Clifton v. Federal Election
Case Date: 06/06/1997
Docket No: 96-1812
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____________________ No. 96-1812 ROBIN CLIFTON and MAINE RIGHT TO LIFE COMMITTEE, INC., Plaintiffs, Appellees, v. FEDERAL ELECTION COMMISSION, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] ____________________ Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Boudin, Circuit Judge. ____________________ David Kolker, with whom Lawrence M. Noble and Richard B. Bader were on brief, for appellant. James Bopp, Jr., with whom Paul R. Scholle, Bopp, Coleson & Bostrom, Daniel M. Snow, and Pierce Atwood were on brief, for appellees. ____________________ June 6, 1997 ____________________ BOUDIN, Circu it Judge. The plaintiff Maine Right to Life Committee ("Maine Committee") brought this action in the district court to challenge the validity of new regulations of the Federal Election Commission ("FEC"). The Maine Committee is a nonprofit membership corporation, exempt under the Internal Revenue Code, which engages in various activities in opposition to abortion. It accepts donations from other corporations for its general fund. Among its activities thus funded is the publication of voter guides describing the position of congressional candidates on "pro-life" issues and the publication of congressional voting records on the same issues. Its co- plaintiff Robin Clifton is a recipient and reader of these publications. The FEC regulations, effective March 13, 1996, purport to regulate voter guides and voting records in several different respects pertinent here. Voting records. The new FEC regulation on voting records not only prohibits corporations and unions from expressly advocating the election or defeat of particular identified candidates--a restriction not challenged by the plaintiffs--but also provides that even without such advocacy "[t]he decision on content and the distribution of voting records shall not be coordinated with any candidate, group of candidates or political party." 11 C.F.R. S 114.4(c)(4). "Coordination" is not defined. -2- -2- Voter guides. Along with the restriction on express advocacy, the regulation on voter guides provides that either a corporation or union publishing a guide must have no contact at all with any candidate or political committee regarding the preparation, contents and distribution of the voter guide or, if there is such contact, (1) it must be only through written questions and written responses, (2) each candidate must be given the same prominence and space in the guide, and (3) there must be no "electioneering message" conveyed by any scoring or rating system used, or otherwise. 11 C.F.R. S 114.4(c)(5). The district court granted a declaratory judgment holding the regulations just described, apart from the ban on express advocacy, "invalid as not authorized" by the Federal Election Campaign Act of 1971, 2 U.S.C. S 431 et seq. ("the Act"), "because they restrict issue advocacy in connection with expenditures." Clifton v. FEC, 927 F. Supp. 493, 500 (D. Me. 1996). Some of the district court's reasoning is directed to the statute, and some to a right of corporate "issue advocacy" set forth in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986). We begin with the statute, partly because of the district court's reliance on it and partly because of the general precept against deciding constitutional issues unless necessary. The provision of the Act on which the FEC relies for authority is 2 U.S.C. S 441b. In pertinent part it -3- -3- prohibits any corporation or union from making "a contribution or expenditure in connection with any" federal presidential or congressional election or primary. The Act does permit limited activities of this kind from "segregated" funds that are heavily regulated and are typically known as political action committees (PACs). See Massachusetts Citizens, 479 U.S. at 253-54. In Massachusetts Citizens, the Supreme Court held that section 441b prohibits corporate and union contributions but, as to expenditures other than contributions, the Court narrowly construed the statutory ban as limited to "express advocacy" of the election or defeat of a candidate. Id. at 249. Thus, as glossed by the Supreme Court to avoid "overbreadth," id. at 248, the statute does not prevent corporations and unions from engaging in issue advocacy including publication of the records and positions of federal election candidates. Previously, the FEC adopted a regulation under the same section that required voter guides to be "nonpartisan": they could describe the candidates' positions but could not express the organization's opinion on the issues presented. This court held the new limitation to be a straightforward restriction on issue advocacy and therefore beyond the scope of the statute as construed by the Supreme Court. Faucher v. FEC, 928 F.2d 468, 471 (1st Cir.), cert. denied, 502 U.S. 820 (1991). -4- -4- In response to Faucher , the FEC has issued the voter guide regulation at issue in the present case and has chosen a different