comprises core protected
speech and association, and that in the latter context the
First Amendment does not tolerate government regulation that
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might well pass muster where directed to the "conduct of
commercial affairs." In re Primus, 436 U.S. 412, 434 (1978).
With
respect
to
both
rules--the equal space and prominence
and the writing-only requirements--we readily accept that the
government has an interest in unearthing disguised
contributions.
But
the
FEC is free to investigate any instance
in which it thinks that inquiry has become collaboration;
nothing,
apart
from
conclusory allegations, has been offered by
the FEC to suggest that ordinary enforcement measures cannot
adequately
police
"secret" corporate contributions. Cf. Turner
Broadcasting, 512 U.S. at 664, 668 (plurality opinion). What
it
cannot
do--at least without direct authorization--is simply
to say that it is easier or more convenient to impair First
Amendment interests than to prove a violation by conventional
means or by more carefully tailored regulations.
The FEC might argue that it has not compelled speech or
prevented oral access in absolute terms; it has merely said
that
these
rules
apply
if
a corporation wants to publish voting
records
or
voter guides using its general treasury funds. And
under
Austin
,
Congress
could constitutionally prohibit business
corporations from engaging in these activities except through
segregated
funds; possibly, the Maine Committee is in the same
position, depending on whether the Court views it as falling
under Massachusetts Citizens or under Austin.
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Yet
the
doctrine
of
unconstitutional conditions limits the
government's ability to make someone surrender constitutional
rights even to obtain an advantage that could otherwise be
withheld.
Se
e Regan v. Taxation With Representation of Wash.,
461
U.S.
540, 545 (1983). Here, a surrender of such rights is
being required in order to do something--to publish political
information about voting guides or records--that Congress has
not made unlawful. We are not certain that Congress could
require this sacrifice based on its own judgment of need, but
the law in this realm is far from clear. Compare Rust v.
Sullivan
,
500
U.S.
173,
196-200 (1991) with O'Hare Truck Serv.,
Inc. v. City of Northlake, 116 S. Ct. 2353, 2356-57 (1996).
Still, it is not necessary to resolve this last issue
here.
Even
if the rules are otherwise "reasonable," we do not
take Congress to have authorized rules that sacrifice First
Amendment interests. There is a long tradition of construing
statutes
narrowly to avoid constitutional issues. Indeed, the
Supreme Court took just such an approach in striking down an
NLRB
regulation
as
unauthorized without finding it necessary to
decide
the
ultimate First Amendment issue. DeBartolo Corp. v.
Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.
568,
575-58
(1988).
Acco
rd Chamber of Commerce v. FEC, 69 F.3d
600, 605 (D.C. Cir. 1995) (FEC rules).
What
we
have
said
disposes of the two main restrictions in
contention--the
equal
space and prominence requirement and oral
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contacts
ban--both of which appear in the regulation governing
voter
guides.
The
voting record regulation does not explicitly
contain either the requirement or the ban: it merely says
(apart from the unchallenged limitation on express advocacy)
that
"[t]he
decision on content and the distribution of voting
records shall not be coordinated with any candidate." 11
C.F.R. S 114.4(c)(4).
But,
as
already noted, the FEC told the district judge at
oral argument that prohibited "coordination" included seeking
an explanation from the representative (for example, where
there were several apparently conflicting votes). If the FEC
does read its regulation in this fashion, it would to this
extent
raise
the same constitutional concern about access, and
reflect the same unauthorized use of rulemaking authority.
This declaration ought to satisfy the Maine Committee's
legitimate concern about misuse of the regulation.
Finally,
in
two paragraphs at the close of its brief, the
Maine
Committee
also
asserts that the voter guide regulation is
unconstitutionally vague in its dual ban on including "an
electioneering message" in a voter guide and on seeking to
"score or rate the candidates' responses in such a way as to
convey an electioneering message." 11 C.F.R.
SS 114.4(c)(5)(ii)(D), (E). This restriction applies only
where
the
entity
publishing the guide has chosen to contact the
candidate.
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To
our
surprise,
the
FEC
reply brief does not even pretend
to explain what the FEC means by "electioneering message";
instead the brief resorts to generalities about the tests for
unconstitutional vagueness ("no more than a reasonable degree
of certainty can be demanded"), tests mostly used in contexts
where
speech
is not involved. It then points to its "advisory
opinion
process" as a method for obtaining clarification. The
FEC also says that the Maine Committee's argument is
perfunctory. It is, but so is the FEC's reply, and the
substance of the Maine Committee's concern--vagueness--is
readily apparent.
The
FEC
might
have
argued that "electioneering message" is
simply
another
version
of the ban on express advocacy upheld by
the Supreme Court. But the FEC has conspicuously declined to
make
that
argument. Nor is it clear why, if the FEC meant the
phrase
to
be
limited
to
express advocacy, it did not simply use
those words, which are used in a different provision of the
same regulation, 11 C.F.R. S 114.4(c)(5)(i), and also in the
voting
records
regulation. We are thus entitled to assume that
"electioneering message" has a different, broader meaning.
The
district
court expressly declined to reach the issue,
927 F. Supp. at 500 n.7, apparently believing that this
restriction
could not be severed from other parts of the voter
guide
regulation that the district court had struck down. But
the
district
court opinion did not explain why and, if the FEC
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wants
to
assert
severability (its position is not revealed), an
argument can be made that the electioneering message ban, if
valid, can stand on its own two feet. See K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 294 (1988).
We have no intention of trying to resolve any of the
issues thus implicated, based on inadequate briefing and in
darkness as to the FEC's own position as to content, purpose
and severability. The Supreme Court's treatment of related
vagueness issues in Buckley, 424 U.S. at 40-44, and
Massachusetts Citizens, 479 U.S. at 248-49, suggests that the
vagueness attack is not frivolous, but those cases differ in
various respects from this one on the merits. And, at the
threshold, are issues of severability and ripeness.
We therefore conclude that the plaintiffs' attack on the
"electioneering
message"
provisions of the regulation should be
remanded for further proceedings in the district court. For
the same reason, we leave it to the district court to decide
whether,
in
the first instance, temporary relief against these
provisions is warranted pendente lite. Indeed, the FEC may
prefer to defer enforcement of these provisions for the time
being, if it seeks certiorari on the other issues decided
today.
Our discussion leads us to modify the district court's
judgment
as
follows: the voting record regulation, 11 C.F.R. S
114.4(c)(4), is declared invalid only insofar as the FEC may
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purport
to
prohibit
mere
inquiries to candidates, and the voter
guide regulation, id. S 114.4(c)(5), is declared invalid only
insofar as it limits any contact with candidates to written
inquiries
and
replies
and imposes an equal space and prominence
restriction. The validity of the "electioneering message"
provisions of the latter regulation is remanded for further
proceedings in accordance with this opinion.
It is so ordered.
Dissent follows.
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BOWNES, Senior Circuit Judge, dissenting.
I dissent because I disagree with the majority's
holding that the FEC's written-contact-only regulation
infringes the First Amendment guarantee of freedom of speech.
Even where governmental regulations have "the potential for
substantially infringing the exercise of First Amendment
rights," the Supreme Court has "acknowledged that there are
governmental interests sufficiently important to outweigh the
possibility of infringement, particularly when the free
functioning
of
our
national institutions is involved." Buckley
v. Valeo, 424 U.S. 1, 66 (1976) (per curiam) (internal
quotation marks omitted).
At
this
stage
of
American history, it should be clear
to every observer that the disproportionate influence of big
money is thwarting our freedom to choose those who govern us.
This sad truth becomes more apparent with every election. If
preventing
this
is
not
a
compelling governmental interest, I do
not know what is.
The FEC, through its voter guide regulation, has
tried to prevent such abuses, consistent with Supreme Court
precedent that protects First Amendment interests. I believe
the FEC has successfully navigated a safe path between these
competing
concerns, and has achieved a reasonable prophylactic
measure
while complying with the Court's teachings. The Court
itself
has,
over the years, grown more and more concerned with
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"domination of the political process" by corporate wealth.
