

                                        

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 &amp;
Bostrom, Daniel M. Snow, and Pierce Atwood were on brief, for
appellees.

                                        
                        June 6, 1997
                                        

     BOUDIN,                         Circu                             it Judge.  The plaintiff Maine Right to Life

Committee  ("Maine Committee")  brought  this action  in  the

district                     court to challenge the validity of new regulations of

the                Federal                        Election Commission ("FEC").   The Maine Committee

is  a nonprofit  membership  corporation,  exempt  under  the

Internal Revenue Code, which engages in various activities in

opposition to  abortion.   It  accepts donations  from  other

corporations for its general fund.

     Among its activities thus  funded is the publication  of

voter  guides  describing   the  position  of   congressional

candidates  on  "pro-life"  issues  and  the  publication  of

congressional voting  records on the  same issues.   Its  co-

plaintiff Robin Clifton  is a recipient  and reader of  these

publications.  The FEC regulations, effective March 13, 1996,

purport                    to                       regulate voter guides and voting records in several

different respects pertinent here.

     Voting                        records.  The new FEC regulation on voting records

not  only prohibits  corporations and  unions from  expressly

advocating the election  or defeat  of particular  identified

candidates--a                          restriction                                    not challenged by the plaintiffs--but

also provides that even without such advocacy "[t]he decision

on               content                       and the distribution of voting records shall not be

coordinated  with  any  candidate,  group  of  candidates  or

political                      party."  11 C.F.R. S 114.4(c)(4).  "Coordination" is

not defined.

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     Voter guides.   Along  with the  restriction on  express

advocacy, the regulation on voter guides provides that either

a              corporation or union publishing a guide must have no contact

at               all                   with                        any candidate or political committee regarding the

preparation, contents and distribution of the voter guide or,

if there is such contact, (1) it must be only through written

questions and written responses,  (2) each candidate must  be

given                  the                     same                          prominence and space in the guide, and (3) there

must                 be                    no                       "electioneering message" conveyed by any scoring or

rating system used, or otherwise.  11 C.F.R. S 114.4(c)(5).

     The                     district                              court granted a declaratory judgment holding

the regulations just described, apart from the ban on express

advocacy, "invalid as not authorized" by the Federal Election

Campaign Act  of 1971, 2  U.S.C. S 431  et seq. ("the  Act"),

"because  they restrict  issue  advocacy in  connection  with

expenditures."  Clifton v. FEC, 927 F. Supp. 493, 500 (D. Me.

1996).  Some of the district court's reasoning is directed to

the                statute,                         and some to a right of corporate "issue advocacy"

set                forth                      in                         FEC v. Massachusetts Citizens for Life, Inc., 479

U.S. 238 (1986).

     We                    begin                          with the statute, partly because of the district

court's  reliance on  it and  partly because  of the  general

precept  against   deciding  constitutional   issues   unless

necessary.  The provision of the Act on which the FEC  relies

for  authority is  2 U.S.C.  S 441b.   In  pertinent part  it

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prohibits                      any corporation or union from making "a contribution

or               expenditure in connection with any" federal presidential or

congressional                          election                                  or primary.  The Act does permit limited

activities of  this  kind from  "segregated" funds  that  are

heavily regulated and are typically known as political action

committees (PACs).  See  Massachusetts Citizens, 479 U.S.  at

253-54.

     In Massachusetts Citizens,  the Supreme Court held  that

section 441b prohibits corporate and union contributions but,

as               to                  expenditures                              other                                    than contributions, the Court narrowly

construed                      the                         statutory                                   ban as limited to "express advocacy" of

the election or defeat of a candidate.  Id. at 249.  Thus, as

glossed by the  Supreme Court to avoid "overbreadth," id.  at

248,                 the                     statute does not prevent corporations and unions from

engaging                     in                       issue                             advocacy including publication of the records

and positions of federal election candidates.

     Previously, the FEC adopted a regulation under the  same

section that required voter guides to be "nonpartisan":  they

could                  describe the candidates' positions but could not express

the                organization's                              opinion on the issues presented.  This court

held                 the                     new                         limitation to be a straightforward restriction on

issue                  advocacy                          and                              therefore beyond the scope of the statute as

construed                      by                         the Supreme Court.  Faucher v. FEC, 928 F.2d 468,

471 (1st Cir.), cert. denied, 502 U.S. 820 (1991).

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     In                    response                             to                               Faucher                                     ,                                        the FEC has issued the voter guide

regulation at  issue in  the present  case and  has chosen  a

different tack.  Instead of claiming any direct authority  to

regulate issue  advocacy--a claim  rejected by  Massachusetts

Citizens and Faucher--the FEC defends its new regulations  as

defining,                      or                         at least enforcing, section 441b's prohibition on

contributions                        .  It reasons that a voting record or voter guide

publication                        that fails to comply with its regulation is either

a              contribution or can be banned in the interests of preventing

prohibited contributions.

     The claim that  noncomplying publications are  therefore

contributions is untenable.   The Supreme Court has said,  in

discussing related  statutory provisions,  that  expenditures

directed by  or  "coordinated" with  the candidate  could  be

treated                    as                       contributions, see Buckley v. Valeo, 424 U.S. 1, 46

(1976);                    but                       "coordination" in this context implied some measure

of               collaboration                            beyond                                   a mere inquiry as to the position taken

by a  candidate on an issue.   Id. at 46-47 &amp; n.53; see  also

Colorado Republican Fed.  Campaign Comm. v.  FEC, 116 S.  Ct.

2309, 2319 (1996) (opinion of Breyer, J.).

     On its face, the FEC's voter guide regulation bars  non-

written  contact not  merely  regarding the  preparation  and

distribution  of  voter  guides,  but  also  regarding  their

contents.  11  C.F.R. S 114.4(c)(5)(i),  (ii)(A).  Thus,  the

regulation expressly prohibits a  simple oral inquiry by  the

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Maine                  Committee as to a candidate's position; and the district

court                  tells                        us                          that                               the                                   FEC's counsel admitted at oral argument

that                 the                     FEC                         similarly interprets its ban on "coordination" of

voting                   record publications.  927 F. Supp. at 498.  The FEC can

construe terms  but  it  cannot rewrite  the  dictionary  and

classify                     a                      simple                             inquiry as a contribution.  See Ernst &amp; Ernst

v. Hochfelder,  425  U.S. 185,  198-99 (1976);  cf.  Colorado

Republican, 116 S. Ct. at 2319, 2321-22 (opinions of  Breyer,

J., and Kennedy, J.).

     But                     if                       ordinary                                standards of agency power are applied, the

FEC has a stronger claim--constitutional limitations  aside--

that it  can on prophylactic  grounds ban  oral contacts  for

voting records and voter guides, and perhaps require  similar

amounts of coverage of candidates in voter guides.  True, not

all oral  contacts  or different  allocations of  space  will

involve collaboration with the candidate.  But some will, and

the                FEC's                      restrictions may reduce the risk of collaboration by

making                   it                      easier to detect and less effective where it occurs.

     Normally                          an                             agency with rulemaking power has a measure of

latitude where it is dealing with the regulated entity (here,

corporations and  unions) and  where the  rule is  reasonably

designed to  achieve the  statute's goal  (here, to  prohibit

certain types of contributions).  The FEC has such rulemaking

power.   2 U.S.C.  S 437d(a)(8);  Buckley, 424  U.S. at  110.

Agencies  often are  allowed through  rulemaking to  regulate

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beyond the express substantive directives of the statute,  so

long as  the statute  is not contradicted.   See Mourning  v.

Family                   Publications Serv., 411 U.S. 356, 369-71 (1973); United

States                                    v.                      Sou                        thwestern Cable Co., 392 U.S. 157, 177-78 (1968);

Alexander v. Trustees  of Boston Univ., 766 F.2d 630,  636-38

(1st Cir. 1985).

     We  think  it  is thus  not  altogether  easy  to  avoid

approaching the  question whether what  the FEC  is doing  is

constitutional.  True,  one could say  that it is  regulating

issue advocacy while claiming to regulate contributions.  But

in a  sense the FEC is doing  both at the same time; and  the

statute,                     it                        should be noted, does not itself forbid reasonable

regulation of contributions that happens also to burden issue

advocacy.                                             As                         a                           statutory matter, the Act simply stops short of

prohibiting issue advocacy.  Massachusetts Citizens, 479 U.S.

at 249; Faucher, 928 F.2d at 471.

     Turning then  to constitutional issues,  we face at  the

outset  the  claim of  the  Maine  Committee that  it  has  a

constitutional right of  issue advocacy that is  unreasonably

burdened by the regulations here at issue.  In  Massachusetts

Citizens, the Supreme Court not only narrowed section 441b by

construction but also recognized  a First Amendment right  to

issue advocacy, on behalf  of a nonprofit corporation  fairly

similar                    to                       the                          Maine                                Committee, that extends to the publication

of voter guides.  479 U.S. at 263. 