tack. Instead of claiming any direct authority to regulate issue advocacy--a claim rejected by Massachusetts Citizens and Faucher--the FEC defends its new regulations as defining, or at least enforcing, section 441b's prohibition on contributions . It reasons that a voting record or voter guide publication that fails to comply with its regulation is either a contribution or can be banned in the interests of preventing prohibited contributions. The claim that noncomplying publications are therefore contributions is untenable. The Supreme Court has said, in discussing related statutory provisions, that expenditures directed by or "coordinated" with the candidate could be treated as contributions, see Buckley v. Valeo, 424 U.S. 1, 46 (1976); but "coordination" in this context implied some measure of collaboration beyond a mere inquiry as to the position taken by a candidate on an issue. Id. at 46-47 & n.53; see also Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. 2309, 2319 (1996) (opinion of Breyer, J.). On its face, the FEC's voter guide regulation bars non- written contact not merely regarding the preparation and distribution of voter guides, but also regarding their contents. 11 C.F.R. S 114.4(c)(5)(i), (ii)(A). Thus, the regulation expressly prohibits a simple oral inquiry by the -5- -5- Maine Committee as to a candidate's position; and the district court tells us that the FEC's counsel admitted at oral argument that the FEC similarly interprets its ban on "coordination" of voting record publications. 927 F. Supp. at 498. The FEC can construe terms but it cannot rewrite the dictionary and classify a simple inquiry as a contribution. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 198-99 (1976); cf. Colorado Republican, 116 S. Ct. at 2319, 2321-22 (opinions of Breyer, J., and Kennedy, J.). But if ordinary standards of agency power are applied, the FEC has a stronger claim--constitutional limitations aside-- that it can on prophylactic grounds ban oral contacts for voting records and voter guides, and perhaps require similar amounts of coverage of candidates in voter guides. True, not all oral contacts or different allocations of space will involve collaboration with the candidate. But some will, and the FEC's restrictions may reduce the risk of collaboration by making it easier to detect and less effective where it occurs. Normally an agency with rulemaking power has a measure of latitude where it is dealing with the regulated entity (here, corporations and unions) and where the rule is reasonably designed to achieve the statute's goal (here, to prohibit certain types of contributions). The FEC has such rulemaking power. 2 U.S.C. S 437d(a)(8); Buckley, 424 U.S. at 110. Agencies often are allowed through rulemaking to regulate -6- -6- beyond the express substantive directives of the statute, so long as the statute is not contradicted. See Mourning v. Family Publications Serv., 411 U.S. 356, 369-71 (1973); United States v. Sou thwestern Cable Co., 392 U.S. 157, 177-78 (1968); Alexander v. Trustees of Boston Univ., 766 F.2d 630, 636-38 (1st Cir. 1985). We think it is thus not altogether easy to avoid approaching the question whether what the FEC is doing is constitutional. True, one could say that it is regulating issue advocacy while claiming to regulate contributions. But in a sense the FEC is doing both at the same time; and the statute, it should be noted, does not itself forbid reasonable regulation of contributions that happens also to burden issue advocacy. As a statutory matter, the Act simply stops short of prohibiting issue advocacy. Massachusetts Citizens, 479 U.S. at 249; Faucher, 928 F.2d at 471. Turning then to constitutional issues, we face at the outset the claim of the Maine Committee that it has a constitutional right of issue advocacy that is unreasonably burdened by the regulations here at issue. In Massachusetts Citizens, the Supreme Court not only narrowed section 441b by construction but also recognized a First Amendment right to issue advocacy, on behalf of a nonprofit corporation fairly similar to the Maine Committee, that extends to the publication of voter guides. 479 U.S. at 263. -7- -7- The difficulty is that in that same case, the Supreme Court stressed as "essential" the fact that the anti-abortion not accept contributions from business orporations or unions. Id. at 264. This was important to the Court because it had previously sustained the right of Congress to limit the election influence of massed economic power in corporate or union form. FEC v. National Right to Work Comm., group there involved did c 459 U.S. 197, 207-10 (1982). And somewhat later, the Court upheld a state statute that barred campaign-related issue advocacy, out of general funds, by a nonprofit entity funded by business corporations. A ustin v. Michigan Chamber of Commerce, 494 U.S. 652, 664-65 (1990). The Maine Committee does accept contributions from other corporations, Clifton , 927 F. Supp. at 494, and falls somewhere between the entity protected in Massachusetts Citizens and