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659
(1990).
I
believe the written-contact-only requirement in the
FEC's voter guide regulation fits comfortably within the
Court's guidelines because its burdens on First Amendment
freedoms are among those the Court is willing to permit in
order to achieve compelling governmental interests like those
at issue here, and the requirement is narrowly tailored to
achieve that interest.
The
majority
strikes down the FEC's written-contact-
only rule, citing virtually no authority for its position. I
recognize that the plaintiff, Maine Right to Life Committee,
Inc. (MRTLC), has articulated a First Amendment interest, but
in my view that interest is outweighed by the compelling
governmental interest in preventing corruption and corporate
domination of the political process. The majority, after
finding a First Amendment interest, fails altogether in
pursuing this next step in the appropriate First Amendment
analysis.
I
believe
that
the
prophylactic measures contained in
the FEC's regulation are narrowly tailored to achieve the
permissible
end: they do not preclude all oral discussions of
issues between groups like MRTLC and electoral candidates, as
the majority states, see ante at 12-13 & n.3. The regulation
deals only with oral discussions relating to preparation of
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voter guides. Generally speaking, MRTLC is free to have all
the oral discussions that it wishes with candidates, whether
motivated by a desire to lobby, to persuade, to debate, or to
clarify. The only limitation is that MRTLC not combine its
oral "issue advocacy" with a discussion of its plans to spend
significant amounts of money to prepare and disseminate voter
guides. "[T]here is a vast difference between lobbying and
debating
public
issues
on the one hand, and political campaigns
for
election
to public office on the other." Austin, 494 U.S.
at 678 (Stevens, J., concurring).
The
majority
has set up a straw man and then shot it
down, without reliance on any relevant authority. It has
failed to address the real issues involving this regulation,
and
to
come
to grips with the evolving Supreme Court precedent
relating to campaign finance law. I will turn to that
precedent after discussing the appropriate standard of review
that we should apply in this case.
Scope of Review
MRTLC has challenged the FEC's regulation on its
face,
not
as
applied to MRTLC itself. In attacking the facial
validity of a regulation, a plaintiff faces a "heavy burden,"
to show that the regulation can never be applied
constitutiona
lly. Rust v. Sullivan, 500 U.S. 173, 183 (1991);
Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 797-98 (1984). "The fact that [the
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regulations] might operate unconstitutionally under some
conceivable set of circumstances is insufficient to render
[them] wholly invalid." Rust, 500 U.S. at 183 (brackets in
original) (quotation omitted). For example, in Buckley, the
Court
recognized
that
"[t]here could well be a case" where "the
Act's [disclosure] requirements cannot be constitutionally
applied," but the Court nevertheless upheld the requirements
because
none
of
the
challengers "tendered record evidence" that
such
would
actually occur; they merely stated their "fears" of
what might happen. 424 U.S. at 71. Thus, where a rule is
being challenged on its face, it would be "inappropriate" to
strike it down merely because the plaintiff can envision "an
imagined unlawful application of the rule." Massachusetts v.
United States, 856 F.2d 378, 384 (1st Cir. 1988). See also
Renne v. Geary, 501 U.S. 312, 324 (1991) (facial challenge
should generally not be entertained when an 'as-applied'
challenge could resolve the case).
The district court's determination that the FEC's
regulation is facially invalid presents a purely legal
question, and is therefore reviewable de novo. Duffy v.
Sarault, 892 F.2d 139, 145 (1st Cir. 1989).
In reviewing agency action, if Congress has not
"directly
addressed
the
precise question at issue," a reviewing
court must defer to an agency's interpretation of the statute
it is charged with enforcing, if that interpretation is not
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"manifestly contrary to the statute." Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44
(1984); Strickland v. Commissioner, Maine Dep't of Human
Servs.
,
96
F.3d 542, 545-47 (1st Cir. 1996) ("Strickland II");
Strickland v. Commissioner, Maine Dep't of Human Servs., 48
F.3d
12,
16-17 (1st Cir.), cert. denied, 116 S. Ct. 145 (1995)
("Strickland I"). A reviewing court will not "simply impose
its
own
construction"
as
to the meaning of ambiguous or unclear
statutory terms, "as would be necessary in the absence of an
administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue," and
the
agency
has furnished its interpretation, "the question for
the court is whether the agency's answer is based on a
permissible construction of the statute."4 Chevron, 467 U.S.
at 843; Strickland II, 96 F.3d at 546. The FEC "is precisely
the type of agency to which [such] deference should
presumptively be afforded." FEC v. Democratic Senatorial
Campaign Comm., 454 U.S. 27, 37 (1981).
Of course, a court will not defer to an agency's
interpretation of a statute that is directly contrary to a
prior Supreme Court interpretation of the same statutory
4. "The court need not conclude that the agency construction
was the only one it permissibly could have adopted to uphold
the construction, or even the reading the court would have
reached if the question initially had arisen in a judicial
proceeding." Chevron, 467 U.S. at 843 n.11 (citing FEC v.
Democratic Senatorial Campaign Comm., 454 U.S. 27, 39
(1981)).
-25-
-25-
provision. See Faucher v. FEC, 928 F.2d 468, 471 (1st Cir.
1991). Nor will a court defer to an interpretation that is
unconstitutional. I address the First Amendment question de
novo, through the prism of the Court's teaching in this area.
The Applicable Law Governing
Campaign Finance Limitations
The
Supreme
Court
has
observed that the "integrity of
our system of representative democracy is undermined" by
corruption. Buckley, 424 U.S. at 26-27. Although the Court
decided
a
number of cases governing campaign finance law prior
to Buckley,5 and although Buckley dealt only with individuals
and unincorporated associations and not with corporations as
plaintiff MRTLC is here, Buckley is usually viewed as the
starting point in any analysis of election law. Buckley was
also the first case to interpret the statute applicable here,
the Federal Election Campaign Act, as amended in 1974, which
significantly
tightened federal election campaign financing in
the wake of the Watergate scandals.
The Court began its analysis by noting that money
spent on communication was the equivalent of speech itself.6
5. The Court has recounted some of the long prior history of
legislation regulating campaign financing in FEC v. National
Right to Work Comm., 459 U.S. 197, 208-09 (1982); Pipefitters
v. United States, 407 U.S. 385, 402-12 (1972); United States
v. Automobile Workers, 352 U.S. 567, 570-87 (1957).
6. Experience has demonstrated that Buckley may have been
too hasty in equating money with speech. Buckley began with
the premise that "[d]iscussion of public issues and debate on
the qualifications of candidates are integral to the
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-26-
Therefore the Court recognized that limitations on
contributions
operation of [our] system of government." 424 U.S. at 14.
office is essential." at 14-15. "The First Amendment
This is because, in a republic such as ours, "the ability of
impinged upon First Amendment values in the
the citizenry to make informed choices among candidates for
Id.affords the broadest protection to such political expression
in order to assure the unfettered interchange of ideas for
the bringing about of political and social changes desired by
the people." Id. at 14. Because "virtually every means of
communicating ideas in today's mass society requires the
expenditure of money," the Court in Buckley concluded that
"[a] restriction on the amount of money a person or group can
spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth of their
exploration, and the size of the audience reached." Id. at
19.
In reality, however, Buckley's equation of money
and speech does not serve the goal of ensuring that the best
ideas emerge from a true (and fair) competition among
differing viewpoints. Rather than rewarding people or
candidates who put forward good ideas, this system rewards
people who happen to control vast amounts of money. In light
of the uneven playing field created by the unequal
distribution of income and wealth in our society, some people
can afford to purchase more of the high-cost means of speech
than can other people. The Court has recognized that
financial considerations "may make the difference between
participating and not participating in some public debate."
