NORTH CAROLINA RIGHT TO LIFE, INCORPORATED; North Carolina Right to Life Political Action Committee; North Carolina Right to Life Committee Fund for Independent Political Expenditures, Plaintiffs-Appellees, v. Larry LEAKE, in his official capacity as Chairman of the North Carolina State Board of Elections; Genevieve C. Sims, in her official capacity as Secretary of the State Board of Elections; Robert Cordle, in his official capacity as a member of the State Board of Elections; Lorraine G. Shinn, in her official capacity as a member of the State Board of Elections; Charles Winfree, in his official capacity as a member of the State Board of Elections; Robert F. Johnson, in his official capacity as District Attorney for the North Carolina Prosecutorial District 15A; Roy Cooper, in his official capacity as the North Carolina Attorney General, Defendants-Appellants. North Carolina Right to Life, Incorporated; North Carolina Right to Life Political Action Committee; North Carolina Right to Life Committee Fund for Independent Political Expenditures, Plaintiffs-Appellants, v. Larry Leake, in his official capacity as Chairman of the North Carolina State Board of Elections; Genevieve C. Sims, in her official capacity as Secretary of the State Board of Elections; Robert Cordle, in his official capacity as a member of the State Board of Elections; Lorraine G. Shinn, in her official capacity as a member of the State Board of Elections; Charles Winfree, in his official capacity as a member of the State Board of Elections; Robert F. Johnson, in his official capacity as District Attorney for the North Carolina Prosecutorial District 15A; Roy Cooper, in his official capacity as the North Carolina Attorney General, Defendants-Appellees.
Nos. 02-2052, 02-2053
United States Court of Appeals, Fourth Circuit
Argued: May 6, 2003. Decided: Sept. 23, 2003.
344 F.3d 418
REVERSED AND REMANDED
Before WIDENER and MICHAEL, Circuit Judges, and BULLOCK, United States District Judge for the Middle District of North Carolina, sitting by designation.
Affirmed in part and reversed in part by published opinion. Judge BULLOCK wrote the opinion, in which Judge WIDENER joined. Judge MICHAEL wrote an opinion concurring in part and dissenting in part.
OPINION
BULLOCK, District Judge:
Appellees North Carolina Right to Life, Inc. (“NCRL“), North Carolina Right to Life Political Action Committee (“NCRLPAC“), and North Carolina Right to Life Committee Fund for Independent Political Expenditures (“NCRLC-FIPE“) filed suit in federal court challenging the constitutionality of certain provisions of North Carolina‘s election and campaign finance laws. In a mixed result for both sides, the district court declared certain of the challenged provisions unconstitutional and permanently enjoined the State of North Carolina from enforcing those provisions. Both sides now appeal. For the reasons that follow, we affirm in part and reverse in part.
I.
NCRL is a non-profit, membership corporation, incorporated in North Carolina, with local chapters throughout the State. According to NCRL, its major purpose is not the nomination or election of candidates, but rather to educate North Caro
This action is the sequel to litigation that was commenced in 1996, in which NCRL successfully challenged certain provisions of the North Carolina campaign finance laws. See North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir.1999) (“NCRL I“). Responding to this court‘s decision, the North Carolina General Assembly adopted legislation that amended, deleted, and added campaign finance statutes. Following these legislative changes, NCRL filed this suit again challenging as facially unconstitutional certain provisions of these statutes.
First, NCRL challenged the provision setting forth the method for determining whether a communication supports or opposes the nomination or election of a particular candidate.
NCRL and the State filed cross motions for summary judgment pursuant to
Both parties now appeal. The State appeals on the grounds that the district court erred in declaring
II.
Before addressing the merits of the parties’ contentions, an understanding of the statutory provisions at issue is necessary. Under
a combination of two or more individuals, such as any person, committee, association, organization, or other entity that makes, or accepts anything of value to make, contributions or expenditures and has one or more of the following characteristics:
- Is controlled by a candidate;
- 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;
- Is created by a corporation, business entity, insurance company, labor union, or professional association pursuant to G.S. 163-278.19(b); or
- Has as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates.
...
An entity is rebuttably presumed to have as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates if it contributes or expends or both contributes and expends during an election cycle more than three thousand dollars ($3,000). The presumption may be rebutted by showing that the contributions and expenditures giving rise to the presumption were not a major part of activities of the organization during the election cycle....
