Robin Clifton and Maine Right to Life Committee, Inc. v. Federal Election Commission

1986). vote, v. Armijo, I have a See also States how United anyone to think (8th Cir.1987) (holding that the do other than the evidence F.2d to reason court did not abuse its in court. district discretion presented permitting jury an eleven-member to render Brown, But, contrast trial). five-day in a a verdict a substantial “indieate[d] record evidence juror requested Spriggs possibility that Finally, reject argu we Barone’s the evi- he believed that discharged because in this not ment verdicts case were inadequate sup- at trial was dence offered unanimous, and therefore violate the Consti conviction,” port F.2d at here the a tution, merely rephrasing of his constitu regarding true evidence record contains no challenge by tional to the verdict rendered merits the case. Berger’s views on the jury. Although eleven-member Moreover, judge ease “did the district on the ruled constitutional Berger Mr. as a construe remark permissibility of a less-than-unanimous ver certainly how he was statement dict, Apodaca Oregon, 406 see v. party might he have not consider which did (1972), we have deciding to ex- supporting in whether been agreed of a stated “rendition verdict Barone, v. him.” United States cuse jurors, juror by all after one with unknown F.Supp. 1020. cause, has been for is a views dismissed juror in Brown in contrast verdict,” Walsh, unanimous F.3d (who judge he was indicated to the he discharge his duties because unable to V. trou- laws and was disagreed the RICO reasons, foregoing judgment For the evidence), Berger presentation bled court district affirmed. reason was for a valid was excused felt entirely to the issue of how he unrelated sufficiency government’s

about i.e., dis-

proof; he excused because the was receipt of that his

trict court determined

extra-judicial information the FPO carry ability his his role

impaired out

fairly impartially. where, here, juror think We and Maine Robin CLIFTON just for a cause that is unrelated

removed Committee, Inc., Plaintiffs, Life juror’s sufficiency of the views Appellees, evidence, and is no indication that the there juror juror, a holdout Brown’s removed that “a court not dismiss admonition COMMISSION, FEDERAL ELECTION

juror during request deliberations Defendant, Appellant. discharge juror har stems from doubts the No. 96-1812. sufficiency govern bors about evidence,” 823 F.2d does not ment’s of Appeals, United States Court apply. conclude that the district court We First Circuit. permitting not abuse its did discretion Heard Dec. 1996. jury a ver to deliberate to eleven-member dict, declaring rather than See mistrial. June Decided Gambino, F.Supp. United States (D.N.J.1984) (stating that it would 660-61 mistrial been “unthinkable” to declare a

have jurors, given proceed than with eleven

rather judicial in a six- investment of resources twenty jury

week trial over hours of (3d

deliberation), aff'd, F.2d Cir. Kolker, Washington, DC,

David with whom Lawrence M. Noble Richard Bader and B. brief, on appellant. were for Jr., Haute, Bopp, IN, James Terre with Scholle, Bopp, Paul whom R. Bos- Coleson & IN, trom, Haute, Terre Daniel M. and Snow Atwood, Portland, ME, brief, Pierce were on appellees. SELYA, BOWNES, Judge, Before Circuit BOUDIN, Judge, Senior Circuit Circuit Judge.

BOUDIN, Judge. Circuit plaintiff Maine Life Commit- Committee”) (“Maine brought tee this action challenge validity district court to regulations of new of Federal Election (“FEC”). Commission The Maine Commit- a nonprofit membership tee is corporation, Code, exempt under the Internal Revenue engages in opposi- various activities in accepts tion abortion. donations other for its fund. Among its thus activities funded is publication guides describing position congressional “pro- candidates on life” publication congres- issues voting sional records on the same Its issues. coplaintiff recipient Robin is a Clifton regu- publications. reader these The FEC lations, 13, 1996, purport effective March regulate voting records respects pertinent several different here. Voting new records. The voting only prohibits on corpora- records not expressly advocating tions and unions from particular the election defeat of identified challenged by candidates —a restriction not provides plaintiffs also that even —but advocacy “[t]he without such decision con- tent and distribution records candidate, not be with shall coordinated group political party.” candidates or 13H advocacy” “express of the election or 114.4(c)(4). ited to is not “Coordination” C.F.R. 249,107 of a candidate. defeat defined. glossed Along the restriction guides. Voter “overbreadth,” id. at to avoid voter advocacy, regulation on express on 622-23, prevent cor- the statute does corporation or a provides that either engaging in issue porations and unions have no con- guide a must publishing union advocacy including publication of the records any or candidate tact at all with candidates. positions of federal election con- preparation, regarding the committee or, guide of the voter distribution tents and adopted Previously, the FEC (1) contact, be it must is such there required voter the same section that under questions and written re- through written “nonpartisan”: they could de guides to be (2) given the must be sponses, each candidate positions could not the candidates’ but scribe guide, space prominence same organization’s opinion on the is express the (3) “electioneering mes- must be no there presented. This court held the new sues scoring rating conveyed by any or sage” straightforward limitation to restriction used, 11 C.F.R. or otherwise. system advocacy beyond the issue and therefore on 114.4(c)(5). § by the scope of the statute as construed declaratory granted a district court The FEC, 928 Supreme Court. Faucher v. F.2d just regulations de holding the judgment (1st Cir.), denied, 820, cert. 502 U.S. scribed, express advo apart from the ban (1991). 79, 116 L.Ed.2d 52 by the Fed cacy, as not authorized” “invalid 1971, 2 U.S.C. Campaign Act of eral Election Faucher, has is- response In FEC (“the Act”), they re seq. § “because 431 et guide regulation at issue in the voter sued advocacy in connection with ex strict issue a different present case and has chosen FEC, F.Supp. v. penditures.” Clifton claiming direct authori- tack. Instead of (D.Me.1996). of the district Some reject- advocacy claim ty regulate issue —a statute, reasoning is directed to the court’s and Faucher— ed Massachusetts Citizens advo right of “issue and some to a regulations as de- its new the FEC defends v. Massachusetts cacy” forth set enforcing, section 441b’s fining, or at least Inc., Life, Citizens for It reasons that prohibition on contributions. 616, L.Ed.2d 539 guide publication record or statute, partly begin with the We regulation is comply with its that fails to partly it and court’s reliance on of the district in the or can be banned a contribution either precept against decid- because of the prohibited contribu- preventing interests necessary. unless ing constitutional issues tions. Act on which the FEC provision of the publications noncomplying claim that § 441b. authority is U.S.C. relies for untenable. The contributions is are prohibits any corporation or pertinent part it therefore said, discussing relat- expen- Supreme or Court has making “a contribution union from any” presi- expenditures di- statutory provisions, federal diture connection ed primary. congressional election or the candi- or “coordinated” with dential rected contributions, of this permit limited activities The Act does see be treated as date could “segregated” funds that are heavi- Valeo, kind from Buckley polit- typically known as ly regulated and are (1976); 647-48, but “coordi- (PACs). See Massa- action committees ical implied some measure in this context nation” Citizens, chusetts inquiry as to beyond a mere of collaboration S.Ct. at 625-26. issue. by a on an position taken candidate 647-48 & n. n. 96 S.Ct. at Id. at 46-47 & Citizens, In Massachusetts 53; Republican Fed. Cam- see also Colorado prohibits corpo- 441b held that section — U.S.-,-, FEC, paign but, Comm. expen- as to union contributions rate and 135 L.Ed.2d contributions, than ditures other J.). Breyer, (opinion of statutory as lim- narrowly ban construed face, guide Univ., regula- (1st the FEC’s voter On Boston 766 F.2d 636-38 Cir.1985). merely tion non-written contact not bars re- preparation garding the and distribution of think it is altogether easy We thus not guides, regarding but also their con- approaching question avoid whether what (ii)(A). 114.4(c)(5)(i), tents. 11 C.F.R. True, doing the FEC is is constitutional. regulation expressly prohibits say one could regulating that it is issue advo- inquiry by simple oral the Maine Committee cacy claiming regulate while contributions. position; as to a candidate’s and the district But in a doing sense the FEC is both at the court tells us that the FEC’s counsel admit- time; statute, same and the it should be argument similarly ted at oral that the FEC noted, regu- does not itself forbid reasonable interprets voting its ban on “coordination” of lation of happens contributions that also to publications. F.Supp. record 927 advocacy. statutory burden issue As a mat- The FEC can construe terms but it ter, cannot simply Act stops the prohibiting short of dictionary classify rewrite simple the advocacy. Citizens, issue Massachusetts inquiry 623; Faucher, contribution. See Ernst & Ernst 107 S.Ct. at 185, 198-99, Hochfelder, v. F.2d at 471. 1375, 1383-84, (1976); 47 L.Ed.2d 668 cf. Turning issues, then to constitutional we — Republican, -, Cobrado U.S. at face at the outset the claim of the Maine