See City of Ladue v. Gilleo, 512 U.S. 43, 57 (1994). Thus,
"however neutral the government's intentions in enacting a
law, the operation of that law may have a vastly uneven
impact. There is no equality in a law prohibiting both rich
and poor from sleeping under the bridges of Paris." NAACP,
Western Region v. City of Richmond, 743 F.2d 1346, 1356 (9th
Cir. 1984) (alluding to the famous aphorism of Anatole
France); see also Griffin v. Illinois, 351 U.S. 12, 23 (1956)
(Frankfurter, J., concurring) (same). Therefore, we must
carefully scrutinize even facially neutral laws if their
effects on speech "fall unevenly on different viewpoints and
groups in society." City of Richmond, 743 F.2d at 1356. And
we must avoid giving "one side of a debatable public question
an advantage in expressing its views to the people." First
Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 785-86
(1978).
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-27-
"uninhibited, robust, and wide-open" debate that is necessary
to enable people to make informed choices among candidates.
Buckley, 424 U.S. at 14 (quotation omitted).
Nevertheless,
the
Court
upheld the FECA's limitations
on contributions (by individuals and unincorporated
associations) to candidates or their campaign committees.
Because our "[d]emocracy depends on a well-informed
electorate," id. at 49 n.55; see id. at 14-15, the Court
subjected
such
impingement to strict scrutiny. The Court found
that, with respect to contributions to a candidate, the
impingement was justified by the compelling governmental
interest
in
limiting
the
actuality and appearance of corruption
resulting from large financial contributions. Id. at 28-29.
Likewise,
the Court upheld limits on total contributions by an
individual, as a "modest restraint upon protected political
activity [that] serves to prevent evasion of the $1,000
contribution limitation by a person who might otherwise
contribute massive amounts of money to a particular candidate
through the use of unearmarked contributions to political
committees
likely
to
contribute to that candidate." Id. at 38.
The Court also upheld the Act's limitations on
volunteers'
incidental expenses as an acceptable accommodation
of Congress's valid interest in encouraging citizen
participation
while guarding against the "corrupting potential
of large financial contributions to candidates." Id. at 36.
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The Court treated such incidental expenses as an in-kind
contribution,
with
the
same ultimate effect as if the money had
been contributed directly to the candidate.
The
Buckley
Court treated limitations on independent
expenditures differently than limitations on direct
contributions to candidates. The Court realistically
recognized that those who contributed to a candidate
represented "the interests to which [the] candidate is most
likely to be responsive." Id. at 67. Nevertheless, in order
to avoid vagueness problems, the Court limited FECA's
prohibition on independent expenditures to only those
expenditures which involved express advocacy. Id. at 44. It
went
on
to
strike
down
that prohibition, even as so limited, as
violative
of
the
First
Amendment. Id. at 51. In analyzing the
First Amendment considerations, the Court stated that
expenditure limitations impose greater burdens on basic
freedoms
than do contribution limits, and do not accomplish as
much to further the goals of eliminating the potential for
abuse and quid pro quo corruption. Id. at 44-47.
The Court's more protective approach to independent
expenditures, however, applies only to expenditures that are
"made totally independently of the candidate[s] and [their]
campaign[s]."
Id.
at
47. It found no constitutional infirmity
in FECA's treatment of "coordinated" expenditures as
contributions
and
therefore subject to FECA's limitations. Id.-29-
-29-
at 47 & n.53. Expenditures that are "coordinated" with a
candidate or his/her campaign -- which are the functional
equivalent of an in-kind contribution to the candidate -- are
treated as direct contributions to the candidate, rather than
as independent expenditures, in order to "prevent attempts to
circumvent the Act through prearranged or coordinated
expenditures
amounting
to disguised contributions." Id. at 46-
47. This is true regardless of whether the expenditure pays
for speech containing express advocacy of a candidate. Thus,
limiting such coordinated spending can "foreclose[] an avenue
of abuse." Id. at 37.
In
upholding
some burdens on First Amendment rights,
the Buckley Court recognized a compelling interest in
preventing quid pro quo corruption. It noted that, to "the
extent
that
large
contributions are given to secure a political
quid pro quo from current and potential office holders, the
integrity of our system of representative democracy is
undermined." Id. at 26-27. Moreover, "[o]f almost equal
concern as the danger of actual quid pro quo arrangements is
the
impact
of
the
appearance of corruption stemming from public
awareness of the opportunities for abuse inherent in a regime
of large individual financial contributions." Id. at 27.
Since
Buckley
was decided, more evidence has come to
light demonstrating that big money can skew our democratic
election
process,
even
without a quid pro quo. Large donations
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from wealthy individuals, corporations and labor unions have
helped candidates accumulate considerable stockpiles of money
with which to advertise for votes. In a series of cases
beginning with FEC v. National Right to Work Comm., 459 U.S.
197 (1982) ("NRWC"), the Court has dealt with this problem in
the context of S 441b of FECA, which regulates contributions
and
expenditures
made
by
corporations and labor organizations.7
In
NRWC
,
FEC
v.
Massachusetts Citizens for Life, Inc., 479 U.S.
238(1986)
("Mass.
Citizens" or "MCFL"), and Austin v. Michigan
Chamber of Commerce, 494 U.S. 652 (1990), the Court has found
a compelling governmental interest in preventing corruption
even without a direct quid pro quo promise in exchange for
money. The Court has recognized that the integrity of our
electoral
system can also be undermined by a different type of
corruption: "vast reservoirs of capital" that "distort[] the
political process" and prevent it from truly reflecting the
voters'
collective evaluation of the merits of the candidates'
ideas. See Austin, 494 U.S. at 661.
The
plaintiff in National Right to Work Comm. was an
expressly ideological nonprofit association which was
incorporated
under state law, as is the plaintiff MRTLC in the
case
at
bar.
Recognizing that the FECA "reflects a legislative
7. This is to be distinguished from the sections of FECA
covered in the relevant portions of Buckley, which dealt with
contributions and expenditures made by individuals and
unincorporated groups.
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-31-
judgment that the special characteristics of the corporate
structure require particularly careful regulation," National
Right to Work Comm., 459 U.S. at 209-10, the Court upheld
Congress's
right
to
restrict from whom such an organization may
solicit contributions. The Court held that NRWC's
associational
rights8 were overborne by the interests Congress
sought to protect in enacting S 441b, including:
to
ensure
that substantial aggregations of
wealth amassed by the special advantages
which go with the corporate form of
organization should not be converted into
political
'war chests' which could be used
to incur political debts from legislators
who are aided by the contributions.
Id. at 207. "The overriding concern behind the enactment of
statutes such as the Federal Corrupt Practices Act was the
problem of corruption of elected representatives through the
creation of political debts. The importance of the
governmental interest in preventing this occurrence has never
been doubted." National Right to Work Comm., 459 U.S. at 208(quotations omitted) (emphasis added). As in Buckley, the
Court in NRWC recognized that it was just as important to
prevent
the
appearance
of such corrosion as the actuality. Id.
at 210. "These interests directly implicate the integrity of
our electoral process." Id. at 208 (quotation omitted).
8. Corporations as well as individuals have First Amendment
rights. First Nat'l Bank of Boston v. Bellotti, 435 U.S.
765, 784-86 (1978).
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Accordingly, the NRWC Court held that "the need for
a
broad
prophylactic rule," to protect against such distortion
of the political process, was "sufficient . . . to support a
limitation on the ability of a committee to raise money for
direct
contributions to candidates." Mass. Citizens, 479 U.S.
at 260.
In
Mass.
Citizens
,
the
Court shifted the focus of its
examination
from
S
441b's regulation of corporate contributions
to its regulation of corporate independent expenditures. The
Court described the "underlying rationale" for "longstanding
regulation" of corporate political activity as:
the need to restrict "the influence of
political war chests funneled through the
corporate form," [FEC v. National
Conservative Political Action Comm., 470
U.S. 480, 501 (1985) ("NCPAC")]; to
"eliminate
the effect of aggregated wealth
on federal elections," Pipefitters [v.
