

September 28, 1993
                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                             

No. 93-1171
                    VOTE CHOICE, INC., ET AL.,
                      Plaintiffs, Appellees,

                                v.

                 JOSEPH DiSTEFANO, ETC., ET AL.,
                      Defendants, Appellees.

                                             

                        ELIZABETH LEONARD,
                      Plaintiff, Appellant.

No. 93-1236
                    VOTE CHOICE, INC., ET AL.,
                      Plaintiffs, Appellees,

                                v.

                 JOSEPH DiSTEFANO, ETC., ET AL.,
                     Defendants, Appellants.

                                            

                           ERRATA SHEET                                     ERRATA SHEET

     The  order of  the  court  issued  on  August  31,  1993  is
corrected as follows:

     On page  24, lines  14, 15  and 16      replace the  cite to
"Adams v. Watson, . . . slip op. at 7 n.8]." with "Association of                                                                           
Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)."                                             

       [SYSTEMS NOTE: Appendix available at Clerk's Office]
August 31, 1993   UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                             
No. 93-1171
                    VOTE CHOICE, INC., ET AL.,
                      Plaintiffs, Appellees,

                                v.

                 JOSEPH DiSTEFANO, ETC., ET AL.,
                      Defendants, Appellees,
                                             

                        ELIZABETH LEONARD,
                      Plaintiff, Appellant.
                                             
No. 93-1236

                    VOTE CHOICE, INC., ET AL.,
                      Plaintiffs, Appellees,

                                v.

                 JOSEPH DiSTEFANO, ETC., ET AL.,
                     Defendants, Appellants.
                                             

          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF RHODE ISLAND

      [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                                                    
                                             

                              Before

              Selya, Cyr and Boudin, Circuit Judges.                                                             
                                             
     Neal  J. McNamara,  with  whom Matthew  F.  Medeiros was  on                                                                   
brief,  for plaintiff  Elizabeth  Leonard (No.  93-1171) and  for
plaintiffs-appellees (No. 93-1236).
     Donald  J.  Simon, with  whom  Sonosky,  Chambers, Sachse  &amp;                                                                           
Endreson was on brief for Common Cause  and Common Cause of R.I.,                  
amici curiae (No. 93-1171).
     Anthony J. Bucci,  Jr., with  whom Licht &amp;  Semonoff was  on                                                                   
brief, for defendants Joseph DiStefano, et al.
     Donald  J.  Simon, with  whom  Sonosky,  Chambers, Sachse  &amp;                                                                           
Endreson,  Roger M. Witten, Carol F. Lee, W. Hardy Callcott, Eric                                                                           
J.  Mogilnicki, and Wilmer, Cutler &amp; Pickering were on brief, for                                                        
Common  Cause and  Common Cause  of R.I.,  amici curiae  (No. 93-
1236).
                                             

                                             

          SELYA,  Circuit Judge.    These  consolidated  appeals,                    SELYA,  Circuit Judge.                                         

which  implicate  various  aspects  of  Rhode  Island's  campaign

finance  law,  necessitate the  exploration of  largely uncharted

constitutional terrain.   One appeal, prosecuted on behalf of the

state, seeks  to reinstate a statute  requiring certain political

action committees  (PACs)1  to  disclose  information  about  all

their  contributors.     The  other  appeal,   prosecuted  by  an

unsuccessful gubernatorial candidate, Elizabeth Leonard, inveighs

against  state   statutes  that  bestow  special   advantages  on

candidates who comply  with eligibility  requirements for  public

campaign  financing.   At  the end  of  our journey  across terra                                                                           

incognita,   we   conclude   that   the   district   court  acted                   

appropriately both  in striking down the  first dollar disclosure

requirement   and   in   upholding   the   incentive  provisions.

Therefore, we affirm.

I. BACKGROUND          I. BACKGROUND

          Before addressing  the merits, we offer  an overview of

Rhode Island's campaign finance  law and a brief synopsis  of the

proceedings  below.   In  so  doing,  we  strive  to  place  each

challenged  provision in  its  overall statutory  context and  to
                                                  

     1Rhode Island law defines a PAC as

          any group  of two  (2) or more  persons which
          accepts  any  contributions  to  be  used for
          advocating  the election  or  defeat  of  any
          candidate  or  candidates or  to be  used for
          advocating  the approval or  rejection of any
          question  or  questions   submitted  to   the
          voters.

R.I. Gen. Laws   17-25-3(j) (Supp. 1992).

                                3

describe the nature of the disagreement surrounding it.

          A.  Statutory Framework:  The State's Appeal.                    A.  Statutory Framework:  The State's Appeal.                                                                

          Rhode Island has a set of laws regulating the financing

of state and local election campaigns.  See R.I. Gen. Laws    17-                                                     

25-1 to 17-25-30.1 (1988 &amp; Supp.  1992).  The entity charged with

primary responsibility  for implementing these laws  is the Rhode

Island Board of Elections.  See id. at   17-25-5.                                             

          Rhode  Island law  directs all  PACs and  candidates to

file reports  with the Board  of Elections at  regular intervals.

See id. at    17-25-11.  The  Board then "prepare[s]  and make[s]                 

available  for public inspection . . . summaries of all reports."

Id.  at   17-25-5(a)(4).   The reports  are to include  the name,             

address, and  place  of  employment of  every  person  or  entity

contributing  more than $100  to the reporting  PAC or candidate.

See id. at   17-25-7.                 

          In 1992, the Rhode Island General Assembly, desirous of

ensuring that the  voting public  possesses accurate  information

about  organizations  whose  contributions and  expenditures  may

influence  elections, devised  extra  reporting  obligations  for

PACs.   Every PAC  now must file  a notice listing  its goals and

purposes, the positions it plans to advocate on ballot questions,

the names of any candidates it intends  to support, and the names

and  addresses  of  its officers.    See  id.  at    17-25-15(a).                                                       

Moreover,  every  PAC must  report the  name  and address  of all

persons to whom it makes expenditures,  indicating the amount and

purpose of  each such payment.  See id. at   17-25-15(c)(2).  The                                                 

                                4

Board of Elections  is empowered  to halt PACs  from using  names

which  are  misleading or  which  do  not accurately  identify  a

committee's membership and contributor base.  See id. at   17-25-                                                               

15(d).

          Under the neoteric amendments, PACs must also  "include

in each report required to be filed . . . [t]he source and amount

of  all funds  received."  Id.  at   17-25-15(c)(1).   This added                                        

requirement of "first  dollar disclosure"   the duty  to disclose

the identity of, and  the amount given by, every  contributor, no

matter  how modest the contribution    applies to  most PACs, but

does not  apply in the same way to PACs sponsored by labor unions

or  those which are funded  through payroll checkoff  plans.  See                                                                           

id.  The requirement does not apply to candidates at all.             

           B.  Statutory Framework:  Leonard's Appeal.                     B.  Statutory Framework:  Leonard's Appeal.                                                               

          In addition to regulating campaign contributions, Rhode

Island also affords public  funding to gubernatorial candidates.2

See id.  at   17-25-18.   Candidates may elect whether  or not to                 

accept such funds.  See, e.g., id. at   17-25-19.  If a candidate                                            

elects   to  participate,   and   meets  the   law's  eligibility

requirements,3  the state  will match  money raised  from private

                                                  

     2From  and after  January  1, 1993,  candidates for  certain
other  statewide  offices are  also  eligible  to receive  public
funding.    See  R.I. Gen.  Laws     17-25-20.   Withal,  because                         
Leonard's  appeal arises in the context of the 1992 elections, we
limit our discussion to gubernatorial candidates.

     3The  eligibility criteria are set forth in R.I. Gen. Laws  
17-25-20.   We  attach  a statutory  appendix  that includes  key
provisions of Rhode  Island's campaign finance law as  they stood
in the time frame of the 1992 elections.

                                5

sources up  to a maximum of  $750,000.  See  id.  In  return, the                                                          

state requires  participants to  observe certain  restrictions on

campaign spending and related activities.