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     The difficulty is  that in that  same case, the  Supreme

Court stressed as "essential" the fact that the anti-abortion

                       not accept contributions from business

 orporations                         or                            unions.                                                                       Id. at 264.  This was important to the

Court                  because                          it                            had                                previously sustained the right of Congress

to limit the  election influence of massed economic power  in

corporate                      or                         union form.  FEC v. National Right to Work Comm.,

                group                  there                        involved                                did                                                c            459 U.S. 197, 207-10  (1982).  And somewhat later, the  Court

upheld  a state  statute that  barred campaign-related  issue

advocacy,                      out                          of                            general                                    funds, by a nonprofit entity funded by

business                     corporations.                                                                     A                                   ustin v. Michigan Chamber of Commerce,

494 U.S. 652, 664-65 (1990).

     The Maine Committee does accept contributions from other

corporations,                         Clifton                               ,                                  927 F. Supp. at 494, and falls somewhere

between                    the                       entity                              protected in Massachusetts Citizens and that

held unprotected in Austin.   It is unclear what the  Supreme

Court  would  say   about  the  existence  or  extent  of   a

constitutiona                        l right of campaign-related issue advocacy (using

unsegregated funds) claimed by the Maine Committee.  Nor does

the record permit us  to disregard Austin on the ground  that

corporate                      contributions                                   to the Maine Committee are de minimis.1

     1Despite  Austin, two circuits have ruled that  entities
might still obtain  the protection of Massachusetts  Citizens
where                  business                          contributions were in fact minor even though not
strictly banned by  the organization.  FEC v. Survival  Educ.
Fund,                  Inc.,                       65                          F.3d                               285,                                    292 (2d Cir. 1995); Day v. Holahan, 34
F.3d 1356, 1364 (8th Cir. 1994), cert. denied, 115 S. Ct. 936
(1995).   We  take no  view as  to the  correctness of  these

                             -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  &amp;
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                &amp;                  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

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     statements of fact  that the  speaker would  rather
     avoid, McIntyre, . . . Riley . . . .

     Few, if any, rights are absolute, but there is a  strong

First   Amendment   presumption   against   content-affecting

government                       regulation                                 of                                    private citizen speech, even where the

government                       does                           not                               dictate the viewpoint.  See Riley, 487 U.S.

at               797-98;                       Pa                        cific Gas, 475 U.S. at 16; Miami Herald, 418 U.S.

at 256.  Indeed, even for broadcasters and cable  monopolies,

the Supreme Court has upheld equal coverage and "must  carry"

provisions                       only                           because                                   of the unique control that broadcasters

and cable operators have  over public access to  programming.

Turner Broadcasting Sys.,  Inc. v. FCC, 512 U.S. 622,  655-57

(1994);                    Red                        Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392-94

(1969).  That rationale has no conceivable application to the

Maine Committee.

     The other rule principally at issue is the limitation on

oral contact with candidates.  We think that this is patently

offensive to the First  Amendment in a different aspect:   it

treads heavily  upon  the right  of citizens,  individual  or

corporate, to  confer and discuss  public matters with  their

legislative                        representatives or candidates for such office.  As

we have explained,  the regulations  bar non-written  contact

regarding  the  contents,  not  merely  the  preparation  and

distribution,  of voter  guides  and  voting  records;  thus,

inquiries                      to                        candidates                                   and incumbents about their positions on

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issues                   like                        abortion                                are                                    a precise target of the FEC's rules as

applied here.3  

     It is hard to find direct precedent only because efforts

to               restrict                        this right to communicate freely are so rare.  But

we think that it is beyond reasonable belief that, to prevent

corruption or  illicit  coordination,  the  government  could

prohibit voluntary  discussions  between citizens  and  their

legislators  and  candidates on  public  issues.    The  only

difference between such an  outright ban and the FEC rule  is

that the FEC permits  discussion so long as both sides  limit

themselves to writing.  Both principle and practicality  make

this an inadequate distinction.

     It                    is                       no                          business of executive branch agencies to dictate

the  form  in  which free  citizens  can  confer  with  their

legislative representatives.   Further, the restriction is  a

real handicap on  intercourse:  the nuances of positions  and

votes can often be discerned only through oral discussion; as

any                courtroom                         lawyer                                knows, stilted written interrogatories and

answers                    are                       no                          substitute for cross-examination.  A ban on oral

communication                        , solely for prophylactic reasons, is not readily

defensible.

     3Indeed, the chilling effect of such a restriction would
extend well beyond any discussion directed to a particular
voter guide; any inquiry by the Maine Committee to a local
representative or candidate regarding his or her position on
such issues would be vulnerable even if no mention whatever
were made of any voter guide.  Cf. Riley, 487 U.S. at 794. 

                            -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

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might  well pass  muster where  directed to  the "conduct  of

commercial affairs."  In re Primus, 436 U.S. 412, 434 (1978).

     With                      respect                              to                                both                                     rules--the equal space and prominence

and the writing-only requirements--we readily accept that the

government  has   an   interest   in   unearthing   disguised

contributions.                                                       But                               the                                   FEC is free to investigate any instance

in which  it thinks  that inquiry  has become  collaboration;

nothing,                     apart                          from                               conclusory allegations, has been offered by

the FEC to suggest that ordinary enforcement measures  cannot

adequately                       police                             "secret" corporate contributions.  Cf. Turner

Broadcasting, 512 U.S. at 664, 668 (plurality opinion).  What

it               cannot                      do--at least without direct authorization--is simply

to say that it is  easier or more convenient to impair  First

Amendment interests than to prove a violation by conventional

means or by more carefully tailored regulations.

     The FEC might argue that it has not compelled speech  or

prevented oral access  in absolute terms; it has merely  said

that                 these                       rules                            apply                                  if                                    a corporation wants to publish voting

records                    or                       voter guides using its general treasury funds.  And

under                  Austin                       ,                         Congress                                  could constitutionally prohibit business

corporations from engaging in these activities except through

segregated                       funds; possibly, the Maine Committee is in the same

position, depending on whether the Court views it as  falling

under Massachusetts Citizens or under Austin.

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     Yet                     the                         doctrine                                 of                                    unconstitutional conditions limits the

government's ability to make someone surrender constitutional

rights even to  obtain an advantage  that could otherwise  be

withheld.                                             Se                        e Regan v. Taxation With Representation of Wash.,

461                U.S.                     540, 545 (1983).  Here, a surrender of such rights is

being required in order to do something--to publish political

information about voting guides or records--that Congress has

not made  unlawful.  We are  not certain that Congress  could

require this sacrifice based on its own judgment of need, but

the law in  this realm is  far from clear.   Compare Rust  v.

Sullivan                   ,                      500                         U.S.                              173,                                   196-200 (1991) with O'Hare Truck Serv.,

Inc. v. City of Northlake, 116 S. Ct. 2353, 2356-57 (1996).  

     Still, it is  not necessary to  resolve this last  issue

here.                                     Even                        if the rules are otherwise "reasonable," we do not

take Congress to have  authorized rules that sacrifice  First

Amendment interests.  There is a long tradition of construing

statutes                     narrowly to avoid constitutional issues.  Indeed, the

Supreme Court took just such an approach in striking down  an

NLRB                 regulation                           as                              unauthorized without finding it necessary to

decide                   the                       ultimate First Amendment issue.  DeBartolo Corp. v.

Florida Gulf Coast  Bldg. &amp; Constr. Trades Council, 485  U.S.

568,                 575-58                        (1988).                                                               Acco                                   rd Chamber of Commerce v. FEC, 69 F.3d

600, 605 (D.C. Cir. 1995) (FEC rules).

     What                      we                         have                             said                                  disposes of the two main restrictions in

contention--the                            equal                                 space and prominence requirement and oral

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contacts                     ban--both of which appear in the regulation governing

voter                  guides.                                                    The                              voting record regulation does not explicitly

contain either  the requirement or the  ban:  it merely  says

(apart from the unchallenged limitation on express  advocacy)

that                 "[t]he                        decision on content and the distribution of voting

records shall  not be coordinated  with any  candidate."   11

C.F.R. S 114.4(c)(4).  

     But,                      as                         already noted, the FEC told the district judge at

oral argument that prohibited "coordination" included seeking

an explanation from  the representative  (for example,  where

there were several apparently conflicting votes).  If the FEC

does read  its regulation in this  fashion, it would to  this

extent                   raise                         the same constitutional concern about access, and

reflect the same  unauthorized use  of rulemaking  authority.

This  declaration ought  to  satisfy  the  Maine  Committee's

legitimate concern about misuse of the regulation.

     Finally,                          in                             two paragraphs at the close of its brief, the

Maine                  Committee                           also                                asserts that the voter guide regulation is

unconstitutionally vague  in its  dual ban  on including  "an

electioneering message" in  a voter guide  and on seeking  to

"score or rate the candidates' responses in such a way as  to

convey   an    electioneering    message."       11    C.F.R.

SS 114.4(c)(5)(ii)(D), (E).   This  restriction applies  only

where                  the                     entity                            publishing the guide has chosen to contact the

candidate.