United States], 407 U.S. [385,] 416
[(1972)]; to curb the political influence
of "those who exercise control over large
aggregations of capital," [United States
v.] Automobile Workers, 352 U.S. [567,]
585 [(1957)]; and to regulate the
"substantial aggregations of wealth
amassed
by
the special advantages which go
with the corporate form of organization,"
National
Right to Work Committee, 459 U.S.
at 207.
Mass. Citizens, 479 U.S. at 257. See also id. at 258-59(Congress
added
proscription on expenditures to Federal Corrupt
Practices Act "to protect the political process from what it
deemed to be the corroding effect of money employed in
elections by aggregated power") (quotation omitted).
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The Court in Mass. Citizens recognized that "the
corrosive influence of concentrated corporate wealth" can
corrupt
"the
integrity of the marketplace of political ideas."
479 U.S. at 257. Regulation of corporate political activity
"has
reflected concern not about use of the corporate form per
se
,
but
about
the
potential for unfair deployment of wealth for
political purposes." Id. at 259. The Court "acknowledge[d]
the legitimacy of Congress' concern that organizations that
amass
great
wealth in the economic marketplace not gain unfair
advantage in the political marketplace." Id. at 263. This
concern
is
reflected in S 441b's "require[ment] that corporate
independent expenditures be financed through a political
committee expressly established to engage in campaign
spending," in order to "prevent this threat to the political
marketplace."
Id. at 258. In order to avoid overbreadth, the
Court defined independent expenditures governed by S441b to
include only express advocacy of the election or defeat of a
candidate. Id. at 249.
The Court left open the question whether the First
Amendment
permits it to uphold S 441b's general rule -- that a
corporation must utilize a voluntary PAC rather than its
general
treasury
funds
for independent campaign expenditures as
well as for direct contributions to candidates. Instead, the
Court carved a narrow exception out of this general rule,
holding its prohibition on use of general treasury funds
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-34-
unconstitutional
as
applied to the narrow class of corporations
exemplified by the plaintiff in MCFL,9 even though those
corporations remained free to speak in unlimited amounts
through a separate segregated fund (as opposed to using funds
from the corporate treasury).
To
fall
within
the
exception, a corporation must have
three
characteristics, each of which is "essential," MCFL, 479
U.S.
at 263:
First, it must be formed for the express purpose
of promoting political ideas, and cannot engage in business
activities. Second, it must have no shareholders or other
persons affiliated who would have a claim on its assets or
earnings. Third, it must not be established by a business
corporation
or labor union, nor accept contributions from such
entities. Id. at 264. The last requirement -- that the
corporation does not accept contributions from business
corporations or labor unions -- is "essential," because it
"prevents such [nonprofit ideological] corporations from
serving as conduits for the type of direct spending that
creates
a
threat
to
the
political marketplace." Id. at 263-64.
In
Austin
,
494 U.S. at 659, the Court elaborated its
"concern about corporate domination of the political process"
and decided the question left open in Mass. Citizens. The
plaintiff
in
Austin, the Chamber of Commerce, had challenged a
9. "It may be that the class of organizations affected by
[the Mass. Citizens] holding . . . will be small." Mass.
Citizens, 479 U.S. at 264.
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-35-
Michigan statute (similar to 2 U.S.C. S 441b) prohibiting
corporations from using treasury funds for independent
expenditures in support of a candidate. The Court found that
the
statute
burdened political speech at the core, even though
the corporation still had the opportunity to speak through
PACs.10 Despite this burden on First Amendment rights, the
Court held that the burden was justified by a compelling
governmental interest in counteracting the "corrosive and
distorting effects" of corporate wealth on the political
election process. Id. at 660.
State
law
grants
corporations special privileges that
enhance their ability to attract capital and deploy resources
advantageousl
y. These privileges include: limited liability,
perpetual
life,
and
favorable treatment of the accumulation and
distribution of assets. Id. at 658-59. These state-created
advantages enable corporations "to use 'resources amassed in
the
economic
marketplace' to obtain 'an unfair advantage in the
political marketplace.'" Id. at 659 (quoting Mass. Citizens,
479 U.S. at 257). The Court therefore has "recognized that
10. To require a corporation to use a PAC rather than
general corporate treasury funds would require it to comply
with a number of obligations it might find burdensome. For
example: PACs must designate a treasurer, keep detailed
accounts of contributions, and file a statement of
organization; PACs cannot use corporate funds at all; and
PACs may not solicit contributions except from members,
stockholders or officers. See Austin, 494 U.S. at 657
(citing Mass. Citizens, 479 U.S. at 253-54); 2 U.S.C. SS 432-
34; 441b(b)(4)(A), (C).
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-36-
'the
compelling governmental interest in preventing corruption
support[s] the restriction of the influence of political war
chests funneled through the corporate form.'" Id. at 659
(brackets in Austin) (quoting National Conservative PAC, 470
U.S. at 500-01). This interest reflects a "concern about
corporate domination of the political process." Id.The Court made clear that it was not talking merely
about "financial quid pro quo" corruption. Id. at 659. It
recognized that the government has a compelling interest in
eliminating from the political process a "different type of
corruption"
as well: "the corrosive and distorting effects of
immense aggregations of wealth that are accumulated with the
help of the corporate form and that have little or no
correlation to the public's support for the corporation's
political ideas." Id. at 660; see id. at 666. It is because
the state confers on corporations legal advantages enabling
them to amass abundant "war chests" that it is not
unconstitutional for the government to limit independent
expenditures by corporations. Id. at 666.
The
Court's
holding was not limited merely to direct
contributions to candidates. "Corporate wealth can unfairly
influence elections when it is deployed in the form of
independent expenditures, just as it can when it assumes the
guise of political contributions." Id. at 660. The Austin
Court therefore held "that the State ha[d] articulated a
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-37-
sufficiently
compelling
rationale to support its restriction on
or
was
this
independent expenditures by corporations."11 Id.
N rule specifically limited to for-profit
corporations engaged in a commercial business enterprise. As
stated,
the
rule
applied
also to nonprofit corporations, which,
after all, were the context of the case before the Court as
well as the context of National Right to Work Comm. and of
Mass. Citizens which relied on the NRWC analysis.
Our
circuit
has
also
had
occasion to weigh in on this
subject.12 Our opinion in FEC v. Massachusetts Citizens for
Life, Inc., 769 F.2d 13 (1st Cir. 1985), aff'd, 479 U.S. 238(1986),
was
affirmed by the Supreme Court, as described supra,
but
was
essentially consistent with the Court's opinion. More
recently, this court considered a prior version of the FEC's
regulation governing voter guides. Faucher v. FEC, 928 F.2d
468 (1st Cir. 1991). The regulation itself was substantially
different from the current regulation, containing provisions
11. The Court held that the plaintiff Chamber of Commerce in
Austin did not fall within the narrow class of corporations
that Mass. Citizens exempted from this general rule. The
Court emphasized the fact that the Chamber "accepts money
from for-profit corporations" which "therefore could
circumvent the Act's restriction [on their campaign
expenditures] by funneling money through the Chamber's
general treasury" if the statutory limitations were not
applied to the Chamber. Austin, 494 U.S. at 664.
12. I do not discuss opinions of other circuits because the
precise issues here -- validity of the present regulations
governing voter guides and voting records -- have not been
decided previously by any circuit court.
-38-
-38-
restricting the content of any voter guides.13 The prior
regulation
had required guides to be "nonpartisan," and listed
among
the
factors
the
FEC would consider in determining whether
a
guide
was
nonpartisan
the following: "(C) The wording of the
questions presented does not suggest or favor any position on
the
issues
covered; (D) The voter guide expresses no editorial
opinion concerning the issues presented nor does it indicate
any support for or opposition to any candidate or political
party." Id. at 470 (emphasis added in Faucher).