---, (opin- 116 S.Ct. at 2321-22 Committee that it has a right constitutional J.). J., Breyer, Kennedy, ions of advocacy of issue unreasonably that is bur- by regulations dened the here at issue. ordinary agency power But if of standards Citizens, Massachusetts Supreme the Court applied, stronger are the FEC has claim— not by narrowed section 441b construc- constitutional limitations aside —that it can recognized tion but also a First Amendment prophylactic grounds ban oral contacts for right advocacy, to issue on behalf of a non- guides, records and perhaps voter profit corporation fairly similar to the Maine require coverage similar amounts of of candi- Committee, that publication extends to the True, guides. dates not all oral guides. 107 S.Ct. at contacts or space different allocations of will 630-31. involve collaboration with the candidate. But difficulty case, is that in that same will, some may and the FEC’s restrictions Supreme Court stressed as “essential” the by making reduce the risk of collaboration it fact that group anti-abortion there in to easier detect and less effective where it volved did accept contributions from occurs. business or unions. important S.Ct. at 631. This was Normally agency rulemaking pow with previously Court sustained the er has a measure latitude where it is right Congress to limit the election influ (here, dealing regulated entity with cor power ence of massed corporate economic unions) porations and and where the rule is or union form. National reasonably designed to achieve the statute’s Comm., 197, 207-10, 103 Work 459 U.S. (here, goal prohibit types certain of contri 552, 559-61, (1982). 74 L.Ed.2d 364 And butions). The FEC has such rulemaking later, somewhat upheld a state power. 437d(a)(8); Buckley, U.S.C. statute that campaign-related barred issue U.S. at Agencies 96 S.Ct. at 678. often advocacy, funds, by out of nonprofit are through rulemaking allowed regulate entity corporations. funded business beyond express substantive directives of Commerce, Michigan Austin v. Chamber statute, long so as the statute is not 652, 664-65, Mourning Family contradicted. See Pub 108 L.Ed.2d 652 Sen., 356, 369-71, lications 1652, 1660-62, (1973); United accept Maine Committee does contri- Co., States v. Southwestern Cable corporations, Clifton, butions from other 157, 177-78, 1994, 2005-06, F.Supp. and falls somewhere between (1968); Alexander v. entity protected Trustees in Massachusetts Citi- unprotected begin proposition zens and that held Austin. that where Supreme involved, would government agencies is unclear what issues are are say or extent of a consti- normally about the existence empowered impose po- campaign-related right tutional issue advo- requirements lice private as to what citizens funds) cacy (using unsegregated claimed say write. labeling Commercial Nor does the record Maine Committee. aside, Supreme long Court has treated permit disregard ground us to Austin on the speech compelled as abhorrent to the First to the Maine contributions Amendment, compulsion whether the is di- Committee are dueminimis.1 against corporations.2 rected individuals or And no match while case is exact for this If the Maine Committee had the same one, pretty Miami Herald comes close. right advocacy constitutional to issue as its counterpart, principal Massachusetts the two There, Court struck down well fail strict- might rules at issue under a “right reply” guaran- Florida’s statute that see, scrutiny As we will limit standard. equal space teed a reply candidate obligation provide on oral contact and the newspaper attacks or criticism. 418 U.S. and, significant equal space are burdens S.Ct. at 2838-39. The Court said merely beyond go rules that that no imposed even if additional costs were (unauthorized corporate threat contribu- access,” by “compulsory nevertheless tions), likely would meet the the rules not go [t]he choice of material to into a news- tailoring requirement. narrow v. Na- FEC paper, and the decisions made as to limita- Comm., tional Conservative Political Action the paper, tions on size and of the content 496, 498-500, 1459, 480, 470 U.S. 105 S.Ct. public public and treatment of issues and (1985). 1468, 1469-70, L.Ed.2d 455 But 84 officials—whether fair or unfair —consti- may hold Maine Commit- tute the exercise of editorial control and acceptance tee’s of contributions judgment. brings play. Austin into 258, 94 present think the can S.Ct. at 2840. The statute We that case be though failed even the did not grounds require decided on that do not us to state dictate reply, newspa- the applies decide whether Austin to Maine content nor did the the Committee, per purport Reaffirming it. Supreme the Court endorse Mia- issue Herald, Supreme long ago mi the not definitively. apart can resolve For even involving that impact advocacy, described case as law that from their issue the two 795, Riley, main altered “content.” 487 U.S. FEC rules at issue curtail constitutional 108 at 2676-77. rights corporations unquestionably do S.Ct.

possess. goes the curtailment too Whether It to us seems no less obnoxious for the far not constitutional matter need the how much FEC to tell Maine Committee enough decided: it that it the is undermines space guides it must devote its voter the authority for FEC’s claim of its rules. particular views of candidates. We assume a

Starting requiring legitimate in preventing FEC rule FEC interest dis- contributions; substantially space guised equal prominence, we but Florida’s interest Boston, Despite Gay, Group 1. two circuits have ruled Lesbian & Bisexual 515 of 2338, 557, -, 2347, might protection obtain the Mas entities still U.S. 115 S.Ct. 132 (1995); Riley sachusetts where business contributions Citizens L.Ed.2d 487 v. Nat’l Fed'n though strictly Blind, 781, 2667, 795, were in fact minor even U.S. 108 2676- 487 S.Ct. organization. 77, banned (1988); v. Survival 101 L.Ed.2d 669 Gas & Elec. Pacific Fund, 285, Inc., (2d Cir.1995); Cal., Educ. F.3d 292 1, 16, 65 475 Co. v. Public Util. Comm'n U.S. Cir.1994), Holahan, (8th Day v. 34 F.3d 903, 911-12, (1986) (plu- 106 S.Ct. 89 L.Ed.2d 1 denied, 513 U.S. rt. 115 S.Ct. Wooley ce rality opinion); Maynard, 430 v. U.S. (1995). We take no view as to 714, 97 51 L.Ed.2d the correctness of these decisions. Tomillo, (1977); Publ’g Herald Miami Co. 2831, 2838-39, U.S. Comm'n, (1974); Virginia McIntyre West State Bd. See v. Ohio Elections Barnette, 334, 346-49, Educ. v. (1995); (1943). Hurley L.Ed.2d 87 L.Ed. 1628 Irish-American prompted “right of 371 That rationale has no conceiva- coverage that in fair hardly point application trivial. The ble to the Maine Committee. reply” statute normally cannot be se- that the interest principally The other rule at issue is the private entity to ex- by compelling a cured contact limitation on oral with candidates. by requiring it or press particular views patently think We that this offensive equal space op- or an or provide “balance” aspect: First Amendment in a different it See, e.g., Hurley, appear. portunity to citizens, heavily upon right treads 2347; at-, Miami Her- corporate, individual or to confer discuss ald, at 2838-39. repre- legislative matters with their First Amendment concerns be less office. As sentatives candidates such government requires balance or where regulations explained, we have bar non- precise it than where dictates access contents, regarding contact written But, expressed. unlike viewpoint to be distribution, merely preparation limitations, “time, place and manner” records; thus, inqui- prominence require- equal space or FEC’s ries to candidates and incumbents about ment, mechanically applied, does af- positions on their issues like abortion are of the Maine fect the content Committee’s precise target applied of the FEC’s rules as voting guide. the Maine Committee here.3 compelled to devote substantial could be precedent only is hard to find direct describing position of a candi- space to right because efforts to restrict this to com- deeply disagrees. As date with whom freely municate are so rare. But we think unanimously Hurley, Court said beyond it is reasonable belief at-, at 2347: coordination, prevent corruption or illicit rule, speaker has the this government prohibit voluntary could discus- speech, applies only right to tailor the legislators sions between citizens their and value, opinion, or expressions en- public only and candidates on issues. The dorsement, equally to statements of but outright difference between such an ban and avoid, speaker fact that the would rather permits the FEC rule is the FEC dis- McIntyre, Riley ... .... long cussion so as both sides limit themselves Few, absolute, any, rights if are but writing. principle practicality Both strong presump First Amendment there is a inadequate make this an distinction. government against content-affecting tion agen- It is no business of executive branch speech, private citizen even cies to dictate the form in which free citizens government where the does not dictate the legislative representa- can confer with their 797-98, viewpoint. Riley, See 487 U.S. at Further, tives. is a real restriction hand- 2677-78; Gas, 108 475 S.Ct. Pacific icap positions on intercourse: the nuances of 911-12; Herald, Miami and votes can often be discerned Indeed, 94 S.Ct. at 2838-39. discussion; any oral courtroom monopolies, even for broadcasters and cable knows, lawyer interrogatories stilted written Supreme upheld equal Court has cover and answers are no substitute for cross-ex- age carry” provisions only and “must because communication, A amination. ban on oral unique of the control that broadcasters and reasons, solely readily is not operators cable have over access to defensible. programming. Broadcasting Sys., Turner FCC, 622, 655-57, view, Inc. v. 512 U.S. Court has echoed this 2445, 2465-67, (1994); Attorney upholding Red albeit in dicta. In FCC, Broadcasting grant temporary Lion Co. v. 395 U.S. General’s refusal to visa 392-94, 1794, 1807-09, foreign journalist participate 23 L.Ed.2d to a invited to Indeed, chilling regarding position effect of such a restriction candidate his or her on such beyond any would extend well direct- issues would be vulnerable even if no mention discussion particular guide; any guide. any inquiry by ed to a whatever were made of voter Cf. representative Riley, Maine Committee to a or 487 U.S. at 108 S.Ct. at 2676. local States, in the United tions. Broadcasting, in academic conferences Turner Cf. 664, 668, said, (plurality S.Ct. at opinion). What it do—at cannot least with suggests that The Government also out simply direct authorization —is say inapplicable First Amendment is because that it is easier or more convenient impair appellees have free access to Mandel’s First prove Amendment interests than to speeches, through his ideas books violation conventional means or more developments,” “technological carefully regulations. tailored tapes hook-ups, telephone such as or readi- presence. ly supplant physical his This might argue The FEC it has not argument particu- overlooks what compelled speech prevented or oral access sustained, qualities lar inherent in face-to- terms; merely absolute it has said that these debate, question- face discussion apply corporation rules publish wants to ing____ are to hold on [W]e loath this records or using gen- other record existence of alternatives treasury eral funds. And under extinguishes altogether Congress constitutional constitutionally prohibit could busi- part appellees interest on ness engaging in these particular form of except through segregated funds; access. activities possibly, the Maine Committee is in the same Mandel, 753, 765, Kleindienst v. 408 U.S. position, depending on whether (1972). 2576, 2583, 33 L.Ed.2d See falling views under Massachusetts Citi- Procunier, 817, 825, Pell v. also zens under Austin. (1974). 2800, 2805, 41 L.Ed.2d writing-only restrictions have some Such Yet the doctrine of unconstitutional upheld been times the context commer conditions government’s ability limits the speech, e.g., cial Ohralik Ohio State Bar make someone surrender constitutional Ass’n, rights advantage even to obtain an that could (1978) (limiting in-person at Regan otherwise be withheld. See v. Taxa clients); torney Wash., solicitation of but the Court Representation tion With remotely approved never such a 76 L.Ed.2d fact, expression. Here, restriction of in 129 rights a surrender of such Ohralik, companion decision to being required Su something— in order to do preme publish found such rules voting information about applied by unconstitutional as Congress solicitations guides or records —that has not nonprofit organizations offering legal free as made unlawful. are not We certain that sistance, explaining comprises that latter Congress require could this sacrifice based protected association, speech need, core and and judgment on its own but the law that the latter context the First Amend realm clear. Compare is far from Rust Sullivan, government regula 173, 196-200, ment does not tolerate v. 500 111 U.S. might that pass 1773-76, tion well muster where di 114 L.Ed.2d 233 Serv., rected “conduct of commercial affairs.” City Truck O’Hare Inc. North — Primus, 412, 434, lake, --,---, In re (1978). (1996). 2353, 2356-57, 135 L.Ed.2d Still, respect necessary equal With to both rules —the it is not to resolve this last prominence space writing-only and the issue here. Even if rules are otherwise “reasonable,” requirements readily accept that Congress we do not take —we government in unearthing has an interest have authorized that rules sacrifice First disguised long contributions. But the FEC There is a is free interests. tradi- investigate any construing narrowly in which it instance thinks tion statutes to avoid inquiry collaboration; Indeed, that Supreme has become noth- constitutional issues. ing, apart eonclusory allegations, just approach striking took has Court such an suggest regulation been offered the FEC to an NLRB as that down unauthorized ordinary necessary finding enforcement measures cannot ade- without to decide the quately police “secret” contribu- ultimate First Amendment issue. DeBartolo Bldg. reply, FEC’s and the substance of the Maine & Constr.

