Lead Opinion
Affirmed in part and reversed in part by published opinion. Judge WILKINSON wrote the majority opinion, in which Chief Judge WILLIAMS joined. Judge MICHAEL wrote a dissenting opinion.
OPINION
In this case, North Carolina Right to Life, Inc. (“NCRL”) and two of its affiliated political committees challenge the constitutionality of various provisions of North Carolina’s law governing the financing of political campaigns. For the reasons that follow, we hold that the provisions in question violate the First and Fourteenth Amendments — and are hence unenforceable against NCRL, its affiliates, and any similarly situated entities.
In doing so, we recognize that the law of campaign finance is quite complicated and in some flux. Courts, state governments, and those involved in the political process are doing what they can to navigate this difficult terrain, and we are conscious of the fact that North Carolina went back in good faith to the drawing board to craft a legislative response to our earlier decision in North Carolina Right to Life, Inc. v. Bartlett,
I.
A.
Three related plaintiffs challenge the constitutionality of North Carolina’s campaign finance laws. The lead plaintiff is North Carolina Right to Life, Inc. (“NCRL”), a non-profit, membership corporation, incorporated in North Carolina. NCRL’s purpose is the protection of human life. In furtherance of that purpose, NCRL, among other things, provides information to the public about abortion and euthanasia. In the past, NCRL has di
The other two plaintiffs in this case are distinct legal entities affiliated with NCRL. First, North Carolina Right to Life Political Action Committee (“NCRL-PAC”) is an internal political committee established by NCRL in 1982. NCRL-PAC’s primary purpose is to engage in express advocacy — the support or opposition of specific candidates and political parties — consistent with the views of NCRL. Second, North Carolina Right to Life Committee Fund for Independent Political Expenditures (“NCRL-FIPE”) is a political committee established by NCRL in 1999. NCRL-FIPE’s sole purpose is to make independent expenditures, which are defined as those political expenditures “made without consultation or coordination with a candidate or agent of a candidate.” N.C. Gen.Stat. § 163-278.6(9a) (2007). Thus, unlike NCRL and NCRL-PAC, NCRL-FIPE makes no contributions of any kind to political candidates.
B.
This appeal is the next act in a long drama that has played out in federal court for over a decade. The foundation of the present litigation was laid in 1996, when NCRL filed suit in federal district court arguing that several provisions of the North Carolina campaign finance laws were unconstitutional under the First and Fourteenth Amendments. This court largely agreed with NCRL and struck down many of the laws in North Carolina Right to Life, Inc. v. Bartlett,
In response to this court’s decision, the North Carolina General Assembly set out to revise its system of campaign finance regulation. After studying and debating the issue, the General Assembly passed legislation that amended, deleted, and added statutes regulating campaign finance. See N.C. Sess. Laws 1999-31, 424, & 453.
On November 30, 1999, immediately after North Carolina obtained pre-clearance from the Department of Justice to implement its new campaign finance regulations, NCRL, NCRL-PAC, and NCRL-FIPE (collectively, “the plaintiffs”) filed the present suit against various North Carolina officers in their official capacities (collectively, “North Carolina” or “the defendants”). The plaintiffs sought declaratory and injunctive relief under 42 U.S.C. § 1983 and the First and Fourteenth Amendments, arguing that the court should enjoin the enforcement of five of North Carolina’s new campaign finance statutes against the plaintiffs and similarly situated parties.
Three of the plaintiffs’ challenges are relevant to this appeal.
On September 23, 2003, this court affirmed the district court’s judgment as to the facial unconstitutionality of the “context prong,” and the unconstitutionality of the contribution limits, as applied to NCRL-FIPE. See North Carolina Right to Life v. Leake, Inc.,
North Carolina subsequently petitioned the Supreme Court for certiorari, asking that the matter be remanded for further consideration in light of the Court’s then recent decision in McConnell v. FEC,
On remand, the parties filed cross motions for summary judgment and supporting memoranda addressing the effect of McConnell. In addition, North Carolina argued, relying partly on McConnell, that the plaintiffs lacked standing because they had failed to take action after the statutes in question had been enjoined.
On March 29, 2007, the district court found that the plaintiffs still had standing to proceed with their challenges.
Both parties appeal from this decision. The plaintiffs argue that North Carolina’s definition of political committee is unconstitutionally vague and substantially over-broad, and should therefore be enjoined. See N.C. Gen.Stat. § 163-278.6(14) (2007). North Carolina challenges the district court’s decisions holding the “context prong” facially unconstitutional, see id. § 163-278.14A(a)(2), and the contribution limits unconstitutional as applied to NCRL-FIPE, see id. § 163-278.13.
II.
We first consider whether North Carolina’s method for determining if a communication “supports or opposes the nomination or election of one or more clearly identified candidates” unconstitutionally regulates issue advocacy.
A.
Many of North Carolina’s campaign finance regulations — including, for example, reporting requirements and contribution limits — are focused on campaign expenditures and contributions. See, e.g., id. § 163-278.8; § 163-278.11; § 163-278.13. Both “expenditure” and “contribution” are terms of art specifically defined in North Carolina’s General Statutes. Expenditures are defined to include any “purchase, advance, conveyance, deposit,” etc., made “to support or oppose the nomination [or] election ... of one or more clearly identified candidates.” Id. § 163-278.6(9). Contributions — at least “to candidates” — ■ are similarly defined as those “advancefs], conveyance[s],” etc., that are made “to support or oppose the nomination or election of one or more clearly identified candidates.” Id. § 163-278.6(6). Since the definitions of “expenditure” and “contribution” are both limited' — at least in part— by this same verbal formula, the determination as to whether an action is taken “to support or oppose ... a clearly identified candidate” is thus one of the foundations of North Carolina’s campaign finance regulatory scheme.
Section 163-278.14A(a) of North Carolina’s General Statutes employs a two-pronged test to determine whether “an individual acted to ‘to support or oppose the nomination or election of one or more clearly identified candidates.’ ” Each of the two prongs of § 163-278.14A(a) delineates a class of “communications.” If an individual “financially] sponsor[s]” a “communication” that meets either of the two prongs, he or she is deemed to have acted in support or opposition of a clearly identified candidate.
The first prong of § 163-278.14A(a) classifies communications as supporting or opposing a clearly identified candidate when they explicitly use any of a set of carefully delineated election-related words or phrases. See id. § 163-278.14A(a)(l). Examples of such phrases include: “vote for,” “reelect,” “support,” “cast your ballot for,” and “(name of candidate) for (name of office).” Id.
In an attempt to capture communications that support or oppose candidates while avoiding the use of the words explicitly delineated by the first prong, the second prong of North Carolina’s test considers a communication to be in support or opposition of a candidate if its “essential nature ... goes beyond a mere discussion of public issues in that [it] direct[s] voters to take some action to nominate, elect, or defeat a candidate in an election.” Id. § 163-278.14A(a)(2). In particular, if the “essential nature” of a communication is
contextual factors such as the language of the communication as a whole, the timing of the communication in relation to events of the day, the distribution of the communication to a significant number of registered voters for that candidate’s election, and the cost of the communication ... in determining whether the action urged could only be interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election.
Id.
The plaintiffs in this case argue that the second prong of N.C. Gen.Stat. § 163— 278.14A(a) — which attempts to determine the “essential nature” of a communication by considering “contextual factors” — is unconstitutionally overbroad and vague. In particular, the plaintiffs allege that, in enacting this context-based prong, North Carolina’s legislature exceeded its limited power to regulate electoral speech and violated the plaintiffs’ First and Fourteenth Amendment rights by regulating constitutionally protected political speech. The plaintiffs further contend that “there is no way for a speaker to know in advance how to determine” if their communication falls within the ambit of the context-based prong, therefore rendering § 163-278.14A(a)(2) void for vagueness. Appellant Reply Brief at 44.
B.
Our analysis of § 163-278.14A(a)(2) begins — as does nearly any analysis of the constitutionality of campaign finance regulation — with the Supreme Court’s landmark decision in Buckley v. Valeo,
The Buckley Court therefore recognized the need to cabin legislative authority over elections in a manner that sufficiently safeguards vital First Amendment freedoms. It did so by demarcating a boundary between regulable election-related activity and constitutionally protected political speech: after Buckley, campaign finance laws may constitutionally regulate only those actions that are “unambiguously related to the campaign of a particular ... candidate.” Id. at 80,
To date, the Court has only recognized two categories of activity that fit within Buckley’s unambiguously campaign related standard. First, legislatures may regulate “communications that in express terms advocate the election or defeat of a clearly identified candidate for” public office. Id. at 44,
Second, the Supreme Court has recently held that legislatures have a very limited authority to regulate campaign communications that are “the functional equivalent of express advocacy.” McConnell v. Fed. Election Comm’n,
The Court thus defined a category of activity — beyond the “magic words” identified in Buckley — to be regulable as the “functional equivalent of express advocacy.” In order to protect political expression, however, the Court has narrowly circumscribed this category, because any attempt to identify communications as election-related without focusing on words that explicitly label them as such threatens to infringe on protected First Amendment liberties. See WRTL,
Therefore, to be considered the “functional equivalent of express advocacy,” a communication must meet two separate requirements. First, the communication must qualify as an “electioneering communication,” defined by the Bipartisan Campaign Reform Act of 2002 (“BCRA”), 116 Stat. 91, 2 U.S.C. § 434(f)(3)(A)(i) (2000 ed. & Supp. IV), as a “broadcast, cable, or satellite communication” that refers to a “clearly identified candidate” within sixty days of a general election or thirty days of a primary election. WRTL,
Second, a communication can be deemed the “functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id. at 2667. The purpose of this requirement is to avoid chilling political expression by forcing a speaker to have to defend his communication from regulation. See id. at 2666-67. Thus, for any test to meet the “functional equivalent” standard, it must “eschew ‘the open-ended rough-and-tumble of factors,’ ” which invite burdensome discovery and lengthy litigation. Id. at 2666 (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
Before we apply these standards to N.C. GemStat. § 163-278.14A(a)(2), a quick summary is in order. Pursuant to their power to regulate elections, legislatures may establish campaign finance laws, so
C.
Given the Supreme Court’s articulation of the permissible extent of campaign finance legislation, it is clear that N.C. Gen.Stat. § 163-278.14A(a)(2) is unconstitutional. Section 163-278.14A(a)(2) regulates speech that is neither “express advocacy” nor its “functional equivalent” and, therefore, strays too far from the regulation of elections into the regulation of ordinary political speech.
To begin, § 163-278.14A(a)(2) clearly regulates more than “express advocacy.” Section 163-278.14A(a)(l) — the first prong of North Carolina’s attempt to identify speech that supports or opposes a candidate — codifies Buckley’s “magic words”-— based approach. Since the context-based prong of § 163-278.14A(a)(2) does not identify speech as regulable by delineating election-related words or phrases, its scope, by definition, extends beyond express advocacy.
To be constitutional, therefore, the regulatory scope of § 163-278.14A(a)(2) must fall within the ambit of the Supreme Court’s definition of the “functional equivalent of express advocacy.” It does not, however, since it fails to meet either of the two requirements established by the Supreme Court relating to that term of art. First, § 163-278.14A(a)(2) does not meet the BCRA’s definition of “electioneering communication.” The BCRA carefully limited the definition of “electioneering communications” to communications that refer to specific people — “clearly identified candidates” — for a specific period of time before an election — thirty days before a primary and sixty days before a general election. In contrast, § 163-278.14A(a)(2) tries to divine the “essential nature” of a communication from the perspective of a “reasonable person,” and it does so without explicitly limiting its scope to either specific people or a specific time period.
Second, it cannot be said that communications falling within the ambit of § 163— 278.14A(a)(2) are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” As stated earlier, WRTL specifically counseled against the use of factor-based standards to define the boundaries of regulable speech, since such standards typically lead to disputes over their meaning and therefore litigation. See WRTL,
Section 163-278.14A(a)(2) runs directly counter to the teaching of WRTL when it determines whether speech is regulable based on how a “reasonable person” interprets a communication in light of four “contextual factors.” This sort of ad hoc, totality of the circumstances-based approach provides neither fair warning to speakers that them speech will be regulated nor sufficient direction to regulators as to what constitutes political speech. The very terms of North Carolina’s statute— including, but not limited to, “essential nature,” “the language of the communication as a whole,” “the timing of the communica
There is no answer to any of these questions. At least not in the text of § 163— 278.14A(a)(2). Neither the regulator nor the regulated can possibly be expected to know when the “essential nature” of speech is deemed to “direct voters to take some action to nominate, elect, or defeat a candidate in an election” based on these vague criteria. Thus, § 163-278.14A(a)(2) fails to satisfy the second requirement of the Supreme Court’s “functional equivalent of express advocacy” approach.
It is in short quite clear that the scope of N.C. GemStat. § 163-278.14A(a)(2) extends beyond both “express advocacy” and its “functional equivalent.” Section 163— 278.14A(a)(2) is not limited to an express group of election-related words, and its ad hoc, context-based, totality of the circumstances approach is “susceptible” of interpretations “other than as an appeal to vote for or against a specific candidate.” It is therefore necessary for us to strike § 163— 278.14A(a)(2) as unconstitutional.