          A  candidate must signify a  desire to use public funds

for  campaign  purposes  upon   formally  declaring  his  or  her

candidacy  for office.4    See id.    A candidate  choosing  this                                            

option  must sign a sworn  statement pledging to  comply with the

various terms and conditions of  the grant.  See id. at    17-25-                                                              

20(1).    Once  made or  omitted,  the  election  and pledge  are

irrevocable.  See id. at    17-25-19, 17-25-20(1).  Thereafter, a                               

participating   candidate   must   meet   the   law's   threshold

requirements,  limit the use of public  funds received to certain

                                                  

     4Under  Rhode  Island  law, persons  seeking  state elective
office  must file formal declarations of candidacy in June of the
year in which  the election is to be held.   See R.I. Gen. Laws                                                            
17-14-1.   For purposes of  the campaign finance  act, however, a
person may be considered a candidate at an earlier time:

               The    term   "candidate"    means   any
          individual who undertakes any action, whether
          preliminary  or  final,  which  is  necessary
          under the  law to qualify for  nomination for
          election,  or  election  to   public  office,
          and/or   any   individual   who  receives   a
          contribution or makes an expenditure or gives
          his or  her consent  for any other  person to
          receive a contribution or make an expenditure
          with  a view  to  bringing about  his or  her
          nomination  or election to any public office,
          whether or not the specific public office for
          which  he  or  she will  seek  nomination  or
          election   is   known   at   the   time   the
          contribution is received  or the  expenditure
          is  made and  whether or  not he  or she  has
          announced his  or  her candidacy  or filed  a
          declaration of candidacy at that time.

R.I. Gen. Laws   17-25-3(a).

                                6

enumerated purposes,  compare R.I. Gen. Laws    17-25-20(7) &amp; (8)                                       

(listing permissible  uses) with  id. at    17-25-7.2 (describing                                               

permissible  uses of  privately raised  funds), abide  by overall

expenditure  ceilings and fundraising caps,5  see, e.g., id. at                                                                        

17-25-20(2),  and return  a percentage  of any  unexpended funds.

See id. at   17-25-25.                 

          To make  the offer of public  financing more attractive

and thereby increase participation,  the 1992 amendments included

a contribution cap gap.  A candidate can ordinarily receive up to

$1,000 from any  given person or PAC  in a single  calendar year.

See id. at    17-25-10.1.  The  amendment doubled this limit  for                 

publicly funded candidates, see id. at   17-25-30(3), and, in the                                             

bargain, created a  cap gap between privately and publicly funded

candidates.   At  the same  time, the  legislature ordained  that

candidates who  comply with  the eligibility criteria  for public

financing would be

          [e]ntitled  to an additional  benefit of free
          time  on community  antenna television  to be
          allocat[ed] pursuant to  rules determined  by
          the administrator for the division  of public
          utilities.

Id.;  see  also id.  at     17-25-30.1 (obligating  state  public                             

utilities  administrator to  formulate  relevant  rules).    Such

candidates  are  also  entitled  to  "free  time  on  any  public

                                                  

     5A publicly  financed candidate may exceed these limits if a
privately funded  opponent exceeds them.    See R.I. Gen.  Laws                                                           
17-25-24.     Nevertheless,   the  publicly   financed  candidate
confronts  a temporal impediment; he or  she may raise additional
money  only in  proportion to  the amount  already expended  by a                                                                     
privately funded opponent.  See id.                                             

                                7

broadcasting  station operating  under  the  jurisdiction of  the

Rhode Island public telecommunications authority."   Id. at   17-                                                                  

25-30(2).

                      C.  Proceedings Below.                                C.  Proceedings Below.                                                     

          Two  PACs (Vote  Choice  and Gun  Owners PAC),  certain

individuals who wish to  contribute anonymously to each, and  the

Rhode  Island affiliate  of  the American  Civil Liberties  Union

brought suit in the district court seeking to enjoin the Board of

Elections from enforcing  R.I. Gen. Laws    17-25-15(c)(1).  They

posited  that  the provision  self-destructed  on  three separate

bases,  viz., (1) the first amendment bars any attempt to mandate                      

first  dollar disclosure  of political  contributors' identities;

(2) Rhode Island's  first dollar disclosure  law, when placed  in

its  statutory  context,  places   an  impermissible  burden   on

associational rights;  and (3) the proviso  denies the plaintiffs

equal  protection.   The Board  and two  amici, Common  Cause and

Common Cause of Rhode  Island, eventually took up the  cudgels in

defense.

          In  the same  complaint, Leonard  sought to  enjoin the

Board  of   Elections,  the  Rhode  Island   Division  of  Public

Utilities,  and   the  Rhode  Island   Public  Telecommunications

Authority  from implementing  the  contribution cap  gap and  the

free-television-time  incentive  provisions.6    She  argued that

                                                  

     6The chief executive  officer of  each entity,  sued in  his
official  capacity, is a named defendant.   Clearly, however, the
state  is the  real  party in  interest.   We  treat  the appeals
accordingly.

                                8

these enactments  violate the  first  amendment in  a variety  of

ways, and, moreover,  that federal law, specifically  47 U.S.C.  

315 (1988), preempts the statutory grant of free television time.

The  state resisted  these exhortations  on the  merits  and also

contended that Leonard lacked standing because she did not face a

publicly  funded opponent  in the  general election.7   The amici

supported the state's position.

          The district  court merged  the hearing  on preliminary

injunction  with  trial on  the  merits.   See  Fed.  R. Civ.  P.                                                        

65(a)(2).  After  taking testimony, the  court held first  dollar

disclosure,  in  and  of   itself,  to  be  unconstitutional  and

invalidated R.I. Gen. Laws    17-25-15(c)(1) on that basis.   See                                                                           

Vote  Choice  v. DiStefano,  814  F. Supp.  195,  199-202 (D.R.I.                                    

1993).   The court also ruled that, although Leonard had standing

to mount  a constitutional challenge, id. at 204, her contentions                                                   

were impuissant.   See id. at  207.  The  Board appeals from  the                                    

district  court's  nullification of  the first  dollar disclosure

rule and Leonard appeals  from the court's refusal to  outlaw the

contribution cap gap and the free-television-time incentives.

II.  THE STATE'S APPEAL          II.  THE STATE'S APPEAL

          The first amendment is incorporated into the fourteenth

amendment and, in  that way,  constrains state action.   See  New                                                                           

York Times Co. v.  Sullivan, 376 U.S. 254, 276-77  (1964) (ruling                                     
                                                  

     7Leonard  sought  the  Republican  nomination  for  governor
without party endorsement.  She prevailed in the primary election
and  carried the party's standard  in the general  election.  She
did  not opt  for public  funding.  Her  opponent in  the general
election, Governor Sundlun, likewise eschewed public funding.

                                9

that the free  speech clause  applies to the  states through  the

fourteenth  amendment;  collecting  cases).     Accordingly,  our

consideration of  R.I. Gen. Laws    17-25-15(c)(1) starts  with a

discussion of  whether  first dollar  disclosure  provisions  are

always repugnant to the first amendment.  Concluding (contrary to

the  court below) that they are  not, we then examine whether the

particular first dollar disclosure provision here at issue passes

the test of constitutionality.