Corp. v. Florida Coast Gulf Council, 568, 575-78, vagueness—is readily Trades Committee’s concern — (1988). 1397-99, 99 L.Ed.2d apparent. FEC, Commerce v. Accord Chamber of argued might The FEC have that “elec- (FEC rules). (D.C.Cir.1995) F.3d tioneering message” simply another ver- disposes have said of the we What express advocacy upheld sion of the ban on in contention —the main restrictions two Supreme But the Court. FEC prominence requirement and space and equal conspicuously argu- declined to make that appear in of which ban —both oral contacts why, Nor is it clear if the meant ment. guides. governing voter regulation advocacy, phrase express limited to regulation explicitly does not voting record words, simply it did not use those which are requirement or the ban: it contain either provision in a different of the same used unchallenged (apart from the merely says 114.4(c)(5)(i), § also regulation, C.F.R. advocacy) express limitation that “[t]he regulation. in the records We are and the distribution of on content decision “electioneering thus entitled to assume not be coordinated with voting records shall different, message” meaning. has a broader 114.4(c)(4). 11 C.F.R. any candidate.” expressly The district court declined noted, But, already the FEC told the issue, F.Supp. at 500 n. reach argument prohibit- judge at oral district apparently believing that this restriction seeking expla- included ed “coordination” parts could not be severed from other (for representative example, nation from the guide regulation that the district court apparently conflict- there were several where struck down. But the district court votes). regula- ing If the FEC does read its and, why if opinion explain the FEC did fashion, it would to this extent in this tion (its severability position wants to assert concern about the same constitutional raise revealed), argument can be made that access, the same unauthorized use and reflect ban, valid, electioneering message can authority. rulemaking This declaration Corp. stand on its own two feet. See K Mart satisfy legit- Maine ought to Committee’s Cartier, Inc., regulation. about misuse of the imate concern 1811, 1819, 100L.Ed.2d 313 Finally, paragraphs in two at the close of trying We have no intention of to resolve brief, also asserts the Maine Committee implicated, of the issues thus based on guide is unconstitu- the voter inadequate briefing darkness as to the tionally vague including in its dual ban on content, position purpose own FEC’s electioneering message” guide in a “an severability. Court’s seeking to “score or rate the candi- and on vagueness treatment of related issues in responses way convey as to dates’ such Buckley, 424 U.S. at at 645- message.” electioneering C.F.R. Citizens, 47, and Massachusetts (E). 114.4(c)(5)(ii)(D), ap- §§ This restriction 248-49, 107 622-23, suggests that the entity plies only publishing where frivolous, vagueness attack is but those guide chosen to the candidate. contact respects eases differ in various from this one reply surprise, the FEC brief does To our And, threshold, on the merits. at the are explain to pretend not even what the FEC severability ripeness. issues of and by “electioneering message”; instead means plaintiffs’ We therefore conclude that the generalities the brief resorts to about the “electioneering message” provi- (“no attack vagueness tests for unconstitutional regulation sions of the should be remanded degree certainty more than a reasonable district proceedings for further court. demanded”), mostly can be used in tests reason, For the same we leave speech contexts where is not involved. It whether, in district court to decide the first points “advisory opinion process” then to its instance, temporary against pro- relief these obtaining as method for clarification. The Indeed, pendente is warranted lite. says also visions FEC the Maine Committee’s is, may argument perfunctory. prefer to defer enforcement of is but so is the has, being, ings. years, if it seeks The Court itself provisions for the time over the these today. grown other issues decided more and more concerned with “domi- certiorari on the political process” by corporate nation of the modify leads us to the dis- discussion Our Michigan wealth. Austin Chamber of follows: the judgment trict court’s Commerce, 652, 659, 114.4(c)(4), § regulation, C.F.R. record 1397, 108 L.Ed.2d 652 I believe the only invalid insofar as the FEC declared written-contaet-only requirement in the inquiries purport prohibit mere to candi- guide regulation FEC’s voter fits comfort- dates, regulation, guide the voter id. and ably guidelines within the Court’s because its 114.4(c)(5), only invalid insofar is declared on First burdens Amendment freedoms are as it limits contact with candidates to among willing permit those the Court is imposes inquiries replies written governmental order compelling to achieve in- equal space prominence restriction. The here, terests like those at issue and the validity “electioneering message” pro- requirement narrowly tailored to achieve regulation latter is remanded visions of the that interest. proceedings in accordance with for further opinion. majority The strikes down the FEC’s writ- It is so ordered. rule, ten-contact-only citing virtually no au- thority position. I recognize for its BOWNES, Judge, Senior Circuit plaintiff, Committee, Maine to Life dissenting. (MRTLC), Inc. has articulated a First interest, my Amendment but in view that disagree I I with the ma- dissent because outweighed by compelling gov- interest is jority’s holding that the written-con- FEC’s preventing corruption ernmental interest tact-only regulation infringes the First pro- domination of the guarantee speech. Amendment of freedom majority, finding cess. The after a First governmental regulations have Even where interest, altogether pur- Amendment fails substantially infringing potential “the suing step appropriate this next in the First rights,” exercise of First Amendment analysis. “acknowledged Supreme Court has governmental sufficiently there are interests believe measures outweigh in- important possibility regulation in the nar contained FEC’s are fringement, particularly when the free func- rowly permissible tailored to achieve the end: tioning in- of our national institutions is they preclude do not all oral discussions of Valeo, Buckley volved.” groups issues between like MRTLC and elec (per 46 L.Ed.2d candidates, states, majority toral as the see curiam) (internal omitted). quotation marks & n. 3. ante at 1314-1315 stage history, At this of American it should only relating oral deals with discussions every dispro- be clear to observer that the guides. Generally preparation of voter portionate big money influence of is thwart- speaking, all oral MRTLC is free have ing govern our freedom choose those who candidates, discussions that it wishes with apparent us. This sad truth becomes more lobby, whether motivated a desire to every preventing If this is not election. debate, clarify. persuade, to or to interest, compelling governmental I do not limitation is that MRTLC not combine its know what is. advocacy” a discussion of its oral “issue with FEC, through guide regula- plans spend significant amounts of its voter tion, abuses, prepare guides. prevent has tried to such consis- and disseminate voter lobby precedent pro- “[TJhere tent with Court is a vast difference between ing debating public I issues on the one tects First Amendment interests. believe hand, successfully navigated campaigns for election to the FEC has a safe concerns, path competing these office on the other.” 494 U.S. between 678, 110 (Stevens, J., concur has achieved a reasonable mea- S.Ct. at 1407 complying ring). sure while with the Court’s teach-

1318 up a man and district majority has set straw Thu court’s determination down, facially presents any FEC’s is invalid without reliance on shot it then purely legal question, and is therefore re authority. It has faded address relevant Sarault, Duffy viewable de novo. v. 892 F.2d regulation, involving this the real issues (1st Cir.1989). 139, 145 evolving Supreme grips with the come campaign relating to finance precedent Court action, reviewing agency Congress In precedent turn to that after law. I will “directly precise ques has not addressed the discussing appropriate standard of re- issue,” reviewing court must defer tion apply in this ease. view that we should agency’s interpretation to an of the statute charged enforcing, interpreta with if that “manifestly contrary is not tion the stat Scope Review of ute.” Chevron Inc. v. Natural Re U.S.A challenged regula Council, Inc., 837, the FEC’s MRTLC has sources 467 U.S. Defense face, applied 2778, 2781-83, tion on its not as to MRTLC 104 S.Ct. 81 L.Ed.2d validity Commissioner, attacking (1984); the facial of a itself. 694 v. Strickland burden,” “heavy Servs., 542, regulation, plaintiff Dep’t faces a Maine Human 96 F.3d of Cir.1996) (1st (“Strickland ”); regulation can to show that never be 545-47 II Sullivan, Commissioner, constitutionally. Dep’t applied Rust v. Strickland v. Maine of Servs., (1st 1759, 1767, Cir.), 111 114 Human 48 F.3d 16-17 U.S. — denied, --, (1991); City cert. L.Ed.2d 233 Members Coun (1995) (“Strickland I”). Vincent, L.Ed.2d 91 A Angeles Taxpayers v. re cil Los 789, 797-98, 104 2118, 2124-25, viewing “simply impose court will not its own (1984). meaning ambiguous construction” as to the “The fact that [the terms, statutory or unclear “as would be unconstitutionally regulations] might operate necessary in the absence of an administrative under set circumstances some conceivable Rather, interpretation. if the statute is si wholly [them] is insufficient to render inval ambiguous respect specific lent or Rust, id.” 500 U.S. issue,” agency in (brackets omitted). and the has furnished its original) (quotation terpretation, question “the for the court is Buckley, example, recog For agency’s whether the answer is based on a could well “[t]here nized that be case” permissible construction of the statute.”4 requirements Act’s [disclosure] where “the Chevron, 2782; S.Ct. at constitutionally applied,” cannot but the II, Strickland 96 F.3d at 546. The FEC “is upheld requirements Court nevertheless precisely type agency to which [such] challengers because none of the “tendered presumptively deference should be afforded.” actually record evidence” that such would Campaign Democratic Senatorial occur; they merely stated their “fears” Comm., 27, 37, 38, 45, 102 S.Ct. happen. 424 might what U.S. at being where a rule is chal 659-60. face, lenged “inappropri on its it would be course, Of a court will not defer to an merely ate” to it down strike because the agency’s interpretation of a statute that plaintiff imagined can envision “an unlawful directly contrary prior Supreme to a application of the rule.” Massachusetts v. interpretation statutory provi- of the same States, (1st FEC, United 856 F.2d Cir. sion. Faucher v. See 928 F.2d 1988). Geary, (1st Cir.1991). See also Renne Nor will a court defer to an 115 L.Ed.2d interpretation that is unconstitutional. ad- (1991) (facial challenge generally should question dress the First de novo, ‘as-applied’ prism not be entertained when an chal of the Court’s teach- case). lenge ing could resolve the in this area. Chevron, agency judicial proceeding.”