We
struck
down
these
content-oriented provisions; the
speech they inhibited was protected by the First Amendment
because it was an independent expenditure that contained no
"express advocacy" of a particular candidate. We relied on
language in Buckley that had held the FECA's limits on
independent expenditures to be unconstitutional unless they
involved
"express advocacy." Id. (citing Buckley, 424 U.S. at
42-43).
We
also
relied
on a similar holding in Mass. Citizens,
479 U.S. at 249, which likewise dealt with independent
expenditures.
We
declined the FEC's invitation to defer to its
interpretation of the statute, on the ground that the Supreme
Court
had
already
spoken
directly on the precise issue that was
in
dispute.
Faucher
,
928 F.2d at 471. It is worth noting that
our decision in Faucher did not address the claim made by the
13. The majority opinion discusses the prior regulation and
the present regulation as if they were identical. See ante
at 4-5.
-39-
-39-
FEC
in
the
instant case, namely, that the spending of money to
publish a voter guide after consultation or coordination with
a
candidate
regarding the preparation of the guide constitutes
the kind of coordinated expenditure that may be treated as a
contribution,
not as an independent expenditure, and therefore
may be subjected to regulation.
The
latest
chapter
in
the continuing saga was written
just
last
Term. In Colorado Republican Campaign Comm. v. FEC,
116
S.
Ct.
2309,
2312
(1996) ("Colorado Republican"), the Court
struck down the FECA's limits on a political party's
expenditures in connection with a campaign, holding them
unconstitutional as applied to independent expenditures that
were made "without coordination with any candidate." It
reiterated
that the government may constitutionally set limits
on contributions, including "limits that apply both when an
individual
or
political
committee contributes money directly to
a
candidate
and also when they indirectly contribute by making
expenditures
that they coordinate with the candidate." Id. at
2313
(citing
S 441a). The "constitutionally significant fact"
in that case was "the lack of coordination between the
candidate and the source of the expenditure." Id. at 2317
(citing Buckley, 424 U.S. at 45-46). (Justice Breyer's
plurality opinion mentions "coordination" or "coordinated"
expenditures on nearly every page.)
-40-
-40-
The
Court
reversed the lower court's ruling that, as
a matter of law, a party's expenditures should be
"conclusive[ly] presum[ed]" to have been coordinated with the
eventual
candidate, even though "the record show[ed] no actual
coordination as a matter of fact" (and in fact there had been
evidence
to
the contrary). Id. at 2317-18. The three-Justice
plurality
stated that the determination of coordination with a
candidate is a factual matter, and cannot be presumed as a
matter of law. Two dissenting Justices would have upheld the
FEC's presumption and found it constitutional.
On the other hand, four Justices agreed with the
Colorado Republican Party that, due to the special role of
political
parties in our electoral system, the First Amendment
forbids congressional efforts to limit a party's coordinated
expenditures as well as independent expenditures. Those
Justices would have stricken such limitations on their face.
This position was rejected by the majority of the
Court. The three-Justice plurality reached its conclusion on
an as-applied basis, explicitly refusing to entertain the
facial challenge. While recognizing that restrictions on
coordinated expenditures might in some circumstances unduly
infringe
on
constitutional rights, the plurality indicated that
it would uphold such restrictions in other circumstances,
depending
on
the facts of the case at hand. Id. at 2320. The
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-41-
two
dissenting
Justices
would have rejected both the facial and
the as-applied challenges.
As the foregoing history makes clear, the Court's
jurisprudence
on campaign finance is evolving, especially with
respect
to
the use of corporate wealth in candidate elections.
The Court now recognizes that the corrosive and distorting
effect of big money to influence elections is a legitimate
governmental
concern.14 I turn now to the application of this
evolving law to the issue in contention.
Analysis
I would hold that the FEC may constitutionally
require communications between corporations15 and candidates
regarding
voter guides to be in writing.16 While there may be
14. See David Cole, First Amendment Antitrust: The End of
Laissez-Faire in Campaign Finance, 9 Yale L. & Pol'y Rev.
236, 278 (1991) (arguing that courts cannot return to a
laissez-faire approach in the political field any more than
they would return to pre-Lochner laissez-faire in the
economic field, and therefore that courts should treat
campaign finance regulation as a legitimate exercise of the
government's First Amendment antitrust role to preserve the
marketplace of ideas).
15. The regulation covers both corporations and labor
unions. Because MRTLC is a corporation, I will refer only to
corporations in the ensuing discussion.
16. The pertinent part of the FEC's regulation states as
follows:
(5) Voter guides. A corporation or labor
organization may prepare and distribute
to the general public voter guides
consisting of two or more candidates'
positions on campaign issues, including
voter guides obtained from a nonprofit
organization which is described in 26
-42-
-42-
circumstances in which such a restriction might b
as applied, it surely survives the curren
17 The question is whether we should uphold
U.S.C. 501(c)(3) or (c)(4), provided that
paragraph (c)(5)(i) or (c)(5)(ii)(A)
e
unconstitutional t
facial challenge.
may include in the voter guide
biographical information on each
through (E) of this section. The sponsor
the voter guides comply with either
candidate, such as education, employment
positions, offices held, and community
involvement.
(i) The corporation or labor organization
shall not contact or in any other way act
in cooperation, coordination, or
consultation with or at the request or
suggestion of the candidates, the
candidates' committees or agents
regarding the preparation, contents and
distribution of the voter guide, and no
portion of the voter guide may expressly
advocate the election or defeat of one or
more clearly identified candidate(s) or
candidates of any clearly identified
political party.
(ii)(A) The corporation or labor
organization shall not contact or in any
other way act in cooperation,
coordination, or consultation with or at
the request or suggestion of the
candidates, the candidates' committees or
agents regarding the preparation,
contents and distribution of the voter
guide, except that questions may be
directed in writing to the candidates
included in the voter guide and the
candidates may respond in writing.
11 C.F.R. S 114.4(c)(5)(i), (ii)(A).
17. Cf. Austin, 494 U.S. at 674 n.4 (Brennan, J.,
concurring) (The "central lesson of MCFL [is] that the First
Amendment may require exemptions, on an as-applied basis,
from expenditure restrictions" if the organization exhibits
all three of the required characteristics.) (emphasis added).
-43-
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the FEC's characterization of MRTLC's contact with candidates
as
a
coordinated expenditure which, under the FECA, is treated
as a contribution and therefore may be regulated. Even with
respect to individuals, Buckley created two categories of
campaign
spending
which
are to be treated differently. For the
most
part,
limits on contributions made to candidates or their
campaigns are constitutional; limits on totally independent
expenditures
are not (i.e., expenditures "not coordinated with
the
candidate or candidate's campaign"). Colorado Republican,
116 S. Ct. at 2313 (citing Buckley, 424 U.S. at 39-51).
Expenditures
that are coordinated with the candidate
or candidate's campaign, even if not contributed directly to
the
candidate, are "treated as contributions," and they can be
regulated
just as if they were direct contributions. Buckley,
424
U.S.
at 46
&
n.53;
Co
lorado Republican, 116 S. Ct. at 2313.
That is, to be treated as independent, rather than as a
contribution, an expenditure must be "totally independent[]."
Buckley, 424 U.S. at 47. Since this is true for individuals
and unincorporated organizations like political parties, it
should be at least as true for corporations whose "vast
reservoirs of capital," Austin, 494 U.S. at 661, pose more of
a
threat
to
"the integrity of our electoral process," National
Right to Work Comm., 459 U.S. at 208 (quotation omitted), and
therefore "require[] particularly careful regulation," id. at
209-10.
-44-
-44-
The expenditure in this case occupies a middle
ground: MRTLC's spending on voter guides is not contributed
directly to candidates but is not totally independent either.
It
is
coordinated
with
the candidate to some degree. MRTLC may
be correct that this is not exactly identical to the
coordination that exists when an organization buys $20,000
worth of food for a campaign rally, but it does entail some
aspects
of
what is ordinarily thought of as coordination. See
Random House Dictionary of the English Language 447 (2d ed.