An expenditure, and similarly a contribution, is defined as “any purchase, advance, conveyance, deposit, distribution, transfer of funds, loan, payment, gift, pledge or subscription of money or anything of value whatsoever, ... to support or oppose the nomination [or] election ... of one or more clearly identified candidates.”
(a) Either of the following shall be means, but not necessarily the exclusive or conclusive means, of proving that an individual or other entity acted “to support or oppose the nomination or election of one or more clearly identified candidates“:
- Evidence of financial sponsorship of communications to the general public that use phrases such as “vote for“, “reelect“, “support“, “defeat“, “reject“, “vote pro-(policy position)” accompanied by a list of candidates clearly labeled “pro(policy position)” or “anti-(policy position)“, or communications of campaign words or slogans, such as posters, bumper stickers, advertisements, etc., which say “(name of candidate)‘s the One“, “(name of candidate) ‘98“, “(name of candidate)!“, or the names of two candidates joined by a hyphen or slash.
- Evidence 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. If 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.
The second requirement for designation as a political committee, in addition to the contribution and expenditure requirement, is that an entity qualify as one of the following: (1) a candidate-controlled organization; (2) a political party; (3) an organization created by a corporation, business entity, insurance company, labor union, or professional association; or (4) an organization that “[h]as as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates.”
As a consequence of being regarded by the State as a political committee, an entity is subject to administrative and regulatory requirements. A political committee is required to appoint a treasurer, file a
In addition to the provisions relating to the definition of political committee, NCRL challenged
The final statutory provisions challenged merit no discussion of their terms. We have already declared
We now turn to the merits which we review under the “exacting scrutiny applicable to limitations on core
III.
The Supreme Court adopted in Buckley a bright-line test for determining whether communications may constitutionally be regulated as electoral advocacy. Under the Court‘s “express advocacy” test, only expenditures for “communications that include explicit words of advocacy of election or defeat of a candidate” are subject to regulation. Buckley, 424 U.S. at 43, 96 S.Ct. 612. The rationale for the Court‘s bright-line rule was that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions.” Id. at 42, 96 S.Ct. 612. Accordingly, the Court “refused to adopt a standard allowing regulation of any advertisement that mentions a candidate‘s stand on an issue.” Perry, 231 F.3d at 160 (citing Buckley, 424 U.S. at 42-43, 96 S.Ct. 612). The Court provided, in a now famous footnote, a list of illustrative words and phrases that qualify as “express words of advocacy.” Buckley, 424 U.S. at 44 n. 52, 96 S.Ct. 612.
The first prong of North Carolina‘s “express advocacy” test mirrors the “express advocacy” test adopted in Buckley and reaffirmed in MCFL.
If an entity does not satisfy the first prong of the North Carolina express advocacy test, the second prong, or “context prong,” provides an additional means of determining whether an entity acts to support or oppose a candidate. Under the context prong, the following is a means of proving that an entity acted to support or oppose a candidate:
Evidence 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. If 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.
The district court held that the context prong of
The ability to consider a communication‘s context, the State contends, was expressly approved by this court in FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1052-55 (4th Cir.1997) (“CAN II“). In CAN II, we cited the Ninth Circuit decision in FEC v. Furgatch, 807 F.2d 857 (9th Cir.1987), summarizing its holding as permitting, in those instances where political communications do include an explicit directive to voters to take some course of action but that course of action is unclear, consideration of “context” in determining whether the action urged is the election or defeat of a particular candidate. CAN II, 110 F.3d at 1054. The State‘s reliance on
Our statement in CAN II regarding the Ninth Circuit‘s express advocacy test was not a statement of the law in this circuit. The court in CAN II was not tasked with determining the constitutionality of a particular regulation; that determination had already been made in an earlier decision. FEC v. Christian Action Network, 894 F.Supp. 946 (W.D.Va.1995), aff‘d, 92 F.3d 1178, 1996 WL 431996 (4th Cir.1996) (per curiam) (adopting district court opinion). Instead, the issue before the court was whether the FEC‘s litigation position in the earlier decision lacked substantial justification, and if so whether it was liable for attorney‘s fees under the Equal Access to Justice Act. CAN II, 110 F.3d at 1050. Consequently, this court analyzed Furgatch as the broadest judicial description of the Buckley express advocacy test in order to determine whether the FEC was justified in arguing that “no words of advocacy are necessary to expressly advocate the election of a candidate.” Id. at 1064. Therefore, as a pronouncement of this circuit‘s express advocacy test, CAN II‘s reference to the Furgatch holding is not applicable.