To do otherwise would offend basic First Amendment values. In limiting campaign finance regulation to “express advocacy” and its “functional equivalent,” the Supreme Court struck a balance between the legislature’s authority to regulate elections and the public’s fundamental First Amendment right to engage in political speech. By carefully defining both of these terms of art, the Court not only cabined the legislature’s regulatory power, but it also ensured that potential speakers would have clear notice as to what communications could be regulated, thereby ensuring that political expression would not be chilled.
Section 163-278.14A(a)(2) upsets this balance. Section 163-278.14A(a)(2), as noted, does not conform with the definition of either “express advocacy” or “the functional equivalent of express advocacy,” and therefore threatens to regulate the ordinary political speech that is democracy’s lifeblood. Whether the speech is pro-life, pro-choice, or somewhere in between makes no difference — it addresses an issue of unquestioned public import, and it is on that account protected. And even if some regulable speech falls within the ambit of § 163-278.14A(a)(2), the statute’s open-ended terms do not lend themselves to a principled limiting construction, nor does the State even propose one. See NCRL II,
In WRTL, the Supreme Court noted that “a test based on the actual effect speech will have on an election or a particular segment of the target audience ...
In reaching this conclusion, we recognize that plaintiffs must overcome a “heavy burden” to succeed on a facial challenge to legislation. McConnell,
Neither of these cases, however, confronted a statute with the multiple First Amendment deficiencies that North Carolina’s definition displays. As discussed above, nothing in BCRA even approached the First Amendment infirmities present here: that is to say the complete lack of notice as to what speech is regulable, and the unguided discretion given to the State to decide when it will move against political speech and when it will not.
The number of as-applied challenges necessary to remedy the over-breadth and vagueness of this multi-factored statutory test would involve many different lawsuits and litigation that would take years to conclude. In the meantime, political speakers would be left at sea, and, worse, subject to the prospect that the State’s view of the acceptability of the speaker’s point of view would influence whether or not administrative enforcement action was initiated. Nothing in McConnell, WRTL, or any First Amendment tradition that we know of forces political speakers to incur these sorts of protracted costs to ascertain nothing more than the scope of the most basic right in a democratic society — the right to engage in discussion of issues of unquestioned public importance.
Whatever effect WRTL may or may not have had upon McConnell (a point on which no circuit court should engage in cloudy crystal ball-gazing), we think that the infirmities of North Carolina’s ap
III.
We next consider whether North Carolina’s definition of political committee unconstitutionally burdens political expression.
A.
Although NCRL-PAC and NCRL-FIPE are political committees, NCRL argues vigorously that it is not. Under North Carolina law, political committees face a significant regulatory burden. See NCRL I,
Unsurprisingly, given the burdensome consequences of the appellation, “political committee” is a term of art specifically defined by the North Carolina code. Section 163-278.6(14) of North Carolina’s General Statutes defines a political committee as:
a combination of two or more individuals ... that makes, or accepts anything of value to make, contributions or expenditures and has one or more of the following characteristics:
a. Is controlled by a candidate;
b. Is a political party or executive committee of a political party or is controlled by a political party or executive committee of a political party;
c. Is created by a corporation, business entity, insurance company, labor union, or professional association pursuant to § 163 — 278.19(b); or
d. Has as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates.
Id. § 163-278.6(14), amended by N.C. Sess. Laws 2007-391.
B.
Our analysis of North Carolina’s political committee definition begins at precisely the same point as our previous analysis of the “context prong”: with Buckley v. Valeo’s mandate that campaign finance laws must be “unambiguously related to the campaign of a particular ... candidate.” See Buckley,
Buckley applied this “unambiguously campaign related” requirement when analyzing the permissible scope of political committee regulation. Since designation as a political committee often entails a significant regulatory burden — as evidenced by the requirements imposed by North Carolina — the Court held that only entities “under the control of a candidate or the major purpose of which is the nomination or election of a candidate” can be so designated. Id. at 79,
The parties in this case dispute the meaning of Buckley’s directive that only organizations that have “the major purpose” of supporting or opposing a candidate can be regulated as a political committee. The plaintiffs contend that the definite article is crucial — the Court meant what it said when it said “the major purpose” — and that the support or opposition of a candidate must at least be the primary purpose of an organization for it to be designated as a political committee. Conversely, North Carolina argues that the definite article is not critical' — -the Court could have just as easily said “a major purpose” — and that supporting or opposing a candidate need only be an important goal of an organization for it to be regula-ble.
Viewed in light of Buckley’s goals, it is clear that the importance the plaintiffs attach to the definite article is correct. Buckley’s articulation of the permissible scope of political committee regulation is best understood as an empirical judgment as to whether an organization primarily engages in regulable, election-related speech. Thus, the Court in Buckley must have been using “the major purpose” test to identify organizations that had the election or opposition of a candidate as their only or primary goal — this ensured that the burdens facing a political committee largely fell on election-related speech, rather than on protected political speech. Id. (stating that political committees, as defined by “the major purpose” test, are “by definition, campaign related”). If organizations were regulable merely for having the support or opposition of a candidate as “a major purpose,” political committee burdens could fall on organizations
Subsequent case law affirms the plaintiffs interpretation. To begin, the Supreme Court reaffirmed Buckley’s “the major purpose” test in Federal Election Commission v. Massachusetts Citizens for Life, Inc.,
Thus, we are convinced that the Court in Buckley did indeed mean exactly what it said when it held that an entity must have “the major purpose” of supporting or opposing a candidate to be designated a political committee. Narrowly construing the definition of political committee in that way ensures that the burdens of political committee designation only fall on entities whose primary, or only, activities are within the “core” of Congress’s power to regulate elections. Buckley,
C.
Given the Supreme Court’s insistence that political committees can only be regulated if they have the support or opposition of candidates as their primary purpose, it is clear that N.C. Gen.Stat. § 163— 278.6(14) is unconstitutional. In this most sensitive of all areas — political speech— North Carolina has produced the same infirmity with its definition of political committee as it did with its attempt to identify communications that were the functional equivalent of express advocacy. See supra, section II. By imposing a political committee designation — and its associated burdens — on entities when influencing elections is only “a major purpose” of the organization, North Carolina not only expands the definition of political committee beyond constitutional limits, but also neglects to provide potentially regulated entities with any idea of how to comply with the law.
As noted earlier, the entire aim of Buckley’s “the major purpose” test was to ensure that all entities subjected to the burdens of political committee designation were engaged primarily in regulable, election-related speech. By diluting Buckley’s test and regulating entities that have the opposition or support of political candidates as merely “a major purpose,” North Carolina runs the risk of burdening a substantial amount of constitutionally protected political speech. A single organization can have multiple “major purposes,” and imposing political committee burdens on a multi-faceted organization may mean that North Carolina is regulating a relatively large amount of constitutionally protected speech unrelated to elections merely to regulate a relatively small amount of election-related speech.
The problems presented by § 163— 278.6(14)’s sweep into constitutionally protected political speech are compounded by the statute’s vagueness. While “the major purpose” of an organization may be open to interpretation, it provides potentially regulated entities with sufficient direction to determine if they will be designated as a political committee. Basically, if an organization explicitly states, in its bylaws or elsewhere, that influencing elections is its primary objective, or if the organization spends the majority of its money on supporting or opposing candidates, that organization is under “fair warning” that it may fall within the ambit of Buckley’s test.
Conversely, § 163-278.6(14) provides absolutely no direction as to how North Carolina determines an organization’s “major purposes.” In addition to influencing elections, NCRL has many other objectives: it disseminates information on pro-life issues; it “work[s] for pro-life alternatives to abortion and humane solutions to the problems of women who seek abortions;” it “foster[s] and encourage[s] public health programs;” it “assist[s] in the establishment of a comprehensive medical, social, and recreational care program for unwed mothers;” and, finally, it “promote[s] anti-poverty pro
In this sort of setting, it becomes difficult to understand when the “purpose” of supporting or opposing a candidate becomes “a major purpose.” Is a purpose “major” if an organization has only one or two other purposes? Is there a share of total expenditures that determines when a purpose is “major”? An absolute dollar amount? Or perhaps frequency of participation is the relevant criteria: maybe if an organization engages in electoral advocacy three times during one election cycle then the support or opposition of a candidate is “a major purpose”? Given the vagueness of § 163-278.6(14)’s test, it is hard to argue with the plaintiffs contention that, in designating organizations as political committees, North Carolina is essentially handing out speeding tickets without “telling anyone ... the speed limit.” Appellant Reply Brief at 22.
Furthermore, if a board of regulators is to decide when a purpose becomes “a major purpose,” especially on the basis of unannounced criteria, this leaves the application of § 163-278.6(14) open to the risk of partisan or ideological abuse. This is nowhere so dangerous as when protected political speech is involved. Section 163-278.6(14)’s “we’ll know it when we see it approach” simply does not provide sufficient direction to either regulators or potentially regulated entities. Unguided regulatory discretion and the potential for regulatory abuse are the very burdens to which political speech must never be subject.
In fact, North Carolina’s vague definition may create the perverse situation where an entity such as NCRL would have to go through the costly and time-consuming process of disclosing the very information it is attempting to protect in order to fight off a complaint that it is regulable as a political committee. When faced with such a choice, who could blame an organization for deciding not to exercise its right to engage in political speech?
Moreover, narrower means exist for North Carolina to achieve its regulatory objectives. North Carolina is surely right to think that organizations — particularly large organizations — can have a substantial impact on the electoral process even if influencing elections is merely one of them many, “major purposes.” When faced with such organizations, however, North Carolina does not have to impose the substantial burdens of political committee designation to achieve its goal of preventing corruption. Instead, North Carolina could impose one-time reporting requirements— as it already does on certain individual expenditures and contributions by non-political committee organizations, see N.C. Gen.Stat. § 163-278.12 — based on the communication, not the organization. In doing so, North Carolina would produce the same benefits of transparency and accountability while only imposing regulatory burdens on communications that are “unambiguously campaign related.” See Buckley,
It is thus clear that North Carolina’s definition of political committee, § 163— 278.6(14), is overbroad and vague. Not only does the statute threaten to regulate organizations primarily engaging in protected political speech, but it also magnifies its overbreadth by providing insufficient direction to speakers and leaving regulators free to operate without even the guidance of discernable, neutral criteria. Furthermore, narrower means exist for North Carolina to achieve its regulatory goals. We therefore hold § 163-278.6(14) to be facially unconstitutional.
Finally, we consider whether North Carolina can constitutionally apply a $4,000 contribution limit to independent expenditure committees such as NCRL-FIPE.
A.
Section 163-278.13 of North Carolina’s General Statutes places a $4,000 limit on the amount any “individual, political committee, or other entity” can “contribute to any candidate or other political committee” in any given election cycle. N.C. Gen.Stat. § 163-278.13 (2007). In addition, the statute also prohibits all “candidate[s] and political committee[s]” from “accepting] or soliciting] any contribution[s]” over $4,000 in any given election cycle from “any individual, other political committee, or other entity.” Id. As the text of the statute indicates, these $4,000 contribution limits apply to all political committees.
In this case, the plaintiffs challenge § 163-278.13 as applied to political committees, such as NCRL-FIPE, that only make independent expenditures. As stated earlier, independent expenditures are defined as those political expenditures “made without consultation or coordination with a candidate or agent of a candidate whose nomination or election the expenditure supports or whose opponent’s nomination or election the expenditure opposes.” Id. § 163-278.6(9a). The plaintiffs argue that North Carolina’s interest in preventing corruption or the appearance of corruption is insufficient to support such a limit on contributions to committees that only make independent expenditures. This is because “the corruptive influence of contributions for independent expenditures is more novel and implausible than that posed by contributions to candidates.” NCRL II,
B.
Again, our analysis starts with the Supreme Court’s decision in Buckley v. Valeo. In Buckley, the Court established what has become one of the foundational principles of its campaign finance jurisprudence: a state may limit campaign contributions if the limits are “closely drawn” and the state demonstrates that the limits support its interest in preventing corruption and the appearance thereof. Buckley,
Unsurprisingly, the strength of the state’s interest in preventing corruption is highly correlated to the nature of the contribution’s recipient. Thus, the state’s interest in the prevention of corruption' — ■ and, therefore, its power to impose contribution limits — is strongest when the state limits contributions made directly to political candidates. Direct contributions to political candidates run the greatest risk of making candidates “too compliant with the wishes of large” donors, Shrink Missouri,
As one moves away from the case in which a donor gives money directly to a candidate, however, the state’s interest in preventing corruption necessarily decreases. This is because the danger that contributions will be given “as a quid pro quo
Of course, some organizations are so closely tied to candidates that the Court has deemed it constitutional for states to apply contribution limits to them. Otherwise, donors could “circumvent” valid contribution limits — and raise fears of corruption — by indirectly funneling money to candidates through political intermediaries. See Fed. Election Comm’n v. Colorado Republican Fed. Campaign Comm.,
The Court has further held that it is constitutional, in certain instances, to apply contribution limits to political parties. See McConnell,
Importantly, however, the Court has never held that it is constitutional to apply contribution limits to political committees that make solely independent expenditures. In fact, Justice Blackmun stressed in his Gal-Med concurrence that “contributions to a committee that makes only independent expenditures pose no ... threat” of corruption or the appearance thereof. See Calr-Med,
Moreover, McConnell specifically emphasized the difference between political parties and independent expenditure political committees, which explains why contribution limits are acceptable when applied to the former, but unacceptable when applied to the latter. To begin, the Court noted that independent expenditure com
Thus, while the state’s power to impose contribution limits is well-established, that power exists only when the contribution limits are “closely drawn” to the state’s interest in preventing corruption. As the state attempts to regulate entities further and further removed from the candidate, the state interest in preventing corruption necessarily decreases. At the extreme, the entities furthest removed from the candidate are political committees that make solely independent expenditures. As such, it is “implausible” that contributions to independent expenditure political eom-mittees are corrupting. NCRL II,
C.