that held unprotected in Austin. It is unclear what the Supreme Court would say about the existence or extent of a constitutiona l right of campaign-related issue advocacy (using unsegregated funds) claimed by the Maine Committee. Nor does the record permit us to disregard Austin on the ground that corporate contributions to the Maine Committee are de minimis.1 1Despite Austin, two circuits have ruled that entities might still obtain the protection of Massachusetts Citizens where business contributions were in fact minor even though not strictly banned by the organization. FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 292 (2d Cir. 1995); Day v. Holahan, 34 F.3d 1356, 1364 (8th Cir. 1994), cert. denied, 115 S. Ct. 936 (1995). We take no view as to the correctness of these -8- -8- If the Maine Committee had the same constitutional right to issue advocacy as its Massachusetts counterpart, the two principal rules at issue might well fail under a strict- scrutiny standard. As we will see, the limit on oral contact and the obligation to provide equal space are significant burdens and, as merely prophylactic rules that go beyond the threat (unauthorized corporate contributions), the rules likely would not meet the narrow tailoring requirement. FEC v. National Conservative Political Action Comm., 470 U.S. 480, 496, 498-500 (1985). But the Court may hold that the Maine Committee's acceptance of corporate contributions brings Austin into play. We think that the present case can be decided on grounds that do not require us to decide whether Austin applies to the Maine Committee, an issue only the Supreme Court can resolve definitively. For even apart from their impact on issue advocacy, the two main FEC rules at issue curtail constitutional rights that corporations unquestionably do possess. Whether the curtailment goes too far as a constitutional matter need not be decided: it is enough that it undermines the FEC's claim of authority for its rules. Starting with the FEC rule requiring substantially equal space and prominence, we begin with the proposition that where public issues are involved, government agencies are not decisions. -9- -9- normally empowered to impose and police requirements as to what p s abhorrent to the First Amendment, whether the compulsion is directed against individuals or corporations.2 And while no case is an exact match for this one, Miami Herald comes pretty close. There, the Supreme Court struck down Florida's "right of reply" statute that guaranteed a political candidate equal space to reply to newspaper attacks or criticism. 418 U.S. at 256. The Court said that even if no additional costs were imposed by "compulsory access," nevertheless [t]he choice of material to go into a newspaper, and made as to limitations on the size and rivate citizens may say or write. Commercial labeling aside, the Supreme Court has long treated compelled speech a the decisions content of the paper, and treatment of public issues and public officials--whether fair or unfair-- constitute the exercise of editorial control and judgment. Id. at 258. The statute failed even though the state did not dictate the content of the reply, nor did the newspaper purport to endorse it. Reaffirming Miami Herald, the Supreme Court not 2See McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1519-20 (1995); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338, 2347 (1995); Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 795 (1988); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 16 (1986) (plurality opinion); Wooley v. Maynard, 430 U.S. 705, 714 (1977); M iami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256 (1974); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). -10- -10- long ago described that case as involving a law that altered "content." Riley, 487 U.S. at 795. It seems to us no less obnoxious for the FEC to tell the Maine Committee how much space it must devote in its voter guides to the views of particular candidates. We assume a legitimate FEC interest in preventing disguised contributions; but Florida's interest in fair coverage that prompted its "right of reply" statute was hardly trivial. The point is that the interest cannot normally be secured by compelling a private entity to express particular views or by requiring it to provide "balance" or equal space or an opportunity to appear. See, e.g., Hurley, 115 S. Ct. at 2347; Miami Herald, 418 U.S. at 256. First Amendment concerns may be less where the government requires balance or access than where it dictates the precise viewpoint to be expressed. But, unlike "time, place and manner" limitations, the FEC's equal space or prominence requirement, even if mechanically applied, does affect the content of the Maine Committee's voting guide. Thus, the Maine Committee could be compelled to devote substantial space to describing the position of a candidate with whom it deeply disagrees. As the Supreme Court said unanimously in Hurley, 115 S. Ct. at 2347: this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to -11- -11- statements of fact that the speaker would rather avoid, McIntyre, . . . Riley . . . . Few, if any, rights are absolute, but there is a strong First Amendment presumption against content-affecting government regulation of private citizen speech, even where the government does not dictate the viewpoint. See Riley, 487 U.S. at 797-98; Pa cific Gas, 475 U.S. at 16; Miami Herald, 418 U.S. at 256. Indeed, even for broadcasters and cable monopolies, the Supreme Court has upheld equal coverage and "must carry" provisions only because of the unique control that broadcasters and cable operators have over public access to programming. Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 655-57 (1994); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392-94 (1969). That rationale has no conceivable application to the Maine Committee. The other rule principally at issue is the limitation on oral contact with candidates. We think that this is patently offensive to the First Amendment in a different aspect: it treads heavily upon the right of citizens, individual or corporate, to confer and discuss public matters with their legislative representatives or candidates for such office. As we have explained, the regulations bar non-written contact regarding the contents, not merely the preparation and distribution, of voter guides and voting records; thus, inquiries to candidates and incumbents about their positions on -12- -12- issues like abortion are a precise target of the FEC's rules as applied here.3 It is hard to find direct precedent only because efforts to restrict this right to communicate freely are so rare. But we think that it is beyond reasonable belief that, to prevent corruption or illicit coordination, the government could prohibit voluntary discussions between citizens and their legislators and candidates on public issues. The only difference between such an outright ban and the FEC rule is that the FEC permits discussion so long as both sides limit themselves to writing. Both principle and practicality make this an inadequate distinction. It is no business of executive branch agencies to dictate the form in which free citizens can confer with their legislative representatives. Further, the restriction is a real handicap on intercourse: the nuances of positions and votes can often be discerned only through oral discussion; as any courtroom lawyer knows, stilted written interrogatories and answers are no substitute for cross-examination. A ban on oral communication , solely for prophylactic reasons, is not readily defensible. 3Indeed, the chilling effect of such a restriction would extend well beyond any discussion directed to a particular voter guide; any inquiry by the Maine Committee to a local representative or candidate regarding his or her position on such issues would be vulnerable even if no mention whatever were made of any voter guide. Cf. Riley, 487 U.S. at 794. -13- -13- The Supreme Court has echoed this view, albeit in dicta. In upholding the Attorney General's refusal to grant a temporary visa to a foreign journalist invited to participate in academic conferences in the United States, the Court said, The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because "technological developments," such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. . . . [W]e are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access. Kleindienst v. Mandel , 408 U.S. 753, 765 (1972). See also Pell v. Procunier, 417 U.S. 817, 825 (1974). Such writing-only restrictions have sometimes been upheld in the context of commercial speech, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 467 (1978) (limiting in-person attorney solicitation of clients); but the Court has never even remotely approved such a restriction of political expression. In fact, in a companion decision to Ohralik, the Supreme Court found such prophylactic rules unconstitutional as applied to solicitations by nonprofit organizations offering free legal assistance, explaining that the latter comprises core protected speech and association, and that in the latter context the First Amendment does not tolerate government regulation that -14- -14- might well pass muster where directed to the "conduct of commercial affairs." In re Primus, 436 U.S. 412, 434 (1978). With respect to both rules--the equal space and prominence and the writing-only requirements--we readily accept that the government has an interest in unearthing disguised contributions. But the FEC is free to investigate any instance in which it thinks that inquiry has become collaboration; nothing, apart from conclusory allegations, has been offered by the FEC to suggest that ordinary enforcement measures cannot adequately police "secret" corporate contributions. Cf. Turner Broadcasting, 512 U.S. at 664, 668 (plurality opinion). What it cannot do--at least without direct authorization--is simply to say that it is easier or more convenient to impair First Amendment interests than to prove a violation by conventional means or by more carefully tailored regulations. The