Furthermore, the holding in Furgatch is contrary to the precedent of this court. This circuit, along with many of our sister circuits, has rejected the expanded view of express advocacy adopted by the Ninth Circuit. See, e.g., Chamber of Commerce of the United States v. Moore, 288 F.3d 187, 194 (5th Cir.2002); Virginia Soc‘y for Human Life, Inc. v. FEC, 263 F.3d 379, 391 (4th Cir.2001) (“VSHL II“); Citizens for Responsible Gov‘t State Political Action Comm. v. Davidson, 236 F.3d 1174, 1187 (10th Cir.2000); Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 386-87 (2d Cir.2000); Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 969-70 (8th Cir.1999); Faucher v. FEC, 928 F.2d 468, 471 (1st Cir.1991). Admittedly, the Ninth Circuit‘s test does not stray far from other articulations of the express advocacy standard. The primary focus of the Ninth Circuit‘s standard is on the words themselves and in this regard it is consistent with our view of express advocacy. Furgatch, 807 F.2d at 864. The Ninth Circuit‘s view of express advocacy, however, is inconsistent with our view to the extent that it permits consideration of the communication‘s context in determining whether a communication advocates the election or defeat of a particular candidate for public office. Id. at 863-64 (“We conclude that context is relevant to a determination of express advocacy. A consideration of the context in which speech is uttered may clarify ideas that are not perfectly articulated, or supply necessary premises that are unexpressed but widely understood by readers or viewers.“). In this regard, the Ninth Circuit‘s formulation of the express advocacy standard is broader than the bright-line rule adopted in this circuit and we reject it as insufficiently protective of the
This court has “steadfastly adhered to the bright-line ‘express advocacy’ test from Buckley,” Perry, 231 F.3d at 160, and has ruled repeatedly that communications cannot be subject to campaign finance restrictions unless they use “explicit words of candidate advocacy.” CAN II, 110 F.3d at 1051. We have described this circuit‘s reading of the express advocacy limitation of Buckley and MCFL as narrow and strict and limited to ” ‘communications that literally include words which in and of themselves advocate the election or defeat of a candidate.’ ” VSHL II, 263 F.3d at 391 (quoting CAN II, 110 F.3d at 1051). To be faithful to the bright-line standard articulated by the Supreme Court, any inquiry into whether a communication supports or opposes the election of a particu
The State argues that limiting the definition of express advocacy to include speech that includes only “magic words” such as those described in Buckley‘s famous footnote 52 misinterprets the meaning and intent of Buckley. To the contrary, this was exactly the meaning and intent of the Buckley Court.
The Court opted for the clear, categorical limitation, that only expenditures for communications using explicit words of candidate advocacy are prohibited, so that citizen participants in the political processes would not have their core
The context prong of North Carolina‘s express advocacy test extends the bright-line rule of Buckley and this court beyond a strict and limited analysis of the actual words. Consideration of contextual factors such as “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” bear no relation to the words themselves.
“[W]hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the
“Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.”
Buckley, 424 U.S. at 43, 96 S.Ct. 612 (quoting Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 89 L.Ed. 430 (1945)).
“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.” Id. at 14, 96 S.Ct. 612. The “unfettered interchange of ideas” guaranteed by the
The State argues that, even if the context prong impermissibly extends the express advocacy test declared in Buckley, the district court erred by failing to apply a limiting construction. It is well-settled that a federal court must uphold a statute if it is ” ‘readily susceptible’ to a narrowing construction that would make it constitutional.... The key to application of this principle is that the statute must be ‘readily susceptible’ to the limitation; we will not rewrite a state law to conform it to constitutional requirements.” Virginia v. American Booksellers Ass‘n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). The State proposes that a limiting construction might be that the context prong can be applied only to communications with explicit, verbal directives to voters to take some electoral action and the context factors can be utilized only when the directive to take action is unambiguous but the specific action urged is not clear. It is difficult to discern how this proposed instruction is materially different from what is already provided for in the statute. Reference to criteria outside of the actual words would still be required. Furthermore, this limiting construction does not remove the vagaries inherent in a test dependent on the understanding of the reasonable person under the circumstances. Accordingly, the district did not err in failing to apply a limiting construction.