                    A.  The Per Se Challenge.                              A.  The Per Se Challenge.                                                      

          The district court struck down R.I. Gen. Laws    17-25-

15(c)(1) as per  se violative of the  first amendment, concluding                             

that a state legislature "must establish at least some [non-zero]

minimum threshold  for  public  disclosure  of  contributions  to

PACs."  Vote Choice, 814  F. Supp. at 202.  Because  this holding                             

deals with a  matter of law rather than fact    it rests squarely

on  the  district  court's  sculpting of  the  first  amendment's

contours    our review is plenary.   See LeBlanc v. B.G.T. Corp.,                                                                          

992 F.2d 394, 396 (1st Cir. 1993).

          It is old hat  that compelled disclosure of information

about  a person's political contributions "can seriously infringe

on  [the] privacy  of  association and  belief guaranteed  by the

First Amendment."  Buckley  v. Valeo, 424 U.S. 1, 64  (1976) (per                                              

curiam)  (collecting  cases).   Thus,  courts  routinely  subject

statutes mandating revelation of contributors'  identities in the

arena  of  political speech  to  exacting scrutiny.    See, e.g.,                                                                          

Gibson v. Florida Legislative  Investigation Comm., 372 U.S. 539,                                                            

                                10

546  (1963).  A disclosure statute may survive such scrutiny only

if it satisfies a two-part test:  (1) the statute as a whole must

serve a  compelling governmental interest, and  (2) a substantial

nexus must exist  between the served interest and the information

to  be revealed.   See  Brown v.  Socialist Workers  '74 Campaign                                                                           

Comm., 459 U.S. 87, 91-92 (1982); Buckley, 424 U.S. at 64.                                                   

          With respect to the  test's first prong, no  fewer than

three governmental  interests have proven sufficient,  in varying

circumstances, to justify  obligatory disclosure of contribution-

related information.   Thus,  forced disclosure may  be warranted

when the spotlighted information enhances voters' knowledge about

a candidate's possible allegiances and interests, inhibits actual

and apparent corruption by exposing large contributions to public

view, or  aids state officials in  enforcing contribution limits.

See Brown, 459  U.S. at 92; Buckley, 424 U.S.  at 66-68.  Because                                             

R.I.  Gen. Laws   17-25-15(c)(1),  read as part  of an integrated

whole,   plainly satisfies this  prong of the test    indeed, the

Rhode Island  statute appears to  advance the three  interests we

have mentioned in much the same fashion as did the statute before

the Buckley Court   we proceed directly to the difficult question                     

of whether a substantial  relationship exists between the precise

modicum  of  information  required   to  be  disclosed  and  some

compelling state interest.

          We agree with the plaintiffs that, in certain respects,

the fit required to meet the test's second prong is  lacking.  As

the  disclosure threshold drops toward zero, the bond between the

                                11

information  revealed and  the  governmental  interests  involved

becomes weaker and, therefore, more tenuous.  See, e.g., Buckley,                                                                          

424  U.S. at 83-84.  Common sense suggests that information about

the  source of  a $1  contribution does  not advance  the state's

interest in deterring actual  or apparent corruption because such

a donation has a limited (perhaps nonexistent) potential to exact

an  illegal  or  unethical   quid  pro  quo.     Similarly,  such                                                     

information  bears little  discernible  relation  to the  state's

interest in enforcing contribution limits  that dip no lower than

$1,000:  few persons will donate  $1 to a PAC on more than  1,000

separate occasions    and those  that try will  likely grow  arm-

weary in the process.

          But,  viewed from  another, equally proper,  angle, the

fit  is  quite  comfortable:   signals  are  transmitted  about a

candidate's positions  and concerns not only  by a contribution's

size  but  also by  the contributor's  identity.   See  Goland v.                                                                        

United  States, 903  F.2d  1247, 1261  (9th  Cir. 1990);  FEC  v.                                                                       

Furgatch,  807 F.2d 857, 862  (9th Cir.), cert.  denied, 484 U.S.                                                                 

850 (1987); see also First Nat'l  Bank v. Bellotti, 435 U.S. 765,                                                            

791-92 &amp; n.32 (1978) (discussing required disclosure of corporate

advertisers'  names).   Since  the identity  of a  contributor is

itself  informative,   quite  apart   from  the  amount   of  the

contribution, a  candidate's ideological  interests may  often be

discerned  as clearly  from  a $1  contribution  as from  a  $100

contribution.  Hence,  we conclude  that there  is a  substantial

link between  data revealed  by first dollar  disclosure and  the

                                12

state's compelling  interest in  keeping the  electorate informed

about which constituencies may command a candidate's loyalties.8

          Buckley   buttresses  this   conclusion.     There,  in                           

evaluating  whether  a $10  recordkeeping  threshold  and a  $100

disclosure  threshold  passed  constitutional  review,  the Court

admonished that  decisions about "the appropriate  level at which

to  require  recording and  disclosure"  are "necessarily  .  . .

judgmental" and, therefore, best  left to legislative discretion.

Buckley,  424 U.S. at 83.  Consequently, so long as legislatively                 

imposed limitations are not "wholly  without rationality," courts

must defer  to the legislative  will.   Id.  We  think that  this                                                     

approach  is fully transferable to the instant case.  Because the

notion  of  first dollar  disclosure  is not  entirely  bereft of

rationality    as we  have already indicated,  such a requirement

relates to  at least one sufficiently cogent informational goal  

any  general embargo  against  first  dollar disclosure  statutes

would be  inconsistent with  the Buckley Court's  insistence upon                                                  

judicial deference to plausible legislative judgments.

          Nor  does  Buckley  stand   alone  in  support  of  the                                      

conclusion  that the  Constitution  does not  prohibit all  first                                                                    

                                                  

     8In  this respect,  the  goal of  enhancing voter  awareness
about the interests  to which  a candidate may  be responsive  is
separate and distinct from the goal of thwarting corruption.  The
former  is best served by compulsory disclosure of data about all
the various  sorts of philosophical and  ideological interests to
which  a candidate may be  sensitive while the  latter is equally
well  served by  targeting  a particular  form  of quid  pro  quo                                                                           
"responsiveness."   See  generally  Buckley, 424  U.S. at  66-68.                                                     
While first dollar  disclosure furthers the former goal,  it does
not meaningfully advance the latter goal.

                                13

dollar disclosure statutes.  Other trail markers, like spoor  for

the cognoscenti, lead in  the same direction.  See,  e.g., Brown,                                                                          

459 U.S. at 89 &amp; n.2 (specifically noting that a statute mandated

first dollar  disclosure, yet  failing to identify  any potential

constitutional infirmity); Citizens Against Rent Control v.  City                                                                           

of Berkeley,  454 U.S. 290,  300 (1981) (stating  that "if  it is                     

thought  wise, legislation  can outlaw  anonymous contributions")

(dictum); cf. California  Bankers Ass'n v. Schultz, 416  U.S. 21,                                                            

55-56  (1974) (holding that the first amendment does not create a

per  se rule  forbidding disclosure of  contributor names  in all                 

situations); Oregon  Socialist  Workers 1974  Campaign  Comm.  v.                                                                       

Paulus, 432 F. Supp. 1255, 1260 (D. Or. 1977) (three-judge court)                

(upholding   first  dollar   recordkeeping  and   partial  public

disclosure threshold).

          We  hold that  first dollar  disclosure is not,  in all

cases,  constitutionally proscribed.    Because  the court  below

struck down R.I. Gen. Laws   17-25-15(c)(1) on this very ground  

it  said, in  essence, that  first dollar  disclosure necessarily

leaves insufficient breathing room for first amendment  freedoms,

see Vote Choice, 814 F.  Supp. at 202   our consideration  of the                         

statute's  constitutionality  must  probe the  plaintiffs'  other

rationales.  After all, a judgment, although arrived at by faulty

reasoning, still  can  be sustained  on  some other  ground  made

manifest by the record.   See, e.g., Martel v. Stafford, 992 F.2d                                                                 

1244, 1245 (1st  Cir. 1993);  Chongris v. Board  of Appeals,  811                                                                     

F.2d 36, 37 n.1  (1st Cir.), cert. denied, 403  U.S. 1021 (1987).                                                   

                                14

We  turn, then, to  the plaintiffs' next  theory   a  theory that

shifts from an exclusive focus on whether first dollar disclosure

provisions  are ever  permissible  to a  more  holistic focus  on

whether  Rhode Island's  disclosure  requirement,  considered  in

light  of the  state's overall  campaign finance  law, withstands

constitutional scrutiny.