1987) ("act[ing] in harmonious combination"). And, as I will
discuss shortly, it poses some of the same kinds of danger of
corruption and distortion of the election process. With this
in-between
level of coordination, the question here is whether
the
degree
of coordination between MRTLC and the candidates in
preparing the voter guides is sufficient to treat the money
spent to produce and distribute the guides as a contribution
and therefore regulable, taking into account constitutional
requirements. See Colorado Republican, 116 S. Ct. at 2320.
I agree with the majority that the constitutional
issue
cannot
be avoided by resort to statutory interpretation.
The
district
court
was
mistaken to conclude that the FEC has no
authority to interpret S 441b as it has, simply because the
statute does not contain a provision specifically authorizing
this particular interpretation. The Act generally empowers
(indeed,
requires) the FEC to promulgate rules and regulations
-45-
-45-
"to carry out the provisions of [the] Act," 2 U.S.C. S 438
(a)(8); see also 2 U.S.C. S 437d (a)(8), including
"formulat[ing] policy with respect to" the Act. 2 U.S.C. S
437c(b)(1). It is entirely appropriate for an agency to fill
in
the
interstices in an ambiguous or incomplete statute. See
Chevron
,
467
U.S. at 843-44; Strickland I, 48 F.3d at 21 (when
statute is subject to more than one possible interpretation,
"it is up to the [agency], not the courts, to balance the
relevant
policy
considerations and formulate a rule"). Neither
Congress
nor
the Court has specifically addressed the question
of what degree of coordination is required before an
expenditure may be treated as a contribution under the FECA.
Therefore a reviewing court should defer to the
agency's interpretation as long as it is not "manifestly
contrary to the statute," which cannot be said of the
regulation at issue here. See id. at 844; Strickland II, 96
F.3d at 547 ("court must avoid inserting its own policy
considerations into the mix"). Looking to other parts of the
FECA
for
guidance,
according to the general definitions section
of
the
Act,
2
U.S.C.
S
431(17), an expenditure by a corporation
that
is
made
in "cooperation or consultation" with a candidate
does not qualify as an "independent expenditure." It would
therefore
be
treated as an indirect contribution under S 441b,
as
interpreted in Buckley, 424 U.S. at 46 & n.53, and Colorado
Republican
,
116
S.
Ct.
at 2313. In addition, another provision
-46-
-46-
of the Act explicitly states that, for purposes of subsection
441a(a), "expenditures made by any person in cooperation,
consultation,
or
concert,
with, or at the request or suggestion
of,
a
candidate, his authorized political committees, or their
agents, shall be considered to be a contribution to such
candidate." 2 U.S.C. S 441a(a)(7)(B)(i) (emphasis added).
This provision makes explicit Congress's intention that
coordinated expenditures like those here -- spending on voter
guides that were prepared after consultation and cooperation
with candidates -- be considered contributions, at least for
purposes of S 441a.
"[T]here is a presumption that a given term is used
to mean the same thing throughout a statute." Brown v.
Gardner, 513 U.S. 115, 118 (1994). In light of this canon of
statutory
construction,
and because nothing in S 441b specifies
a
different
view
of
the
term "contribution," I see no reason to
second-guess the FEC's interpretation that expenditures on
voter guides, the preparation of which is coordinated with
candidates,
should be treated as contributions under S 441b as
well as under S 441a. See Chevron, 467 U.S. at 844. I turn
now
to
the
question
whether the statute is constitutional as so
interpreted.
As already noted, plaintiff MRTLC challenges the
FEC's interpretation on its face, not as-applied. With an
-47-
-47-
exception
not applicable here,18 in order to prevail on such a
challenge, the plaintiff must show that the regulation can
never be applied constitutionally. Rust, 500 U.S. at 183.
This the plaintiff cannot do: MRTLC itself exemplifies an
organization to which the written-contact-only regulation, 11
C.F.R. S 114.4(c)(5)(ii)(A), may constitutionally be applied.
MRTLC's
expenditure on voter guides is not totally independent
of the candidates, which would be necessary to be entitled to
the full protection of Buckley and its progeny. It is a
coordinated expenditure that is legitimately treated as if it
were a contribution and, as such, may be regulated by the FEC
under FECA, at least by means of this limited prophylactic
measure
requiring
that
MRTLC's contacts with candidates be only
in writing.
"When deciding whether a[n] . . . election law
violates First and Fourteenth Amendment associational rights,
we weigh the character and magnitude of the burden the . . .
18. An alternative way for the plaintiff to prevail on a
facial attack would be to demonstrate that, even though the
challenged law "may be validly applied to the plaintiff and
others, it nevertheless is so broad that it may inhibit the
constitutionally protected speech of third parties." New
York State Club Ass'n, Inc. v. New York City, 487 U.S. 1, 11
(1988) (quotation omitted). A facial overbreadth challenge
is "an exception to ordinary standing requirements" and "will
not succeed unless the statute is substantially overbroad,
which requires the court to find a realistic danger that the
statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court." Id.(quotation omitted). In the instant case, MRTLC's brief does
not begin to meet its burden in this respect.
-48-
-48-
rule imposes on those rights against the interests the
[government] contends justify that burden, and consider the
extent to which the [government's] concerns make the burden
necessary."
Timmons v. Twin Cities Area New Party, 117 S. Ct.
1364, 1370 (1997) (internal quotation marks omitted).
As in Buckley and Austin, when an expenditure is
coordinated with a candidate, it may be treated as a
contribution,
in part because in both situations the burden on
constitutional rights is less than would be the case for a
totally independent expenditure. Buckley found contribution
limits to be "only a marginal restriction upon the
contributor's
ability
to
engage in free communication," because
"the transformation of contributions into political debate
involves speech by someone other than the contributor." 424
U.S. at 20 (emphasis added).
Similarly
in
the case at bar, to the extent MRTLC is
seeking
merely to distribute a purportedly accurate reflection
of
the
candid
ates' views on the issues, distributing the voter
guides
is
more
like
helping certain candidates to express their
views through a contribution, as distinguished from the
organization's expressing its views. The burden on MRTLC's
First Amendment rights is therefore less than it would be if
the
voter
guides
purported to represent MRTLC's own views. See
id.-49-
-49-
In addition, as Justice Brennan, one of the Supreme
Court's great champions of First Amendment rights to free
speech and association, noted in his concurrence in Austin,
even
the
greater
restrictions approved by the Court there would
not
impose
an excessive burden on a corporation because it was
allowed to speak through PACs, even if not through general
treasury funds. Austin, 494 U.S. at 669 n.1, 671 n.2. He
listed "many avenues of communication" still open to the
plaintiff there (the Chamber of Commerce), which showed that
"the segregated fund requirement in practice has not burdened
significantly the Chamber's speech." Id. at 676 n.7; see
Timmons, 117 S. Ct. at 1371. "[T]here is a vast difference
between lobbying and debating public issues on the one hand,
and political campaigns for election to public office on the
other." Austin, 494 U.S. at 678 (Stevens, J., concurring).
The burden on MRTLC's constitutional rights here is
even less intrusive. The regulation's requirement that any
contact with candidates be in writing is itself a relatively
minor restriction, more analogous to the disclosure
requirements upheld in Buckley than to Austin's limitation on
independent expenditures which the Court nevertheless upheld,
although acknowledging that it would impose a heavy burden on
First
Amendment
rights.
The written-contact-only rule does not
impose even as much burden on First Amendment rights as the
limitations on contributions upheld in Buckley. In contrast
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-50-
to
the
limitations
upheld in Buckley and Austin on the absolute
amount of money spent, in the case at bar the type of
restriction imposed by the FEC's written-contact-only
regulation
does
not
limit the quantity of speech in any way; it
simply specifies the manner in which the corporation consults
with candidates in preparing its voter guides. Thus, the
regulation is significantly less intrusive on MRTLC's First
Amendment
rights than those absolute limits on the quantity of
speech.19
The writing requirement is also content-neutral (in
both purpose and effect): it does not prefer any one message
over another in MRTLC's voter guides, as long as the guides
were prepared without any oral contact with the candidates.