In this case, we find that North Carolina has fallen short of demonstrating that application of its $4,000 contribution limit to independent expenditure political committees furthers its interest in preventing corruption. We thus declare § 163-278.13 unconstitutional as applied to NCRL-FIPE and all similarly situated entities.
Given the remove of independent expenditure committees from candidates themselves, we must require North Carolina to produce convincing evidence of corruption before upholding contribution limits as applied to such organizations. Id. (citing Colorado Republican Fed. Campaign Comm. v. Fed. Election Comm’n,
We see no reason to change this determination. McConnell did expand the application of contribution limits to political parties, but, as discussed earlier, it also made clear that independent expenditures do not present a danger of corruption. McConnell,
For example, a discussion of “Farmers for Fairness” is probably the primary piece of evidence discussed in North Carolina’s briefing. Appellee Brief at 49-50; JA 313-16. North Carolina claims that the actions of “Farmers” “triggered widespread suspicion of corruption and damaged public confidence in the electoral process,” as “legislators, regulators, the media, civic groups, [and] opinion leaders ... were witnessing firsthand the awesome power of concentrated wealth when it enters the electoral arena.” Id.
“Farmers for Fairness” is an independent expenditure committee that used substantial contributions from “a dozen hog producers and suppliers” to fund advertisements supporting hog industry interests. JA 313. In April 1998, “Farmers” spent over $10,000 a week on issue advocacy targeted at a state representative who had led efforts to increase regulation of the hog industry. Id. That representative was defeated in her primary election, and two of the three other legislators targeted by “Farmers for Fairness” were defeated in the general election. Id. The State also claims that “Farmers” showed legislative leaders their advertisements before they were broadcast, in order to demonstrate to the leaders “the group’s seriousness about impacting the political process.” Id. Finally, North Carolina presents evidence that “Farmers” “discussed” regulatory relief with political party principals, although “no clear quid pro quo could be established.” JA 314.
This evidence does not constitute the type of convincing evidence required to uphold the application of contribution limits to independent expenditure committees. For one, the fact that “Farmers for Fairness” spent money that was successful in convincing voters to oust their targeted candidates can hardly be termed corrup-tive. This fact — alone—simply means that a group felt passionately about an issue and discussed it. After all, one of the primary purposes of political speech is to persuade the electorate. Perchance the message of “Farmers for Fairness” is very much misguided. Those who believe it so should make the case. For the way to counter speech is with opposing speech,
For two, the fact that “Farmers” demonstrated their “seriousness about impacting the political process” is also not evidence of corruption. It goes without saying that it is not a sin to be serious about “impacting the political process”— in fact, the First Amendment is largely about providing every citizen with just that opportunity. If robust advocacy alone is sufficient to demonstrate corruption, the term corruption would cease to have meaning.
Finally, the evidence that “Farmers for Fairness” discussed its ads with legislative leaders does not constitute evidence that contributions to independent expenditure committees are corruptive. If anything, this constitutes evidence that organizations that claim to be independent expenditure committees are, in fact, coordinating their expenditures with candidates. If independent expenditure committees are not in fact independent, they risk forfeiting their exemption from North Carolina’s contribution limits. In such instances, North Carolina is free to apply in a constitutional manner its contribution limits against these purportedly “independent” expenditure committees.
The bottom line is this: independent expenditure political committees do not serve as mouthpieces for political candidates. In fact, such committees do not even coordinate them messages with candidates. Instead, independent expenditure political committees offer an opportunity for ordinary citizens to band together to speak on the issue or issues most important to them. In other words, they allow ordinary citizens to receive the benefits that result from economies of scale in trying to convince the electorate of a political message.
Of course, candidates may be influenced by the impact that such independent expenditures have on the electorate — but this is the entire purpose of allowing free political discourse. As the Supreme Court has said: “The fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages paid for by [political committees] can hardly be called corruption.” Fed. Election Comm’n v. Natl Conservative Political Action Comm.,
In fact, we would go further. Candidates and elected officials altering their positions in response to a political debate is the very essence of democracy. Nothing could be further removed from the spirit of the First Amendment than labeling speech corruptive merely because it is effective. We thus hold § 163-278.13 unconstitutional as applied to independent expenditure political committees such as NCRL-FIPE.
V.
Finally, we address our colleague’s dissenting opinion. The dissent contends we broaden First Amendment protections beyond recognized boundaries in order to “severely restrict [] the well-established power of a state to regulate its elections.” Post at 308. Our decision, the dissent insists, will leave unchecked the “pernicious influence of too much money in politics,” id. (internal quotations omitted), and thereby unleash a parade of horribles on the citizens of North Carolina. See, e.g., id. at 309 (alleging that our decision will “allow many politically active organizations to escape regulation and hide their identities and activities from public scrutiny”); id. at 317 (arguing that our decision will result in “the invalidation of many election regulations that have been carefully draft
All this, of course, is hyperbolic. We respect without question the state’s legitimate interest in ensuring the integrity of the electoral process. To the extent the state regulates electoral advocacy within the scope of these interests it is well within constitutional bounds. By contrast, it is the dissent’s position that sweeps broadly and portends dramatic consequences. The dissent fails to set forth any meaningful limits on the consignment of our most basic political speech to layer upon layer of intense regulation. One searches the dissent for some end to the reach of regulatory authority, but there is none. Instead, the dissent envisions an order in which the bureaucratic ministries of the state would have nearly unbridled discretion to allow or disallow political messages based, inter alia, on the regulator’s own preferences and predilections.
This is not some marginal or incidental freedom with which the dissent is dealing. Rather it is the essential freedom that defines our ability — both individually and collectively — to speak in unfettered fashion on the most pressing issues of the day, and to express approval or disapproval of the functioning of our representative government. New York Times Co. v. Sullivan,
For the regulator’s hand, once loosed, is not easily leashed. The Code of Federal Regulations, or its state equivalent, is no small thing. It is no unfounded fear that one day the regulation of elections may resemble the Internal Revenue Code, and that impossible complexity may take root in the very area where freedom from intrusive governmental oversight should matter most. For while appropriate regulation may serve good and useful purposes in many areas, the Constitution makes clear that excessive regulation of political speech is suspect.
Campaign finance regulation has been termed “baffling and conflicted.” Majors v. Abell,
North Carolina’s regulations do not meet basic First Amendment requirements. Instead, they set out vague standards that empower administrators to burden core political expression (N.C.Gen. Stat. §§ 163-278.14A(a)(2) & 163-
A.
The dissent initially contends that we err by invalidating North Carolina’s “context prong” for identifying speech that “support[s] or oppose[s] the nomination or election of one or more clearly identified candidates.” See N.C. Gen.Stat. § 163— 278.14A(a)(2) (2007). In particular, the dissent alleges that we have declared a statute overbroad when it would unconstitutionally regulate pure political speech only in “rare instances,” and vague when it provides “particularly clear direction to both speakers and regulators.” Post at 326, 318.
1.
The dissent commits several errors in evaluating the constitutionality of § 163-278.14A(a)(2). To begin, the dissent virtually ignores the import of FEC v. Wisconsin Right to Life, Inc.,—U.S.-,
I find this dismissiveness unfortunate. To say that WRTL is “not relevant” outside the realm of expenditure requirements, see id., is to say that other campaign finance regulations — however vague and overbroad — pose no danger to political speech. Given its plain application and unquestioned relevance, it is simply wrong for the dissent to give WRTL such short shrift. Indeed, the dissent fails even to recognize that WRTL sought to limit and confine the definition of the “functional equivalent of express advocacy” in order to prevent state regulation from vitiating political speech. See id. at 314-15.
Specifically, WRTL only allows political speech to be regulated if it both “meets the brightline requirements of BCRA § 203” and “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” See WRTL,
The “context prong,” as noted, is intended to regulate “communications whose essential nature expresses electoral advocacy.” Section 163-278.14A(a)(2) resorts to “contextual factors” to identify a communication’s “essential nature” when and “[i]f the course of action is unclear.” N.C. Gen.Stat. § 163-278.14A(a)(2) (2007) (emphasis added). This last is nothing short of an explicit confession from the statute itself of its fatal vagueness and over-breadth. Despite the fact that “the benefit of the doubt” must be given to speech, rather than censorship, see WRTL,
Furthermore, North Carolina simply compounds the constitutional infirmities by using “contextual factors” in a misguided attempt to bring clarity to § 163-278.14A(a)(2)’s quixotic search for a communication’s “essential nature.” As stated earlier, WRTL expressly rejects the constitutionality of the “ ‘open-ended rough- and-tumble of factors’ ” as a means of identifying regulable electoral advocacy or its functional equivalent, since such factors invariably burden speech by “ ‘invit[ing] complex argument in a trial court and a virtually inevitable appeal.’ ” WRTL,
The dissent claims that we “simply misread[ ] WRTL ” in forbidding the use of factors, since nothing in WRTL forbids “the consideration of context.” Post at 321-22. But it is the dissent that misreads WRTL. The problem with § 163— 278.14A(a)(2)’s use of “contextual factors” is not the consideration of context (which is, indeed, inevitable in such an objective inquiry), but rather the use of factors. As discussed earlier, see supra at 283, the “contextual factors” listed in § 163— 278.14A(a)(2) are nothing if not a lexicon of bureaucratic empowerment, and an invitation to endless litigation during which the speaker is left at sea.
In order to demonstrate this, it bears repeating the “contextual factors” referenced in the statute: “the language of the communication as a whole, the timing of the communication in relation to the events of the day, the distribution of the communication to a significant number of registered voters for that candidate’s election, and the cost of the communication.” N.C. GemStat. § 163-278.14A(a)(2) (2007). Nebulous terms do not “assist[ ]” regulators by providing “direction” as the dissent suggests, see post at 319; they further muddy the waters. North Carolina’s loose mélange of factors do not elucidate WRTL’s objective test; instead, they present the very infirmity identified by WRTL, namely, that of supplying regulators with nearly endless possibilities for discovering whether a communication can “only be interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election.” N.C. Gen.Stat. § 163-278.14A(a)(2), (2007). Consider, for example: what are the significant “events of the day”? How many days are sufficient for a communication to escape being “relat[ed]” by “timing” to the “events of the day”? What is a “significant number” of voters? The “context prong” provides no answers to these or other questions, and instead threatens to regulate large quantities of pure political speech.
The dissent contends that we incorrectly use the “brightline requirements of BCRA § 203” as a “rigid” test for overbreadth. Post at 315-16. To the contrary, we use the BCRA definition to illustrate just how incredibly far the contextual definition in this case has broadened the scope of electoral advocacy from what was approved in McConnell. Indeed, BCRA § 203 only regulates communications that refer to specific individuals (“clearly identified candidates”) at specific times (thirty days be
And even if the dissent is correct and WRTL did not intend to mandate the specific dictates of BCRA § 203 as a necessary prerequisite for functional equivalency, it is inconceivable that the Supreme Court would ever allow a state to substitute a test as vague and broad as this “context prong” as an alternative standard. For even a cursory reading of § 163— 278.14A(a)(2) uncovers its serious constitutional infirmities — infirmities the dissent has failed to acknowledge, much less address.
In fact, the dissent is unable to identify a single case that has upheld a definition of the “functional equivalent of express advocacy” as broad as § 163-278.14A(a)(2) since the Supreme Court’s WRTL decision. Instead, the dissent points to three cases that specifically address BCRA, see Citizens United v. Fed. Election Comm’n,
Indeed, the dissent does not quote from any of the statutes at issue in any of those cases for a very good reason: most follow BCRA, and all avoid such phrases as “if the course of action is unclear,” “the timing of the communication in relation to the events of the day,” and “the distribution of the communication to a significant number of registered voters.” It is thus plain that § 163-278.14A(a)(2) does not provide a constitutionally adequate test for express advocacy or its functional equivalent, and is thus substantially vague and overbroad.
Moreover, despite the dissent’s arguments to the contrary, the fact that “a potential speaker may seek further guidance” in the form of “a binding advisory opinion,” does not fix § 163-278.14A(a)(2)’s multiple constitutional infirmities. Post at 319-20. If states were able to address a statute’s breadth and lack of clarity simply by adding another layer to their regulatory apparatus, the overbreadth and void for vagueness doctrines would be a dead letter. Simply put, the ability to engage in political speech cannot be made into a matter of repetitive supplication.