4. “The court need not conclude that the 467 U.S. at 843 permissibly (citing was the one it at 2782 n. construction n. FEC v. construction, Comm., adopted uphold Campaign could have Democratic Senatorial 454 27, 39, 38, 46, reading or even the the court would have U.S. 102 S.Ct. 70 L.Ed.2d 23 (1981)). question initially reached if the in a arisen

1319 Governing Campaign impinged upon Applicable The Law buttons First Amendment val- Limitations Finance “uninhibited, robust, ues in the and wide- open” necessary debate that is to enable has observed that Court people among to make informed choices can- system representative of “integrity of our Buckley, 424 14, didates. U.S. at 96 at by democracy corruption. is undermined” omitted). 26-27, Buckley, (quotation 96 S.Ct. at 638. U.S. of Although decided a number the Court Nevertheless, upheld the Court prior finance governing campaign law cases FECA’s limitations on contributions (by indi- Buckley,5 although Buckley dealt associations) unincorporated viduals and unincorporated associa- individuals and with campaign candidates or their committees. plaintiff not with tions and “[democracy depends Because our on a well- here, Buckley usually viewed MRTLC electorate,” 55, id. at 49 n. informed 96 S.Ct. any analysis of starting point election 55; 14-15, see id. at 649 n. Buckley case to inter- law. was also the first 632-33, here, subjected impinge- the Court such applicable the Federal pret the statute Act, 1974, Campaign scrutiny. as amended in Election ment to strict The Court found significantly tightened federal election respect with to a contributions candi- campaign financing in the wake of the Water- date, impingement justified by gate scandals. compelling governmental limiting interest actuality appearance corruption of analysis by noting began The Court resulting large from financial contributions. money spent on communication was the 28-29, Id. Likewise, at 639-40. equivalent speech of itself.6 Therefore the limits on total contributions upheld on eontri- recognized that limitations long prior ensuring emerge some of the that the best ideas from a true 5. The Court has recounted regulating campaign history legislation (and fair) of financ- competition among differing view- Comm., ing Right to Work in FEC v. National points. rewarding people Rather than or candi- 197, 208-09, 552, 559-60, 74 103 S.Ct. ideas, good put system dates who forward States, (1982); Pipefitters L.Ed.2d 364 v. United people happen rewards who to control vast 402-12, 2247, 2258-63, 407 U.S. 92 S.Ct. light money. play- amounts of In of the uneven (1972); L.Ed.2d 11 Workers, United States v. Automobile ing unequal field created distribution of 567, 570-87, 352 U.S. 77 S.Ct. society, people income and wealth in our some 530-30, (1957). 1 L.Ed.2d 563 purchase high-cost can more of the afford speech people. means of than can other Experience Buckley may has demonstrated that recognized Court has that financial consider- hasty equating money too have been speech. partici- "may Buckley began premise ations make the difference between with the "[djiscussion public pating participating of issues and debate on the de- and not in some integral qualifications Gilleo, of candidates are to the City v. bate." See Ladue of system government.” operation [our] of of (1994). because, 96 S.Ct. at 632. This is in a government's “however neutral the inten- ours, ability citizenry republic such as "the law, operation enacting tions in of that law among to make informed choices candidates vastly impact. have a uneven There is no 14-15, office is essential." Id. at 96 S.Ct. at 632. equality prohibiting poor both rich and in law pro- "The First Amendment affords the broadest sleeping bridges of Paris.” under political expression in order to tection such NAACP, Richmond, Region City Western of interchange assure the unfettered of ideas for the (9th Cir.1984) (alluding to the F.2d bringing political changes about of and social France); aphorism see also famous of Anatole people.” desired Illinois, Griffin "virtually every 632. Because means of commu- J„ (1956) (Frankfurter, 100 L.Ed. 891 today's nicating society requires ideas in mass (same). Therefore, concurring) we must careful- money,” expenditure Buckley of the Court in facially ly scrutinize even neutral laws if their the amount of "[a] concluded that restriction on unevenly speech effects on "fall on different money person group spend can viewpoints groups society." City Rich- during campaign necessarily communication mond, 743 F.2d at 1356. And we must avoid by restricting quantity expression reduces the giving public question discussed, of a "one side debatable depth their the number of issues expressing peo- advantage exploration, its views and the size of the audience Bellotti, ple.” reached.” Id. at 96 S.Ct. at 634. Nat’l Bank Boston v. First 1407, 1420-21, 765, 785-86, however, Buckley's reality, equation goal speech does not serve the individual, subject upon a “modest restraint contributions and therefore to as 53, activity serves to FECA’s limitations. Id. at 47 & n. political [that]

protected $1,000 Expenditures S.Ct. at 648 & n. 53. that are of the contribution prevent evasion might who “coordinated” with a candidate or person otherwise limitation his/her money equiva- functional campaign amounts of to a are the massive contribute —which lent of an in-kind contribution to the candi- through the use of particular candidate date —are treated as direct contributions to com- unearmarked contributions candidate, likely independent to that candi- rather than as to contribute mittees 38, expenditures, “prevent attempts at 644. order to date.” Id. at 96 S.Ct. through prearranged the Act circumvent upheld the Act’s limitations The Court also expenditures amounting or coordinated expenses as an ac- on volunteers’ incidental 47, disguised contributions.” Id. at Congress’s of ceptable accommodation valid regardless at 648. This is true of whether encouraging participation citizen interest expenditure pays speech containing for against “corrupting po- guarding while express advocacy lim- of a candidate. large financial contributions to can- tential of iting spending such coordinated can “fore- 96 S.Ct. at 643. The didates.” Id. an avenue of abuse.” Id. at closet] expenses treated such incidental Court S.Ct. at 643. contribution, with the same ultimate in-kind had been effect as contributed upholding In some burdens on First directly to the candidate. rights, Buckley recog- Court compelling preventing nized interest Buckley treated limitations on quid pro quo corruption. It noted differently independent expenditures than large given “the that extent contributions are contributions to candi- limitations on direct political quid pro quo to secure a from cur- realistically recognized dates. The Court holders, potential integri- rent and office contributed to a candidate that those who ty system representative democracy of our of represented interests to which can- [the] “the is undermined.” Id. at likely responsive.” didate is most to be Id. Moreover, equal “[o]f almost concern as Nevertheless, in order danger quid pro quo arrange- of actual vagueness problems, limit- to avoid impact appearance ments is the of the of prohibition independent ex- ed FECA’s corruption stemming awareness only expenditures penditures to those opportunities abuse inherent advocacy. express involved Id. at regime large individual financial contribu- It went on S.Ct. at 646-47. to strike down tions.” Id. at 638-39. limited, prohibition, even as so as viola- tive of the First Amendment. decided, Buckley Since more evidence analyzing at 650. In First Amend- light demonstrating big come considerations, the ment Court stated that money pro- can skew our democratic election expenditure impose greater limitations bur- cess, Large quid pro quo. even without a dens on freedoms than do contribution basic individuals, wealthy corpora- donations from limits, accomplish and do not as much to helped tions and labor unions have candi- goals eliminating potential further the stockpiles dates accumulate considerable quid pro quo corruption. for abuse and Id. money with which to advertise for votes. 44r4;7, at 646-48. beginning series cases with FEC v. Comm., protective approach more to National Court’s Work however, expenditures, independent applies (“NRWC”), expenditures totally are “made the Court has dealt with this