                  B.  The Contextual Challenge.                            B.  The Contextual Challenge.                                                        

          It  is apodictic  that  courts, when  passing upon  the

constitutionality of a  statutory provision, must view  it in the

context of the  whole statutory scheme.  See Storer v. Brown, 415                                                                      

U.S. 724, 737 (1974); Williams v. Rhodes, 393 U.S. 23, 34 (1968).                                                  

Here, plaintiffs'  contextual challenge centers  on the disparity

between the first dollar disclosure threshold applicable to those

who choose to pool money by making contributions  to PACs and the

$100 disclosure threshold applicable  to those who choose to  act

alone by  making direct contributions and  expenditures.  Compare                                                                           

R.I.  Gen.  Laws      17-25-15(c)(1)  with  id.  at      17-25-7.                                                         

Plaintiffs  say   that  this  disparity  not   only  burdens  PAC

contributors'  first amendment  rights  of association  but  also

undermines Rhode  Island's boast that first  dollar disclosure of

PAC contributions  represents a rationally selected device geared

toward  achieving   a  compelling   state  interest.     We  find

plaintiffs' analysis to be convincing.

          The  first  amendment  frowns  upon laws  which  burden

associational rights,  particularly  in the  sphere of  political

speech.  The more  lopsided the burdens, the more  probable it is

                                15

that a constitutional  infirmity looms.   Thus, in Berkeley,  the                                                                     

Supreme Court struck down a  limitation on contributions to PACs,

resting its holding not on the impermissibility of the limits per                                                                           

se,  but, rather, on the  disparity between those  limits and the            

limits applicable  to  persons who,  for one  reason or  another,

preferred not to pool their resources:

          To  place a  Spartan  limit    or indeed  any
          limit     on   individuals  wishing  to  band
          together to  advance their views on  a ballot
          measure,  while  placing none  on individuals
          acting alone,  is clearly a restraint  on the
          right  of association.  [Laws which] do[] not
          seek to mute the voice of one individual .  .
          . cannot  be allowed to hobble the collective
          expressions of a group.

Berkeley, 454 U.S. at 296.                  

          We   believe   that  this   passage   enunciates  three

fundamental  precepts.  First, any law that burdens the rights of

individuals to  come together  for political purposes  is suspect

and  must  be  viewed   warily.    Second,  burdens   which  fall

exclusively on those who  choose to exercise their right  to band

together, leaving  individual speakers unbowed,  merit heightened

scrutiny.   Third,  measures which hinder  group efforts  to make

independent expenditures  in  support  of  candidates  or  ballot

initiatives are particularly vulnerable to constitutional attack.

The  first two  precepts derive  in part  from the  importance of

group  expression as a method  of amplifying the  voices of those

with meager  means.  See  FEC v. National  Conservative Political                                                                           

Action  Comm., 470  U.S. 480,  493-94 (1985)  (collecting cases);                       

Buckley, 424  U.S. at 65-66.   The last  precept derives in  part                 

                                16

from the fact that independent expenditures, because they have  a

more  attenuated connection  with a  particular candidate,  are a

less likely source for quid pro quo corruption and a questionable                                             

indicator  of candidate loyalties.   See Buckley, 424  U.S. at 39                                                          

(noting  that independent expenditures  are "at  the core  of our

electoral process and of the First Amendment freedoms") (citation

and internal quotation marks omitted).

          In Berkeley, these three  precepts coalesced to scuttle                               

a contribution cap.   See 454 U.S. at 296.   The case at bar is a                                   

fair congener.   Here, as in  Berkeley, the challenged  enactment                                                

hobbles  collective expression by  mandating that groups disclose

contributors'  identities  and  the  extent  of  their   monetary

support, no matter  how tiny.   This, in itself,  is a red  flag.

See  Buckley,   424  U.S.   at  64  (observing   that  "compelled                      

disclosure,  in  itself, can  seriously  infringe  on privacy  of

association   and   belief");   id.   at   83   (observing   that                                             

"[c]ontributors  of relatively  small  amounts are  likely to  be

especially   sensitive  to  recording   or  disclosure  of  their

political preferences").  Here, as in Berkeley, the statute has a                                                        

much  less  stringent  rule   for  those  who  prefer  individual

expression  to collective expression.  Here,  as in Berkeley, the                                                                      

statute  imposes its  one-sided  burden regardless  of whether  a

group's members have banded together to contribute  directly to a

candidate  or  to  make  independent  expenditures  concerning  a

                                17

candidate  or referendum.9  We  think that these  three points of

comparison  accurately foretell  that here,  as in  Berkeley, the                                                                      

statute cannot stand.

          The state strives  valiantly to avoid the force of this

comparison.  It says that, even if section 17-25-15(c)(1) burdens

associational   rights   to  some   moderate   extent,  the   law

nevertheless merits enforcement under  the rubric of  legislative

prerogative.  We  disagree.  While legislative judgments  must be

given a wide  berth, judicial deference should  never be confused

with outright capitulation.   Federal courts would abdicate their

constitutional  responsibility  if  they  were   to  rubber-stamp

whatever constructs a state legislative body might propose.  And,

in  any  event, judicial  deference  to legislative  line-drawing

diminishes when  the lines are disconnected,  crooked, or uneven.

So it  is here:   the  Rhode Island General  Assembly has  made a

series  of conflicting  judgments  about  appropriate  disclosure

thresholds without offering any legally  satisfactory explanation

for its pererrations.

          This  zigging  and  zagging  is  of  especial   concern

because,   when  citizens  engage  in  first  amendment  activity

affecting  elections,  the  state's  interest  in  disclosure  is

generally  a constant, that is, the state's interest "is the same

whether  or  not  [the  individual  actors]  are  members  of  an

                                                  

     9Under Rhode Island  law, PACs  may form  for the  exclusive
purpose of promoting or opposing ballot questions.  See R.I. Gen.                                                                 
Laws   17-25-15(f).  A  PAC formed for such a purpose  is subject
to the first dollar disclosure requirement.

                                18

association."  Minnesota State  Ethical Practices Bd. v. National                                                                           

Rifle Ass'n, 761 F.2d 509, 513 (8th Cir. 1985), cert. denied, 474                                                                      

U.S. 1082 (1986); see  also New Jersey Citizens Action  v. Edison                                                                           

Township,  797 F.2d  1250, 1265  (3d Cir.  1986)  (requiring that                  

government demonstrate a special  risk stemming from a particular

form of first amendment  activity in order to justify  disclosure

requirements for that form  of activity), cert. denied,  479 U.S.                                                                

1103 (1987).  Rhode Island, in  one fell swoop, not only departed

from the usual rule of constancy but also imported a particularly

virulent strain of  unevenness into its  statutory scheme:   most

PACs must disclose the  identity of every contributor, regardless

of  amount,   while  individual  candidates   need  disclose  the

identities only of contributors who donate upwards of $100.

          This  imbalance   does  not  cater  to  any  cognizable

government interest.  It  does not serve the state's  interest in

combatting  corruption because  corruption can  as easily  spring

from  direct  contributions to  candidates as  from contributions

that  flow  through  PACs.     And,  if  the  danger   that  tiny

contributions  will  foment corruption  is  not  great enough  to

justify significant inroads on  first amendment rights, see supra                                                                           

Part II(A), it is certainly not great enough to justify disparate

treatment  of PACs.  Similarly, the unevenness does not serve the

state's interest in enforcing its contribution limits; after all,

the district  court found no evidence that PAC contributors might

try  to  subvert  the  $1,000 cap  by  an  endless  stream  of $1

donations.  See Vote Choice, 814 F. Supp. at 202.                                     