FEC might argue that it has not compelled speech or prevented oral access in absolute terms; it has merely said that these rules apply if a corporation wants to publish voting records or voter guides using its general treasury funds. And under Austin , Congress could constitutionally prohibit business corporations from engaging in these activities except through segregated funds; possibly, the Maine Committee is in the same position, depending on whether the Court views it as falling under Massachusetts Citizens or under Austin. -15- -15- Yet the doctrine of unconstitutional conditions limits the government's ability to make someone surrender constitutional rights even to obtain an advantage that could otherwise be withheld. Se e Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983). Here, a surrender of such rights is being required in order to do something--to publish political information about voting guides or records--that Congress has not made unlawful. We are not certain that Congress could require this sacrifice based on its own judgment of need, but the law in this realm is far from clear. Compare Rust v. Sullivan , 500 U.S. 173, 196-200 (1991) with O'Hare Truck Serv., Inc. v. City of Northlake, 116 S. Ct. 2353, 2356-57 (1996). Still, it is not necessary to resolve this last issue here. Even if the rules are otherwise "reasonable," we do not take Congress to have authorized rules that sacrifice First Amendment interests. There is a long tradition of construing statutes narrowly to avoid constitutional issues. Indeed, the Supreme Court took just such an approach in striking down an NLRB regulation as unauthorized without finding it necessary to decide the ultimate First Amendment issue. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575-58 (1988). Acco rd Chamber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995) (FEC rules). What we have said disposes of the two main restrictions in contention--the equal space and prominence requirement and oral -16- -16- contacts ban--both of which appear in the regulation governing voter guides. The voting record regulation does not explicitly contain either the requirement or the ban: it merely says (apart from the unchallenged limitation on express advocacy) that "[t]he decision on content and the distribution of voting records shall not be coordinated with any candidate." 11 C.F.R. S 114.4(c)(4). But, as already noted, the FEC told the district judge at oral argument that prohibited "coordination" included seeking an explanation from the representative (for example, where there were several apparently conflicting votes). If the FEC does read its regulation in this fashion, it would to this extent raise the same constitutional concern about access, and reflect the same unauthorized use of rulemaking authority. This declaration ought to satisfy the Maine Committee's legitimate concern about misuse of the regulation. Finally, in two paragraphs at the close of its brief, the Maine Committee also asserts that the voter guide regulation is unconstitutionally vague in its dual ban on including "an electioneering message" in a voter guide and on seeking to "score or rate the candidates' responses in such a way as to convey an electioneering message." 11 C.F.R. SS 114.4(c)(5)(ii)(D), (E). This restriction applies only where the entity publishing the guide has chosen to contact the candidate. -17- -17- To our surprise, the FEC reply brief does not even pretend to explain what the FEC means by "electioneering message"; instead the brief resorts to generalities about the tests for unconstitutional vagueness ("no more than a reasonable degree of certainty can be demanded"), tests mostly used in contexts where speech is not involved. It then points to its "advisory opinion process" as a method for obtaining clarification. The FEC also says that the Maine Committee's argument is perfunctory. It is, but so is the FEC's reply, and the substance of the Maine Committee's concern--vagueness--is readily apparent. The FEC might have argued that "electioneering message" is simply another version of the ban on express advocacy upheld by the Supreme Court. But the FEC has conspicuously declined to make that argument. Nor is it clear why, if the FEC meant the phrase to be limited to express advocacy, it did not simply use those words, which are used in a different provision of the same regulation, 11 C.F.R. S 114.4(c)(5)(i), and also in the voting records regulation. We are thus entitled to assume that "electioneering message" has a different, broader meaning. The district court expressly declined to reach the issue, 927 F. Supp. at 500 n.7, apparently believing that this restriction could not be severed from other parts of the voter guide regulation that the district court had struck down. But the district court opinion did not explain why and, if the FEC -18- -18- wants to assert severability (its position is not revealed), an argument can be made that the electioneering message ban, if valid, can stand on its own two feet. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988). We have no intention of trying to resolve any of the issues thus implicated, based on inadequate briefing and in darkness as to the FEC's own position as to content, purpose and severability. The Supreme Court's treatment of related vagueness issues in Buckley, 424 U.S. at 40-44, and Massachusetts Citizens, 479 U.S. at 248-49, suggests that the vagueness attack is not frivolous, but those cases differ in various respects from this one on the merits. And, at the threshold, are issues of severability and ripeness. We therefore conclude that the plaintiffs' attack on the "electioneering message" provisions of the regulation should be remanded for further proceedings in the district court. For the same reason, we leave it to the district court to decide whether, in the first instance, temporary relief against these provisions is warranted pendente lite. Indeed, the FEC may prefer to defer enforcement of these provisions for the time being, if it seeks certiorari on the other issues decided today. Our discussion leads us to modify the district court's judgment as follows: the voting record regulation, 11 C.F.R. S 114.4(c)(4), is declared invalid only insofar as the FEC may -19- -19- purport to prohibit mere inquiries to candidates, and the voter guide regulation, id. S 114.4(c)(5), is declared invalid only insofar as it limits any contact with candidates to written inquiries and replies and imposes an equal space and prominence restriction. The validity of the "electioneering message" provisions of the latter regulation is remanded for further proceedings in accordance with this opinion. It is so ordered. Dissent follows. -20- -20- BOWNES, Senior Circuit Judge, dissenting. I dissent because I disagree with the majority's holding that the FEC's written-contact-only regulation infringes the First Amendment guarantee of freedom of speech. Even where governmental regulations have "the potential for substantially infringing the exercise of First Amendment rights," the Supreme Court has "acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved." Buckley v. Valeo, 424 U.S. 1, 66 (1976) (per curiam) (internal quotation marks omitted). At this stage of American history, it should be clear to every observer that the disproportionate influence of big money is thwarting our freedom to choose those who govern us. This sad truth becomes more apparent with every election. If preventing this is not a compelling governmental interest, I do not know what is. The FEC, through its voter guide regulation, has tried to prevent such abuses, consistent with Supreme Court precedent that protects First Amendment interests. I believe the FEC has successfully navigated a safe path between these competing concerns, and has achieved a reasonable prophylactic measure while complying with the Court's teachings. The Court itself has, over the years, grown more and more concerned with -21- -21- "domination of the political process" by corporate wealth. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659 (1990). I believe the written-contact-only requirement in the FEC's voter guide regulation fits comfortably within the Court's guidelines because its burdens on First Amendment freedoms are among those the Court is willing to permit in order to achieve compelling governmental interests like those at issue here, and the requirement is narrowly tailored to achieve that interest. The majority strikes down the FEC's written-contact- only rule, citing virtually no authority for its position. I recognize that the plaintiff, Maine Right to Life Committee, Inc. (MRTLC), has articulated a First Amendment interest, but in my view that interest is outweighed by the compelling governmental interest in preventing corruption and corporate domination of the political process. The majority, after finding a First Amendment interest, fails altogether in pursuing this next step in the appropriate First Amendment analysis. I believe that the prophylactic measures contained in the FEC's regulation are narrowly tailored to achieve the permissible end: they do not preclude all oral discussions of issues between groups like MRTLC and electoral candidates, as the majority states, see ante at 12-13 & n.3. The regulation deals only with oral discussions relating to preparation of -22- -22- voter guides. Generally speaking, MRTLC is free to have all the oral discussions that it wishes with candidates, whether motivated by a desire to lobby, to persuade, to debate, or to clarify. The only limitation is that MRTLC not combine its oral "issue advocacy" with a discussion of its plans to spend significant amounts of money to prepare and disseminate voter guides. "[T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other." Austin, 494 U.S. at 678 (Stevens, J., concurring). The majority has set up a straw man and then shot it down, without reliance on any relevant authority. It has failed to address the real issues involving this regulation, and to come to grips with the evolving Supreme Court precedent relating to campaign finance