independently FECA, problem in the context of candidatefs] [their] 441b campaign[s].” regulates expendi- Id. 96 S.Ct. at 648. It which contributions and infirmity by corporations organi- found no constitutional in FECA’s tures made and labor NRWC, expenditures treatment of “coordinated” zations.7 In FEC Massachusetts distinguished portions 7. This is to be from the sections of FECA covered in the relevant of Buck- omitted) Inc., 238, 107 (quotations Life, (emphasis S.Ct. 559-60 add U.S. Citizens for ” (“Mass. (1986) ed). Buckley, Citizens As in in the Court NRWC ”), Michigan Austin v. Cham recognized just or “MCFL important that it was to Commerce, 494 U.S. 110 S.Ct. prevent ber appearance the of such corrosion as of (1990), 108 L.Ed.2d 652 the Court 210, 103 actuality. Id. at S.Ct. at 560-61. governmental interest in compelling found a directly implicate integ “These interests corruption even without a direct preventing rity 208, 103 process.” of our electoral Id. at exchange money. quid pro quo promise omitted). (quotation at S.Ct. recognized integrity The Court has Accordingly, the NRWC Court held that system can of our electoral also be under rule,” “the need for a broad to by type corruption: of mined different protect against political such distortion of the capital” reservoirs of “distort[ ] “vast process, support was “sufficient ... truly political process” prevent it from ability limitation on the of a committee to reflecting the voters’ collective evaluation of money raise for direct contributions to candi- candidates’ ideas. Aus the merits See Citizens, dates.” Mass. at tin, 661, 110 494 U.S. at 1398. S.Ct. at 629. plaintiff Right in National Work Citizens, In Mass. the Court shifted the Comm, ideological expressly nonprof was an regu- focus of its examination from 441b’s incorporated it which was under association corporate regula- lation of contributions to its law, plaintiff as is the MRTLC state corporate independent expenditures. tion of Recognizing ease at bar. the FECA “underlying The Court described the ratio- legislative judgment spe “reflects a “longstanding regulation” corpo- nale” for corporate cial characteristics of the structure political activity rate as: regulation,” require particularly careful Na politi- the need to restrict Comm., “the influence of Right tional to Work 459 U.S. at corpo- cal war funneled chests 209-10, 103 560-61, upheld form,” rate [FEC National Consewative Congress’s right to restrict from whom such Comm., Political Action 470 U.S. organization may solicit contributions. 1459, 1470, [, 501 105 84 L.Ed.2d 455] The Court held that NRWC’s associational (“NCPAC ”) ]; to “eliminate the ef- by rights8 were overborne the interests Con aggregated fect of wealth on federal elec- 441b, enacting § gress sought protect tions,” States], Pipefitters [v. United including: [385,] 416[, 92 S.Ct. aggregations to ensure that substantial (1972)]; political 11] [ L.Ed.2d curb by special advantages wealth amassed influence of “those who exercise control go corporate orga- which with the form of large aggregations capital,” over [Unit- politi- nization should not be converted into Workers, ed Automobile v.] States cal could used to ‘war chests’ which [567,] 585[, 77 1 L.Ed.2d legislators who incur debts from [(1957)]; regulate and to the “sub- 563] by are aided the contributions. aggregations of wealth amassed stantial overriding S.Ct. at 559. “The special advantages go which with the concern behind the enactment of statutes organization,” form of National Corrupt such as the Federal Practices Act Committee, Right 459 U.S. at to Work problem corruption was the of elected 559], 207[, 103 S.Ct. representatives through polit the creation of Citizens, govern 107 S.Ct. at importance ical debts. The Mass. 258-59, preventing 627. also id. at mental interest this occurrence See (Congress proscription expendi- has never been National added doubted.” Comm., Corrupt Practices Act “to Work tures Federal ley, expendi- Corporations have First dealt with contributions and as well individuals rights. First Nat’l Bank Boston unincorporated tures made individuals Bellotti, 765, 784-86, groups. (as gated opposed using political process from what fund funds from

protect corporate treasury). corroding effect of to be the deemed by aggregated power”) employed elections exception, corporation To within fall omitted). (quotation characteristics, must have three each of recognized “essential,” MCFL, 263, in Mass. Citizens The Court which is 479 U.S. at First, influence of concentrated corrosive at 630-31: it must that “the S.Ct. be formed corrupt integrity express purpose promoting politi- can “the for corporate wealth” ideas, political engage cal in marketplace of ideas.” 479 and cannot business ac- Second, 257, Regulation it must have no at tivities. sharehold- activity persons ers or corporate political “has reflected con- other affiliated who would earnings. a claim on corporate per have its assets or about use of the form cern not Third, by se, it must not be established a busi- potential deploy- for unfair but about the union, corporation accept ness or labor nor political purposes.” ment of wealth for Id. at 264, contributions from such entities. Id. at 259, at 628. The Court “aeknowl- requirement at S.Ct. 631. last edge[d] legitimacy Congress’ concern —that corporation accept does not contributions organizations great that amass wealth in corporations from business or labor unions— gain marketplace economic unfair “essential,” it “prevents such [non- advantage political marketplace.” in the Id. profit ideological] corporations serving from at at 630. This concern is S.Ct. type spending as conduits for the of direct § “require[ment] in that cor- reflected 441b’s political that creates a threat to market- expenditures porate independent be financed 263-64,107 place.” Id. at at S.Ct. 631. political expressly through a committee es- engage campaign spending,” tablished to Austin, 494 U.S. at at S.Ct. “prevent politi- this threat to the order 1397, the Court elaborated its “concern about marketplace.” cal Id. at S.Ct. corporate political process” domination of the overbreadth, 628. In order to avoid question open and decided the left Mass. independent expenditures gov- Court defined Austin, plaintiff in Citizens. The the Cham- by only express § erned 441b include ad- Commerce, challenged Michigan ber of a vocacy of the or defeat of a (similar election candi- 441b) prohibit- § to 2 statute U.S.C. 249,107 date. Id. at S.Ct. at 623. ing corporations using treasury from funds independent expenditures for in support of a open question The Court left whether candidate. The Court found the statute permits uphold it the First core, political speech burdened at the even general corporation rule —that a 441b’s though corporation opportu- still had the voluntary must utilize a PAC rather than its nity speak through Despite PACs.10 general treasury independent funds cam- rights, burden on First Amendment paign expenditures as well as for direct con- justified by Court held that the burden was Instead, tributions to candidates. compelling governmental interest in counter- exception general carved a narrow out of this acting distorting the “corrosive and effects” rule, holding prohibition its on use of corporate political wealth on the election treasury applied funds unconstitutional process. Id. at at 1410-11. corporations exemplified narrow class of MCFL,9 plaintiff in though grants corporations special privi- those State law corporations speak leges ability remained free to un- that enhance their to attract separate segre- capital limited amounts deploy advantageously. resources contributions, may organizations 9. “It be that the class of af- counts of and file a statement of holding fected Mass. [the ] ... will be organization; Citizens PACs cannot use funds Citizens, small." Mass. all; 479 U.S. at and PACs not solicit contributions S.Ct. at 631. members, except stockholders or officers. See 494 U.S. at 110 S.Ct. at 1396 require corporation To to use a PAC rather Citizens, (citing Mass. general corporate treasury them funds would re- 625-25); 432-34; §§ U.S.C. quire comply obligations it to with a number of 441b(b)(4)(A),(C). might example: find burdensome. For PACs treasurer, designate keep must detailed ac- liability, privileges These include: limited deployed elections when it is in the form of life, perpetual and favorable independent expenditures, just treatment of the as it can accumulation and distribution of assets. Id. guise when it assumes contri- 658-59,110 at 1396-97. These state- butions.” Id. at 110 S.Ct. at 1398. The advantages created enable “to Austin Court therefore held “that the State use ‘resources in the amassed economic mar- sufficiently ha[d] articulated a compelling ra- ketplace’ advantage to obtain ‘an unfair support tionale to indepen- restriction on ” political marketplace.’ 110 dent expenditures by corporations.”11 Id. Citizens, (quoting Mass. Nor was this rule specifically limited to 627). 107 S.Ct. at The Court for-profit corporations engaged in a commer- “recognized compel- therefore has that ‘the cial enterprise. stated, business As the rule ling governmental in preventing interest cor- applied nonprofit also to corporations, which, ruption support[s] the restriction of the influ- all, after were the context of the case before ence of war chests funneled the Court as well as the context of National corporate form.’” Id. at Comm, Right to Work and of Mass. Citizens (brackets Austin) (quoting at 1397 Na- which relied on analysis. the NRWC PAC, 500-01, tional Conservative 470 U.S. at 1470). S.Ct. This interest reflects a Our circuit has also had occasion weigh subject.12 “concern about domination of on opinion Our in FEC v. political process.” Inc., Id. Life, Massachusetts Citizens (1st Cir.1985), F.2d 13 aff'd, The Court made clear that it was not (1986), was af talking merely quid pro about “financial Supreme Court, firmed as described quo” corruption. Id. at 110 S.Ct. at supra, essentially but was consistent with the recognized government 1397. It opinion. recently, Court’s More this court compelling in eliminating interest from the prior considered a version reg of the FEC’s political process type corrup- “different ulation governing guides. voter Faucher v. distorting tion” as well: “the corrosive and FEC, (1st Cir.1991). 928 F.2d 468 regu The aggregations effects of immense of wealth lation substantially itself was different from that are accumulated with help of the regulation, containing provisions current corporate form and that have little or no restricting any the content of guides.13 public’s correlation to support for the prior regulation required The guides had corporation’s political ideas.” Id. at “nonpartisan,” among and listed the fac 1397; S.Ct. at see id. at 110 S.Ct. at tors the determining FEC would consider in 1400-01. It is because the state confers on guide nonpartisan whether a the follow corporations legal advantages enabling them “(C) ing: wording questions The pre to amass abundant “war chests” that it is not suggest sented any position does or favor government unconstitutional for the to limit (D) covered; on the guide issues The voter independent expenditures by corporations. expresses opinion no editorial concerning the 666,110 S.Ct. at 1401. presented any issues nor does it indicate holding The Court’s support was not limited opposition mere- for or candidate or ly to direct contributions to political party.” candidates. (emphasis Id. at 470 added “Corporate Faucher). unfairly wealth can influence plaintiff