IV.
As set forth in Section II, supra, to be regarded as a political committee requires that an entity (1) make contributions or expenditures and (2) have one or more enumerated characteristics. Among the enumerated characteristics is the requirement that an entity “[have] as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates.”
NCRL challenged the rebuttable presumption created in the statute arguing that it was both vague and overbroad. The district court rejected NCRL‘s arguments, holding that the presumption was not violative of the
The genesis of the Supreme Court‘s major purpose test stems from the Court‘s effort at giving a narrowing construction to the Federal Election Campaign Act‘s provision requiring that entities falling within the definition of “political committee” make certain financial disclosures. Absent a narrowing construction, the Court noted, the requirement that political committees “disclose their expenditures could raise ... vagueness problems, for ‘political committee’ is defined only in terms of amount of annual ‘contributions’ and ‘expenditures,’ and could be interpreted to reach groups engaged purely in issue discussion.” Buckley, 424 U.S. at 79, 96 S.Ct. 612. Accordingly, the Court held:
To fulfill the purposes of the Act [the term “political committee“] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of “political committees” so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.
Id. The Court reiterated this construction of political committee in MCFL, 479 U.S. at 252 n. 6, 107 S.Ct. 616 (stating that “an entity subject to regulation as a ‘political committee’ under the Act is one that is either ‘under the control of a candidate or the major purpose of which is the nomination or election of a candidate’ “).
NCRL argues that an entity can have only one major purpose and that the major purpose test should be predicated on an entity spending more than half of its budget on contributions and expenditures that promote or oppose a candidate‘s election. Use of a flat monetary trigger, NCRL asserts, is unconstitutional because it looks only to the potential impact of an entity‘s activities on political debate, rather than an entity‘s overall activities. Thus, it violates the fundamental principle of the major purpose test in that it fails to identify entities for which express support or opposition of a candidate is so central to their purpose that all their activities can be presumed to advance that purpose.
The district court rejected the proposition that an entity can have but one major purpose and that the only constitutional standard for determining major purpose is one that requires that an entity allocate fifty percent of its disbursements for candidate advocacy. (J.A. at 240 n.1). Whether an entity can have multiple major purposes and whether a certain percentage is constitutionally mandated are issues we need not decide at this time.3 The constitutionality of North Carolina‘s major purpose presumption can instead be decided on a more fundamental principle.
In order to frame the issue properly, it is helpful to understand what the major purpose presumption is not. It is not, as the State correctly points out, conclusive proof of an entity‘s major purpose. The
Nevertheless, the constitutional defect of the major purpose presumption is not so much the use of any presumption, but the fact that instead of basing the major purpose standard on the nature of the entity and its overall activities, the standard is based on an arbitrary level of spending that bears no relation to the idiosyncracies of the entity. This shifts the focus from the entity itself, where it belongs, to the effect expenditures generally have on an election. The State presented evidence demonstrating that contributions or expenditures in the amount of $3,000.00 are sufficient to have a “significant impact” on a campaign in North Carolina. Whether this is true, and we accept that it is, is immaterial to the determination of whether an entity has as a major purpose to support or oppose a particular candidate.