Despite this, the dissent accuses us of failing to perform a “proper overbreadth analysis” that takes into account the various “type[s] of regulations implicated” by § 163-278.14A(a)(2). Id. at 316, 322-25. According to the dissent, the burdens imposed on political speech and the state’s interests may vary by the type of regulation, and, therefore, analyzing § 163-278.14A(a)(2) regulation by regulation
Even if the dissent were correct that the scope of regulable speech may vary slightly based on regulation type, this does not mean that a patently overbroad definition like § 163-278.14A(a)(2) acquires a halo of constitutionality when the context shifts. Speakers are going to have to contend with this same definition and its same infirmities for both expenditures and contributions, regardless of whether the regulatory context is one of disclosure, reporting, or limitation. There is simply no reason to subject speakers to such an imposition when a statute explicitly announces that its own “unclear” definition threatens the regulation of protected speech, and when other overbroad “contextual factors” doubly and triply compound the problem.
If we decided to proceed incrementally in an as-applied fashion, as the dissent suggests, it would require protracted litigation to sort through all of the “context prong’s” uncertain and problematic applications. During this time, speech would be at the leave of bureaucratic discretion and potentially subject to bewildering and inconsistent rulings and decisions: the very blueprint for chilling political discussion. Speakers must not be put in “ ‘circumstances wholly at the mercy of the varied understanding of [their] hearers,’ ” in this case regulators hypothesizing about some hypothetical audience. Buckley,
The dissent argues that the Supreme Court’s recent decision in Washington State Grange v. Washington State Republican Party,—U.S.-,
Moreover, the Court took pains to except the situation before us in this case — a challenge to a statute’s overbreadth and vagueness — from its holding in Washington State Gmnge. Recognizing the different constitutional interests at stake in an overbreadth challenge, the Court in Washington State Grange held that a challenge to a statute’s overbreadth was a “second type of facial challenge” different than the one presented in Grange. See Grange,
To understand substantial overbreadth in this area, we need look no further than the Supreme Court’s own decisions. As noted, the Court has made clear that, in order to avoid overbreadth concerns, campaign finance statutes must both conform to BCRA § 203 and avoid the “rough-and-tumble” of multi-factored tests. See WRTL,
Thus, while we recognize that WRTL involved an as-applied challenge, that does not mean that the entire holding and reasoning of that decision is without any facial implications. The Constitution does not require that we go application by application, case by case, month by month, year after year to eradicate the very infirmities the Supreme Court warned against and insisted we avoid.
2.
To conclude, we address the dissent’s concern that our decision invalidates “many election regulations,” allowing “organizations and individuals to conceal their identities, spend unlimited amounts on campaign advertising masked as discussion of issues, and ‘hide themselves from the scrutiny of the voting public.’ ” Post at 317, 308 (quoting McConnell,
The dissent’s concerns are overblown. While we do indeed invalidate N.C. Gen. Stat. § 163-278.14A(a)(2) as impermissibly vague and substantially overbroad, North Carolina remains free to enforce all campaign finance regulations that incorporate the phrase “to support or oppose the nomination or election of one or more clearly identified candidates.” See N.C. Gen.Stat. § 163-278.14A(a) (2007). And, while the dissent apparently contends that our decision makes it impossible for North Carolina to draft a constitutional context prong, see post at 319-20, North Carolina remains free to adopt a definition of express advocacy consistent with the standards approved by McConnell and WRTL. Furthermore, we leave the core of the state’s regulatory power in this area untouched: for example, the state is still free to regulate contributions to political campaigns, and to impose reporting and disclosure requirements on political campaigns and other entities historically considered to be political committees. We simply hold that North Carolina cannot rely on the overbroad and vague “context prong.”
North Carolina has tasked its State Board of Elections with broad responsibilities and granted it far-reaching powers to achieve its goals. The State Board is directed to investigate any potential violation of North Carolina’s election laws. See N.C. Gen.Stat. § 163-22(d) (2007). In order to perform these investigations, the chairman of the Board has the “power to administer oaths, issue subpoenas, summon witnesses, and compel the production
The danger in this area — when dealing with a broadly empowered bureaucracy— is not that speakers may disguise electoral messages as issue advocacy, but rather that simple issue advocacy will be suppressed by some regulator who fears it may bear conceivably on some campaign. If the First Amendment protects anything, it is the right of political speakers to express their beliefs without having to fear subsequent civil and criminal reprisals from regulators authorized to employ broad and vague definitions as they see fit. See Buckley,
Of course, the dissent is right to point out that our decision may enable speakers to more easily influence elections using issue advocacy. See post at 308. But that is no affront to democracy. In fact, the only way to stop political speech from ever influencing the outcome of elections would be to ban it entirely. For, as the Supreme Court has just noted, the very purpose of political speech is to provide people with “information” about important issues so that they can make informed “voting decisions.” See WRTL,
The answer to avoidance of political speech restrictions is not invariably more political speech restrictions, or an increase in the breadth, depth, and complexity of the state’s regulatory apparatus. There is no end in sight to that approach, nor does the dissent so much as suggest one. At some point — a point reached far before the substantial and unprecedented over-breadth of § 163-278.14A(a)(2) — enough is simply enough. See WRTL,
B.
The dissent next takes issue with our analysis of North Carolina’s political committee definition. Under North Carolina law, four types of entities can be labeled political committees: candidate-controlled committees; political parties or their affiliates; corporations or other business and professional groups, including unions; and, finally, any entity that “[h]as as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates.” N.C. Gen.Stat. § 163-278.6(14) (2007). Only the last of these entities is in any way at issue. The dissent contends that we err in holding this last portion of the political committee definition — the “a major purpose” test— unconstitutionally vague and overbroad. See post at 326-28.
As an initial matter, the dissent would have us decline to follow the very language used not only by Buckley v. Valeo, but also by numerous other cases as well. See supra at 287-88. But, just as we observed with respect to the treatment of WRTL, declining to follow the Supreme Court is not an option. Buckley explicitly states that political committee regulations “can cover groups ‘the major purpose of which is the nomination or election of a candidate.’ ” Post at 326 (quoting Buckley,
This view fails to appreciate the difference between the definite and indefinite articles in this context. The dissent contends that “North Carolina’s ‘a major purpose’ test is just as clear as a ‘the major purpose’ test to both speakers and regulators.” Id. at 329. Likewise, the dissent contends that “the substitution of ‘a’ for ‘the’ in Buckley’s major purpose test does not expand the reach of the Act in any way that overly burdens First Amendment freedoms.” Id. With these arguments, however, the dissent simply ignores the fact that, under North Carolina’s “a major purpose” approach, an organization can have multiple “major purposes,” while under the Supreme Court’s “the major purpose” approach, an organization can have but one “major purpose.” The constitutional importance of this distinction is self-evident.
To begin, although there may be disputes in rare circumstances, organizations and regulators should agree on an organization’s foremost or “primary” purpose. MCFL,
Moreover, under North Carolina’s “a major purpose” standard, organizations can be subjected to regulation as a political committee even if the majority of their activity is not election related. Since political committee burdens apply across the board to all of an organization’s activities, this means that, under § 163-278.6(14), substantial amounts of pure political speech will be burdened in an effort to regulate relatively minor amounts of electoral advocacy. The dissent is well aware of this. In fact, it readily admits that “most organizations — including NCRL— do not have just one major purpose.” Post at 330. But the dissent thinks North Carolina’s “a major purpose” standard is appropriate regardless, since it enables the regulation of organizations “heavily focused on electoral advocacy” — that is, organizations that spend “forty-five percent of [their] resources on lobbying and forty-five percent of [their] resources on supporting or opposing specific candidates.” Id.
Of course, the dissent’s stylized example does not address the organization that has four equally important purposes, only one of which is electoral advocacy. Nor does it consider the organization that has seven equally important purposes. Or ten. But under North Carolina’s “a major purpose” standard, each of these organizations could be subjected to regulation just as surely as the dissent’s hypothetical example. The dissent simply never addresses the plain fact that performing our duty to follow
The dissent also underestimates the burdens attendant to designation as a political committee. The dissent claims that North Carolina’s political committee requirements “impose only marginal restrictions on speech.” Post at 329. This belies both the precedent of this circuit — which has termed “the consequences” of being labeled a political committee “substantial,” NCRL I,
Finally, the dissent is too quick to discount the possibility that North Carolina can achieve its regulatory objectives through less restrictive means. The dissent does not contest the fact that onetime reporting requirements of contributions and expenditures will produce many of the same benefits of accountability and transparency as the more onerous political committee designation. Nonetheless, the dissent still finds this less burdensome alternative too “tepid” and “minimalist.” Post at 331. This is because one-time requirements do not “enable the state” to either “undertake prompt investigation of incidents of potential misconduct” or “limit[] extremely large contributions to organizations that then spend that money on direct electoral advocacy.” Id.
Neither of the dissent’s concerns carry the day, however. The mere possibility that an organization may “potentially” engage in misconduct is not a sufficient reason to regulate large quantities of political expression. Hypothetical harms do not justify infringement on First Amendment freedoms. See, e.g., Edenfield v. Fane,
The dissent’s analysis of North Carolina’s political committee definition thus mirrors its analysis of the “context prong.” Dissatisfied with regulatory options that conform to clear Supreme Court precedent, the dissent writes North Carolina what is, in essence, a blank check to trample on protected political speech.
C.
The dissent finally contends that we err by striking “down [North Carolina’s] $4,000 contribution limit insofar as it applies to ‘independent expenditure political committees’ such as NCRL-FIPE.” Post at 332. The dissent claims that we “improperly” discount the “substantial evidence of the corruptive influence of independent expenditures” that North Carolina has produced. Id. at 337. According to the dissent, this evidence is “sufficient” to
The specific evidence discussed by the dissent, however, does not constitute the type of proof necessary to warrant the regulation of pure political expression. In particular, the dissent discusses three pieces of evidence: (1) an expert declaration concerning how, in the 2004 federal campaigns, national parties routed large-ticket donors toward independent expenditure committees that were able to “ ‘effectively aid a campaign without any formal coordination,’ ” id. at 335 (quoting JA 325); (2) the previously discussed Farmers for Fairness advertising campaign “directly opposing certain legislative candidates,” post at 335; and, finally, (3) general evidence of “actual corruption in North Carolina politics,” id. at 336 n. 11.
This evidence does not support the conclusion that independent expenditure committees are corrupting North Carolina politics. The only evidence the dissent presents on the actual use of independent expenditure committees to circumvent contribution limits involves national parties and federal elections. Indeed, the dissent presents no evidence specific to North Carolina linking either the systematic circumvention of contribution limits or quid pro quo corruption to independent expenditure committees.
In fact, it is worth pausing on the evidence the dissent does present concerning North Carolina politics in order to demonstrate its insufficiency. Although the dissent discusses a single independent expenditure committee, Farmers for Fairness, at length, the dissent never once even alleges that the Farmers coordinated their expenditures with candidates or engaged in traditional quid pro quo corruption. Instead, the dissent finds it sufficient that the Farmers proposed to run ads that took issue with incumbent legislators on positions “unrelated” to “its central issue, deregulation of the hog industry.” Id. at 335.
It is difficult to see how these facts support the regulation of independent expenditure committees. The fact that such committees may find it worthwhile to support issues other than their primary focus hardly constitutes corruption or even the appearance thereof. Likewise, we see no harm in using pure political speech in an attempt to achieve legislative ends.
Our disagreement with the dissent on this latter point is fundamental. The dissent’s vague assertion of intimidation simply does not support the regulation of pure political speech. Political speakers have every right to make incumbents answer for their record. Legislators are not without their bully pulpit, and incumbents are not without their fundraising and name-recognition advantages. It is virtually unassailable that political speech is as necessary for political challengers as for sitting legislators, and the dissent simply pays no heed to the fact that the regulation of political speech can very easily serve as a front for incumbency protection. See Randall v. Sorrell,
The dissent’s other evidence specific to North Carolina consists of “examples of actual corruption in North Carolina politics.” Post at 336 n. 11. According to the dissent, the fact that politicians in North Carolina have engaged in corruption “support[s] the state’s reasonable prediction that state politicians and contributors will likely find and exploit any existing loopholes in campaign finance regulations.” Id. This evidence is similarly unpersuasive: general evidence of corruption hardly justifies the specific regulation of independent expenditure committees. In fact, some may argue that free political speech is the best remedy for, rather than a cause of, corruption. Indeed, independent expenditure committees may be the very ones to take up the lance against corrupt public practices. By embracing ever greater burdens upon political speech, the dissent is slowly ridding our democracy of one of its foremost cleansing agents. See, e.g., Mills v. Alabama,
Finally, we address the dissent’s final argument: that the corporate structure of NCRL, NCRL-PAC, and NCRL-FIPE justifies application of North Carolina’s contribution limits to independent expenditure committees. According to the dissent, our decision allows interlocked organizations that share management (like NCRL and its affiliates) to “circumvent campaign finance regulation” by coordinating with candidates through political committees (e.g., NCRL-PAC), while accepting large-ticket donations to independent expenditure committees (e.g., NCRL-FIPE). Post at 336.