The rule is completely indifferent to the issues the
corporation wishes to address in its voter guides and to the
positions the corporation itself takes on those issues. In
addition, MRTLC may say anything it wants to a candidate (or
ask any questions it wants) during the preparation of the
19. The Court recently rejected a claim based upon what
appears to me to be a much more intrusive burden. Timmons,
117 S. Ct. at 1372. Because the "independent expression of a
political party's views is core First Amendment activity,"
id. at 1369 (internal quotation marks omitted), a political
party had claimed that the state's ban on fusion candidates
unconstitutionally burdened the party's right to communicate,
in that the ban prevented the party from "using the ballot to
communicate to the public that it supports a particular
candidate" and the ban "shut[] off one possible avenue a
party might use to send a message to its preferred
candidate." Id. at 1372. The Court rejected the claim and
upheld the ban. Id.-51-
-51-
guides,
as
long as it does so in writing. The regulation does
not limit the content of the communication between MRTLC and
the candidates, only the manner (written or non-written) in
which such communication is effectuated.20
Moreover, as in Austin, the written-contact-only
regulation applies only to the organization's use of general
treasury funds; it does not apply at all to PAC money from a
separate
segregated
fund. If MRTLC were willing to comply with
the
reporting and other requirements by which the FEC monitors
ordinary
corporate PACs, then it would not have to comply with
the challenged restriction.21 In addition, the written-
contact-only
rule does not apply at all to totally independent
issue advocacy to the public, upon which Austin permitted
restrictions. If MRTLC engaged in no consultation with the
candidates
at all, it could publish voter guides, even pay for
them
out
of
its
general
corporate treasury, advocating whatever
position it wanted to, on any issue, as long as it did not
expressly advocate the election or defeat of a clearly
20. Other portions of the voter guide regulation, S
114.4(c)(5)(ii)(B)-(E), do contain restrictions on contents -
- forbidding guides that devote more prominence to one
candidate than another or that contain an electioneering
message. The written-contact-only rule, S
114.4(c)(5)(ii)(A), however, does not contain content-based
requirements.
21. Corporations may use general treasury funds (as well as
PAC funds) to finance communications with their members,
stockholders, and executive and administrative personnel, on
any subject. 2 U.S.C. S 431(9)(B)(iii).
-52-
-52-
identified candidate. Thus, the burden on First Amendment
rights
posed
by the challenged regulation is relatively small.
Even where governmental regulations have "the
potential for substantially infringing the exercise of First
Amendment rights," the Court has "acknowledged that there are
governmental interests sufficiently important to outweigh the
possibility of infringement, particularly when the free
functioning of our national institutions is involved."
Buckley
,
424
U.S.
at
66(internal quotation marks omitted); see
Timmons, 117 S. Ct. at 1369 ("'[A]s a practical matter, there
must
be
a
substantial
regulation of elections if they are to be
fair and honest and if some sort of order, rather than chaos,
is
to
accompany the democratic process.'") (quoting Burdick v.
Takushi, 504 U.S. 428, 433 (1992)). The Court has repeatedly
held that burdens on First Amendment rights more significant
than
those
involved in the instant case were outweighed by the
potential for corruption, Buckley, and by the corrosive and
distorting effects of corporate wealth, Austin. Cf. Burdick,
504
U.S.
at
434 ("[T]he rigorousness of [the] inquiry into the
propriety of a state election law depends upon the extent to
which a challenged regulation burdens First and Fourteenth
Amendment
rights.");
Werm
e v. Merrill, 84 F.3d 479, 483-84 (1st
Cir. 1996).
Moreover, as the Court said in Mass. Citizens,
"restrictions on contributions require less compelling
-53-
-53-
justification than restrictions on independent spending.
MCFL
was required, "the need for a broad prophylactic
"
, 479 U.S. at 259-60 (emphasis added). Because less of a
justification
rule was thus sufficient . . . to support a limitation on the
ability
of
a
committee to raise money for direct contributions
to candidates."22 Id. at 260.
In Austin, the Court went further; it upheld a rule
restricting
a nonprofit corporation's independent expenditures
as well as contributions, justified by the fact that all
corporations
both "receive from the State the special benefits
conferred
by
the corporate structure and present the potential
for distorting the political process." 494 U.S. at 661; see
id. at 663 n.2 (recognizing "the possible distortion of the
political process inherent in independent expenditures from
general
corporate funds") (emphasis added). Because the Court
found
that
"[c]orporate
wealth can unfairly influence elections
when it is deployed in the form of independent expenditures,
just as it can when it assumes the guise of political
22. The Court was not troubled by the fact that a
prophylactic rule might sweep broadly, restricting
corporations with less money as well as those with
substantial war chests. Austin, 494 U.S. at 661. Because it
is the "potential" for big money to have an unfair influence
that "demands regulation," the Court would not "second guess
a legislative determination as to the need for prophylactic
measures where corruption is the evil feared." National
Right to Work Comm., 459 U.S. at 210. See also Buckley, 424
U.S. at 84 (upholding disclosure rules that required even
law-abiding PACs to keep records of independent expenditures
as a prophylactic measure necessary for the FEC to be able to
enforce the law's other requirements effectively).
-54-
-54-
contributions,"
id.
at
660, the Court concluded that preventing
"corporate domination of the political process" was a
sufficiently compelling interest to justify the burdens on a
nonprofit corporation's First Amendment rights, even in the
context of totally independent expenditures. Id. at 659.
Surely, then, the same concerns are sufficiently
compelling where, as here, corporate wealth is deployed in an
in-between
form,
i.e.,
spending that is not totally independent
but rather entails some degree of coordination with the
candidates.
The majority protects the freedom of corporations
to meet face-to-face with a candidate, in order to secretly
plan the content and presentation of voter guides that the
corporation will distribute to the public. I believe this
concern
should be secondary to protecting the integrity of our
electoral process. See Buckley, 424 U.S. at 66. The
government has a compelling interest in taking prophylactic
measures to prevent the coercion and corruption that would
arise if a corporation like MRTLC offered to provide valuable
in-kind
assistance
(providing expensive advertising for free)23
to a candidate on the condition that the candidate take the
23. The candidate does not have to pay for publishing the
"voter guide," which can nevertheless greatly benefit his or
her campaign: the guide will highlight the candidate's pro-
life position (or the pro-choice position of his or her
opponent) and will be mailed to voters who presumably share
MRTLC's views on this issue. This could save the candidate a
considerable sum to publicize his or her positions in a
favorable light to a targeted group of voters to whom this
issue is particularly important.
-55-
-55-
position
the
corporation
demands, and to prevent the appearance
FEC regulation prohibiting unwritten contact wit
d
of such coercion or corruption.
The FEC is legitimately concerned about the danger.
The h
candidates was designed to foreclose the abuse that coul
potentially arise from a corporation like MRTLC pressuring a
candidate
to
amend his or her position on an issue, on pain of
losing this kind of substantial in-kind contribution.24
According to the FEC, a prophylactic rule is needed so
corporations do not induce candidates to change positions
merely
because they need the money to finance their campaigns,
even if they do not actually agree with the change. If the
question were the FEC's authority to regulate an organization
offering a $20,000 cash contribution to a candidate if she
would agree to change her position to one of support for the
organization's position on a particular piece of legislation,
there would be no question of the FEC's authority to regulate
the
organization.
I
see
no reason why the result should not be
24. Prior to Buckley, when contributors could give money to
a campaign either through direct contributions or independent
expenditures, they usually chose the direct route. But since
the Buckley decision, which foreclosed that route (for
expenditures beyond certain limits), they have had to find
other ways to financially benefit the candidate's campaign by
giving independently. "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.