                            -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 &amp; 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                                   Id.
affords the broadest protection to such political expression
in order to assure the unfettered interchange of ideas for
the bringing about of political and social changes desired by
the people."  Id. at 14.  Because "virtually every means of
communicating ideas in today's mass society requires the
expenditure of money," the Court in Buckley concluded that
"[a] restriction on the amount of money a person or group can
spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth of their
exploration, and the size of the audience reached."  Id. at
19.  

          In reality, however, Buckley's equation of money
and speech does not serve the goal of ensuring that the best
ideas emerge from a true (and fair) competition among
differing viewpoints.  Rather than rewarding people or
candidates who put forward good ideas, this system rewards
people who happen to control vast amounts of money.  In light
of the uneven playing field created by the unequal
distribution of income and wealth in our society, some people
can afford to purchase more of the high-cost means of speech
than can other people.  The Court has recognized that
financial considerations "may make the difference between
participating and not participating in some public debate." 
See City of Ladue v. Gilleo, 512 U.S. 43, 57 (1994).  Thus,
"however neutral the government's intentions in enacting a
law, the operation of that law may have a vastly uneven
impact.  There is no equality in a law prohibiting both rich
and poor from sleeping under the bridges of Paris."  NAACP,
Western Region v. City of Richmond, 743 F.2d 1346, 1356 (9th
Cir. 1984) (alluding to the famous aphorism of Anatole
France); see also Griffin v. Illinois, 351 U.S. 12, 23 (1956)
(Frankfurter, J., concurring) (same).  Therefore, we must
carefully scrutinize even facially neutral laws if their
effects on speech "fall unevenly on different viewpoints and
groups in society."  City of Richmond, 743 F.2d at 1356.  And
we must avoid giving "one side of a debatable public question
an advantage in expressing its views to the people."  First
Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 785-86
(1978).

                            -27-                                        -27-

"uninhibited, robust, and wide-open" debate that is necessary

to enable people to  make informed choices among  candidates.

Buckley, 424 U.S. at 14 (quotation omitted).  

          Nevertheless,                                    the                                       Court                                             upheld the FECA's limitations

on   contributions   (by   individuals   and   unincorporated

associations) to  candidates  or their  campaign  committees.

Because  our   "[d]emocracy   depends  on   a   well-informed

electorate," id.  at 49  n.55; see  id. at  14-15, the  Court

subjected                      such                          impingement to strict scrutiny.  The Court found

that, with  respect  to  contributions to  a  candidate,  the

impingement was  justified  by  the  compelling  governmental

interest                     in                        limiting                                the                                    actuality and appearance of corruption

resulting from large financial contributions.  Id. at  28-29.

Likewise,                      the Court upheld limits on total contributions by an

individual, as a  "modest restraint upon protected  political

activity [that]  serves  to  prevent evasion  of  the  $1,000

contribution  limitation by  a  person  who  might  otherwise

contribute massive amounts of money to a particular candidate

through  the use  of unearmarked  contributions to  political

committees                       likely                             to                                contribute to that candidate."  Id. at 38.

          The  Court also  upheld  the Act's  limitations  on

volunteers'                        incidental expenses as an acceptable accommodation

of  Congress's   valid   interest  in   encouraging   citizen

participation                         while guarding against the "corrupting potential

of large financial contributions to candidates."  Id. at  36.

                            -28-                                        -28-

The Court  treated  such incidental  expenses as  an  in-kind

contribution,                          with                              the                                  same ultimate effect as if the money had

been contributed directly to the candidate.  

          The                          Buckley                                                                  Court treated limitations on independent

expenditures   differently   than   limitations   on   direct

contributions  to  candidates.     The  Court   realistically

recognized  that  those   who  contributed  to  a   candidate

represented "the interests to  which [the] candidate is  most

likely to be responsive."  Id. at 67.  Nevertheless, in order

to  avoid  vagueness  problems,  the  Court  limited   FECA's

prohibition  on  independent   expenditures  to  only   those

expenditures which involved express advocacy.  Id. at 44.  It

went                 on                    to                      strike                             down                                  that prohibition, even as so limited, as

violative                      of                         the                            First                                  Amendment.  Id. at 51.  In analyzing the

First  Amendment  considerations,   the  Court  stated   that

expenditure  limitations  impose  greater  burdens  on  basic

freedoms                     than do contribution limits, and do not accomplish as

much to further  the goals of  eliminating the potential  for

abuse and quid pro quo corruption.  Id. at 44-47.  

          The Court's more protective approach to independent

expenditures, however, applies only to expenditures that  are

"made totally independently  of the candidate[s] and  [their]

campaign[s]."                                                    Id.                                                          at                                 47.  It found no constitutional infirmity

in  FECA's   treatment  of   "coordinated"  expenditures   as

contributions                          and                             therefore subject to FECA's limitations.  Id.

                            -29-                                        -29-

at 47  &amp; n.53.   Expenditures that  are "coordinated" with  a

candidate or  his/her campaign  -- which  are the  functional

equivalent of an in-kind contribution to the candidate -- are

treated as direct contributions to the candidate, rather than

as independent expenditures, in order to "prevent attempts to

circumvent  the  Act   through  prearranged  or   coordinated

expenditures                         amounting                                  to disguised contributions."  Id. at 46-

47.  This is true regardless of whether the expenditure  pays

for speech containing express advocacy of a candidate.  Thus,

limiting such coordinated spending can "foreclose[] an avenue

of abuse."  Id. at 37.

          In                         upholding                                   some burdens on First Amendment rights,

the  Buckley  Court  recognized  a  compelling  interest   in

preventing quid pro quo  corruption.  It noted that, to  "the

extent                   that                       large                             contributions are given to secure a political

quid pro quo  from current and potential office holders,  the

integrity  of  our  system  of  representative  democracy  is

undermined."   Id. at 26-27.   Moreover,  "[o]f almost  equal

concern as the danger of actual quid pro quo arrangements  is

the                impact                       of                         the                             appearance of corruption stemming from public

awareness of the opportunities for abuse inherent in a regime

of large individual financial contributions."  Id. at 27.

          Since                            Buckley                                   was decided, more evidence has come to

light demonstrating  that big money  can skew our  democratic

election                     process,                             even                                  without a quid pro quo.  Large donations

                            -30-                                        -30-

from wealthy individuals, corporations and labor unions  have

helped candidates accumulate considerable stockpiles of money

with which  to advertise  for votes.   In a  series of  cases

beginning with FEC v. National Right to Work Comm., 459  U.S.

197 (1982) ("NRWC"), the Court has dealt with this problem in

the context of S 441b of FECA, which regulates  contributions

and                expenditures                             made                                 by                                    corporations and labor organizations.7

In               NRWC                  ,                     FEC                        v.                           Massachusetts Citizens for Life, Inc., 479 U.S.

238                (1986)                       ("Mass.                              Citizens" or "MCFL"), and Austin v. Michigan

Chamber of Commerce, 494 U.S. 652 (1990), the Court has found

a compelling governmental  interest in preventing  corruption

even without  a direct quid pro  quo promise in exchange  for

money.   The Court has recognized  that the integrity of  our

electoral                      system can also be undermined by a different type of

corruption:  "vast reservoirs of capital" that "distort[] the

political process" and prevent  it from truly reflecting  the

voters'                    collective evaluation of the merits of the candidates'

ideas.  See Austin, 494 U.S. at 661.

          The                          plaintiff in National Right to Work Comm. was an

expressly  ideological   nonprofit  association   which   was

incorporated                         under state law, as is the plaintiff MRTLC in the

case                 at                    bar.                                                 Recognizing that the FECA "reflects a legislative

7.  This is to be distinguished from the sections of FECA
covered in the relevant portions of Buckley, which dealt with
contributions and expenditures made by individuals and
unincorporated groups.

                            -31-                                        -31-

judgment that the  special characteristics  of the  corporate

structure require particularly careful regulation,"  National

Right  to Work Comm.,  459 U.S. at  209-10, the Court  upheld

Congress's                       right                            to                               restrict from whom such an organization may

solicit   contributions.     The  Court   held  that   NRWC's

associational                         rights8 were overborne by the interests Congress

sought to protect in enacting S 441b, including:

          to                         ensure                                that substantial aggregations of
          wealth amassed by the special  advantages
          which  go  with  the  corporate  form  of
          organization should not be converted into
          political                                'war chests' which could be used
          to incur political debts from legislators
          who are aided by the contributions.

Id. at 207.  "The overriding concern behind the enactment  of

statutes such as  the Federal Corrupt  Practices Act was  the

problem of corruption of elected representatives through  the

creation  of  political  debts.     The  importance  of   the

governmental interest in preventing this occurrence has never

been doubted."  National Right to Work Comm., 459 U.S. at 208

(quotations omitted)  (emphasis added).   As in Buckley,  the

Court  in NRWC recognized  that it was  just as important  to

prevent                    the                       appearance                                  of such corrosion as the actuality.  Id.

at 210.  "These interests directly implicate the integrity of

our electoral process."  Id. at 208 (quotation omitted).

8.  Corporations as well as individuals have First Amendment
rights.  First Nat'l Bank of Boston v. Bellotti, 435 U.S.
765, 784-86 (1978).