                                19

          Finally, the  interest in an informed  citizenry cannot

justify   the  disparity  at  issue  here.    To  be  sure,  when

contributors'  identities are  made  public, the  name of  a PAC,

standing alone, could  in some  states have little  meaning to  a

large segment of the electorate.  See California Medical Ass'n v.                                                                        

FEC, 453  U.S. 182, 201 (1981) (observing that "entities hav[ing]             

differing structures and  purposes .  . .  may require  different

forms  of regulation  in order  to protect  the integrity  of the

electoral process"); see  also Austin v. Michigan  St. Chamber of                                                                           

Commerce, 494 U.S. 652, 668 (1990); FEC v. National Right to Work                                                                           

Comm., 459 U.S. 197,  210 (1982).  But, Rhode Island  has guarded               

against this  contingency by requiring  that PACs  reveal a  wide

array  of information about their  goals and purposes.   See R.I.                                                                      

Gen.  Laws   17-25-15(a);  see also supra  pp. 3-4.   The obvious                                                   

result  of  Rhode  Island's legislative  mosaic  is  that  when a

candidate discloses that a particular PAC has given to his or her

cause, state law ensures  that this fact will signify  more about

the  candidate's  loyalties than  the  disclosed  identity of  an

individual  contributor will  ordinarily convey.   We  think this

circumstance is properly considered, see  Storer, 415 U.S. at 743                                                          

(explaining that  other state  requirements may be  considered in

evaluating  whether  a  disclosure  requirement  is  sufficiently

essential  to   repel  a  constitutional  challenge);   see  also                                                                           

Schaumburg v. Citizens for  a Better Env't, 444  U.S. 620, 637  &amp;                                                    

n.11 (1980); Let's  Help Fla.  v. McCrary, 621  F.2d 195,  200-01                                                   

(5th  Cir. 1980), aff'd mem., 454 U.S. 1130 (1982), and it weighs                                      

                                20

heavily in our conclusion that the claimed justification for  the

added (first dollar disclosure)  burden that Rhode Island imposes

on PACs and PAC contributors is more illusory than real.

          In sum, R.I.  Gen. Laws    17-25-15(c)(1) has at  least

three grave weaknesses.  First, by mandating public revelation of

all  PAC contributors,  it burdens  the rights of  individuals to

band  together  for  the  purpose of  making  either  independent

election expenditures or direct political contributions.  Second,

by  imposing  this burden  on  PACs  and PAC  contributors  while

regulating  candidates  and certain  of  their  financial backers

(viz.,  individuals who contribute  directly to candidates rather               

than to PACs) more loosely, the statute compounds  the unfairness

of the burden.  Finally, the disparity between the two disclosure

thresholds  (one for PACs  and the  other for  individuals), and,

hence,  the net  burden imposed  solely on  associational rights,

bears no substantial relation to the  attainment of any important

state interest.   Their cumulative effect  compels the conclusion

that the statute abridges the first amendment.10

          We  have  one more  stop  to make  before  leaving this

subject.    The amici  invite us  to  limit any  determination of

                                                  

     10In  light of  this determination,  we need  not  address a
further statutory anomaly:   that,  while most PACs  are held  to
first dollar disclosure under Rhode Island law, a select group of
PACs  enjoys preferential treatment.  See R.I. Gen. Laws   17-25-                                                   
15(c)(1)  (exempting PACs  sponsored  by labor  unions and  those
which are funded through payroll checkoff plans from first dollar
disclosure requirements).    Similarly, because  we  decide  that
Rhode  Island's first  dollar disclosure  provision impermissibly
burdens the right  to association, we need not  determine whether
it also violates the equal protection clause.

                                21

unconstitutionality  to the  two  plaintiff PACs.   However,  the

cases relied on  by the  amici, see, e.g.,  FEC v.  Massachusetts                                                                           

Citizens for Life, Inc., 479 U.S. 238 (1986); Brown, 459 U.S. 87,                                                             

involve  explicit as-applied  challenges to  particular statutes.

Here,  in contrast, plaintiffs  mounted a  facial attack  on R.I.

Gen. Laws   17-25-15(c)(1)  and the case proceeded below  on this

theory.  Moreover, the reason we  invalidate the statute concerns

the disparate treatment of PACs qua PACs, and, thus, obtains with                                             

equal vigor regardless  of which particular PAC  may be involved.

This  is a  salient consideration in  determining what  remedy is

appropriate, see, e.g., Sec'y  of State v. Joseph H.  Munson Co.,                                                                          

467  U.S.  947, 967-68  (1984); City  Council  of Los  Angeles v.                                                                        

Taxpayers  for Vincent, 466 U.S.  789, 799-800 (1984),  as is the                                

fact that our reasoning does not derive its force from situation-

specific features.  See, e.g., National Treas. Employees Union v.                                                                        

United States, 990 F.2d 1271, 1277-78 (D.C. Cir. 1993).  Finally,                       

only the amici  have advocated the limitation-of-remedy  position

and  "[w]e know  of  no  authority  which  allows  an  amicus  to

interject into a case issues which the litigants, whatever  their

reasons might be,  have chosen to  ignore."  Lane v.  First Nat'l                                                                           

Bank,  871 F.2d  166,  175  (1st  Cir.  1989);  accord  McCoy  v.                                                                       

Massachusetts  Inst. of Technology, 950 F.2d 13, 23 n.9 (1st Cir.                                            

1991), cert. denied, 112 S. Ct. 1939 (1992).  For these  reasons,                             

we decline the amici's invitation.11
                                                  

     11For  many  of  the  same  reasons,  we  cannot employ  the
statute's severability  provision, R.I. Gen. Laws    17-25-17, to
rescue any portion of the first dollar disclosure.

                                22

            To recapitulate, then, we  reject both Rhode Island's

appeal  and the amici's importuning  that we apply  a Band-Aid in

lieu  of surgically  excising the  malignancy.   Consequently, we

uphold the permanent injunction  barring enforcement of R.I. Gen.

Laws   17-25-15(c)(1).  In striking down the statute, however, we

take  a narrower path than did  the court below.  As legislatures

must  tread  carefully in  this complicated  area, so,  too, must

courts.   We decline  to rule out  categorically the  legislative

tool  of  first  dollar  disclosure; that  tool  may  in  certain

contexts    although  not  here    serve sufficiently  compelling

government interests to be upheld.

III.  LEONARD'S APPEAL          III.  LEONARD'S APPEAL

          We have arrived at Leonard's appeal.  Before addressing

the merits, we resolve the question of standing.

                          A.  Standing.                                    A.  Standing.                                                

          Standing  doctrine involves "a  blend of constitutional

requirements  and  prudential   considerations."    Valley  Forge                                                                           

Christian Coll. v. Americans United for Separation of Church  and                                                                           

State, Inc., 454  U.S. 464,  471 (1982).   On the  constitutional                     

side, Article  III limits  federal court adjudication  to matters

which achieve the stature  of justiciable cases or controversies.

Ordinarily,  this  means  that   a  party  invoking  the  court's

authority must show:  (1) that he or she has suffered some actual

or threatened injury  as a result  of the defendant's  putatively

illegal  conduct, (2) that the injury may fairly be traced to the

                                23

challenged action, and (3) that a favorable decision will  likely

redress  the injury.   See  Riverside v.  McLaughlin, 111  S. Ct.                                                              

1661, 1667  (1991);  Valley Forge,  454  U.S. at  472.   We  have                                           

cautioned that  "[t]he ingredients of standing  are imprecise and

not  easily susceptible  to  concrete definitions  or  mechanical

application."  United States v. AVX Corp., 962 F.2d 108, 113 (1st                                                   

Cir. 1992).

          When declaring  her candidacy,  Leonard had to  make an

irrevocable  commitment  either  to  shun or  to  embrace  public

financing.  Leonard's testimony  suggests that, having decided to

forgo the embrace, she  had to structure her campaign  to account

for  her  adversaries'  potential  receipt  of  television  time,

fundraising advantages,  and  the  like.   Her  opponent  in  the

Republican primary, Mayor Levesque,  opted for public  financing.

Leonard  testified  that  Levesque  accepted  contributions  over

$1,000 while she had to turn away similar contributions.  What is

more, because one of  the two major candidates in  the Democratic

gubernatorial primary also opted  for public funding, Leonard had

to plan for  the possibility that  a publicly financed  candidate

would oppose her in the general election.

          Based on this and  other evidence, the district court's

finding  that  the  coerced  choice between  public  and  private

financing   "colored  [Leonard's]  campaign   strategy  from  the

outset," Vote  Choice, 814 F.  Supp. at 204,  seems unimpugnable.                               

In our view,  such an impact  on the strategy  and conduct of  an

office-seeker's  political campaign  constitutes  an injury  of a

                                24

kind sufficient to confer standing.  See Buckley, 424 U.S. at  12                                                          

&amp; n.10 (determining that standing existed in a case where certain

candidates  challenged disparate  rules  and contribution  caps);

Storer, 415 U.S. at  738 n.9 (noting that simply  being subjected                

to  election law  requirements,  even indirectly,  may constitute

cognizable  injury);  see  also AVX  Corp.,  962  F.2d  at 113-14                                                    

(defining  "injury").    Therefore, Leonard  satisfies  the first

furculum of the test.