-56-
-56-
the same if the organization offers instead $20,000 worth of
pamphlets presenting the candidate's view on this issue in a
favorable, rather than an unfavorable, light.
Consider the following scenario. An organization
consults with a candidate regarding his or her plans or needs
in the campaign, and then says to the candidate: "You have
stated
the
position you believe in, but we disagree with it in
certain respects. We plan to spend $20,000 to print voter
guides
and
distribute them largely to persons in sympathy with
our views. If you modify your position to be more like ours,
our
voter
guides
will
tell people that you support our position
and
your
opponent does not. If you don't modify your stand as
we
suggest,
we
will
spend the money on voter guides which paint
you in an unfavorable light."
The
prophylactic measure required by the FEC rule is
simply that discussions with candidates about the preparation
of voter guides be in writing, and not oral. Non-written
communications with candidates about voter guides present an
opportunity
for
the
kind
of dangerous quid pro quo at the heart
of the compelling justification that the Supreme Court has
repeatedly relied upon in upholding the Act's restrictions on
contributions and coordinated expenditures. "[I]n-person
solicitation
may exert pressure and often demands an immediate
response, without providing an opportunity for comparison or
reflection." Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447,
-57-
-57-
457
(1978).
Unlike
a
written communication, an oral discussion
"is not visible or otherwise open to public scrutiny. Often
there is no witness other than the [parties to the
conversation], rendering it difficult or impossible to obtain
reliable proof of what actually took place." Id. at 466.
Under the majority's position sustaining MRTLC's view,
corporate
voter guides "would be virtually immune to effective
oversight and regulation."25 Id. I agree with the FEC that
the written-contact-only requirement "eliminates the
possibility of unrecorded conversations that could entice or
coerce a candidate to alter his or her positions in exchange
for favorable treatment in a voting guide." FEC Brief at 31.
Such coercion exemplifies the kind of distortion of our
political process with "immense aggregations of wealth" of
which
Austin
,
494 U.S. at 660, and Mass. Citizens, 479 U.S. at
263, would disapprove, and which the FEC may regulate with
prophylactic measures like its written-contact-only
requirement. I conclude that "[i]t therefore is not
unreasonable, or violative of the Constitution, for [the FEC]
to respond with what in effect is a prophylactic rule."
Ohralik, 436 U.S. at 467.
25. The district court itself was "sympathetic to the
argument that enforcement is more difficult if the FEC cannot
prohibit all oral communications and make enforcement
decisions on simple criteria easily applied to written
questions and answers." 927 F. Supp. at 500.
-58-
-58-
The plaintiff relies heavily on Mass. Citizen
"), 479 U.S. at 263-64, which emphasized the difference
s
("MCFL
between the type of corporation before the Court there and an
ordinary, business-oriented corporation whose independent
expenditures (even if not coordinated with a candidate to the
extent these voter guides are) may be restricted without
violating
the First Amendment.26 Austin, 494 U.S. at 660. It
is true that MCFL exempts from FECA's general rule a "small"
group
of
corporations that do not pose the same kind of threat
to the electoral process, MCFL, 479 U.S. at 263-64, because
they do not have access to "vast reservoirs" of corporate
wealth (among other factors), Austin, 494 U.S. at 661, 664.
But
the
significant
fact
in MCFL was not that the plaintiff was
a nonprofit ideological corporation: indeed, in Austin, the
Court upheld the constitutionality of regulations restricting
independent expenditures by a nonprofit ideological
corporation. Id. at 659-60.
Just as in Austin, the instant case is
distinguishab
le from MCFL. In Austin, "the Constitution [did]
not
require
that
[the
plaintiff] be exempted from the generally
applicable
provisions" of the campaign finance law, because it
"[did] not share [the three] crucial features" that justified
26. It is significant that the holding in MCFL was limited
to an as applied analysis of the facts pertaining to the
plaintiff before the Court. It did not extend to a facial
challenge as the instant case purports to be.
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the narrow MCFL exception. Austin, 494 U.S. at 662. In the
instant case, MRTLC accepts contributions from for-profit
business
corporations and intends to continue doing so. MRTLC
does not eschew those "vast reservoirs of capital." Austin,
494 U.S. at 661. This is the point on which the Chamber of
Commerce in Austin differed "most greatly" from the plaintiff
in Mass. Citizens. Austin, 494 U.S. at 664. The source of
MRTLC's
funds
creates
the potential that MRTLC will "serv[e] as
[a] condui[t] for the type of direct spending that creates a
threat to the political marketplace." Id. at 664 (quoting
Mass. Citizens, 479 U.S. at 264) (brackets in Austin). This
would enable for-profit business corporations -- themselves
"barred
from
making
independent expenditures directly," Austin,
494
U.S.
at
673-74 (Brennan, J., concurring) -- to "circumvent
the Act's restriction [on corporate financing of election
campaigns] by funneling money through [MRTLC's] general
treasury." Austin, 494 U.S. at 664. Cf. California Medical
Ass'n v. FEC, 453 U.S. 182, 197-99 (1981) (plurality opinion)
(danger of evasion of limits on contribution to candidates
justified prophylactic limitation on contributions to PACs).
Finally, the FEC's written-contact-only rule for
preparing voter guides is narrowly tailored to address the
governmental
interest
here. It does not stop corporations like
MRTLC from communicating their views about abortion or about
particular
candidates
to
the public; nor does it stop them from
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communicating with candidates to lobby them to change their
positions, as long as the lobbying is not done in the context
of offering what could be the functional equivalent of an
extremely
valuable in-kind contribution; it does not even stop
them from communicating with candidates to gain information
about
candidate
positions to include in the corporation's voter
guide.
All
it
does
is
require the latter type of communication
directly with candidates to be done in writing, for
prophylactic reasons. I agree with the FEC that, in the
context of this case, "oral conversations, unlike written
questions,
inherently
provide an opportunity for prearrangement
and coordination, while adding little or no additional
information
necessary
to
produce a voting guide." FEC Brief at
33.
In Austin, the Court found that a statute was
"precisely targeted to eliminate the distortion caused by
corporate
spending while also allowing corporations to express
their
political
views,"
where the statute permitted independent
political expenditures through PACs but forbade such
expenditures from general corporate treasury funds. 494 U.S.
at 660. The Court concluded that the statute was not
overinclusive merely because it imposed the same restrictions
on small companies that did not "possess vast reservoirs of
capital."
Id
. at 661. The Court noted that National Right to
Work Comm. had rejected a similar overinclusion argument,
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because "it is the potential for such influence that demands
regulation." Id. (quotation omitted). The written-contact-
only regulation is likewise sufficiently narrowly tailored.
I
conclude
that the FEC may construe a corporation's
contact
with
candidates in the preparation of a voter guide as
"coordination" with the candidates. Therefore the FEC may
treat
the
expenditure of money on those voter guides as an in-
kind
contribution
to
the
candidates. In this context, the need
for a prophylactic rule is sufficient to justify the limited
restriction imposed by the written-contact-only regulation.
I am mindful that MRTLC's challenge here is facial,
not
as-applied.
MRTLC
is not asking us to consider whether the
written-contact-only
rule
is unconstitutional as applied to it.
Therefore,
I
do not consider whether, if a full factual record
were before us, MRTLC might be able to show that it is not in
fact a conduit for corporate wealth. Thus, even if the
regulation would be unconstitutional as applied to someone, a
facial
challenge like the present one must fail where even the
plaintiff appears to exemplify a situation where the written-
contact-only regulation may constitutionally be applied. Cf.
Austin, 494 U.S. at 674 n.4 (Brennan, J., concurring).
Conclusion
I
believe
that the majority has misstated the thrust
of
the
FEC's
written-contact-only regulation. The issue is not
as simple nor as amenable to broad-brushed analysis as the
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majority thinks. It cannot be resolved without examining the
evolution of Supreme Court case law, which the majority has
ignored. Because, as I read the case law, we should uphold
this prophylactic regulation, I respectfully dissent.
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