                            -32-                                        -32-

          Accordingly, the NRWC Court held that "the need for

a              broad                    prophylactic rule," to protect against such distortion

of the political process, was "sufficient . . . to support  a

limitation on the ability  of a committee to raise money  for

direct                   contributions to candidates."  Mass. Citizens, 479 U.S.

at 260.

          In                         Mass.                              Citizens                                     ,                                        the                                            Court shifted the focus of its

examination                        from                            S                              441b's regulation of corporate contributions

to its regulation of corporate independent expenditures.  The

Court described the "underlying rationale" for  "longstanding

regulation" of corporate political activity as: 

          the need  to restrict  "the influence  of
          political war chests funneled through the
          corporate   form,"   [FEC   v.   National
          Conservative Political Action Comm.,  470
          U.S.  480,  501  (1985)  ("NCPAC")];   to
          "eliminate                                 the effect of aggregated wealth
          on federal  elections,"  Pipefitters  [v.
          United  States],  407  U.S.  [385,]   416
          [(1972)]; to curb the political influence
          of "those who exercise control over large
          aggregations of capital," [United  States
          v.] Automobile  Workers, 352 U.S.  [567,]
          585  [(1957)];   and  to   regulate   the
          "substantial   aggregations   of   wealth
          amassed                              by                                 the special advantages which go
          with the corporate form of organization,"
          National                               Right to Work Committee, 459 U.S.
          at 207.

Mass. Citizens,  479 U.S.  at 257.   See also  id. at  258-59

(Congress                      added                           proscription on expenditures to Federal Corrupt

Practices Act "to protect the political process from what  it

deemed  to be  the  corroding  effect of  money  employed  in

elections by aggregated power") (quotation omitted).

                            -33-                                        -33-

          The Court in  Mass. Citizens  recognized that  "the

corrosive influence  of  concentrated corporate  wealth"  can

corrupt                    "the                         integrity of the marketplace of political ideas."

479 U.S. at 257.  Regulation of corporate political  activity

"has                 reflected concern not about use of the corporate form per

se             ,                but                    about                         the                             potential for unfair deployment of wealth for

political purposes."  Id. at 259.  The Court  "acknowledge[d]

the legitimacy of  Congress' concern that organizations  that

amass                  great                        wealth in the economic marketplace not gain unfair

advantage in the political  marketplace."  Id. at 263.   This

concern                    is                       reflected in S 441b's "require[ment] that corporate

independent expenditures  be  financed  through  a  political

committee  expressly  established   to  engage  in   campaign

spending," in order to "prevent this threat to the  political

marketplace."                          Id. at 258.  In order to avoid overbreadth, the

Court defined independent  expenditures governed by S441b  to

include only express advocacy of the election or defeat of  a

candidate.  Id. at 249.

          The Court left open the question whether the  First

Amendment                      permits it to uphold S 441b's general rule -- that a

corporation must  utilize  a voluntary  PAC rather  than  its

general                    treasury                            funds                                  for independent campaign expenditures as

well as for direct contributions to candidates.  Instead, the

Court carved  a narrow exception  out of  this general  rule,

holding its  prohibition  on use  of general  treasury  funds

                            -34-                                        -34-

unconstitutional                            as                               applied to the narrow class of corporations

exemplified by  the  plaintiff in  MCFL,9 even  though  those

corporations  remained free  to  speak in  unlimited  amounts

through a separate segregated fund (as opposed to using funds

from the corporate treasury).  

          To                         fall                              within                                    the                                        exception, a corporation must have

three                  characteristics, each of which is "essential," MCFL, 479

U.S.                 at                    263:                          First, it must be formed for the express purpose

of promoting political ideas,  and cannot engage in  business

activities.  Second,  it must have  no shareholders or  other

persons affiliated  who would have a  claim on its assets  or

earnings.   Third, it must not  be established by a  business

corporation                        or labor union, nor accept contributions from such

entities.   Id. at  264.  The  last requirement  -- that  the

corporation  does  not  accept  contributions  from  business

corporations or  labor unions --  is "essential," because  it

"prevents  such  [nonprofit  ideological]  corporations  from

serving  as conduits  for the  type of  direct spending  that

creates                    a                      threat                            to                               the                                   political marketplace."  Id. at 263-64.

          In                         Austin                              ,                                 494 U.S. at 659, the Court elaborated its

"concern about corporate domination of the political process"

and decided  the question left open  in Mass. Citizens.   The

plaintiff                      in                         Austin, the Chamber of Commerce, had challenged a

9.  "It may be that the class of organizations affected by
[the Mass. Citizens] holding . . . will be small."  Mass.
Citizens, 479 U.S. at 264.

                            -35-                                        -35-

Michigan statute  (similar to  2 U.S.C.  S 441b)  prohibiting

corporations  from  using  treasury  funds  for   independent

expenditures in support of a candidate.  The Court found that

the                statute                        burdened political speech at the core, even though

the corporation  still had the  opportunity to speak  through

PACs.10  Despite  this burden on First Amendment rights,  the

Court  held that  the burden  was justified  by a  compelling

governmental interest  in  counteracting the  "corrosive  and

distorting  effects" of  corporate  wealth on  the  political

election process.  Id. at 660. 

          State                            law                               grants                                      corporations special privileges that

enhance their ability to attract capital and deploy resources

advantageousl                        y.  These privileges include:  limited liability,

perpetual                      life,                           and                               favorable treatment of the accumulation and

distribution of assets.  Id. at 658-59.  These  state-created

advantages enable corporations "to use 'resources amassed  in

the                economic                        marketplace' to obtain 'an unfair advantage in the

political marketplace.'"  Id. at 659 (quoting Mass. Citizens,

479 U.S. at 257).   The Court therefore has "recognized  that

10.  To require a corporation to use a PAC rather than
general corporate treasury funds would require it to comply
with a number of obligations it might find burdensome.  For
example:  PACs must designate a treasurer, keep detailed
accounts of contributions, and file a statement of
organization; PACs cannot use corporate funds at all; and
PACs may not solicit contributions except from members,
stockholders or officers.  See Austin, 494 U.S. at 657
(citing Mass. Citizens, 479 U.S. at 253-54); 2 U.S.C. SS 432-
34; 441b(b)(4)(A), (C).

                            -36-                                        -36-

'the                 compelling governmental interest in preventing corruption

support[s] the restriction of the influence of political  war

chests funneled  through the corporate  form.'"   Id. at  659

(brackets in Austin) (quoting National Conservative PAC,  470

U.S. at  500-01).  This  interest reflects  a "concern  about

corporate domination of the political process." Id.

          The Court made clear that it was not talking merely

about "financial quid pro quo"  corruption.  Id. at 659.   It

recognized that the government  has a compelling interest  in

eliminating from the political  process a "different type  of

corruption"                        as well:  "the corrosive and distorting effects of

immense aggregations of wealth that are accumulated with  the

help  of  the corporate  form  and  that have  little  or  no

correlation  to the  public's support  for the  corporation's

political ideas."  Id. at 660; see id. at 666.  It is because

the state confers  on corporations legal advantages  enabling

them  to  amass   abundant  "war  chests"  that  it  is   not

unconstitutional for  the  government  to  limit  independent

expenditures by corporations.  Id. at 666.

          The                          Court's                                  holding was not limited merely to direct

contributions to candidates.  "Corporate wealth can  unfairly

influence  elections when  it  is  deployed in  the  form  of

independent expenditures, just as it can when it assumes  the

guise of political contributions."   Id. at 660.  The  Austin

Court therefore  held  "that the  State ha[d]  articulated  a

                            -37-                                        -37-

sufficiently                         compelling                                   rationale to support its restriction on

           or                          was                              this                                               independent expenditures by corporations."11  Id.                      N           rule specifically limited to for-profit

corporations engaged in a commercial business enterprise.  As

stated,                    the                        rule                            applied                                    also to nonprofit corporations, which,

after all, were the context  of the case before the Court  as

well as the  context of National Right  to Work Comm. and  of

Mass. Citizens which relied on the NRWC analysis.

          Our                          circuit                                  has                                     also                                          had                                              occasion to weigh in on this

subject.12  Our opinion in FEC v. Massachusetts Citizens  for

Life, Inc., 769 F.2d 13 (1st Cir. 1985), aff'd, 479 U.S.  238

(1986),                    was                        affirmed by the Supreme Court, as described supra,

but                was                    essentially consistent with the Court's opinion.  More

recently, this court considered a prior version of the  FEC's

regulation governing voter guides.  Faucher v. FEC, 928  F.2d

468 (1st Cir. 1991).  The regulation itself was substantially

different from the current regulation, containing  provisions

11.  The Court held that the plaintiff Chamber of Commerce in
Austin did not fall within the narrow class of corporations
that Mass. Citizens exempted from this general rule.  The
Court emphasized the fact that the Chamber "accepts money
from for-profit corporations" which "therefore could
circumvent the Act's restriction [on their campaign
expenditures] by funneling money through the Chamber's
general treasury" if the statutory limitations were not
applied to the Chamber.  Austin, 494 U.S. at 664.

12.  I do not discuss opinions of other circuits because the
precise issues here -- validity of the present regulations
governing voter guides and voting records -- have not been
decided previously by any circuit court.