          Leonard  also  possesses  the remaining  attributes  of

constitutional standing.   The injury she suffered  can be traced

directly to the  state's actions:  the  statutory provisions, and

the  Board's implementation  of  them, caused  the harm  of which

Leonard  complains.    As  to  redressability,  Leonard  seeks  a

permanent injunction  against continued  enforcement of the  very

statutes which  caused her injury.   This produces  the necessary

causal  connection  between the  injury  alleged  and the  relief

requested.12    See, e.g.,  Allen v.  Wright,  468 U.S.  737, 753                                                      

n.19 (1984).

          Over  and above  its  constitutional  requisites,  "the
                                                  

     12The Board suggests that this causal  link snapped once the
general election concluded, thereby rendering the case moot.   We
disagree.    There is  a  recognized  exception  to the  mootness
doctrine for  matters capable  of repetition yet  evading review.
This is  such a case.   The injury Leonard seeks  to palliate was
too  fleeting to be  litigated fully prior  to the climax  of the
gubernatorial   campaign  and,   since  there  is   a  reasonable
expectation that  Leonard will encounter the same barrier again  
after all, she has not renounced possible future candidacies, and
politicians, as a rule, are not easily discouraged in the pursuit
of  high elective office   the exception applies.  See Democratic                                                                           
Party  of the U.S. v.  Wisconsin, 450 U.S.  107, 115 n.13 (1981);                                          
Bellotti, 435 U.S. at 774.                  

                                25

doctrine of standing also  embodies prudential concerns regarding

the proper  exercise of  federal jurisdiction."   AVX  Corp., 962                                                                      

F.2d at 114.  Leonard's case qualifies on this score as well.  In

the interest of expedition,  we refer the reader who  hungers for

detail to the district court's erudite discussion  of this point.

See Vote Choice, 814 F.  Supp. at 204.  We add only  that Leonard                         

is asserting her own  rights and interests (not  someone else's);

that her grievances are particularized and concrete; and that her

claim  falls well within the  zone of interests  protected by the

first amendment.   No  more is exigible.   See, e.g.,  Allen, 468                                                                      

U.S.  at  751; Warth  v. Seldin,  422  U.S. 490,  499-500 (1975);                                         

Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150,                                                            

153 (1970).  Thus, Leonard has standing to pursue her quest.

                  B.  The Contribution Cap Gap.                            B.  The Contribution Cap Gap.                                                        

          Leonard has questioned  several different provisions of

the  statute.    We   turn  initially  to  her  claim   that  the

contribution  cap gap is inimical  to the first  amendment.13  In

reaching  this issue,  we stress  that Leonard  assails only  the

disparity  between the two caps; she voices no in vacuo challenge                                                                 

to  the $1,000 cap applicable to candidates, such as herself, who

eschew public funding.

          Leonard's serenade has  two themes.  Her major theme is

                                                  

     13Under  Rhode   Island  law,  contributions   to  political
campaigns are customarily capped  at $1,000 per donor.   See R.I.                                                                      
Gen. Laws   17-25-10.1.   However, a candidate who  qualifies for
public  funds is entitled to receive  contributions in amounts up
to $2,000 per donor.   See id. at   17-25-30(3).   This disparity                                        
constitutes the contribution cap gap of which Leonard complains.

                                26

that  regulatory   disparities  of   this  type   are  inherently

impermissible.   Her minor theme is that  the cap gap burdens her

first   amendment   rights   without  serving   a   corresponding

governmental   interest.     We   consider   these  asseverations

sequentially, affording plenary review.  See LeBlanc, 992 F.2d at                                                              

396.

          1.  The Per  Se Challenge.  Leonard's per  se challenge                    1.  The Per  Se Challenge.                                                                 

to the contribution  cap gap  boils down to  the assertion  that,

whenever  government  constructs  incentives  for  candidates  to

accept fundraising  limits, it departs from its  required role as

an umpire and  becomes a  player in the  electoral process,  much

like, say, a referee who eases the rules for one team and not the

other.    The  most immediate  barrier  to  the  success of  this

argument is that the Supreme  Court has upheld a very direct  and

tangible incentive:   the provision of public funds to candidates

who  agree  to  place  decreased  reliance  on  private  campaign

contributions.   See  Buckley,  424  U.S.  at  85-109;  see  also                                                                           

Republican  Nat'l  Comm.  v.  FEC,   487  F.  Supp.  280,  283-86                                           

(S.D.N.Y.) (three-judge court) (RNC I), aff'd mem., 445 U.S.  955                                                            

(1980); Republican Nat'l  Comm. v. FEC,  616 F.2d 1, 2  (2d Cir.)                                                

(en  banc) (adopting reasoning of RNC  I in parallel proceeding),                                                  

aff'd mem., 445 U.S. 955 (1980).                    

          In  a Briarean  effort to  scale this  barrier, Leonard

attempts to  distinguish the public financing cases on the ground

that  they  involve  the  propriety  of  conferring  benefits  in

contrast to imposing penalties.  She is fishing in an empty pond.

                                27

For  one thing,  the distinction that  Leonard struggles  to draw

between denying the  carrot and  striking with the  stick is,  in

many  contexts,  more  semantic  than  substantive.    This  case

illustrates  the  point.   The  question  whether Rhode  Island's

system  of public  financing imposes  a penalty  on non-complying

candidates  or, instead, confers a benefit on those who do comply

is a non-issue,  roughly comparable to  bickering over whether  a

glass is  half full or half  empty.  After all,  there is nothing

inherently penal about a $1,000 contribution cap.

          For another thing, to the degree that the question does

have  a concrete answer, the  answer appears contrary  to the one

Leonard suggests.  Leonard has adduced no legislative  history or

other  evidence suggestive  of punitive  purpose.   Moreover, the

Rhode Island statute sets up a $1,000 cap as the norm and doubles

the  cap only  if a  candidate meets  certain conditions.   Logic

suggests that the higher  cap is, therefore, a premium  earned by

meeting statutory eligibility requirements rather  than a penalty

imposed  on those  who  either cannot  or  will not  satisfy  the

requirements.  

          Third, the  blurred line  between  benefit denials  and

penalties  is  singularly  unhelpful  in the  zero-sum  world  of

elective politics.   Because a head-to-head election has a single

victor, any benefit conferred on  one candidate is the  effective                     

equivalent  of a penalty imposed  on all other  aspirants for the

same  office.   In  the  last analysis,  then,  Leonard's fancied

distinction proves too much.

                                28

          While these  three reasons  spell defeat  for Leonard's

attempt to distinguish the public financing cases as different in

kind from this case, Leonard also proffers a difference-in-degree

distinction.     Even  if  some  regulatory   incentives  may  be

permissible, she  says, Rhode  Island's incentives are  so strong

that  they  destroy the  voluntariness  of  the public  financing

system and, therefore, cannot be condoned.

          We agree  with Leonard's  main premise:   voluntariness

has  proven to be an important factor in judicial ratification of

government-sponsored  campaign financing  schemes.    See,  e.g.,                                                                          

Buckley, 424  U.S. at 95;  RNC I, 487  F. Supp. at  285.  Coerced                                          

compliance   with   fundraising   caps  and   other   eligibility

requirements would raise serious,  perhaps fatal, objections to a

system like Rhode  Island's.   Furthermore, there is  a point  at

which  regulatory  incentives  stray beyond  the  pale,  creating

disparities so profound that  they become impermissibly coercive.

It is, however, pellucid that no such compulsion occurred here.