For example, a $4,000,000.00 organization that spends $3,001.00 and a $4,000.00 organization that spends $3,001.00 would both have the same “significant impact” on an election. Yet while the impact of these entities’ spending may be the same, their major purpose is not. Any attempt to define statutorily the major purpose test cannot define the test according to the effect some arbitrary level of spending has on a given election. Such a standard poses the threat of subsuming within its presumption entities that have as their “central organizational purpose ... issue advocacy, although [they] occasionally engage[] in activities on behalf of political candidates.” MCFL, 479 U.S. at 252 n. 6, 107 S.Ct. 616. Rather, the test must be based on the nature and overall activities of the entity itself. The test must examine whether an entity‘s spending in support of or opposition to a candidate has “become so extensive that [its] major purpose may be regarded as campaign activity.” Id. at 262, 107 S.Ct. 616 (citing Buckley, 424 U.S. at 79, 96 S.Ct. 612). This is accomplished not by simply tabulating an entity‘s contributions and expenditures, although that is an important factor, but by examining an entity‘s stated purpose, which is typically reflected in its articles of incorporation, and the extent of an entity‘s activities and funding devoted to pure issue advocacy versus electoral advocacy. Id. at 241-44, 96 S.Ct. 612.4
The State nevertheless argues that the major purpose presumption is in full accord with Buckley and MCFL because an entity is afforded the opportunity to rebut the presumption by showing that its electioneering activities were not a major part of its overall activities. Although the statute provides that the major purpose presumption may be rebutted, the ability to rebut the presumption does nothing to ameliorate the unconstitutionality of a fixed monetary threshold that bears no relation to the Buckley and MCFL major purpose standard.
The Supreme Court has on two occasions considered the constitutionality of somewhat similar statutory presumptions,
The Court held that this percentage-based test failed to pass constitutional muster. The Court reasoned that because the “solicitation of charitable contributions is protected speech, ... using percentages to decide the legality of the fundraiser‘s fee is not narrowly tailored to the State‘s interest in preventing fraud.” Id. at 789, 108 S.Ct. 2667. The Court rejected the proposition that the opportunity to rebut the presumption of unreasonableness saved the statute. The Court stated that “even where a prima facie showing of unreasonableness has been rebutted, the factfinder must still make an ultimate determination, on a case-by-case basis, as to whether the fee was reasonable....” Id. at 786, 108 S.Ct. 2667. “Proof that the solicitation involved the advocacy or dissemination of information is not alone sufficient [to rebut the presumption]; it is merely a factor that is added to the calculus submitted to the factfinder, who may still decide that the costs incurred or the fundraiser‘s profit were excessive.” Id. at 793, 108 S.Ct. 2667. Under this statute, “every campaign incurring fees in excess of 35% ... will be subject ... to potential litigation over the ‘reasonableness’ of the fee.” Id. at 794, 108 S.Ct. 2667. Fundraisers exposed to this litigation “must bear the costs of litigation and the risk of a mistaken adverse finding by the factfinder.” Id. The Court concluded, therefore, that the uncertainty and risk created by “[t]his scheme must necessarily chill speech in direct contravention of the
Similarly, in Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), a plurality of the Court declared unconstitutional a Virginia cross-burning statute which provided that “[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” Id., 123 S.Ct. at 1550 (quoting
The presumption at issue here presents the same problems identified by the Court in Riley and Black. Although arguably less egregious because the burden of proof remains on the State, the chilling effect recognized by the Court in Riley and Black is nevertheless present. Spending over $3,000.00 in contributions and expenditures may be evidence of major purpose for some entities, but it is not evidence of major purpose for all. Yet the presumption poses the potential of skewing the factfinder‘s deliberation toward a finding of major purpose for every entity that spends more than $3,000.00 on electoral advocacy. Even in cases where an entity proffers evidence demonstrating that its major purpose is not to support or oppose a particular candidate, the presumption may encourage a factfinder to err on the side of a finding of major purpose. See Black, 123 S.Ct. at 1561 (Souter, J., concurring in the judgment in part and dissenting in part).
Furthermore, entities that exceed the monetary threshold will be subject to litigation and must bear the cost of that litigation. In addition to the costs of litigation, an entity must consider the appreciable risk of a mistaken adverse determination. A determination of major purpose will consequently lead to regulation as a political committee and thereby subject an entity to costly disclosure and reporting requirements. Moreover, an entity subsequently determined to be a political committee that fails to comply with these requirements may be subject to prosecution for a class 2 misdemeanor and imposition of civil fines. The only alternative available to entities unwilling to expose themselves to these costs, therefore, is to not engage in political speech above the level proscribed by the State. But as the Supreme Court concluded in Riley and Black, such an alternative unacceptably leads to the suppression and chilling of protected political speech.