                            -38-                                        -38-

restricting the  content of any  voter guides.13   The  prior

regulation                       had required guides to be "nonpartisan," and listed

among                  the                      factors                             the                                 FEC would consider in determining whether

a              guide                    was                       nonpartisan                                   the following:  "(C) The wording of the

questions presented does not suggest or favor any position on

the                issues                                            covered; (D) The voter guide expresses no editorial

opinion concerning the issues presented nor does it  indicate

any support for  or opposition to any candidate or  political

party."  Id. at 470 (emphasis added in Faucher).  

          We                         struck                                down                                    these                                          content-oriented provisions; the

speech they  inhibited was protected  by the First  Amendment

because it was an  independent expenditure that contained  no

"express advocacy" of  a particular candidate.  We relied  on

language  in Buckley  that  had  held the  FECA's  limits  on

independent expenditures to  be unconstitutional unless  they

involved                     "express advocacy."  Id. (citing Buckley, 424 U.S. at

42-43).                                         We                       also                            relied                                   on a similar holding in Mass. Citizens,

479  U.S.  at 249,  which  likewise  dealt  with  independent

expenditures.                                                    We                             declined the FEC's invitation to defer to its

interpretation of the statute, on the ground that the Supreme

Court                  had                      already                             spoken                                    directly on the precise issue that was

in               dispute.                                                 Faucher                              ,                                 928 F.2d at 471.  It is worth noting that

our decision in Faucher did not address the claim made by the

13.  The majority opinion discusses the prior regulation and
the present regulation as if they were identical.  See ante
at 4-5.

                            -39-                                        -39-

FEC                in                   the                       instant case, namely, that the spending of money to

publish a voter guide after consultation or coordination with

a              candidate                        regarding the preparation of the guide constitutes

the kind of coordinated expenditure that may be treated as  a

contribution,                         not as an independent expenditure, and therefore

may be subjected to regulation.

          The                          latest                                 chapter                                        in                                           the continuing saga was written

just                 last                      Term.  In Colorado Republican Campaign Comm. v. FEC,

116                S.                   Ct.                      2309,                            2312                                 (1996) ("Colorado Republican"), the Court

struck  down  the  FECA's  limits  on  a  political   party's

expenditures  in connection  with  a campaign,  holding  them

unconstitutional as applied to independent expenditures  that

were made  "without  coordination with  any candidate."    It

reiterated                       that the government may constitutionally set limits

on contributions, including "limits  that apply both when  an

individual                       or                         political                                   committee contributes money directly to

a              candidate                        and also when they indirectly contribute by making

expenditures                         that they coordinate with the candidate."  Id. at

2313                 (citing                         S 441a).  The "constitutionally significant fact"

in  that case  was  "the  lack of  coordination  between  the

candidate and  the source of the  expenditure."  Id. at  2317

(citing Buckley,  424  U.S.  at 45-46).    (Justice  Breyer's

plurality opinion  mentions "coordination"  or  "coordinated"

expenditures on nearly every page.)  

                            -40-                                        -40-

          The                          Court                                reversed the lower court's ruling that, as

a  matter   of  law,   a  party's   expenditures  should   be

"conclusive[ly] presum[ed]" to have been coordinated with the

eventual                     candidate, even though "the record show[ed] no actual

coordination as a matter of fact" (and in fact there had been

evidence                     to                        the contrary).  Id. at 2317-18.  The three-Justice

plurality                      stated that the determination of coordination with a

candidate is  a factual matter, and  cannot be presumed as  a

matter of law.  Two dissenting Justices would have upheld the

FEC's presumption and found it constitutional.

          On the  other hand, four  Justices agreed with  the

Colorado Republican Party  that, due to  the special role  of

political                      parties in our electoral system, the First Amendment

forbids congressional efforts to limit a party's  coordinated

expenditures  as well  as  independent expenditures.    Those

Justices would have stricken such limitations on their face. 

          This position was rejected  by the majority of  the

Court.  The three-Justice plurality reached its conclusion on

an  as-applied basis,  explicitly refusing  to entertain  the

facial  challenge.   While recognizing  that restrictions  on

coordinated expenditures might  in some circumstances  unduly

infringe                     on                       constitutional rights, the plurality indicated that

it  would uphold  such restrictions  in other  circumstances,

depending                      on                         the facts of the case at hand.  Id. at 2320.  The

                            -41-                                        -41-

two                dissenting                          Justices                                   would have rejected both the facial and

the as-applied challenges.

          As the foregoing  history makes clear, the  Court's

jurisprudence                         on campaign finance is evolving, especially with

respect                    to                       the use of corporate wealth in candidate elections.

The Court  now recognizes that  the corrosive and  distorting

effect of big  money to influence  elections is a  legitimate

governmental                         concern.14  I turn now to the application of this

evolving law to the issue in contention.

                          Analysis 

          I  would hold  that  the FEC  may  constitutionally

require communications between corporations15 and  candidates

regarding                      voter guides to be in writing.16  While there may be

14.  See David Cole, First Amendment Antitrust:  The End of
Laissez-Faire in Campaign Finance, 9 Yale L. &amp; Pol'y Rev.
236, 278 (1991) (arguing that courts cannot return to a
laissez-faire approach in the political field any more than
they would return to pre-Lochner laissez-faire in the
economic field, and therefore that courts should treat
campaign finance regulation as a legitimate exercise of the
government's First Amendment antitrust role to preserve the
marketplace of ideas). 

15.  The regulation covers both corporations and labor
unions.  Because MRTLC is a corporation, I will refer only to
corporations in the ensuing discussion.

16.  The pertinent part of the FEC's regulation states as
follows:

          (5) Voter guides.  A corporation or labor
          organization may prepare and distribute
          to the general public voter guides
          consisting of two or more candidates'
          positions on campaign issues, including
          voter guides obtained from a nonprofit
          organization which is described in 26

                            -42-                                        -42-

circumstances   in  which   such  a   restriction  might   b

                 as applied,  it surely survives the  curren

                 17  The question is whether we should uphold

          U.S.C. 501(c)(3) or (c)(4), provided that

          paragraph (c)(5)(i) or (c)(5)(ii)(A)                                                                        e            unconstitutional                                            t            facial challenge.

          may include in the voter guide
          biographical information on each                      through (E) of this section.  The sponsor                      the voter guides comply with either
          candidate, such as education, employment
          positions, offices held, and community
          involvement.
          (i) The corporation or labor organization
          shall not contact or in any other way act
          in cooperation, coordination, or
          consultation with or at the request or
          suggestion of the candidates, the
          candidates' committees or agents
          regarding the preparation, contents and
          distribution of the voter guide, and no
          portion of the voter guide may expressly
          advocate the election or defeat of one or
          more clearly identified candidate(s) or
          candidates of any clearly identified
          political party.
          (ii)(A) The corporation or labor
          organization shall not contact or in any
          other way act in cooperation,
          coordination, or consultation with or at
          the request or suggestion of the
          candidates, the candidates' committees or
          agents regarding the preparation,
          contents and distribution of the voter
          guide, except that questions may be
          directed in writing to the candidates
          included in the voter guide and the
          candidates may respond in writing.

11 C.F.R. S 114.4(c)(5)(i), (ii)(A).

17.  Cf. Austin, 494 U.S. at 674 n.4 (Brennan, J.,
concurring) (The "central lesson of MCFL [is] that the First
Amendment may require exemptions, on an as-applied basis,
from expenditure restrictions" if the organization exhibits
all three of the required characteristics.) (emphasis added).

                            -43-                                        -43-

the FEC's characterization of MRTLC's contact with candidates

as               a                 coordinated expenditure which, under the FECA, is treated

as a contribution and therefore may be regulated.  Even  with

respect  to individuals,  Buckley created  two categories  of

campaign                     spending                             which                                   are to be treated differently.  For the

most                 part,                       limits on contributions made to candidates or their

campaigns are constitutional;  limits on totally  independent

expenditures                         are not (i.e., expenditures "not coordinated with

the                candidate or candidate's campaign").  Colorado Republican,

116 S. Ct. at 2313 (citing Buckley, 424 U.S. at 39-51).

          Expenditures                                   that are coordinated with the candidate

or candidate's campaign, even if not contributed directly  to

the                candidate, are "treated as contributions," and they can be

regulated                      just as if they were direct contributions.  Buckley,

424                U.S.                     at                        46                          &amp;                            n.53;                                  Co                                   lorado Republican, 116 S. Ct. at 2313.

That is,  to be  treated  as independent,  rather than  as  a

contribution, an expenditure must be "totally independent[]."

Buckley, 424 U.S. at 47.  Since this is true for  individuals

and unincorporated organizations  like political parties,  it

should be  at  least as  true  for corporations  whose  "vast

reservoirs of capital," Austin, 494 U.S. at 661, pose more of

a              threat                     to                        "the integrity of our electoral process," National

Right to Work Comm., 459 U.S. at 208 (quotation omitted), and

therefore "require[] particularly careful regulation," id. at

209-10.

                            -44-                                        -44-

          The  expenditure in  this  case occupies  a  middle

ground:  MRTLC's spending on voter guides is not  contributed

directly to candidates but is not totally independent either.