11.The Court held that the opinions Chamber of 12. I do not discuss of other circuits Commerce in Austin did not fall within the nar- precise validity because the issues here — row class of that Mass. Citizens present regulations governing exempted from this rule. Court The previous- records —have not been decided emphasized the "accepts fact that the Chamber ly by any court. circuit for-profit corporations” which "therefore could circumvent the Act’s restriction majority opinion prior regu- discusses the campaign expenditures] by funneling [on their present regulation they lation and the as if were money through general treasury” the Chamber's statutory identical. See ante at 1311-12. if the applied limitations were not the Chamber. (citing Buckley, at 2317 at 45- these content-oriented struck down We 647-48). (Justice speech they Breyer’s inhibited was 96 S.Ct. at provisions; plurality protected opinion the First Amendment mentions “coordination” or independent expenditure that con- expenditures nearly every “coordinated” on was an advocacy” particular “express of a page.) tained no language Buckley on candidate. relied We rul- The Court reversed the lower court’s indepen- the FECA’s limits on that had held law, ing party’s expen- as a matter of expenditures to be unconstitutional un- dent “eonclusive[ly] presum[ed]” ditures should be they “express advocacy.” Id. involved less to have been coordinated with the eventual (citing Buckley, 424 U.S. at 96 S.Ct. at candidate, though “the record show[ed] 645-46). holding on a similar also relied We no actual coordination as a matter of fact” Citizens, in Mass. (and in fact there had been evidence independent likewise dealt with at---, contrary). Id. expenditures. We declined the FEC’s invita- plurality 2317-18. three-Justiee stated interpretation stat- tion to defer to that the determination of coordination with a ute, ground matter, factual candidate is a cannot be directly already spoken precise on the presumed as a matter of Two dissent- law. Faucher, dispute. that 928 F.2d issue was ing upheld would Justices have the FEC’s noting It is worth that our decision presumption and found it constitutional. in Faucher did not address the claim made hand, agreed On the other four Justices case,

by namely, in the instant Party Republican with the Colorado due publish spending of a voter special political parties role of in our guide or coordination with after consultation system, electoral the First Amendment for- regarding preparation a candidate congressional party’s limit a bids efforts to guide the kind of constitutes coordinated ex- indepen- coordinated as well as expenditures may penditure that be treated as a contribu- expenditures. dent Those Justices would tion, independent expenditure, not as an have stricken such on limitations their face. subjected may regulation. therefore be rejected position majority This chapter continuing saga The latest plurality of the Court. The three-Justice just last Term. Colorado Re- was written basis, reached on as-applied its conclusion —FEC, publican Campaign Comm. v. U.S. explicitly refusing to the facial entertain chal- -,-, 135 L.Ed.2d lenge. recognizing While that restrictions on (1996) (“Colorado ”), Republican expenditures might in coordinated some cir- Court struck down the FECA’s limits on a unduly infringe cumstances on constitutional expenditures political party’s in connection rights, plurality indicated that it would campaign, holding with a them unconstitu- uphold such restrictions in other circum- applied independent expendi- tional as stances, depending on the facts of the case at tures that were made “without coordination at-, hand. Id. 116 S.Ct. at 2320. The with candidate.” reiterated that dissenting rejected two Justices would have government may constitutionally set limits on as-applied challenges. both the facial and the contributions, including apply “limits that clear, individual foregoing history both when an or commit- As the makes money directly jurisprudence campaign tee contributes to a candidate Court’s on finance is they indirectly evolving, especially when respect also contribute to the use of making expenditures they coordinate wealth candidate elections. The at-, recognizes with the candidate.” Id. at Court now the corrosive and 441a). (citing § “constitutionally distorting big money The effect to influence significant in that legitimate governmental fact” ease was “the lack of elections is a con- application coordination between candidate and the cern.14 I turn now to the of this expenditure.” at-, evolving source of the Id. law to the issue contention. Cole, Pol’y (arguing 14. See David First Amendment Antitrust: Yale L. & Rev. Finance, Campaign ap- The End that courts cannot to a return laissez-faire Laissez-Faire

Analysis regulated just they as if were direct contribu Buckley, tions. U.S. 46 & n. may constitu- hold that the FEC I would 53; Republi S.Ct. at 647-48 & n. Colorado cor- tionally require communications between —can, , U.S. at 116 S.Ct. at 2313. -— regarding voter porations15 and candidates is, That independent, to be treated as rather writing.16 may guides to be in While there contribution, than expenditure must circumstances in which such restriction be “totally independent Buckley, be ].” applied, it sure- might be unconstitutional 96 S.Ct. at 648. Since this is true ly challenge.17 facial survives the current unincorporated organiza individuals and uphold question is whether we should political parties, tions like it should be at con- the FEC’s characterization of MRTLC’s least as true for whose “vast expen- tact with candidates as a coordinated capital,” reservoirs of FECA, which, under the is treated as diture 1398, pose more of a threat may regulat- a contribution and therefore integrity process,” to “the of our electoral individuals, respect Buck- ed. Even with Comm., National to Work ley categories campaign two created omitted), (quotation S.Ct. at 559 spending differently. are to be treated “require[ particularly reg therefore ] careful part, limits on contributions For the most ulation,” 209-10, 103 id. at S.Ct. at 560. campaigns are made to candidates or their expenditure occupies in this ease constitutional; totally independent limits ground: middle spending MRTLC’s on voter (i.e., expenditures expenditures are “not directly is not contributed to candi- coordinated with the candidate candidate’s totally independent dates but is not either. — campaign”). Republican, Colorado It is coordinated with the candidate to some at-, (citing Buckley, at 2313 degree. MRTLC be correct that this is 644-50). exactly identical to the coordination that Expenditures that are coordinated with the $20,000 organization buys exists when an campaign, candidate or candidate’s even if campaign rally, worth of food for a it but candidate, directly not contributed to the are aspects does entail some of what is ordinari- contributions,” they ly thought “treated as and can be of as coordination. See Random tion, coordination, proach political any they in the field more than or consultation with or at pre-Lochner candidates, would return to laissez-faire in the request suggestion or of the field, and economic therefore courts should agents regarding candidates’ committees or campaign regulation legitimate treat finance as a preparation, contents and distribution of government’s exercise of the First Amendment guide, portion the voter and no of the voter preserve marketplace antitrust role to guide may expressly advocate the election or ideas). clearly defeat more of one or identified candi- date(s) any clearly or candidates of identified regulation corporations 15. The covers both political party. corporation, labor unions. Because MRTLC is (ii)(A) corporation organization The or labor ensuing refer in the I will any way not contact or in other act in shall discussion. coordination, cooperation, or consultation pertinent part 16. of the FEC's suggestion request with or at the or states as follows: candidates, the candidates' committees or guides. corporation orga- Voter A or labor agents regarding preparation, contents and may prepare and nization distribute to the guide, except of the voter distribution guides consisting voter of two questions may writing be directed in to the positions campaign or more candidates’ guide candidates included in the voter and the issues, including guides obtained from a may respond writing. candidates in nonprofit organization in which is described 114.4(c)(5)(f),(ii)(A). § 11 C.F.R. 501(c)(3) (c)(4), provided 26 U.S.C. or guides comply paragraph with either 494 U.S. at 674 n. 110 S.Ct. at 17. Cf. (c)(5)(i) (c)(5)(ii)(A) (E) or of this sec- J., (The (Brennan, concurring) 1405 n. 4 "central sponsor may tion. The in the voter include that the First Amendment [is] lesson MCFL guide biographical information on each candi- basis, may require exemptions, as-applied, on an date, education, employment positions, such as expenditure organization if the restrictions” held, community offices involvement. characteristics.) required exhibits all three of the (i) corporation organization or labor shall added). (emphasis any way coopera- not contact act or other inserting policy English Language must avoid its own consider- Dictionary of the House mix”). ed.1987) (2d Looking parts (“act[ing] in ations into the to other harmonious combination”). And, guidance, according I of the FECA for as will discuss short- Act, 2 general definitions section of the of the same kinds of dan- ly, poses it some 431(17), expenditure by corpo- § of the elec- U.S.C. ger corruption and distortion “cooperation ration that is made in or consul- process. this in-between level of tion With coordination, qualify question here is whether tation” with a candidate does not as “independent expenditure.” It would degree coordination between MRTLC preparing treated as an indirect contribu- the voter therefore be and the candidates 441b, interpreted Buckley, § money spent tion under guides is to treat the sufficient guides 424 U.S. at 46 & n. 96 S.Ct. at 647-48 & produce and distribute the — Republican, regulable, taking n. and Colorado U.S. at contribution and therefore -, addition, requirements. 116 S.Ct. at 2313. another into account constitutional — at-, Republican, provision explicitly of the Act states See Colorado 441a(a), purposes “expenditures of subsection person cooperation, made consul- majority agree that the constitu- with the tation, concert, with, request or at the or tional cannot be avoided resort issue of, candidate, suggestion his authorized statutory interpretation. The district court committees, agents, or their shall be to conclude that the FEC has was mistaken considered to be a contribution to such candi- has, § authority interpret no 441b as 441a(a)(7)(B)(i) (emphasis § date.” U.S.C. simply the statute does not contain a added). provision explicit This makes Con- authorizing particu- provision specifically gress’s expendi- intention that coordinated generally interpretation. lar The Act em- spending tures like those on voter here — (indeed, requires) pro- powers FEC to prepared that were after consultation regulations mulgate carry “to out rules cooperation with candidates —be consid- Act,” 2 provisions [the] U.S.C. contributions, purposes ered at least for (a)(8), 438(a)(8); § § also 2 U.S.C. 437d see § 441a. “formulat[ing] policy respect including 437c(b)(l). presumption given 2 U.S.C. is a that a “[T]here to” the Act. agency entirely appropriate thing for an to fill in term is used to mean the same Gardner, ambiguous incomplete throughout in an the interstices a statute.” Brown v. Chevron, 467 at statute. See U.S. 130 2781-83; I, light at Strickland 48 F.3d L.Ed.2d 462 In of this canon of S.Ct. (when construction, subject statutory nothing at 21 statute is to more than and because § possible interpretation, up specifies one “it is to the in 441b a different view of the courts, “contribution,” [agency], I not the to balance the rele- term see no reason to sec policy ond-guess interpretation vant considerations and formulate a the FEC’s that ex rule”). Congress penditures guides, preparation nor the Neither Court has on voter candidates, specifically question addressed the of what of which is coordinated with degree required is an coordination before should be treated as contributions under expenditure may § § be treated as a contribution 441b as well as under 441a. See Chev ron, 844, 104 under the at at FECA. U.S. 2782-83. question turn now to the whether the statute reviewing court Therefore a should defer interpreted. is constitutional as so interpretation agency’s long to the as as it is statute,” noted, “manifestly contrary already not plaintiff to the As MRTLC chal- face, regulation lenges interpretation which cannot said of the be at the FEC’s 844, 104 as-applied. exception appli- at issue here. See id. S.Ct. at 2782- not With 83; II, (“court here,18 prevail in Strickland F.3d cable order on such a way plaintiff prevail may constitutionally 18. An alternative for the is broad that it inhibit the so parties.” protected speech on a facial attack would be to demonstrate of third New York Ass’n, though challenged “may validly City, be State Club Inc. v. New York law 1, 2233, others, applied plaintiff 101 L.Ed.2d 1 it nevertheless challenge, plaintiff express must show that candidates to through their views applied contribution, can be never constitution- distinguished orga- Rust, ally. U.S. expressing nization’s its views. The burden plaintiff 1767. This the cannot do: MRTLC on MRTLC’s First rights Amendment is exemplifies organization itself to which therefore less than it would be if the voter written-contact-only regulation, 11 C.F.R. guides purported represent MRTLC’s own 114.4(c)(5)(ii)(A), may constitutionally be views. See id. applied. expenditure MRTLC’s on voter addition, Brennan, as Justice one of the totally independent is not of the can- great champions Court’s of First didates, necessary which would be to be enti- rights speech to free and associ protection Buckley full tled and its ation, Austin, noted his concurrence in progeny. expenditure is a coordinated greater approved even the by restrictions legitimately treated as if it were a Court there would impose an excessive such, and, may regulated contribution be corporation burden on a because it was al FECA, the FEC under at least means speak PACs, lowed to even if not of this requir- limited measure through general Austin, treasury funds. ing that MRTLC’s contacts with candidates U.S. 669 n. 671 n. S.Ct. at 1402 n. only writing. “many 1403 n. 2. He listed avenues of “When, deciding ... whether election a[n] open communication” still plaintiff law violates First and Fourteenth Amend- (the Commerce), there Chamber of rights, weigh ment associational we the char- segregated showed that “the require fund magnitude acter and of the burden ... practice ment signifi not burdened imposes rights against rule on those in- cantly speech.” the Chamber’s Id. at 676 n. [government] justify terests contends — 7; Timmons, 1406 n. see burden, and consider the extent to which at-, 117 S.Ct. at 1371. is a “[T]here [government’s] concerns make the bur- vast lobbying difference between debat necessary.” den Timmons Twin Cities ing public hand, issues on politi the one — -, -, Party, Area New campaigns cal for election to office on (1997) (in- Austin, the other.” omitted). quotation ternal marks (Stevens, J., S.Ct. at 1407 concurring). Buckley As in expen- when an candidate, diture coordinated with a The burden on MRTLC’s constitutional contribution, be treated as part rights here is even regu- less intrusive. The in both situations the burden on constitution- requirement lation’s contact with rights al is less than would be the case for a writing candidates be in relatively is itself a totally independent expenditure. Buckley restriction, minor analogous more to the dis- “only found contribution limits to be a mar- requirements upheld Buckley closure than ginal upon ability restriction the contributor’s independent to Austin’s limitation on expen- communication,” engage in free ditures which the upheld, Court nevertheless “the po- transformation of contributions into although acknowledging impose that it would speech by litical debate involves someone oth- heavy rights. burden on First Amendment er than the contributor.” 424 written-contact-only The rule not im- does added). (emphasis pose even as much burden on First Amend- Similarly bar, rights in the ment as the limitations on ease at to the extent contribu- seeking merely upheld Buckley. in MRTLC tions In contrast to the distribute purportedly upheld Buckley accurate reflection in of the candi- limitations and Austin on issues, dates’ on distributing money spent, views the absolute amount of in the guides helping voter is more like type imposed by certain case at bar the of restriction omitted). (quotation significantly compromise recog- A facial overbreadth chal- ute itself will lenge exception ordinary standing is "an protections parties re- nized First Amendment of quirements” omitted). (quotation and "will not succeed unless the before the Court." Id. In overbroad, case, substantially requires statute is begin the instant MRTLC’sbrief does not danger respect. the court to find a realistic that the stat- meet its burden in this written-contaet-only regulation totally independent advocacy issue to the the FEC’s which Austin quantity speech any public, upon permitted of restric- not limit the does engaged tions. If way; simply specifies the manner which MRTLC no consultation it all, publish in with the candidates at it could corporation consults with candidates Thus, guides. regula- guides, pay voter for them out of its preparing voter its treasury, corporate advocating less on what- significantly intrusive tion is to, issue, position any rights than ever it wanted on as First MRTLC’s long expressly as it quantity limits on the of did not advocate the those absolute clearly election or defeat of a identified can- speech.19 didate. the burden on First Amend- also content- requirement writing The rights posed by challenged regula- ment effect): (in purpose and it does neutral both relatively tion is small. any message prefer one over another governmental regulations Even where long guides guides, as as the MRTLC’s substantially potential infring- have “the for any prepared oral contact with were without ing rights,” the exercise of First Amendment completely The rule is indif- the candidates. “acknowledged the Court has that there are corporation wishes to ferent to the issues governmental sufficiently important interests posi- and to the address outweigh possibility infringement, corporation tions the itself takes on those particularly functioning when the free of our addition, may say any- In issues. MRTLC Buckley, national institutions is involved.” (or ask thing it wants to a candidate (internal wants) preparation questions during it — Timmons, omitted); quotation marks see long writing. it does so in guides, (“‘[A]s -, U.S. at 117 S.Ct. at 1369 regulation not limit the does content matter, practical there must be a substantial the communication between MRTLC and the they elections are to be fair (written candidates, only the manner or non- order, and if honest some sort of rather written) in which such communication is ef- chaos, accompany than is to the democratic fectuated.20 Takushi, ”) (quoting Burdick v. process.’ Moreover, inas the written-con- U.S. (1992)).