The State certainly has an interest in regulating an entity‘s spending aimed at supporting or opposing a particular candidate‘s election. The State‘s interest in regulating the level of spending on electoral advocacy, however, is protected by disclosure and reporting requirements applicable to individuals and entities not otherwise subject to reporting requirements. See
The State‘s desire to establish a bright-line rule for when the process of determining an entity‘s major purpose should commence is understandable.5 The pre-
V.
In addition to the challenges relating to the definition of political committee, NCRL challenged North Carolina‘s contribution limit to the extent that it applies to “independent expenditure political action committees” (“IEPAC“).
The Supreme Court has “consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending.” Nixon v. Shrink Missouri Gov‘t PAC, 528 U.S. 377, 387, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (quoting MCFL, 479 U.S. at 259-60, 107 S.Ct. 616). “[A] contribution limit involving ‘significant interference’ with associational rights [can] survive if the Government demonstrate[s] that contribution regulation [is] ‘closely drawn’ to match a ‘sufficiently important interest.’ ” Id. at 387-88, 120 S.Ct. 897 (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612) (citation omitted). The State has a “sufficiently important interest” in regulating contributions in order to prevent quid pro quo corruption of and undue influence upon candidates. The State‘s interest in preventing corruption, however, is “not confined to bribery of public officials, but extend [s] to the broader threat from politicians too compliant with the wishes of large contributors.” Id. at 389, 120 S.Ct. 897.
In addressing limitations on independent expenditures, the Supreme Court stated that the absence of coordination or control between the candidate and the IEPAC making the independent expenditure “not only undermines the value of the ex
While the Supreme Court has not addressed the constitutionality of limits on contributions to IEPACS, the Court has considered the constitutionality of limits on contributions to political action committees that contribute to candidates. California Med. Ass‘n v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (“Cal-Med“). In Cal-Med, the Court upheld a limitation on contributions to multi-candidate political action committees, which by definition make contributions directly to candidates. Justice Blackmun in his concurrence stressed, however, that a different result would follow if a contribution limit “were applied to contributions to a political committee established for the purpose of making independent expenditures.” Id. at 203, 101 S.Ct. 2712. Justice Blackmun further explained that multi-candidate political committees are “essentially conduits for contributions to candidates, and as such they pose a perceived threat of actual or potential corruption. In contrast, contributions to a committee that makes only independent expenditures pose no such threat.” Id.
The State argues that it proffered sufficient evidence to demonstrate the corruptive danger posed by independent expenditures and therefore the need to limit contributions to IEPACS. “The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Shrink Missouri, 528 U.S. at 391, 120 S.Ct. 897. If NCRL‘s challenge was to the limitation on contributions made to a candidate, either directly or through a political committee, the evidence presented by the State would be sufficient. However, because the corruptive influence of contributions for independent expenditures is more novel and implausible than that posed by contributions to candidates, convincing evidence of corruption is required. Colorado Republican, 518 U.S. at 618, 116 S.Ct. 2309. The State, however, failed to proffer sufficiently convincing evidence which demonstrates that there is a danger of corruption due to the presence of unchecked contributions to IEPACS. We agree with the district court that the $4,000.00 limitation on contributions to IEPACS is substantially overbroad and unconstitutional.
VI.
The final issue for our consideration is whether the district court erred in holding that NCRL‘s challenge to
VII.
In sum, we conclude that the district court did not err in holding the context prong of North Carolina‘s express advocacy test unconstitutional. Nor did the district court err in declaring the limit on contributions unconstitutional to the extent that it applies to IEPACS. We conclude, however, that the district court erred in failing to hold that the major purpose presumption was unconstitutional. Finally, we reject NCRL‘s claim that the district court erred in finding its challenge to
AFFIRMED IN PART AND REVERSED IN PART.
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
I concur in parts I, II, IV, and V of the majority‘s opinion. I concur in part III insofar as it discusses and strikes down the second sentence of
I.
Again,
The first sentence of
MCFL thus makes clear that a speaker may engage in express advocacy without using the magic words mentioned in Buckley. I acknowledge that
The first sentence of
As the majority notes, North Carolina‘s election laws include a severability provision.
II.
Finally, I concur in the result reached in part VI of the majority‘s opinion, which concludes that NCRL‘s challenge to
UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee FEREBE, Defendant-Appellant.
No. 01-22
United States Court of Appeals, Fourth Circuit
Sept. 15, 2003.