While we recognize the theoretical risk of abuse in this area, the dissent’s argument is at least two steps away from justifying across-the-board application of contribution limits to independent expenditure committees. First, as discussed earlier, there is no evidence in the record that NCRL has abused its corporate form. See supra at 294 n. 8. Second, even if there was evidence that NCRL was using NCRL-FIPE to circumvent North Carolina’s contribution limits, this would hardly be sufficient justification to regulate all independent expenditure committees. Such committees would be judged guilty with no chance of proving their innocence, while the state neglected the use of a more narrowly tailored regulatory option: applying contribution limits to independent expenditure committees shown to have abused their corporate form.
D.
Our colleague in dissent charges that “[i]t is not our place to rewrite precedent, even if our beliefs about the First Amendment conflict with those of the Supreme Court.” See post at 340. Surely this suggestion must have occasioned introspection. For it is the dissent which has contravened no fewer than three Supreme Court precedents in a single action. It seeks to uphold the very multi-factor test that WRTL said emphatically should not be upheld. It seeks to sustain a statute unprecedented in its lack of clarity against a vagueness challenge, even though the statute extends far beyond the specific set of requirements the Supreme Court approved in McConnell. And, finally, the dissent rejects the exact formulation used by Buckley and its progeny to define political committee in a manner that infringes least substantially on political speech. While it is assuredly true that courts of appeal enjoy interstitial latitude in inter
The dissent further disregards Supreme Court precedent by inventing a First Amendment standard out of whole cloth. The dissent concedes that North Carolina’s regulations “may affect speech,” but refuses to declare the statutes unconstitutional because they “do not silence” speech. Post at 339; see also id. at 338. This “silencing” standard is no friend of the First Amendment. Indeed, the dissent’s surmise about the quantum of political speech lost to North Carolina’s over-broad campaign finance regulations is nothing more than guess-work. With its new “silencing” standard, the dissent suggests that political speech must be placed in some meat locker before First Amendment implications arise. This is not how we understand the First Amendment, because it gives the benefit of every doubt to regulatoi'y censorship.
In fact, the dissent seems to be unaware of the risks presented to free political speech by empowering state actors with vague and broad statutes. The dissent claims that “[d]ecades of campaign finance regulation have not silenced political speech.” Id. at 338. While this is a matter of opinion, not evidence, it hardly helps the dissent, for political debate in this country has never had to navigate regulations as vague and overbroad as those before us in this case.
The dissent, however, does make its own overbroad assertions about the effect this opinion will have on the place of money and the level of transparency in politics, see post at 340-41; yet, in doing so, it ignores the limited nature of our holding, which we have emphasized throughout. We repeat that the important task of ensuring electoral integrity leaves considerable room to regulate within constitutional bounds. We repeat also that North Carolina remains free to, inter alia, impose disclosure and reporting requirements on political candidates and committees, so long as it does so in accordance with WRTL and McConnell. North Carolina is also free to regulate all traditional political committees — for example, those controlled by candidates, political parties, or those created by corporations and unions. See N.C. GemStat. § 163-278.6(14)(a)-(c) (2007). But the legislation challenged in this case represents a giant step beyond these Supreme Court decisions. The state here seeks to expand its control so that it may regulate not only electoral advocacy, but pure political speech, as well.
Debate on political issues can be reasoned and calm. It can also be passionate, long-winded, funny, uplifting, dull, or downright outrageous. Whatever it is, speakers ought to be able to engage in it without wondering all the while whether a regulator now possessed of unprecedented discretion will find they have committed the mortal sin of uttering “the functional equivalent of express advocacy.” Our dissenting colleague would permit the state to oversee political speech — no questions asked. The dissent would force political speech to navigate the Scylla of vagueness and all its chilling effects and the Charybdis of impossibly intricate regulation, which even the cognoscenti may be unable to divine. Indeed, the dissent replaces the Supreme Court’s faith in the workings of the First Amendment with a faith in the powers of government to manage what we say on what matters most. This approach surrenders to the state an awesome control over those political issues that determine the quality of our democracy and the
VI.
To summarize our decision: we hold North Carolina’s statutory attempt to use context to identify communications in support of or opposition to a candidate, N.C. GemStat. § 163-278.14A(a)(2), facially unconstitutional; North Carolina’s use of “a major purpose” test to identify political committees, N.C. Gen.Stat. § 163— 278.6(14), amended by N.C. Sess. Laws 2007-391, facially unconstitutional; and North Carolina’s $4,000 contribution limit, N.C. Gen.Stat. § 163-278.13, unconstitutional as applied to NCRL-FIPE and other similarly situated entities. The decision of the district court is thus
AFFIRMED IN PART AND REVERSED IN PART.
Notes
. The two other statutes challenged by the plaintiffs, N.C. Gen.Stat. § 163-278.12A and N.C. Gen.Stat. § 163-278.39(a)(3), have been repealed. Therefore, these challenges are moot. See North Carolina Right to Life, Inc. v. Leake,
. We agree with the district court's determination that the plaintiffs have standing to pursue their claims. North Carolina law makes it a misdemeanor to "intentionally violate!]” various North Carolina campaign finance statutes, including the contribution limit at issue in this case and several provisions triggered by North Carolina’s definitions of political committee and electoral advocacy. See N.C. Gen.Stat. § 163-278.27 (2007).
As we held in NCRL I, when a "plaintiff faces a credible threat of prosecution under a criminal statute he has standing to mount a pre-enforcement challenge to that statute.” NCRL I,
. We reject North Carolina's argument that the first sentence of § 163-278.14A(a)(2) is merely an “explicative definition of express advocacy,” and therefore constitutional under Federal Election Commission v. Massachusetts Citizens for Life, Inc.,
. At the time this litigation commenced, § 163-278.6(14) further stated that an entity is "rebuttably presumed to have as a major purpose” the support or opposition of a candidate if it "contributes or expends or both contributes and expends during an election cycle more than three thousand dollars.” This monetary disbursement trigger has since been repealed by the North Carolina legisla
. North Carolina directs this court to its discussion of Buckley in NCRL I. See Appellee Brief at 63. In that case, we stated that Buckley “defined political committee as including only those entities that have as a major purpose engaging in express advocacy in support of a candidate.” NCRL I,
The question of whether Buckley requires a state to show that an entity has "the ” or "a ” major purpose of influencing elections to be designated a "political committee” was not before the court in NCRL I, however. Our single use of the indefinite article was not intended to lay down a set of criteria or definition of political committee — an issue that only now is the subject of extensive briefing and argument before this court. This court’s explicit reservation, in NCRL II, of the question of "[wjhether an entity can have multiple major purposes” supports this point. NCRL II,
In the event, however, that the use of this one word created later confusion, we regret the miscommunication and acknowledge, as we did at the outset of this decision, our belief that North Carolina has proceeded in this matter in the best of faith.
. The plaintiffs ask us to adopt a brightline standard for determining whether “the major purpose” of an organization is the support or opposition of candidates. They argue that an entity should only fall within the ambit of “the major purpose” test if (1) the organic documents of the organization list electoral advocacy as the organization’s major purpose or (2) if the organization spends over 50% of its money on influencing elections. See Appellant Brief at 31-32. While this standard would be constitutional, we need not determine in this case whether it is the only manner in which North Carolina can apply the teachings of Buckley.
. North Carolina put forward, by way of new evidence, affidavits from Robert H. Hall and Thomas E. Mann, experts in campaign finance, and the draft chapter of a book on the influence of 527 Groups on elections. This new evidence largely supports arguments North Carolina made before this court in NCRL II: for example, that it is sometimes difficult for the State to distinguish independent from coordinated expenditures; that large donors may fund independent expenditure political committees; and that, at times, politicians react to the messages produced by independent expenditure political committees.
Importantly, however, North Carolina has failed to present the type of systematic and concrete evidence of corruption that led the Supreme Court to uphold contribution limits as applied to political parties in McConnell. Thus, North Carolina's evidence does not justify the remedy it seeks in this case: the ability to impose strict contribution limits on independent expenditure committees. The Supreme Court has not held such limits to be constitutional, and we will not do so here.
We need not ask if there will ever be a case in which North Carolina can present convincing evidence that contributions to independent expenditure committees are corruptive. Instead, we hold that the case for such limits was not made in NCRL II, nor was it made here.
. North Carolina also argues that NCRL-FIPE is not actually an independent expenditure committee because it is "closely intertwined” with NCRL and NCRL-PAC. See Appellee Brief at 37-43. However, while NCRL-FIPE does share staff and facilities with its sister and parent entities, it is independent as a matter of law. See North Carolina Right to Life, Inc. v. Lealte,
Thus, North Carolina is, in essence, asking us to pierce the corporate veil. We decline to do so, particularly absent any evidence that the plaintiffs are abusing their legal forms or "any legal authority that considers [political committees] and their sponsoring corporation as identical entities.” Id.
Dissenting Opinion
dissenting:
North Carolina has enacted, within the bounds of the First Amendment, a cam- . paign finance law that is aimed at promoting transparency and openness in the electoral processes of that state. Today the majority strikes down key provisions in that law and severely restricts the well-established power of a state to regulate its elections. One result will be that organizations and individuals will be able to easily disguise their campaign advocacy as issue advocacy, thereby avoiding regulation. The majority thus allows these organizations and individuals to conceal their identities, spend unlimited amounts on campaign advertising masked as discussion of issues, and “hide themselves from the scrutiny of the voting public.” McConnell v. Fed. Election Comm’n,
First, the majority invalidates, as unconstitutional on its face, the North Carolina Act’s test for determining whether a political advertisement “support[s] or oppose[s] the nomination or election of one or more clearly identified candidates.” N.C. Gen. Stat. § 163-278.14A(a)(2). The test allows factors — such as timing, cost, reach, and language — to be considered in determining whether an advertisement “could only be interpreted by a reasonable person as advocating the nomination, election, or defeat” of a specific candidate in a specific election. Id. (emphasis added). This objective test is constitutional because sufficient governmental interests justify the minimal burden it places on speech. Furthermore, the test is vital to the North Carolina Act because, as the Supreme Court has recognized, the most effective campaign advertisements often couch their message in subtle language, thereby avoiding regulation in the absence of a more encompassing test like North Carolina’s. McConnell,
Second, the majority strikes down North Carolina’s definition of political committee — an organization with “a major purpose” of electoral advocacy. § 163-278.6(14)d. The majority requires use of the words “the major purpose” that appear in Buckley v. Valeo,
Finally, the majority strikes down North Carolina’s contribution limits, § 163— 278.13, as applied to independent expenditure committees. In doing so, the majority ignores that North Carolina has met its burden for imposing such limits. The state has provided substantial evidence of the corrupting influence of independent expenditures in the political process. There is no constitutional basis for depriving the state of an important tool — limits on contributions to independent committees — in combating this corruptive influence.
I respectfully dissent.
I.
I begin with an overview of Supreme Court precedent.
The power of the legislative branches to regulate elections “is well established.” Buckley v. Valeo,
The Supreme Court has reviewed these legislative efforts with “ ‘considerable deference,’ ” McConnell,
The Court has also recognized several additional important governmental interests that justify disclosure requirements. “Disclosure provides the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’ in order to aid the voters in evaluating those who seek ... office.” Buckley,
Of course, our inquiry into the validity of a. campaign finance regulation does not end with the recognition of important governmental interests. We must examine the degree to which the regulation burdens First Amendment rights and evaluate whether the governmental interests are sufficient to justify that burden. See, e.g., Buckley,
In one specific area — complete bans on independent political expenditures — the Supreme Court has held that “the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify” the regulation. Id. at 45,
In Buckley and the cases that followed, the Supreme Court established these clear rules for determining whether a campaign finance regulation is overly broad. Nonetheless, the majority inexplicably questions the well-established proposition that “the burdens imposed on political speech and the state’s interests may vary by the type of regulation.” Ante at 299. This refusal to accept decades of Supreme Court precedent highlights the majority’s fundamental misunderstanding and resulting misapplication of the law. Instead of applying precedent, the majority employs its own theory — that any regulation of campaign expenditures or contributions amounts to a direct and therefore inherently suspect restraint on speech, regardless of the type of regulation. As a result, the majority requires all regulations to meet an improperly high bar in order to pass constitutional muster. See, e.g., ante at 280-86 (applying test from Federal Election Commission v. Wisconsin Right to Life, Inc.,—U.S.-,
In addition to the requirement that an election regulation may not be overly broad, the regulation may not be unconstitutionally vague. As the majority explains, to overcome vagueness concerns, a regulation must be sufficiently clear to avoid “foster[ing] arbitrary and discrimina
To succeed in a facial challenge, a plaintiff must carry the “heavy burden of proving” that a regulation is overly broad, McConnell,
The contested provisions of the North Carolina Act are well within the boundaries established by the Supreme Court, as the following discussion makes clear.
II.
The majority holds N.C. GemStat. § 163-278.14A(a)(2) unconstitutionally overbroad and vague. It is neither.
A.