It               is                  coordinated                             with                                  the candidate to some degree.  MRTLC may

be  correct  that  this  is  not  exactly  identical  to  the

coordination that exists  when an  organization buys  $20,000

worth of food for a  campaign rally, but it does entail  some

aspects                    of                       what is ordinarily thought of as coordination.  See

Random House Dictionary  of the English Language 447 (2d  ed.

1987) ("act[ing] in harmonious combination").  And, as I will

discuss shortly, it poses some of the same kinds of danger of

corruption and distortion of the election process.  With this

in-between                       level of coordination, the question here is whether

the                degree                       of coordination between MRTLC and the candidates in

preparing the voter  guides is sufficient to treat the  money

spent to produce and distribute the guides as a  contribution

and therefore regulable,  taking into account  constitutional

requirements.  See Colorado Republican, 116 S. Ct. at 2320.

          I agree with  the majority that the  constitutional

issue                  cannot                         be avoided by resort to statutory interpretation.

The                district                         court                              was                                  mistaken to conclude that the FEC has no

authority to interpret S  441b as it has, simply because  the

statute does not contain a provision specifically authorizing

this particular interpretation.   The Act generally  empowers

(indeed,                     requires) the FEC to promulgate rules and regulations

                            -45-                                        -45-

"to carry out  the provisions of [the]  Act," 2 U.S.C. S  438

(a)(8);  see   also  2  U.S.C.   S  437d  (a)(8),   including

"formulat[ing] policy with respect  to" the Act.  2 U.S.C.  S

437c(b)(1).  It is entirely appropriate for an agency to fill

in               the                   interstices in an ambiguous or incomplete statute.  See

Chevron                  ,                     467                         U.S. at 843-44; Strickland I, 48 F.3d at 21 (when

statute is subject to more than one possible  interpretation,

"it is  up to the  [agency], not the  courts, to balance  the

relevant                     policy                           considerations and formulate a rule").  Neither

Congress                     nor                         the Court has specifically addressed the question

of  what  degree  of  coordination  is  required  before   an

expenditure may be treated as a contribution under the FECA. 

          Therefore  a reviewing  court should  defer to  the

agency's interpretation  as  long as  it is  not  "manifestly

contrary  to  the  statute," which  cannot  be  said  of  the

regulation at issue here.  See id. at 844; Strickland II,  96

F.3d at  547  ("court must  avoid  inserting its  own  policy

considerations into the mix").  Looking to other parts of the

FECA                 for                    guidance,                              according to the general definitions section

of               the                   Act,                        2                         U.S.C.                                S                                  431(17), an expenditure by a corporation

that                 is                    made                         in "cooperation or consultation" with a candidate

does not qualify  as an "independent expenditure."  It  would

therefore                      be                         treated as an indirect contribution under S 441b,

as               interpreted in Buckley, 424 U.S. at 46 &amp; n.53, and Colorado

Republican                     ,                       116                           S.                              Ct.                                  at 2313.  In addition, another provision

                            -46-                                        -46-

of the Act explicitly states that, for purposes of subsection

441a(a),  "expenditures made  by any  person in  cooperation,

consultation,                          or                            concert,                                    with, or at the request or suggestion

of,                a                  candidate, his authorized political committees, or their

agents,  shall be  considered to  be a  contribution to  such

candidate."  2  U.S.C. S  441a(a)(7)(B)(i) (emphasis  added).

This  provision  makes  explicit  Congress's  intention  that

coordinated expenditures like those here -- spending on voter

guides that were prepared after consultation and  cooperation

with candidates -- be considered contributions, at least  for

purposes of S 441a.

          "[T]here is a presumption that a given term is used

to mean  the same  thing  throughout a  statute."   Brown  v.

Gardner, 513 U.S. 115, 118 (1994).  In light of this canon of

statutory                      construction,                                   and because nothing in S 441b specifies

a              different                        view                            of                               the                                   term "contribution," I see no reason to

second-guess the  FEC's interpretation  that expenditures  on

voter guides,  the preparation of  which is coordinated  with

candidates,                        should be treated as contributions under S 441b as

well as under S 441a.  See Chevron, 467 U.S. at 844.   I turn

now                to                   the                      question                               whether the statute is constitutional as so

interpreted.  

          As already  noted, plaintiff  MRTLC challenges  the

FEC's interpretation on  its face, not  as-applied.  With  an

                            -47-                                        -47-

exception                      not applicable here,18 in order to prevail on such a

challenge, the  plaintiff must show  that the regulation  can

never be applied  constitutionally.  Rust,  500 U.S. at  183.

This the plaintiff  cannot do:   MRTLC itself exemplifies  an

organization to which the written-contact-only regulation, 11

C.F.R. S 114.4(c)(5)(ii)(A), may constitutionally be applied.

MRTLC's                    expenditure on voter guides is not totally independent

of the candidates, which would be necessary to be entitled to

the full  protection of  Buckley and its  progeny.   It is  a

coordinated expenditure that is legitimately treated as if it

were a contribution and, as such, may be regulated by the FEC

under FECA, at  least by means  of this limited  prophylactic

measure                    requiring                             that                                  MRTLC's contacts with candidates be only

in writing.

          "When deciding  whether  a[n] .  . .  election  law

violates First and Fourteenth Amendment associational rights,

we weigh the character and magnitude of the burden the . .  .

18.  An alternative way for the plaintiff to prevail on a
facial attack would be to demonstrate that, even though the
challenged law "may be validly applied to the plaintiff and
others, it nevertheless is so broad that it may inhibit the
constitutionally protected speech of third parties."  New
York State Club Ass'n, Inc. v. New York City, 487 U.S. 1, 11
(1988) (quotation omitted).  A facial overbreadth challenge
is "an exception to ordinary standing requirements" and "will
not succeed unless the statute is substantially overbroad,
which requires the court to find a realistic danger that the
statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court."  Id.
(quotation omitted).  In the instant case, MRTLC's brief does
not begin to meet its burden in this respect.

                            -48-                                        -48-

rule  imposes  on those  rights  against  the  interests  the

[government] contends justify  that burden, and consider  the

extent to which the  [government's] concerns make the  burden

necessary."                                                 Timmons v. Twin Cities Area New Party, 117 S. Ct.

1364, 1370 (1997) (internal quotation marks omitted).

          As in  Buckley and Austin,  when an expenditure  is

coordinated  with  a  candidate,  it  may  be  treated  as  a

contribution,                         in part because in both situations the burden on

constitutional rights  is less than would  be the case for  a

totally independent expenditure.  Buckley found  contribution

limits  to   be  "only  a   marginal  restriction  upon   the

contributor's                          ability                                 to                                    engage in free communication," because

"the transformation  of contributions  into political  debate

involves speech by someone other than the contributor."   424

U.S. at 20 (emphasis added). 

          Similarly                                in                                   the case at bar, to the extent MRTLC is

seeking                    merely to distribute a purportedly accurate reflection

of               the                   candid                        ates' views on the issues, distributing the voter

guides                   is                      more                          like                               helping certain candidates to express their

views  through a  contribution,  as  distinguished  from  the

organization's expressing its views.   The burden on  MRTLC's

First Amendment rights is therefore less than it would be  if

the                voter                     guides                            purported to represent MRTLC's own views.  See

id.

                            -49-                                        -49-

          In addition, as Justice Brennan, one of the Supreme

Court's great  champions of  First Amendment  rights to  free

speech and association, noted  in his concurrence in  Austin,

even                 the                    greater                            restrictions approved by the Court there would

not                impose                       an excessive burden on a corporation because it was

allowed to speak  through PACs, even  if not through  general

treasury funds.  Austin,  494 U.S. at 669  n.1, 671 n.2.   He

listed "many  avenues  of communication"  still open  to  the

plaintiff there (the Chamber of Commerce), which showed  that

"the segregated fund requirement in practice has not burdened

significantly the  Chamber's speech."   Id. at  676 n.7;  see

Timmons, 117 S. Ct. at  1371.  "[T]here is a vast  difference

between lobbying and debating public issues on the one  hand,

and political campaigns for election to public office on  the

other."  Austin, 494 U.S. at 678 (Stevens, J., concurring).

          The burden on MRTLC's constitutional rights here is

even less intrusive.   The regulation's requirement that  any

contact with candidates be in writing is itself a  relatively

minor  restriction,   more   analogous  to   the   disclosure

requirements upheld in Buckley than to Austin's limitation on

independent expenditures which the Court nevertheless upheld,

although acknowledging that it would impose a heavy burden on

First                  Amendment                            rights.                                                                       The written-contact-only rule does not

impose even as much  burden on First Amendment rights as  the

limitations on contributions upheld in Buckley.   In contrast

                            -50-                                        -50-

to               the                  limitations                              upheld in Buckley and Austin on the absolute

amount  of  money spent,  in  the case  at  bar the  type  of

restriction  imposed   by  the   FEC's   written-contact-only

regulation                       does                           not                               limit the quantity of speech in any way; it

simply specifies the manner in which the corporation consults

with candidates  in preparing its  voter guides.   Thus,  the

regulation is significantly  less intrusive on MRTLC's  First

Amendment                      rights than those absolute limits on the quantity of

speech.19  

          The writing requirement is also content-neutral (in

both purpose and effect):  it does not prefer any one message

over another in MRTLC's  voter guides, as long as the  guides

were prepared without any  oral contact with the  candidates.