          Rhode  Island's law  achieves  a rough  proportionality

between   the  advantages   available  to   complying  candidates

(including the cap gap) and the restrictions that such candidates

must  accept to  receive  these advantages.14   Put  another way,
                                                  

     14Indeed,  the   specific  facts  of   Rhode  Island's  1992
gubernatorial  contest support  the conclusion  that the  state's
catalog  of  incentives  is  neither  overly  coercive  nor  even
especially attractive.   Both  Leonard and Governor  Sundlun (who
prevailed  in  the  Democratic  primary and  eventually  won  the
general election)  resisted  the temptations  of  public  funding
despite facing  (a) an opponent in the  primary who had opted for
public funding and  (b) a substantial possibility that  the other
party's candidate in the general election would be receiving such

                                29

the  state exacts  a  fair  price  from complying  candidates  in

exchange  for receipt of the challenged benefits.  While we agree

with Leonard that Rhode Island's statutory scheme is not in exact

balance    we suspect  that very  few campaign financing  schemes

ever  achieve perfect equipoise   we disagree with her claim that

the  law is unfairly coercive.   Where, as  here, a non-complying

candidate  suffers no  more than  "a countervailing  denial," the

statute does not go too far.  Buckley, 424 U.S. at 95.                                               

          To sum up, the implication  of the public funding cases

is that the government may legitimately provide candidates with a

choice  among  different  packages  of  benefits  and  regulatory

requirements.  Rhode Island has done nothing more  than implement

this  principle.  We see no sign  that the state has crossed into

forbidden territory;  the contribution cap gap,  as structured by

the  Rhode Island  General  Assembly,  neither penalizes  certain

classes   of   office-seekers   nor   coerces   candidates   into

surrendering their first amendment rights.  In short, Leonard has

identified  no  inherent  constitutional  defect  in the  state's

voluntary, choice-increasing framework.

          2.  The Burden/Justification  Matrix.  Leonard keeps on                    2.  The Burden/Justification  Matrix.                                                        

trucking.    She asserts  that,  even  if the  cap  gap does  not

penalize or  coerce, it  nonetheless burdens her  first amendment

rights without sufficient justification.  The assertion stalls.

          In the first place, we have difficulty believing that a

statutory  framework  which  merely  presents  candidates with  a
                                                  

funds.

                                30

voluntary  alternative  to  an  otherwise  applicable,  assuredly

constitutional,  financing option  imposes  any  burden on  first

amendment rights.   In choosing  between the ordinary  methods of

financing a campaign    methods which  are themselves subject  to

certain restrictions   and the public funding alternative   which

limits  both  fundraising and  expenditures     a candidate  will

presumably  select the option which enhances his or her powers of

communication and association.   See Buckley, 424 U.S.  at 92-93;                                                      

RNC I,  487 F.  Supp. at  285.   Thus, it  seems likely  that the               

challenged   statute  furthers,   rather  than   smothers,  first

amendment values.

          In the second place, even if the cap gap burdens a non-

complying  candidate's  first  amendment  rights  to  some  small

extent, and assuming for argument's sake that the state bears the

devoir  of  persuasion  in   respect  to  whether  the  statutory

framework  is  both  in  service  to  a  compelling  governmental

interest and tailored  in a sufficiently narrow manner,  we would

still  find Leonard's thesis unpersuasive.  The state need not be

completely  neutral   on  the  matter  of   public  financing  of

elections.   When, as now,  the legislature has  adopted a public

funding  alternative, the  state  possesses a  valid interest  in

having candidates  accept public financing because  such programs

"facilitate communication  by  candidates with  the  electorate,"

Buckley,  424 U.S. at 91,  free candidates from  the pressures of                 

fundraising, see id., and,  relatedly, tend to combat corruption.                              

See id.;  see also RNC I,  487 F. Supp. at  285-86.  Establishing                                  

                                31

unequal  contribution caps  serves this  multifaceted network  of

interests by making it more  probable that candidates will choose

to  partake of  public  financing.   Equally  important, the  gap

appears to  reflect  a carefully  calibrated  legislative  choice

anent the differential risk of quid pro quo corruption in the two                                                     

instances.     In   the  state's   view,  the   many  eligibility

requirements  for  public financing  make it  less likely  that a

given  contribution will  tend to  corrupt  a candidate.15   That

view, too, is plausible.   Ergo, the contribution cap  gap stands

on reasonably solid theoretical footing.

          For these reasons, we find Rhode  Island's contribution

cap gap narrowly tailored and logically related, in  scope, size,

and  kind, to  compelling governmental  interests.16   That being

                                                  

     15To  cite  an example,  once it  is  clear that  a publicly
financed candidate's  campaign can reach  the overall fundraising
limits, see R.I. Gen. Laws    17-25-20(2), any single contributor                     
to that  campaign becomes less important  because the contributor
can be  "replaced" at no marginal cost.  In other words, the fact
that the campaign  seems bound to  reach the fundraising  ceiling
means that a  given contributor is occupying  a contribution slot
that could  as easily  be occupied  by someone  else.  With  this
distinction in the importance  of individual contributors comes a
corresponding  diminution   in  the   risk  of   corruption  and,
therefore, a diminished justification for  stringent contribution
limits.  See, e.g., Buckley, 424 U.S. at 91, 96.                                     

     16We  add a caveat.   We  do not in  any way  imply that the
contribution  cap  gap is  constitutionally  mandated.   A  state
legislature could certainly conclude that a $2,000 contributor to
a  campaign complying with  the spending limits  actually holds a
greater sway with the candidate than does a $1,000 contributor to
an unlimited campaign because the former contribution represents,
in most cases, a greater percentage of the candidate's kitty than
does the latter.  But, the legislature must have a certain amount
of operating  room in this sphere.   The first amendment does not
require  the   courts  to   choose  sides,  at   this  level   of
particularity, in the flux and reflux of policy considerations.

                                32

so,  it would  be  unduly meddlesome,  hence,  wrong, for  us  to

substitute our own  assessment of either an  incentive's value or

the perceived risks to  which it is addressed for  the considered

judgment  of a state legislature.   See Nat'l  Right to Work, 459                                                                      

U.S. at 210 (expressing reluctance to "second-guess a legislative

determination  as to  the  need for  prophylactic measures  where

corruption  is the evil feared");  Baker v. City  of Concord, 916                                                                      

F.2d  744, 750 (1st Cir. 1990) (discussing impropriety of federal

courts second-guessing a state's legislative judgments).

          3.  Recapitulation.  We hold that states may  sometimes                    3.  Recapitulation.                                      

legitimately confront  candidates  with the  option  of  choosing

among different packages of benefits and regulatory requirements.

We hold further that  such a permissible choice occurs  where, as

here,  there is no credible evidence of a penalizing purpose, the

choice between  the packages is real, uncoerced, and available to

all,  the status quo option, standing alone, raises no red flags,

and the  challenged disparity is narrowly  tailored and logically

related,  in scope,  size, and  kind, to  compelling governmental

interests.   See, e.g., Buckley, 424 U.S. at 29, 35-36 (upholding                                         

disparate contribution  caps for individuals and  PACs).  Because

Rhode Island's contribution cap gap does not penalize, coerce, or

unjustifiably burden  first amendment rights, the  district court

appropriately upheld the challenged provision.17
                                                  

     17We do not tarry over Leonard's claim that the contribution
cap  gap  violates her  right to  equal  protection.   First, the
statute does not impose unequal treatment but gives candidates an
authentic  choice.     Second,  the   statute  treats  candidates
differently  on  the basis  of  their actions  rather  than their

                                33

             C.  The Free-Television-Time Provisions.                       C.  The Free-Television-Time Provisions.                                                              

          We now  examine  Leonard's remonstrance  against  Rhode

Island's  offer of free television time  to candidates who comply

with the eligibility  criteria for public  financing.  Since  the

issues are purely legal, we afford plenary review.