Section 163-278.14A provides regulators (and likewise, speakers) guidance for determining whether “communications are ‘to support or oppose the nomination or election of one or more clearly identified candidates.’ ” § 163-278.14A. The guidance provided in § 163-278.14A is important to the Act because many of its regulations hinge on whether a given communication “supports or opposes the nomination or election of one or more clearly identified candidates.” This operative phrase is used in the separate definitions of “contribution,” “expenditure,” “independent expenditure,” “political committee,” and “referendum committee.” § 163-278.6(6), (9), (9a), (14), (18b). These activities or organizations are, in turn, regulated throughout the Act in the following ways. Political committees and referendum committees are subject to regular reporting requirements and must have a designated treasurer to keep accurate records. § 163— 278.7 to .11. Candidates, committees, and individuals must disclose information about their contributions and expenditures. § 163-278.8, .9, .9A, .11, .12, .39. Contributions to a political committee, referendum committee, or candidate are capped at $4000 per donor, per election. § 163— 278.13.
Section 163-278.14A has two parts that describe the evidence that a regulator can
[i]f the course of action is unclear, contextual factors such as the language of the communication as a whole, the timing of the communication in relation to events of the day, the distribution of the communication to a significant number of registered voters for that candidate’s election, and the cost of the communication may be considered in determining whether the action urged could only be interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election. Id.
The majority, using a rigid test that it has developed with no support in precedent, holds that § 163-278.14A(a)(2) is overly broad and vague.
B.
I begin by explaining how the majority seriously misconstrues Supreme Court precedent with respect to the regulation of express electoral advocacy and issue advocacy. In Buckley the Supreme Court found the definition of “expenditure” in the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3 (1972), as amended by 88 Stat. 1263 (1974), to be vague and potentially overbroad. Buckley,
In McConnell, however, the Supreme Court rejected this interpretation of Buckley, emphasizing that
a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and disclosure contexts, was the product of statutory interpretation rather than a constitutional command. In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroadwould be required to toe the same express advocacy line.
McConnell,
Buckley’s magic words requirement is functionally meaningless. Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted. And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election. Buckley’s express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system.
Id. at 193-94,
In rejecting the notion “that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy” that only allows regulation of express advocacy, id. at 193,
Of course, because a facially valid election regulation can have unconstitutional applications, the regulation remains susceptible to a proper as-applied challenge. See Wis. Right to Life, Inc. v. Fed. Election Comm’n (WRTL I),
Ignoring the Court’s distinction between as-applied and facial challenges, the majority claims that McConnell and WRTL II established a bright line rule for facial challenges that divides acceptable regulations (covering express advocacy) from unacceptable regulations (covering issue advocacy). All election regulations are unconstitutional unless they expressly adhere to the majority’s strict construct, which is as follows. The majority first, and uncontroversially, states that any election regulation is facially constitutional if it is limited to regulating specific “magic words.” If, however, a legislature wishes to regulate any speech that avoids the magic words, the majority would require the statute to include (exactly) the following formulation on its face: (1) the exact terms required by the definition of “electioneering communication” in BCRA, that is, the communication must (a) refer to a clearly identified candidate (b) within 60 days of a general election or 30 days of a primary election and (c) be able to be received by 50,000 or more persons in the candidate’s district or state, see 2 U.S.C. § 434(f)(3)(A)(I), (C); and (2) the communication must be “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Ante at 282. This narrow, rigid approach has several fatal flaws.
First, the majority fails to recognize that McConnell explicitly “rejected the notion that the First Amendment requires [legislatures] to treat so-called issue advocacy differently from express advocacy.” McConnell,
Second, the majority holds, as a constitutional rule, that an election regulation that goes beyond Buckley’s magic words is permissible only if it adopts the exact requirements Congress imposed in BCRA for “electioneering communications.” See ante at 282 (“[T]he [regulated] communication must qualify as an ‘electioneering communication’ defined by [BCRA] ....” (emphasis added)). But the only support the majority cites for this proposition is a footnote in WRTL II — a case analyzing an
Third, the majority fails to recognize that the WRTL II reasonableness test for the “functional equivalent of express advocacy” was developed to determine whether, in the ' actual application of BCRA § 203, an organization could be forbidden from broadcasting a particular advertisement. McConnell had already held that, in a facial challenge, the regulator need only show that a statute is not vague or overbroad. McConnell,
Fourth, the majority adopts its test without regard for the type of regulation implicated. It ignores the fact that a proper overbreadth analysis considers the burden on First Amendment rights as balanced against the strength of the governmental interest. McConnell rejected a bright line test like the majority’s and mandated a return to traditional over-breadth analysis. McConnell,
Thus, the majority errs by ignoring McConnell’s rejection of any rigid constitutional rule that divides constitutionally protected speech from speech that can be regulated in the area of campaign finance regulation; errs by requiring the exact terms of BCRA referred to in passing by WRTL II; errs by ignoring the difference in treatment between facial and as-applied challenges that the Supreme Court requires; and errs by applying the same rule to every type of regulation, rather than conducting an overbreadth analysis based on the purpose and effect of the regulation. Furthermore, because the majority’s holding strikes down § 163-278.14A(a)(2) on its face, it strikes down every application of the statute — from disclosure requirements to contribution limits and even to limits on corporations and unions that North Carolina Right to Life, Inc. (NCRL) has no standing to challenge.
C.
The majority holds that the definition of “to support or oppose the nomination or
The Supreme Court has explicitly rejected a vagueness challenge to BCRA § 301(20)(A)(iii), which defines a type of “federal election activity” as “a public communication that refers to a clearly identified candidate for Federal office ... and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).” 2 U.S.C. § 431(20)(A)(iii); see McConnell,
BCRA § 301(20)(A)(iii) is nearly identical to the “support or oppose” phrase that appears throughout the North Carolina Act. Thus, the legislature need not have provided any clarification of “support or oppose” because the Supreme Court has recognized that this phrase is sufficiently clear on its face. Nonetheless, the legislature took pains to provide additional guidance to regulators and speakers by explaining the type of evidence that could be used in determining whether a certain communication actually does “support or oppose the nomination or election of one or more clearly identified candidates.” This extra legislative guidance does not render a clear phrase unconstitutionally vague; instead it provides additional clarity and helps to streamline the decision making process when questions arise regarding application of the language to particular communications.
Even considering the clarifying terms outside of their context, as the majority does, their meaning is clear. The first sentence in part (a)(2) allows regulators to consider “[ejvidence of financial sponsorship of communications whose essential nature expresses electoral advocacy to the general public and goes beyond a mere discussion of public issues in that they direct voters to take some action to nominate, elect, or defeat a candidate in an election.” § 163-278.14A(a)(2). The majority complains that the phrase “essential nature” is impermissibly vague. Ante at 283. “Essential” means “constituting an indispensable structure, core, or condition of a thing: basic, fundamental.” Webster’s Third New Int’l Dictionary 777 (2002). It is plain that the sentence in question clarifies “supports or opposes” to apply only to communications that direct voters to act for or against a candidate. The phrase “essential nature” clarifies that the sentence cannot reach any communication that is incidentally directed at campaign issues; instead the communication’s basic message must direct voter action regarding a candidate. See Fed. Election Comm’n v. Mass. Citizens for Life, Inc. CMCFL),
The majority also complains that there is a lack of clarity in the remainder of § 163-278.14A(a)(2), which allows a regulator to consider various contextual factors (in an objective light) “[i]f the [regulator’s] course of action is unclear” after evaluat
The majority finally finds fault with the factors listed for consideration in the second sentence of part (a)(2): “ ‘the language of the communication as a whole,’ ‘the timing of the communication in relation to events of the day,’ ‘the distribution of the communication to a significant number of registered voters for that candidate’s election,’ and ‘the cost of the communication.’ ” Ante at 283-84. Again, the majority fails to consider these terms in the context of the entire provision. The terms spell out the factors that “may be considered in determining whether the action urged could only be interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election.” § 163-278.14A(a)(2) (emphasis added). Thus, the evidentiary factors that the majority finds unclear are not the endpoint of the inquiry, but rather they assist the regulator in reaching a clear and objective conclusion. Read as a whole, the second part of the “support or oppose” test provides an objective basis for a regulator to determine whether a communication is clearly, and indisputably, electoral advocacy. The majority’s decision to strike down this test blocks the legislature’s careful effort to provide the maximum amount of guidance. The majority concludes that “North Carolina remains free to enforce all campaign finance regulations that incorporate the phrase ‘to support or oppose the nomination or election of one or more clearly identified candidates.’ ” Ante at 301. Under this ruling North Carolina can best accomplish its goals by eliminating § 163-278.14A entirely, providing no explanation or direction for how regulators should apply the phrase. If this section was eliminated, the remainder of the statute would necessarily survive a facial challenge under McConnell, while providing far less guidance than the statute as it stands. The majority would apparently accept this perverse result, overlooking the increase in regulatory discretion that would surely follow.
Section 163-278.14A(a)(2) gives clear guidance to regulators and speakers — significantly more than that required by the Supreme Court. The provision not only carefully defines its reach as covering communications that “support or oppose the nomination or election of one or more clearly identified candidates,” a standard effectively identical to one deemed constitutional in McConnell. It goes further by indicating the kind of evidence that is relevant to determining whether a communication “supports or opposes” a candidate. According to this provision, the Act’s requirements are triggered when the communication either (1) uses one of the exact words or phrases specified or (2) could only be objectively interpreted “as advo-
D.
Applying its new and rigid rule, the majority also holds § 163-278.14A(a)(2) to be overbroad. Again, I disagree.
To decide whether a regulation imper-missibly restricts protected speech, we must “look to the extent of the burden that [the regulation] placets] on individual rights” and “determinfe] whether [the governmental] interests are sufficient to justify” that burden. Buckley,
1.
I begin with the terms of the regulation to determine whether its reach is sufficiently related to its purpose of protecting the electoral process. On its face § 163— 278.14A(a)(2) limits the Act’s regulations to clear electoral advocacy. Section 163-278.14A explains the “evidence” that shows “that communications are ‘to support or oppose the nomination or election of one or more clearly identified candidates.’ ” § 163-278.14A. This section provides guidance to regulators enforcing the substantive provisions of the Act. Again, part (a)(1) of the section provides a list of examples of the types of words that may be used to determine that a communication is electoral advocacy. Part (a)(2) provides additional direction when the communication does not use an enumerated word or phrase. As discussed below, part (a)(2), the challenged part, is facially valid under the First Amendment.
Section 163-278.14A(a)(2) begins by allowing a regulator to consider “[e]vidence of financial sponsorship of communications whose essential nature expresses electoral advocacy to the general public and goes beyond a mere discussion of public issues in that they direct voters to take some action to nominate, elect, or defeat a candidate in an election.” This sentence restates Buckley’s express advocacy test through the language used by the Supreme Court in MCFL, rather than through the examples of specific words. In MCFL the Court noted that even though a flier describing candidates’ voting-records on abortion and urging readers to “VOTE PRO-LIFE” did not use the same language cited in Buckley and contained a disclaimer stating that it was not an endorsement of any candidate, it constituted express electoral advocacy.
The Edition [the flier] cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, itprovides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than “Vote for Smith” does not change its essential nature. The Edition goes beyond issue discussion to express electoral advocacy.... The “Special Edition” thus ... represents express advocacy of the election of particular candidates distributed to members of the general public.
MCFL,
Thus, like in MCFL, the first sentence of part (a)(2) only allows the term “support or oppose” to cover advocacy that directly and explicitly asks the public to vote for or against a candidate. This sentence advises a regulator to look to the text of the communication in order to determine whether it expressly advocates election or defeat of a candidate through the use of different words or symbols than the ones listed in part (a)(1). This sentence is therefore a vital stopgap to prevent easy circumvention of the magic words group, a problem that North Carolina combated in the past. See J.A. 867, 1017 (citing advertisements that escaped regulation by avoiding the “magic words” and using instead XXX or a circle with a line through it over the candidate’s face). Given that North Carolina adopted the exact language used by the Supreme Court in MCFL for the express advocacy test in the first sentence of part (a)(2), it is impossible to see how the majority could strike down this language as impermissibly broad.
The second sentence of part (a)(2) allows a regulator to consider additional evidence in determining whether a communication supports or opposes a clearly identified candidate “[i]f the [regulator’s] course of action is unclear.” § 163-278.14A(a)(2). This evidence is strictly limited to that showing the communication “could only be interpreted by a reasonable person as advocating the nomination, election, or defeat of [a specific] candidate in [a specific] election.” Id. Thus, under this provision the substantive terms of the Act may only impact communications that advocate specific electoral action for or against a specific candidate in a specific election; the provision ensures that the Act’s terms do not impact communications that solely support or oppose issues. In other words, the communication must be “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” WRTL II,
The majority holds that the use of “contextual factors,” such as those outlined in the second sentence of part (a)(2), is forbidden by WRTL II. Ante at 280-81, 283-84. The majority simply misreads WRTL II. WRTL II rejected consideration of certain factors that would show the “subjective intent ” of the sponsor of the communication, which was “irrelevant in an as-applied challenge.”
In writing the second part of its test for determining support of or opposition to a candidate, North Carolina sought to cover all electoral advocacy, including “phony issue ads.” J.A. 1027. This governmental interest was clearly recognized by the Supreme Court in McConnell when it upheld regulations of “public communication[s] that promote[ ] or attack[ ] a clearly identified federal candidate,” because such communications “directly affect[ ] the election in which [the candidate] is participating.” McConnell,
2.