tact-only regulation applies only orga- The Court has re- funds; general treasury peatedly nization’s use held that burdens on First Amend- apply rights significant does not at all to PAC from a ment more than in- those segregated If separate outweighed fund. MRTLC were volved in the instant case were corruption, Buckley, willing comply reporting potential with the requirements by which the distorting other FEC moni- the corrosive and effects of Burdick, PACs, ordinary wealth, Austin. Cf. corporate tors then it would (“[T]he comply challenged rigor- not have to re- at 2063 addition, inquiry propriety striction.21 the written- ousness of [the] into the contact-only apply does not depends upon rule all to a state election law the extent recently rejected portions guide regulation, a claim 19.The based Other of the voter appears upon to be a 114.4(c)(5)(ii)(B)-(E), what me much more do contain restrictions — Timmons, -, burden. U.S. at intrusive forbidding guides that devote more contents — "independent 117 S.Ct. at 1372. Because the prominence to one than candidate another or party’s expression of a views is core electioneering message. that contain an at-, activity,” First id. Amendment rule, 114.4(c)(5)(ii)(A), written-contact-only § (internal omitted), quotation at 1369 marks a however, require- does not contain content-based political party claimed that the state’s ban on ments. unconstitutionally fusion candidates burdened communicate, party’s right the to in that the ban Corporations may prevented party “using treasury the the use funds ballot (as supports funds) communicate to the that it a well as PAC to finance communica- particular candidate" and the ban off members, stockholders, ”shut[] tions with their and ex- possible party might one avenue a use to send a personnel, ecutive and administrative on at-, message preferred to its candidate.” Id. (9)(B)(iii). subject. 2 U.S.C. rejected 117 S.Ct. at 1372. The Court the claim upheld the ban. Id. rights, even corporation’s First Amendment regulation burdens challenged a to which totally rights.”); independent expendi- in the context and Fourteenth First (1st Merrill, 659,110 483-84 84 F.3d tures. S.Ct. at 1397. Werme Cir.1996). then, Surely, concerns are the same suffi- Moreover, in Mass. Citi- Court said as the where, here, ciently compelling corporate as require zens, on contributions “restrictions form, deployed an in-between wealth restrictions justification than compelling less i.e., totally independent spending that is not MCFL, 479 U.S. spending.” independent on degree rather entails some of coordina- but added). 259-60,107 (emphasis at 629 at majority pro- tion with the candidates. required, justification a less of Because to meet tects the freedom rule was prophylactic need for a broad “the candidate, a in order to face-to-face with on support a limitation ... thus sufficient secretly presentation of plan the content and money to raise for ability a committee the corporation will distrib- at to candidates.”22 Id. contributions direct public. ute to the believe this concern 260,107 secondary integ- protecting should be further; Austin, up- went the Court Buckley, rity process. of our electoral See nonprofit corpora- restricting a a rule held govern- 96 S.Ct. at 657. The expenditures as well independent tion’s taking compelling has a interest ment all contributions, by the fact that justified prophylactic prevent measures to the coer- from the State corporations both “receive corruption that arise if a cion and would special benefits conferred provide corporation like MRTLC offered potential for dis- present structure and (providing expen- valuable in-kind assistance process.” 494 U.S. torting political free)23 advertising for to a candidate on sive 2,110 1398; n. 661,110 see id. at 663 the candidate take the the condition (recognizing possible “the n. 2 at 1399 demands, pre- position corporation and to political process inherent of the distortion cor- appearance of such coercion or vent general cor- expenditures from independent ruption. added). funds”) (emphasis Because porate about legitimately concerned The FEC “[ejorporate wealth can found that the Court prohibiting danger. The FEC de- when it is unfairly influence elections was de- contact with candidates unwritten expendi- independent ployed in the form of po- the abuse that could signed to foreclose tures, it assumes the just as it can when corporation like tentially arise from a contributions,” id. at guise of pressuring a candidate to amend MRTLC concluded that issue, pain position on an his or her po- “corporate preventing domination in-kind contri- losing kind of substantial sufficiently compelling process” was a litical FEC, prophy- According a nonprofit bution.24 justify the burdens on interest to campaign: guide greatly his or her benefit the fact that Court was not troubled 22. The (or prolife position might sweep broadly, highlight prophylactic restrict- the candidate's rule will money opponent) well as those ing corporations position with less or her pro-choice of his presumably war chests. with substantial to voters who and will be mailed "poten- at 1398. Because it is could on this issue. This MRTLC’s views share big money unfair influence to have an publi- tial” sum to candidate a considerable save the regulation,” the Court would not "demands light to a positions a favorable his or her cize guess legislative as to determination "second group this issue is targeted of voters to whom prophylactic measures where cor- need for important. particularly ruption National is the evil feared.” Comm., 103 S.Ct. at 561. Work Buckley, could when contributors 24.Prior Buckley, 96 S.Ct. at 665- See also campaign direct give either required (upholding disclosure rules they expenditures, independent contributions or independent law-abiding keep PACs to records of usually route. But since chose the direct expenditures neces- as a measure (for decision, that route Buckley which foreclosed law’s sary able to enforce the for the FEC to be limits), they beyond have expenditures certain effectively). requirements other financially ways the benefit to find other to independently. campaign by giving pub- candidate’s pay have to for 23. candidate does not The ingenuity naively the underestimate "It would lishing guide,” can nevertheless “voter which the lactic is needed so do rule often demands an response, immediate with- providing out change positions merely opportunity to an comparison induce candidates for or reflection.” Ohralik v. Ohio State Bar they money the to need finance their Ass’n, they actually agree if do not campaigns, even L.Ed.2d a Unlike written change. question If the with the were the communication, an oral discussion “is not vi- authority regulate organization to FEC’s open sible or otherwise public scrutiny. to $20,000 offering a cash to contribution Often there is no witness other than the agree change candidate if she would to her [parties conversation], to the rendering it position support organiza- to one of for the impossible difficult or to proof obtain rehable position particular piece legisla- tion’s actually place.” what took tion, question no there would be majority’s S.Ct. at 1924. Under position authority regulate organization. FEC’s to view, sustaining MRTLC’s why I see no reason the result should not be guides virtually be “would to immune effec- organization the same offers instead oversight regulation.”25 tive agree and Id. $20,000 pamphlets presenting worth of the with the written-contact-only FEC that the favorable, in a candidate’s view on this issue requirement possibility “eliminates the un- unfavorable, light. rather than an recorded conversations that could entice or following orga- Consider the scenario. An coerce a posi- candidate to alter his or her exchange in nization tions for regarding consults with candidate favorable treatment guide.” FEC Brief at 31. plans Such campaign, his or her or needs exemplifies coercion the kind of distortion of says and then candidate: “You have political process our with aggrega- “immense you in, position stated the believe but we Austin, tions of wealth” of which 494 U.S. at disagree respeets. plan with it in certain We Citizens, 110 S.Ct. at and Mass. $20,000 spend print guides and 630-31, 479 U.S. at 107 S.Ct. at would largely persons sympa- distribute them disapprove, and may regulate which the FEC thy you modify your with our If views. prophylactic measures like its written- ours, position to be more like our voter contact-only requirement. I conclude that guides people you support will tell our unreasonable, “[i]t therefore is not or viola- position your opponent you and does not. If Constitution, tive of the [the for FEC] modify your suggest, don’t stand as we we respond with what in prophylactic effect is a spend guides will on voter which Ohralik, rule.” 436 U.S. at paint you light.” in an unfavorable 1924. required by measure plaintiff heavily relies on Mass. Citi- simply FEC rule is that discussions with (“MCFL”), 263-64, zens 479 U.S. at preparation about candidates of voter emphasized S.Ct. at the differ- guides writing, and oral. Non- type ence corporation between the before written communications with candidates ordinary, there and an business- guides present about voter opportunity corporation oriented independent whose ex- dangerous quid pro quo kind at the (even penditures if not coordinated with a justification heart of compelling candidate to the extent these voter Supreme Court repeatedly upon relied are) may be violating restricted without upholding the Act’s restrictions on contribu- First Amendment.26 494 U.S. at tions and expenditures. coordinated “[I]n- 110 S.Ct. at 1397-98. It is true that MCFL person pressure solicitation exert exempts from FECA’s rule a “small” persons groups prohibit resourcefulness of desir- if the FEC cannot all oral communica- ing buy they influence to believe that would tions and malee simple enforcement decisions on difficulty devising expenditures have easily applied much questions criteria to written express advocacy skirted the F.Supp. restriction on answers.” 927 election or defeat but nevertheless benefited the significant holding 26. It in MCFL was campaign.” Buckley, candidate's applied analysis limited to an as of the facts 96 S.Ct. at 647. pertaining plaintiff before the Court. "sympathetic The district court challenge itself did not extend to a facial as the instant argument purports that enforcement is more difficult case to be.