law. I will turn to that precedent after discussing the appropriate standard of review that we should apply in this case. Scope of Review MRTLC has challenged the FEC's regulation on its face, not as applied to MRTLC itself. In attacking the facial validity of a regulation, a plaintiff faces a "heavy burden," to show that the regulation can never be applied constitutiona lly. Rust v. Sullivan, 500 U.S. 173, 183 (1991); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797-98 (1984). "The fact that [the -23- -23- regulations] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render [them] wholly invalid." Rust, 500 U.S. at 183 (brackets in original) (quotation omitted). For example, in Buckley, the Court recognized that "[t]here could well be a case" where "the Act's [disclosure] requirements cannot be constitutionally applied," but the Court nevertheless upheld the requirements because none of the challengers "tendered record evidence" that such would actually occur; they merely stated their "fears" of what might happen. 424 U.S. at 71. Thus, where a rule is being challenged on its face, it would be "inappropriate" to strike it down merely because the plaintiff can envision "an imagined unlawful application of the rule." Massachusetts v. United States, 856 F.2d 378, 384 (1st Cir. 1988). See also Renne v. Geary, 501 U.S. 312, 324 (1991) (facial challenge should generally not be entertained when an 'as-applied' challenge could resolve the case). The district court's determination that the FEC's regulation is facially invalid presents a purely legal question, and is therefore reviewable de novo. Duffy v. Sarault, 892 F.2d 139, 145 (1st Cir. 1989). In reviewing agency action, if Congress has not "directly addressed the precise question at issue," a reviewing court must defer to an agency's interpretation of the statute it is charged with enforcing, if that interpretation is not -24- -24- "manifestly contrary to the statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984); Strickland v. Commissioner, Maine Dep't of Human Servs. , 96 F.3d 542, 545-47 (1st Cir. 1996) ("Strickland II"); Strickland v. Commissioner, Maine Dep't of Human Servs., 48 F.3d 12, 16-17 (1st Cir.), cert. denied, 116 S. Ct. 145 (1995) ("Strickland I"). A reviewing court will not "simply impose its own construction" as to the meaning of ambiguous or unclear statutory terms, "as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue," and the agency has furnished its interpretation, "the question for the court is whether the agency's answer is based on a permissible construction of the statute."4 Chevron, 467 U.S. at 843; Strickland II, 96 F.3d at 546. The FEC "is precisely the type of agency to which [such] deference should presumptively be afforded." FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). Of course, a court will not defer to an agency's interpretation of a statute that is directly contrary to a prior Supreme Court interpretation of the same statutory 4. "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n.11 (citing FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981)). -25- -25- provision. See Faucher v. FEC, 928 F.2d 468, 471 (1st Cir. 1991). Nor will a court defer to an interpretation that is unconstitutional. I address the First Amendment question de novo, through the prism of the Court's teaching in this area. The Applicable Law Governing Campaign Finance Limitations The Supreme Court has observed that the "integrity of our system of representative democracy is undermined" by corruption. Buckley, 424 U.S. at 26-27. Although the Court decided a number of cases governing campaign finance law prior to Buckley,5 and although Buckley dealt only with individuals and unincorporated associations and not with corporations as plaintiff MRTLC is here, Buckley is usually viewed as the starting point in any analysis of election law. Buckley was also the first case to interpret the statute applicable here, the Federal Election Campaign Act, as amended in 1974, which significantly tightened federal election campaign financing in the wake of the Watergate scandals. The Court began its analysis by noting that money spent on communication was the equivalent of speech itself.6 5. The Court has recounted some of the long prior history of legislation regulating campaign financing in FEC v. National Right to Work Comm., 459 U.S. 197, 208-09 (1982); Pipefitters v. United States, 407 U.S. 385, 402-12 (1972); United States v. Automobile Workers, 352 U.S. 567, 570-87 (1957). 6. Experience has demonstrated that Buckley may have been too hasty in equating money with speech. Buckley began with the premise that "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the -26- -26- Therefore the Court recognized that limitations on contributions operation of [our] system of government." 424 U.S. at 14. office is essential." at 14-15. "The First Amendment This is because, in a republic such as ours, "the ability of impinged upon First Amendment values in the the citizenry to make informed choices among candidates for |