Section 163-278.14A does not operate alone; its purpose is to define the Act’s substantive terms. Therefore, we can only truly understand any burdens imposed by the provision, and the various governmental interests that support it, by considering how it is used in the Act’s substantive regulations. The Act imposes four general types of regulation: political committee organizational requirements, disclosure requirements, contribution limits, and limits on expenditures by certain types of corporations and labor unions. I go through each of these categories of regulation to determine whether § 163-278.14A(a)(2) defines “support or oppose” in a way that causes the substantive regulations to impose burdens that outweigh the governmental interests that justify them. I conclude — using the second part of the definition of “support or oppose”— that the regulations are sufficiently correlated to important governmental interests, and therefore the second part does not render the Act’s regulations overbroad.
Second, the Act imposes several different types of reporting and disclosure requirements when money is spent to “support or oppose” a candidate. Candidates, political committees, and referendum committees must regularly report their contributions and expenditures, unless these are less than $3000 for an election cycle. § 163-278.7, .9, ,9A, .10, 10A, .11. Individuals must periodically report contributions or independent expenditures exceeding $100. § 163-278.12. In addition, all advertisements funded through contributions or expenditures must contain certain disclosures about their sponsors and the candidates they support, unless they are funded through an independent expenditure from an individual who has spent less than $1000 in the election cycle. § 163-278.38Z, .39, .39A, .39C. Disclosure of funding information related to communications that “support or oppose the nomination or election of one or more clearly identified candidates” does not prohibit speech. See McConnell,
Third, the Act imposes a $4000 cap on contributions to candidates or political committees, and the same limit on contributions from a political committee, for each election cycle. § 163-278.6(6), 13.
Fourth, the Act makes it “unlawful for any corporation, business entity, labor union, professional association or insurance company” to (1) “make any expenditure to support or oppose the nomination or elec
The majority claims that I give “short shrift” to WRTL II in this analysis. Ante at 297. However, as I explained above, every court that has considered the application of WRTL II outside the expenditure limit context has determined that WRTL II is not relevant when considering contri-button limits, political committee regulations, or disclosure requirements. See supra at 297. There is good reason that these courts have recognized WRTL ITs limited applicability. The Supreme Court has consistently distinguished expenditure limits, which impose a direct restraint on speech and therefore are subject to strict scrutiny, from other campaign finance regulations that do not directly limit speech and thus are subject only to intermediate scrutiny. Further, despite the majority’s assertions, even if WRTL II did apply (which it does not), the majority misstates the WRTL II test as requiring “the bright-line requirements of BCRA § 203.” Ante at 297 (internal quotation marks omitted). Thus, the majority is correct that I “never claim[ ] that § 163-278.14A(a)(2) meets [the majority’s] standard.” Id. at 297. I do not apply this standard because, for the many reasons I have outlined above, it is both unsupported and irrelevant to the challenge before us today.
The majority further complains that I am “unable to identify a single case that has upheld a definition of the ‘functional equivalent of express advocacy’ as broad as § 163-278.14A(a)(2) since the Supreme Court’s WRTL [II] decision.” Ante at 299. I, like the majority, have cited no cases applying WRTL II’s test for a simple
In sum, the plaintiffs have failed to show that § 163-278.14A(a)(2) is overly broad on its face. The provision does not, on its face, cover a substantial amount of pure issue advocacy. Instead, its terms limit its application to communications that both “go [ ] beyond a mere discussion of public issues” and either expressly direct voters to take specific electoral action on behalf of “a clearly identified individual” or could, under an objective standard sanctioned by WRTL II, only be understood as urging specific electoral action. The provision limits North Carolina’s imposition of political committee regulations, disclosure requirements, contribution ceilings, and corporate contribution and expenditure restrictions to communications that direct voters to vote for or against a specific candidate in a specific campaign. The regulations that apply to the plaintiffs in this case only marginally burden speech, and they are justified by sufficient governmental interests, meeting the tests for constitutionality established by Buckley and McConnell. Nonetheless, the majority refuses to apply the test established by the Supreme Court and strikes the provision down as “patently overbroad” in all of its applications in this facial challenge. Ante at 300. The majority fails to provide any guidance for states attempting to regulate elections, noting instead that “[a]t some point ... enough is simply enough.” Ante at 302. But such vague and conclusory assessments are an insufficient basis for overturning the will of the people of North Carolina through a blanket invalidation of a statutory provision. Perhaps in rare instances the statute could prove to be unconstitutional in its application. But today’s case gives us no facts that would support such an as-applied challenge. Nor do the plaintiffs come close to carrying their heavy burden of showing that the regulation would chill a substantial amount of protected speech. Thus, I would hold § 163-278.14A(a)(2) constitutional on its face.
III.
The majority also holds that North Carolina’s definition of political committee unconstitutionally burdens political expression because it embraces organizations with “a major purpose” (rather than “the
A.
In Buckley the Supreme Court applied a narrowing construction to FECA’s definition of “political committee” in order to avoid concerns about constitutional vagueness and overbreadth.
FECA did not define the phrase “for the purpose of influencing.” See Buckley,
NCRL argues that, in order to ensure that North Carolina’s regulations are not vague or overly broad, the state must adopt word for word the language suggested by Buckley. Thus, the North Carolina legislature violated the Constitution by
B.
Unlike the definition of “political committee” in Buckley, the North Carolina Act’s definition of the term is clear on its face. The Act defines “political committee” as
a combination of two or more individuals ... that makes, or accepts anything of value to make, contributions or expenditures and has one of the following characteristics:
a. Is controlled by a candidate;
b. Is a political party or executive committee of a political party or is controlled by a political party or executive committee of a political party;
c. Is created by a corporation, business entity, insurance company, labor union, or professional association pursuant to G.S. 163-278.19(b); or
d. Has as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates.
N.C. Gen.Stat. § 163-278.6(14).
The majority argues that the use of “a major purpose” rather than “the major purpose” in § 163-278.6(14)d renders the statute unconstitutionally vague because, although regulators and speakers can easily determine “the major purpose” of an organization, they are left “with absolutely no direction” as to how to determine “a major purpose” of an organization. Ante at 289. The majority reasons that groups and regulators can determine what is “the major purpose” of an organization by considering whether it “explicitly states in its by-laws or elsewhere, that influencing elections is its primary objective, or if the organization spends the majority of its money in supporting or opposing candidates.” Ante at 289. Of course, consistent with Federal Election Commission v. Massachusetts Citizens for Life (.MCFL),
It is clear that the same analysis can be used for both phrases. The key word providing guidance to both speakers and regulators in “the major purpose” test or “a major purpose” test is the word “major,” not the article before it. “Major” means “notable or conspicuous in effect or scope: considerable, principal.” Webster’s Third New Int’l Dictionary 1363 (2002). Thus, regardless of whether a regulator is identifying “a major purpose” or “the major purpose” of an organization, the regulator considers the same evidence to determine whether
Likewise, an organization is just as able to determine whether electoral advocacy comprises one of its major purposes as it is able to determine whether such activity is “the major purpose.” NCRL confirmed its own ability to make this determination at oral argument, when its counsel emphatically stated that advocacy for a candidate was not any of its major purposes. And, again, if a group is concerned about how it might be categorized, the North Carolina Act makes binding advisory opinions available. § 163.278.23; see McConnell v. Fed. Election Comm’n,
C.
In addition, the substitution of “a” for “the” in Buckley’s major purpose test does not expand the reach of the Act in any way that overly burdens First Amendment freedoms. In arriving at the major purpose test to avoid overbreadth, Buckley expressed concern that requiring disclosure of expenditures (broadly defined) by “groups engaged purely in issue discussion” would not serve the campaign-related purposes of FECA.
The substitution of “a” for “the” in the political committee definition would only render the definition unconstitutional if it resulted in limiting a substantial amount of pure issue advocacy.
Furthermore, North Carolina’s contribution limits and disclosure requirements create lesser burdens on speech than other requirements that have been upheld by the Supreme Court. The Supreme Court has approved a ban on any political contributions from issue-based non-profit corporations. Fed. Election Comm’n v. Beaumont,
The majority also argues that the “a major purpose” language over-burdens issue advocacy groups because it forces them to divulge information to defend against political committee designation. Ante at 290. However, the substitution of “a” for “the” in the test poses no greater burden on an organization defending against political committee designation. Under either formulation, an organization must divulge the same type of information with respect to purpose in defending against designation.
Furthermore, North Carolina has important interests in regulating political parties with a major purpose of electoral advocacy. Again, these interests include preventing corruption and the appearance of corruption in the electoral process, providing information to voters, and providing data to regulators to assist with enforcement of the law. See supra at 309-10. North Carolina’s political committee definition is closely drawn to these interests. In tailoring its statute, North Carolina heeded Buckley’s, concern that regulation of “groups engaged purely in issue discussion” would not be sufficiently correlated to the governmental interests that justify regulation. See Buckley,
In fact, the Act is tailored to address a fundamental organizational reality. As NCRL’s counsel concedes, most organizations — including NCRL — do not have just one major purpose. For example, NCRL states that its two major purposes are educating to promote life and lobbying at
The majority argues that North Carolina should employ “narrower means ... to achieve its regulatory objective,” namely, requiring what it characterizes as “onetime reporting” of campaign-related expenditures and conti’ibutions for all organizations unless they meet the “the major purpose” test. Ante at 290. But the majority errs in requiring North Carolina to employ the least restrictive means of achieving its goals. The narrow tailoring analysis does not apply to the political committee regulations at issue here (disclosure and reporting requirements and contribution limits); under Buckley the state must only show “relevant correlation” between its interests and the regulation. See Buckley,
North Carolina’s political committee definition establishes limits on contributions and requires disclosures by organizations centrally engaged in electoral advocacy. To the extent that the regulations impact an organization’s issue advocacy by requiring disclosure of all donor information and financial receipts and disbursements and by imposing limits on all contributions to it, the regulations encourage groups to set up separate political committees for their electoral advocacy. The availability of this option both limits any burden on a group’s issue advocacy and furthers the state’s interest in transparency in electoral advocacy. See Beaumont,
North Carolina has devised a standard that addresses organizational reality and is careful not to frustrate issue advocacy or general political speech. The statute only reaches organizations with direct electioneering as a major purpose and leaves options that allow those organizations to avoid regulation of any of their pure issue advocacy. Because the provision restricts issue advocacy even less than regulations approved by the Supreme Court and is closely matched to important governmental interests, I would hold it constitutional on its face.
IV.
The majority also strikes down the Act’s $4000 contribution limit insofar as it applies to “independent expenditure political committees” such as NCRL-FIPE.
In contrast to its other two holdings, the majority avoids the temptation to create some new rigid rule for contribution limits. But, while the majority properly states the overbreadth test, it strikes down the contribution limit by relying on our vacated decision in North Carolina Right to Life, Inc. v. Leake (.NCRL II),
The majority quotes our vacated opinion in NCRL II in concluding that North Carolina’s concerns about the corruptive influence of contributions to independent expenditure committees are “ ‘implausible.’ ” Ante at 293 (quoting NCRL II, 344 F.3d at
McConnell found support for this expanded understanding of corruption in, among other cases, California Medical Ass’n v. Federal Election Commission (Cal-Med),
While ignoring McConnell’s interpretation of CaV-Med and its approach to corruption, the majority relies on out-of-context quotes from McConnell to support its contention that the Court “views political parties as different in kind than independent expenditure committees.” Ante at 293. The language quoted by the majority is taken from a portion of McConnell that addresses an equal protection challenge to BCRA provisions that regulate only political parties (a subset of political committees) and not “special interest groups.” McConnell,
Indeed, as described above, McConnell recognized the “more subtle but equally dispiriting forms of corruption” that could result from backdoor involvement of formally “independent” individuals and groups in the federal political process— even without explicit coordination with candidates. Id. at 153-54,
Because of the Supreme Court’s awareness of the influence brought to bear on federal campaigns by groups making independent expenditures, McConnell only required “substantial evidence” to support Congress’s concern about corruption caused by contributions to state and local party committees, candidates, and officeholders that were formally independent from the federal campaigns.
North Carolina has provided a thorough record of the threat of corruption, the appearance of corruption, and the circumvention of election laws that attend the operation of independent expenditure committees. This evidence is sufficient to satisfy the state’s burden of showing substantial evidence. The state shows that a vast amount of campaign funding at the national level has shifted from party committees to so-called independent committees. Moreover, the evidence shows that contributors to these independent committees still expecU — and have reason to believe — that their contributions will gain them special access to elected officials and allow them to influence the political process. Thomas E. Mann, a respected senior fellow at the Brookings Institution, explains in his declaration the pervasive influence of independent committees and those who fund them, using the 2004 federal campaigns as an example:
The [national] parties’ IEPC [Independent Expenditure Political Committee] strategies were similar. They encouraged people closely and visibly associated with them to form and operate officially independent IEPCs, which the party through its officials and leading members could then identify to donors as appropriate funding vehicles. Those IEPCs could, in turn, because of their management by people so intimately familiar with the needs and aims of the party effectively aid a campaign without any formal coordination. The risk for any donors seeking access and influence was slight. Who contributed was a matter of public knowledge and their money would bé, so far as the party itself was concerned, well spent.