The  rule  is  completely  indifferent  to  the  issues   the

corporation wishes to address in its voter guides and to  the

positions the corporation  itself takes on those issues.   In

addition, MRTLC may say anything it wants to a candidate  (or

ask any  questions it wants)  during the  preparation of  the

19.  The Court recently rejected a claim based upon what
appears to me to be a much more intrusive burden.  Timmons,
117 S. Ct. at 1372.  Because the "independent expression of a
political party's views is core First Amendment activity,"
id. at 1369 (internal quotation marks omitted), a political
party had claimed that the state's ban on fusion candidates
unconstitutionally burdened the party's right to communicate,
in that the ban prevented the party from "using the ballot to
communicate to the public that it supports a particular
candidate" and the ban "shut[] off one possible avenue a
party might use to send a message to its preferred
candidate."  Id. at 1372.  The Court rejected the claim and
upheld the ban.  Id.

                            -51-                                        -51-

guides,                    as                       long as it does so in writing.  The regulation does

not limit the content of the communication between MRTLC  and

the candidates, only the  manner (written or non-written)  in

which such communication is effectuated.20  

          Moreover, as  in Austin,  the  written-contact-only

regulation applies only to the organization's use of  general

treasury funds; it does not apply at all to PAC money from  a

separate                     segregated                               fund.  If MRTLC were willing to comply with

the                reporting and other requirements by which the FEC monitors

ordinary                     corporate PACs, then it would not have to comply with

the  challenged restriction.21    In addition,  the  written-

contact-only                         rule does not apply at all to totally independent

issue advocacy  to the  public, upon  which Austin  permitted

restrictions.  If  MRTLC engaged in no consultation with  the

candidates                       at all, it could publish voter guides, even pay for

them                 out                     of                       its                           general                                   corporate treasury, advocating whatever

position it wanted to,  on any issue, as  long as it did  not

expressly  advocate  the election  or  defeat  of  a  clearly

20.  Other portions of the voter guide regulation, S
114.4(c)(5)(ii)(B)-(E), do contain restrictions on contents -
- forbidding guides that devote more prominence to one
candidate than another or that contain an electioneering
message.  The written-contact-only rule, S
114.4(c)(5)(ii)(A), however, does not contain content-based
requirements.

21.  Corporations may use general treasury funds (as well as
PAC funds) to finance communications with their members,
stockholders, and executive and administrative personnel, on
any subject.  2 U.S.C. S 431(9)(B)(iii).

                            -52-                                        -52-

identified candidate.   Thus, the  burden on First  Amendment

rights                   posed                         by the challenged regulation is relatively small.

          Even  where  governmental  regulations  have   "the

potential for substantially infringing the exercise of  First

Amendment rights," the Court has "acknowledged that there are

governmental interests sufficiently important to outweigh the

possibility  of  infringement,  particularly  when  the  free

functioning  of  our  national  institutions  is   involved."

Buckley                  ,                     424                        U.S.                             at                                66                                   (internal quotation marks omitted); see

Timmons, 117 S. Ct. at 1369 ("'[A]s a practical matter, there

must                 be                    a                     substantial                                 regulation of elections if they are to be

fair and honest and if some sort of order, rather than chaos,

is               to                  accompany the democratic process.'") (quoting Burdick v.

Takushi, 504 U.S. 428, 433 (1992)).  The Court has repeatedly

held that burdens on First Amendment rights more  significant

than                 those                       involved in the instant case were outweighed by the

potential for corruption, Buckley,  and by the corrosive  and

distorting effects of corporate wealth, Austin.  Cf. Burdick,

504                U.S.                     at                        434 ("[T]he rigorousness of [the] inquiry into the

propriety of a state election law depends upon the extent  to

which a challenged  regulation burdens  First and  Fourteenth

Amendment                      rights.");                                Werm                                   e v. Merrill, 84 F.3d 479, 483-84 (1st

Cir. 1996).

          Moreover,  as the  Court  said in  Mass.  Citizens,

"restrictions  on   contributions  require  less   compelling

                            -53-                                        -53-

justification  than restrictions  on  independent  spending.

MCFL

             was required, "the need for a broad prophylactic                                                                        "                , 479 U.S. at 259-60 (emphasis added).  Because less of a            justification

rule was thus sufficient . . . to support a limitation on the

ability                    of                       a                         committee to raise money for direct contributions

to candidates."22  Id. at 260.  

          In Austin, the Court went further; it upheld a rule

restricting                        a nonprofit corporation's independent expenditures

as  well as  contributions, justified  by the  fact that  all

corporations                         both "receive from the State the special benefits

conferred                      by                         the corporate structure and present the potential

for distorting the political process."  494 U.S. at 661;  see

id. at 663  n.2 (recognizing "the possible distortion of  the

political process inherent  in independent expenditures  from

general                    corporate funds") (emphasis added).  Because the Court

found                  that                      "[c]orporate                                   wealth can unfairly influence elections

when it is deployed in the form of independent  expenditures,

just  as  it can  when  it  assumes the  guise  of  political

22.  The Court was not troubled by the fact that a
prophylactic rule might sweep broadly, restricting
corporations with less money as well as those with
substantial war chests.  Austin, 494 U.S. at 661.  Because it
is the "potential" for big money to have an unfair influence
that "demands regulation," the Court would not "second guess
a legislative determination as to the need for prophylactic
measures where corruption is the evil feared."  National
Right to Work Comm., 459 U.S. at 210.  See also Buckley, 424
U.S. at 84 (upholding disclosure rules that required even
law-abiding PACs to keep records of independent expenditures
as a prophylactic measure necessary for the FEC to be able to
enforce the law's other requirements effectively).

                            -54-                                        -54-

contributions,"                           id.                                                            at                                  660, the Court concluded that preventing

"corporate  domination  of  the  political  process"  was   a

sufficiently compelling interest to justify the burdens on  a

nonprofit corporation's First  Amendment rights, even in  the

context of totally independent expenditures.  Id. at 659.  

          Surely, then,  the same  concerns are  sufficiently

compelling where, as here, corporate wealth is deployed in an

in-between                       form,                            i.e.,                                  spending that is not totally independent

but rather  entails  some  degree of  coordination  with  the

candidates.                                                 The majority protects the freedom of corporations

to meet face-to-face  with a candidate, in order to  secretly

plan the content  and presentation of  voter guides that  the

corporation will distribute  to the public.   I believe  this

concern                    should be secondary to protecting the integrity of our

electoral  process.   See  Buckley,  424  U.S. at  66.    The

government has a  compelling interest in taking  prophylactic

measures to  prevent the coercion  and corruption that  would

arise if a corporation like MRTLC offered to provide valuable

in-kind                    assistance                              (providing expensive advertising for free)23

to a candidate on  the condition that the candidate take  the

23.  The candidate does not have to pay for publishing the
"voter guide," which can nevertheless greatly benefit his or
her campaign:  the guide will highlight the candidate's pro-
life position (or the pro-choice position of his or her
opponent) and will be mailed to voters who presumably share
MRTLC's views on this issue.  This could save the candidate a
considerable sum to publicize his or her positions in a
favorable light to a targeted group of voters to whom this
issue is particularly important. 

                            -55-                                        -55-

position                     the                        corporation                                    demands, and to prevent the appearance

     FEC  regulation   prohibiting  unwritten  contact   wit

                                                            d            of such coercion or corruption.                        The FEC is legitimately concerned about the danger.            The                                                         h            candidates was  designed to  foreclose the  abuse that  coul

potentially arise from a corporation like MRTLC pressuring  a

candidate                      to                         amend his or her position on an issue, on pain of

losing  this  kind  of  substantial  in-kind  contribution.24

According  to the  FEC,  a  prophylactic rule  is  needed  so

corporations  do not  induce candidates  to change  positions

merely                   because they need the money to finance their campaigns,

even if they do not actually  agree with the change.  If  the

question were the FEC's authority to regulate an organization

offering a $20,000  cash contribution to  a candidate if  she

would agree to change her position to one of support for  the

organization's position on a particular piece of legislation,

there would be no question of the FEC's authority to regulate

the                organization.                                                            I                                see                                    no reason why the result should not be

24.  Prior to Buckley, when contributors could give money to
a campaign either through direct contributions or independent
expenditures, they usually chose the direct route.  But since
the Buckley decision, which foreclosed that route (for
expenditures beyond certain limits), they have had to find
other ways to financially benefit the candidate's campaign by
giving independently.  "It would naively underestimate the
ingenuity and resourcefulness of persons and groups desiring
to buy influence to believe that they would have much
difficulty devising expenditures that skirted the restriction
on express advocacy of election or defeat but nevertheless
benefited the candidate's campaign." Buckley, 424 U.S. at 45.