1331 governmental pose not tailored to the corporations that do address interest group of process, stop here. not corporations of threat to the electoral does like same kind 263-64, 107 MCFL, at at S.Ct. 630- communicating 479 U.S. MRTLC from their views 31, they do have access “vast not particular because about abortion or about candidates (among corporate other wealth reservoirs” public; stop to the nor does it them from Austin, factors), 494 at 110 U.S. lobby communicating with candidates significant fact 1400. But the S.Ct. at positions, change long them to their as the plaintiff in not that the was a was MCFL lobbying offering is in the not done context of indeed, in ideological corporation: nonprofit what could functional equivalent be the Austin, upheld the constitutionali the Court extremely contribution; in-kind it valuable independent ty regulations restricting ex stop communicating not from does them ideological penditures by nonprofit corpora gain with candidates to information about 659-60, at at 1397-98. tion. Id. positions corpora- candidate to include in the Austin, guide. require tion’s voter All it instant case is dis does is as in Just Austin, type directly In “the from latter of communication with tinguishable MCFL. plain require [the that in writing, prophy- [did] candidates to done for Constitution be exempted generally applica from the agree lactic I tiff] reasons. the FEC law, finance campaign ease, provisions” conversations, ble the context of this “oral crucial three] it not share “[did] [the because questions, inherently provide unlike written justified narrow features” that MCFL opportunity prearrangement for coor- Austin, 662, 110 at exception. S.Ct. dination, adding little or while no additional case, In the at instant MRTLC 1398-99. necessary produce information accepts for-profit from business contributions guide.” at 33. FEC Brief doing to continue corporations intends Austin, In a statute found that those so. does not eschew “vast MRTLC “precisely targeted was the dis eliminate Austin, capital.” 494 at reservoirs U.S. by corporate spending tortion caused while point is the 110 at 1398. This S.Ct. allowing express also their the Chamber of Commerce Austin views,” political permitted where statute greatly” plaintiff “most from differed independent political expenditures through Austin, 664, 110 at Mass. Citizens. expenditures but from PACs forbade such at 1400. The source of MRTLC’s funds S.Ct. general treasury funds. 494 U.S. potential MRTLC creates will at 1397-98. The Court type of for the direct “serv[e] [a] conduift] concluded the statute not overinclu spending that creates a to the threat imposed merely same sive because marketplace.” Id. companies restrictions on small that did Citizens, (quoting Mass. “possess capital.” vast reservoirs 631) (brackets Austin). S.Ct. at This at 1398. Court noted for-profit corpora business would enable Comm, rejected National to Work making in tions^—themselves “barred argument, “it a similar overinclusion expenditures directly,” dependent potential for such that de influence (Bren 673-74, omitted). regulation.” (quotation Id. mands nan, J., concurring) “circumvent —to written-contact-only regulation is like corporate financing of [on Act’s restriction narrowly sufficiently wise tailored. campaigns] by funneling money election treasury.” Aus [MRTLC’s] may the FEC construe a conclude that tin, U.S. at corporation’s with candidates contact Cf. FEC, Medical Ass’n guide preparation of a voter as “coordina- California 2712, 2722-23, tion” with the candidates. Therefore (dan (plurality opinion) L.Ed.2d expenditure money on treat the ger of evasion of limits on contribution to guides as an contribution those voter in-kind justified prophylactic candidates limitation on context, need candidates. PACs). contributions justify rule is sufficient imposed by the writ- Finally, written-contact-only the limited restriction the FEC’s ten-contact-only regulation. preparing narrowly rule for challenge I that MRTLC’s am mindful facial, as-applied. is not

here MRTLC

asking consider whether us to the written-

contact-only ap- rule is unconstitutional as Therefore, I

plied to it. do not consider

whether, full factual if a record were before

us, might be able to MRTLC show it is fact a conduit wealth. would be uncon- someone, applied

stitutional as a facial

challenge present like the one must fail plaintiff appears exemplify

where even the written-contact-only

a situation where the

regulation may constitutionally applied. 674 n.

Cf. J., (Brennan, concurring). 1405n. 4

Conclusion majority

I believe that the has misstated

the thrust of written-contact-only the FEC’s

regulation. simple The issue is not as nor as analysis

amenable to broad-brushed as the

majority thinks. It cannot be resolved with- examining

out the evolution law, majority ig-

Court case which the Because, law,

nored. as I read the case we uphold

should prophylactic regulation,

respectfully dissent.

Cynthia FISHER, J. Plaintiff-

Appellee-Cross-Appellant, COLLEGE,

VASSAR Defendant-

Appellant-Cross-Appellee. Nos. 1303 and Dockets Piel, Eleanor City Jackson New York 94-7737, 94-7785 and 94-9125. (Herma Kay, Hill Berkeley, CA, on the brief), for Plaintiff-Appellee-Cross-Appel- Appeals, United States Court Cynthia lant Fisher. Second Circuit.

Argued March 1995. Curran, Kiseo, Maurice F. Mount NY Sept. Decided 1995. (James Drohan, P. Petigrow, Daniel Anderson, Banks, Donoghue, Curran & Amended Dec. 1995. Kisco, NY, brief), Mount on the for Defen- Argued In Banc June 1996. danU-Appellant-Cross-Appellee Vassar Col- Decided June lege.

(Samuel Marcosson, Gregory A. C. Stew- ard, Counsel, Gwendolyn General Young

Case Details

Case Name: Robin Clifton and Maine Right to Life Committee, Inc. v. Federal Election Commission

Court Name: Court of Appeals for the First Circuit

Date Published: Aug 8, 1997

Citation: 114 F.3d 1309

Docket Number: 96-1812

Court Abbreviation: 1st Cir.