IEPC activities can undermine democratic politics by creating corruption or the appearance of corruption. Some contributions are so large ... that they would certainly be remembered vividly by party officials and cast doubt in the public’s eye that the contributor enjoyed no special influence over or access to the party and its candidates. Spending by IEPCs, moreover, greatly benefits federal candidates and thus has great value to them. Nothing suggests, in fact, that it is much less effective than spending by the parties themselves. Given the close ties between those who manage the most influential IEPCs ... and the major political parties and their candidates, actual coordination between the IEPCs and the parties and candidates is unnecessary.
J.A. 325-26.
The campaign waged in North Carolina by the independent group Farmers for Fairness (Farmers) provides another example of the corruptive influence of independent expenditures. Farmers created advertisements directly opposing certain legislative candidates. Instead of simply running the advertisements during election time, Farmers scheduled meetings with legislators and screened the advertisements for them in private. Farmers then explained that, unless the legislators supported its positions, it would run the advertisements that attacked the candidates on positions unrelated to those advocated by Farmers. The majority interprets this activity as the “group feel[ing] passionately about an issue and discussing] it.” Ante at 294. This could not be further from reality. The record reveals that Farmers did not discuss its central issue, deregulation of the hog industry, in its advertisements. Instead, it threatened and coerced candidates to adopt its position, and, if the candidate refused, ran negative advertisements having no connection with the position it advocated. This activity is not “pure political speech,” ante at 305; it is an attempt to use pooled money for behind-the-scenes coercion of elected officials. The majority also opines that inasmuch as Farmers discussed its intention to run the advertisements with the candidates, their activities were coordinated. Ante at 294-95. This is simply wrong. A threat cannot qualify as coordination because the targeted candidate would not be willingly cooperating if he or she chose to surrender to the demands of the Farmers group. If the candidate chose not to surrender, and Farmers then made good on its threat to broadcast negative advertisements, it is equally clear that the candidate would not have directed or otherwise cooperated with the airing of the advertisement. The Farmers example shows exactly how independent expenditures can create the same appearance of corruption and potential for actual corruption as do excessively large contributions. The only difference between these two methods (other than, after today’s decision, that one may be regulated and the other may not) is that the independent expenditures made by Farmers had the potential to influence candidates through threats and reprisals, while excessively
These examples are certainly not exhaustive. The record contains hundreds of pages of testimony and reports supporting the judgment of the North Carolina legislature that independent expenditure political committees are sufficiently harmful to the electoral process to justify the $4000 contribution limit.
The organizational structure of the plaintiffs in this case further illustrates the legitimacy of North Carolina’s concerns about allowing independent expenditure committees to receive unlimited contributions. As the majority notes, NCRL-FIPE is an entity legally separate from NCRL and NCRL-PAC, with the mission of making uncoordinated expenditures. Ante at 294 n. 8. However, NCRL-FIPE shares facilities, directors, staff, and other resources with NCRL and (especially) NCRL-PAC. Executive meetings and board meetings address issues for all of the various NCRL groups, and the same officers plan strategy and activities and raise funds for all of the NCRL entities. While NCRL-FIPE does not officially coordinate its expenditures with candidates, NCRL and NCRL-PAC do coordinate expenditures with candidates and make direct contributions. Thus, at any given moment, the same director or staffer is on the one hand ensuring that NCRL-PAC’s activities follow a candidate’s campaign strategy, while on the other hand “independently” designing NCRL-FIPE’s expenditure strategy to promote that same candidate. It is hard to understand how NCRL-FIPE could, whether intentionally or not, avoid incorporating the coordinated campaign strategies used by NCRL-PAC into its own ostensibly independent campaign work. Similarly, it is hard to understand how a donor, approached by the same fundraiser on behalf of both NCRL-PAC and NCRL-FIPE, could not believe that his or her contributions to each would be linked. I do not argue that we should “pierce the corporate veil,” ante at 294 n. 8, or that “NCRL has abused its corporate form,” ante at 306; the corporate structure here is legitimate. However, under the majority’s new rule of constitutional law, organizations are given an explicit green light to use the legal loophole created by today’s holding to circumvent campaign finance regulation. The majority’s rule exempts from contribution limits NCRL-FIPE and all other independent expenditure committees that are closely intertwined with politically connected groups. The majority’s decision enables political advocacy groups to create funds through which they can funnel unlimited campaign contributions after large donors
North Carolina has provided substantial support for its interest in regulating contributions to independent expenditure political committees. The regulation is closely drawn to match the state’s interest. The contribution limits are quite accommodating — each individual donor may give up to $4000 to NCRL-FIPE for each election. Much lower contribution limits have been approved by the Supreme Court. See Randall v. Sorrell,
In sum, the majority ignores the import of McConnell and instead relies on our vacated opinion to characterize North Carolina’s interest in the regulation as implausible. By resurrecting our vacated reasoning, the majority places an improperly heavy evidentiary burden on North Carolina, rather than only requiring it to show the substantial evidence necessary after McConnell. North Carolina has provided substantial evidence of the corruptive influence of independent expenditures, justifying its contribution limit for all political committees. Because the $4000 limit on contributions for each contributor for each election to each independent expenditure committee is closely drawn to the important governmental interest of preventing the reality and appearance of corruption, I conclude that § 163-278.13 is constitutional as applied to NCRL-FIPE and similarly situated groups.
V.
The State of North Carolina has, within constitutional bounds, enacted a campaign finance law that (1) provides an appropriate test for determining whether an advertisement “support [s] or oppose[s] a clearly identified candidate,” N.C. Gen.Stat. § 163-278.14A(a)(2); (2) properly defines a political committee as one that has electoral advocacy as “a major purpose,” § 163-278.6(14)d; and (3) imposes dollar limits on contributions to independent political com
In striking down these provisions, the majority relies almost exclusively on its view that campaign finance regulations are inherently suspect because they directly threaten the “ordinary political speech that is democracy’s lifeblood.” Ante at 284. According to the majority, enforcement of North Carolina’s regulations would subject political speech to “layer upon layer of intense regulation,” giving states “nearly unbridled discretion to allow or disallow political messages based, inter alia, on the regulator’s own preferences and predilections.” Ante at 296. The majority sees “ungovernable complexity” in the regulations that would serve as “a lexicon of bureaucratic empowerment” and would require potential speakers to “hire the best team of lawyers” to “figure out” how to escape penalties for violations. Ante at 296, 298, 297. Further, the majority asserts, North Carolina’s regulations would “serve as a front for incumbency protection” and “silence [organizations] through regulation,” thereby “slowly ridding our democracy of one of its foremost cleansing agents.” Ante at 306. The majority concludes that I “replaee[ ] ... faith in the workings of the First Amendment with a faith in the powers of government to manage what we say on what matters most,” thereby “surrendering] to the state an awesome control over those political issues that determine the quality of our democracy and the values that give purpose and meaning to our lives.” Ante at 307-08.
The majority characterizes my expressed concerns as “hyperbolic” and “overblown,” ante at 296, 301, yet apparently sees no irony in making these doomsday-like predictions in support of its own position. My concerns are based on the realities of politics in North Carolina and elsewhere-realities that have been recognized by the Supreme Court, are documented in the record, and provided the basis for legislative action that culminated in passage of the Act. The majority’s grave predictions, on the other hand, have no historical foundation. Decades of campaign finance regulation have not silenced political speech or allowed government regulators to run amok and censor speech at whim. North Carolina’s Act is simply another effort at reasonable (and necessary) regulation. The Act is the result of the legislature fulfilling its duty to protect the political processes of the state from the undue influence of money. In stopping the state from enforcing key provisions of the Act, the majority severely hobbles the legislature’s authority to combat the appearance and reality of corruption in politics.
The majority’s approach, as reflected in the statements noted above, “takes a difficult constitutional problem and turns it into a lop-sided dispute between political expression and government censorship.” Nixon v. Shrink Mo. Gov’t PAC,
First, “a decision to [spend money to support or oppose] a campaign is a matter of First Amendment concern — not because money is speech (it is not); but because it enables speech.” Id. at 400,
Second, the majority ignores the Supreme Court’s longstanding recognition that campaign finance regulations also serve the interest of preserving the vitality of our democratic institutions, which in turn serves the purposes of the First Amendment. As the Court has explained in the context of contribution limits, judicial evaluation of campaign regulations
reflects more than the limited burdens they impose on First Amendment freedoms. It also reflects the importance of the interests that underlie [regulation]— interests in preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption .... [T]hese interests directly implicate the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process. Because the electoral process is the very means through which a free society democratically translates political speech into concrete governmental action, contribution limits, like other measures aimed at protecting the integrity of the process, tangibly benefit public participation in political debate.
McConnell v. Fed. Election Comm’n,
It is not our place to rewrite precedent, even if our beliefs about the First Amendment conflict with those of the Supreme Court. Instead, we should carefully and methodically apply precedent to determine whether North Carolina has overstepped its bounds. The majority sidesteps this process, relying instead on its instinct that “[a]t some point ... enough is simply enough.” Ante at 302. On the side of the balance protecting free expression, the majority is right that these regulations could — in some hypothetical case not before us today — affect political expression in an unconstitutional way. But under Supreme Court precedent we may not “go beyond the statute’s facial requirements and speculate about hypothetical or imaginary cases,” as the majority has done. Wash. State Grange v. Wash. State Republican Party,—=U.S.-,-,
On the other side of the balance, the regulations protect the democratic process by publicizing information about the financial backers of political candidates through disclosure and reporting requirements; the contribution limits further promote broad-based political participation by encouraging candidates and political committees to expand their donor bases. As I have explained, without the Act’s clarifying definition of “support or oppose the nomination or election of one or more clearly identified candidates” in § 163— 278.14A(a)(2), those seeking to influence elections will continue to avoid contribution limits and disclosure requirements by thinly disguising their advertisements as issue discussion. As a result, voters will be deprived of valuable information about candidates’ supporters, and each donor will be allowed to inject unlimited amounts of money into the political process. Without the “a major purpose” political committee definition in § 163-278.6(14)d, organizations with electoral advocacy as a major purpose will continue to escape regular reporting, accounting, and contribution limits by rejecting transparency and blending their major political activity into their other work. And without the application of contribution limits to independent political committees through § 163-278.13, political groups -will continue to exert coercive influence over elected officials without any constraints on the size of contributions from individual donors.
. Such regulations can, however, pose an unconstitutional burden if those regulated are able to show evidence of threats or reprisals as the result of the disclosures. See McConnell,
. Contributions to candidates for the state supreme court and court of appeals are capped at $1000. § 163-278.13(e2).
. Although the majority mentions one important governmental interest — " 'limiting] the actuality and appearance of corruption,’" ante at 281 (quoting Buckley,
. Further, it is unclear how striking down part (a)(2) remedies the majority’s concerns because the remaining provision states that the magic words are "not necessarily the ex-elusive or conclusive means” of coming under the “support or oppose” language. § 163— 278.14A(a).
. Again, the Act imposes a $1000 limit on contributions for some judicial candidates. § 163-278.13(e2).
. Even if the plaintiffs could demonstrate standing to challenge the use of § 163-278.14A(a)(2) to define the term "expenditure” in the context of corporate expenditure limits, they could not prevail on their claim. The Supreme Court has held that direct expenditure and contribution limits on such entities are constitutional regulations, not " 'complete ban[s]’ on expression,” because corporations have the opportunity to engage in advocacy through the use of segregated funds (such as, for instance, NCRL’s use of NCRL-PAC). McConnell,
. The reporting requirements would also be an unconstitutional burden on associational rights if the disclosure of donor information resulted in threats or reprisals to donors, a claim that must be substantiated with evidence for the plaintiffs to prevail. See Buckley,
. In fact, North Carolina adopted the "a major purpose” test as a more limited attempt to address the corrosive effect of non-profit election spending after this court struck down the state's ban on expenditures and contributions from the general treasury funds of non-profit corporations. J.A. 975 (deposition of the bill's sponsor, state representative Philip A. Baddour); see NCRL /,
. North Carolina has also tailored the reporting requirements to its interests by only requiring groups that spend or collect more than $3000 during an election to file reports. § 163-278.10A.
. The plaintiffs do not argue that the disclosure and reporting provisions applicable to “political committees” should not apply to NCRL-FIPE, and the majority's holding does not reach these other provisions.
. North Carolina also cites examples of actual corruption in North Carolina politics, supporting the state’s reasonable prediction that state politicians and contributors will likely find and exploit any existing loopholes in campaign finance regulations. See They Stained State's Honorable Reputation, The News & Observer, Sept. 9, 2007, at B2 (listing jailed and fined politicians and their crimes).
. Despite its purported concern about the limits on its speech imposed by the $4000 limit on contributions from each contributor, NCRL-FIPE has only raised a total of $3359 since it was created by NCRL and has only spent $339 on its independent expenditures, making it doubtful that the statute limits its ability to speak in any way.