                            -56-                                        -56-

the same if the organization offers instead $20,000 worth  of

pamphlets presenting the candidate's view on this issue in  a

favorable, rather than an unfavorable, light.  

          Consider the following  scenario.  An  organization

consults with a candidate regarding his or her plans or needs

in the campaign, and then  says to the candidate:  "You  have

stated                   the                       position you believe in, but we disagree with it in

certain respects.   We plan to  spend $20,000 to print  voter

guides                   and                       distribute them largely to persons in sympathy with

our views.  If you modify your position to be more like ours,

our                voter                      guides                            will                                 tell people that you support our position

and                your                     opponent does not.  If you don't modify your stand as

we               suggest,                        we                          will                               spend the money on voter guides which paint

you in an unfavorable light."  

          The                          prophylactic measure required by the FEC rule is

simply that discussions with candidates about the preparation

of  voter guides be  in writing, and  not oral.   Non-written

communications with candidates about voter guides present  an

opportunity                        for                            the                               kind                                    of dangerous quid pro quo at the heart

of the  compelling justification that  the Supreme Court  has

repeatedly relied upon in upholding the Act's restrictions on

contributions  and coordinated  expenditures.    "[I]n-person

solicitation                         may exert pressure and often demands an immediate

response, without providing an opportunity for comparison  or

reflection."  Ohralik v. Ohio State Bar Ass'n, 436 U.S.  447,

                            -57-                                        -57-

457                (1978).                                                Unlike                               a                                 written communication, an oral discussion

"is not visible or otherwise open to public scrutiny.   Often

there  is  no   witness  other  than  the  [parties  to   the

conversation], rendering it difficult or impossible to obtain

reliable  proof of what  actually took place."   Id. at  466.

Under  the  majority's  position  sustaining  MRTLC's   view,

corporate                      voter guides "would be virtually immune to effective

oversight and regulation."25  Id.  I agree with the FEC  that

the   written-contact-only   requirement   "eliminates    the

possibility of unrecorded conversations that could entice  or

coerce a candidate to alter his or her positions in  exchange

for favorable treatment in a voting guide."  FEC Brief at 31.

Such coercion  exemplifies  the  kind of  distortion  of  our

political process with  "immense aggregations  of wealth"  of

which                  Austin                       ,                         494 U.S. at 660, and Mass. Citizens, 479 U.S. at

263, would disapprove,  and which the  FEC may regulate  with

prophylactic   measures    like   its    written-contact-only

requirement.    I  conclude  that  "[i]t  therefore  is   not

unreasonable, or violative of the Constitution, for [the FEC]

to respond  with  what in  effect  is a  prophylactic  rule."

Ohralik, 436 U.S. at 467.

25.  The district court itself was "sympathetic to the
argument that enforcement is more difficult if the FEC cannot
prohibit all oral communications and make enforcement
decisions on simple criteria easily applied to written
questions and answers."  927 F. Supp. at 500.  

                            -58-                                        -58-

          The plaintiff  relies  heavily  on  Mass.  Citizen

      "), 479 U.S. at 263-64, which emphasized the difference                                                                        s            ("MCFL

between the type of corporation before the Court there and an

ordinary,  business-oriented  corporation  whose  independent

expenditures (even if not coordinated with a candidate to the

extent these  voter  guides are)  may be  restricted  without

violating                      the First Amendment.26  Austin, 494 U.S. at 660.  It

is true that MCFL exempts from FECA's general rule a  "small"

group                  of                     corporations that do not pose the same kind of threat

to the electoral  process, MCFL, 479 U.S. at 263-64,  because

they do  not have access  to "vast  reservoirs" of  corporate

wealth (among other  factors), Austin, 494 U.S. at 661,  664.

But                the                    significant                               fact                                    in MCFL was not that the plaintiff was

a nonprofit ideological corporation:  indeed, in Austin,  the

Court upheld the constitutionality of regulations restricting

independent   expenditures   by   a   nonprofit   ideological

corporation.  Id. at 659-60.

          Just   as  in   Austin,   the   instant   case   is

distinguishab                        le from MCFL.  In Austin, "the Constitution [did]

not                require                        that                            [the                                 plaintiff] be exempted from the generally

applicable                       provisions" of the campaign finance law, because it

"[did] not share [the three] crucial features" that justified

26.  It is significant that the holding in MCFL was limited
to an as applied analysis of the facts pertaining to the
plaintiff before the Court.  It did not extend to a facial
challenge as the instant case purports to be.

                            -59-                                        -59-

the narrow MCFL exception.  Austin, 494 U.S. at 662.  In  the

instant case,  MRTLC  accepts contributions  from  for-profit

business                     corporations and intends to continue doing so.  MRTLC

does not eschew those "vast reservoirs of capital."   Austin,

494 U.S.  at 661.  This is the point on which the Chamber  of

Commerce in Austin differed "most greatly" from the plaintiff

in Mass. Citizens.  Austin, 494  U.S. at 664.  The source  of

MRTLC's                    funds                         creates                                 the potential that MRTLC will "serv[e] as

[a] condui[t] for the type of direct spending that creates  a

threat to the  political marketplace."   Id. at 664  (quoting

Mass. Citizens, 479 U.S. at 264) (brackets in Austin).   This

would enable for-profit  business corporations --  themselves

"barred                    from                        making                               independent expenditures directly," Austin,

494                U.S.                     at                        673-74 (Brennan, J., concurring) -- to "circumvent

the  Act's restriction  [on corporate  financing of  election

campaigns]  by  funneling  money  through  [MRTLC's]  general

treasury."  Austin, 494 U.S. at 664.  Cf. California  Medical

Ass'n v. FEC, 453 U.S. 182, 197-99 (1981) (plurality opinion)

(danger of  evasion of limits  on contribution to  candidates

justified prophylactic limitation on contributions to PACs).

          Finally, the  FEC's written-contact-only  rule  for

preparing voter  guides is narrowly  tailored to address  the

governmental                         interest                                 here.  It does not stop corporations like

MRTLC from communicating their views about abortion or  about

particular                       candidates                                 to                                    the public; nor does it stop them from

                            -60-                                        -60-

communicating with candidates to  lobby them to change  their

positions, as long as the lobbying is not done in the context

of offering  what could be  the functional  equivalent of  an

extremely                      valuable in-kind contribution; it does not even stop

them from communicating  with candidates to gain  information

about                  candidate                           positions to include in the corporation's voter

guide.                                       All                        it                          does                               is                                  require the latter type of communication

directly  with  candidates  to   be  done  in  writing,   for

prophylactic reasons.   I  agree with  the FEC  that, in  the

context  of this  case, "oral  conversations, unlike  written

questions,                       inherently                                 provide an opportunity for prearrangement

and  coordination,  while  adding  little  or  no  additional

information                        necessary                                 to                                    produce a voting guide."  FEC Brief at

33.

          In Austin,  the  Court  found that  a  statute  was

"precisely  targeted to  eliminate the  distortion caused  by

corporate                      spending while also allowing corporations to express

their                  political                           views,"                                   where the statute permitted independent

political  expenditures   through  PACs   but  forbade   such

expenditures from general corporate treasury funds.  494 U.S.

at  660.   The  Court  concluded  that the  statute  was  not

overinclusive merely because it imposed the same restrictions

on small companies  that did not "possess vast reservoirs  of

capital."                                             Id                        . at 661.  The Court noted that National Right to

Work  Comm. had  rejected a  similar overinclusion  argument,

                            -61-                                        -61-

because "it is the potential for such influence that  demands

regulation."  Id. (quotation omitted).  The  written-contact-

only regulation is likewise sufficiently narrowly tailored.

          I                        conclude                                 that the FEC may construe a corporation's

contact                    with                         candidates in the preparation of a voter guide as

"coordination" with  the candidates.   Therefore the FEC  may

treat                  the                      expenditure of money on those voter guides as an in-

kind                 contribution                              to                                the                                    candidates.  In this context, the need

for a prophylactic rule is sufficient to justify the  limited

restriction imposed by the written-contact-only regulation.

          I am mindful that MRTLC's challenge here is facial,

not                as-applied.                                                        MRTLC                                  is not asking us to consider whether the

written-contact-only                                 rule                                    is unconstitutional as applied to it.

Therefore,                       I                         do not consider whether, if a full factual record

were before us, MRTLC might be able to show that it is not in

fact a  conduit for  corporate  wealth.   Thus, even  if  the

regulation would be unconstitutional as applied to someone, a

facial                   challenge like the present one must fail where even the

plaintiff appears to exemplify a situation where the written-

contact-only regulation may constitutionally be applied.  Cf.

Austin, 494 U.S. at 674 n.4 (Brennan, J., concurring).

                         Conclusion

          I                        believe                                that the majority has misstated the thrust

of               the                  FEC's                        written-contact-only regulation.  The issue is not

as simple nor  as amenable to  broad-brushed analysis as  the

                            -62-                                        -62-

majority thinks.  It cannot be resolved without examining the

evolution of Supreme  Court case law, which the majority  has

ignored.  Because, as I  read the case law, we should  uphold

this prophylactic regulation, I respectfully dissent.

                            -63-                                        -63-