          1.   Setting  the  Stage.    To  understand  the  free-                    1.   Setting  the  Stage.                                            

television-time incentives  that have raised Leonard's hackles, a

further exegesis is helpful.  Under this heading, Leonard attacks

two  different  grants  of in-kind  assistance  to  gubernatorial

candidates who accept  public financing.   One such incentive  is

limned  in  R.I.  Gen.  Laws     17-25-30(1),  which  entitles  a

complying   candidate  to   "free   time  on   community  antenna

television"  pursuant  to rules  to  be formulated  by  the state

Division  of   Public  Utilities   (DPU).18    The   second  such
                                                  

beliefs    actions  which,  as we  have  seen, possess  differing
implications for the integrity and effectiveness of the electoral
process.   The equal protection  clause does  not interdict  such
classifications.   See, e.g.,  Bray v. Alexandria  Women's Health                                                                           
Clinic,  113   S.  Ct.  753,  760-62   (1993)  (collecting  cases                
illustrating  courts' denials of  equal protection claims despite
statutes' unintended  disparate  effects on  protected  classes);
Buckley,  424  U.S. at  95  (upholding  against equal  protection                 
attack   a  system   which  actually   excluded  minority   party
candidates);  Jenness v.  Fortson,  403 U.S.  431, 441-42  (1971)                                           
(rejecting  equal  protection  challenge  to   election  law  and
observing that "[s]ometimes the  grossest discrimination can  lie
in treating things that are different as though they were exactly
alike").

     18Community  antenna   television  (CATV)   is  a   form  of
television  cablecasting regulated  by the state  DPU.   See R.I.                                                                      
Gen. Laws    39-19-6.   Under current regulations  and applicable
franchise agreements,  cable operators dedicate one  or more CATV
channels  to the state  to ensure public  access.   See DPU Rules                                                                 
Governing CATV Systems,   14.1 (Jan. 14, 1983 rev.).  The parties
do  not   dispute  the   DPU's  authority  to   write  additional
regulations  implementing section  17-25-30(1) by  providing free

                                34

incentive is  outlined in  R.I.  Gen. Laws    17-25-30(2),  which

entitles  a  complying candidate  to  "free  time on  any  public

broadcasting  station"  operating under  the jurisdiction  of the

Rhode Island Public Telecommunications Authority (PTA).19

          2.    Preemption.     Leonard's  attack  on  the  free-                    2.    Preemption.                                    

television-time  provisions proceeds  on two fronts.   Initially,

she contends  that the Federal Communications  Act (FCA) preempts

conflicting  state laws, and that R.I. Gen. Laws   17-25-30 comes

within  this  proscription.20   We  find  no such  irreconcilable

conflict.

          The FCA reads in relevant part:

          If any  licensee shall permit  any person who
          is  a legally qualified  candidate for public
          office to use a broadcasting station [or CATV
          system], he shall afford  equal opportunities
          to all  other such candidates for that office
          in  the use of  such broadcasting station [or
          CATV system].

47 U.S.C.   315(a), (c).  This guarantee of equal opportunity has
                                                  

CATV  time to  candidates.   By  like token,  the parties  do not
dispute that, if the DPU did promulgate such regulations, federal
communications law would apply.

     19The state, through the PTA, owns and controls the air time
provided by section 17-25-30(2).  The PTA is a public corporation
empowered to hold property  and licenses in trust for  the state.
See R.I. Gen. Laws    16-61-2.  As such,  the PTA is required  to             
"establish, own and operate" public broadcasting in the state, to
"apply for,  receive and  hold" the  necessary licenses from  the
Federal Communications  Commission, and to  exercise control over
programming on public television stations.  See id. at   16-61-6.                                                             
We take judicial notice that the PTA currently operates  WSBE-TV,
Channel 36.

     20Leonard  does  not  argue  that  Congress preempted  state
regulation by  occupying the  entire communications field.   See,                                                                          
e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988);                                                
French v. Pan Am Express, Inc., 869 F.2d 1, 4 (1st Cir. 1989).                                        

                                35

both  quantitative and  qualitative dimensions.   See  Paulsen v.                                                                        

FCC, 491 F.2d 887, 889  (9th Cir. 1974).  Among other  things, it             

"encompasses  such elements  as  hour of  the day,  duration, and

charges."   Kennedy for President Comm. v. FCC, 636 F.2d 432, 438                                                        

(D.C. Cir. 1980).

          Whether this federal  guarantee preempts Rhode Island's

free-television-time provisions depends  upon how one  interprets

state law.  Leonard argues that in explicitly guaranteeing state-

controlled television  time to qualifying candidates  at no cost,

the  state  intends to  exclude  all  other (non-publicly-funded)

candidates  from receiving comparable  treatment.   Any alternate

interpretation  of  the  statute,  she claims,  would  render  it

purposeless.

          We think Leonard's argument is  deeply flawed.  When  a

statute provides a benefit  to some, it does not  necessarily bar

receipt of the benefit by others.  Cf., e.g., Bowen v. Owens, 476                                                                      

U.S. 340,  347 (1986)  (explaining that a  legislative body  "may

take one  step at a time,  addressing itself to the  phase of the

problem  which  seems  most   acute  to  the  legislative  mind")

(citation and internal quotation  marks omitted); Baker, 916 F.2d                                                                 

at  748 (holding  that a  state legislature  may constitutionally

elect  to  address  "only  one  aspect  or a  few  aspects  of  a

multifaceted problem").  Put in concrete terms applicable to this

case,  the Rhode  Island statute  grants free television  time to

candidates who embrace public  funding   but it does  not purport

to prevent  privately financed  candidates from reaping  the same

                                36

benefit if  some  other law     here, the  FCA    requires  equal

treatment.

          It  is,  moreover,   axiomatic  that,   when  a   state

legislature  has sounded  an uncertain  trumpet, a  federal court

charged with interpreting the  statute ought, if possible, choose

a  reading that  will harmonize  the statute  with constitutional

understandings  and  overriding federal  law.   See 1A  Norman J.                                                             

Singer, Sutherland Statutory Construction   23.21 (4th ed. 1985 &amp;                                                   

Supp.   1993)  (collecting   Supreme   Court   cases);  EEOC   v.                                                                      

Massachusetts, 987 F.2d 64, 70 (1st Cir. 1993).  We believe these                       

principles apply full bore to R.I. Gen. Laws   17-25-30.

          We refuse  to read Rhode Island's  provision of in-kind

benefits  in  the   overbold  fashion  that   Leonard  envisions.

Instead, we interpret the statute  to mean what it says and  only

what  it says:   it  entitles publicly  funded candidates  to use

state-controlled television channels without charge   but it does

nothing to  interfere with, and does  not contemplate interfering

with, the  rights of  privately financed  candidates who  wish to

petition  for equal  time and  treatment under  47 U.S.C.    315.

Contrary  to Leonard's  suggestion, this interpretation  does not

emasculate  R.I.  Gen.  Laws     17-25-30(1)  &amp;  (2); indeed,  by

harmonizing  the  statutory  provisions   with  federal  law  and

avoiding   possible   preemption,   the    interpretation   lends

considerable vitality to the will of the state legislature.  What

is  more, the  provisions,  so construed,  further a  substantial

purpose:  subsidizing all publicly funded candidates by providing

                                37

them with access to  free television time.   In other words,  the

state law makes the public  financing program more attractive not

because complying candidates  receive something which their  non-

complying counterparts  do  not, but,  rather, because  complying

candidates can  be confident that the  expenditure limits imposed

in  consequence of  the acceptance  of public financing  will not

prevent them from getting their message to the voters.

          The bottom  line  reads  as  follows:    there  are  no

indications    textual or otherwise    that Rhode  Island's free-

television-time   provisions   aim   to  preclude   non-complying

candidates  from seeking  either equal  time or  equal treatment;

there is a plausible interpretation of the state  enactment which

reconciles   it   with   overriding   federal   law;   and   this

interpretation gives the statute meaning without jeopardizing its

validity.   Because  we  read the  state  law in  this  way,21 47

U.S.C.   315 does not preempt R.I. Gen. Laws   17-25-30(1) &amp; (2).

          3.   Excessive Entanglement.  Leonard has one last shot                    3.   Excessive Entanglement.                                               

in her  sling.  She urges that the provision of in-kind benefits,

such  as  free  television  time,  has  a  dangerous  tendency to

entangle   government  in  the  internal  workings  of  political

campaigns.

          The   electoral  process  is  guided  by  legislatively
                                                  

     21This interpretation of R.I.  Gen. Laws   17-25-30 requires
that  we  reject   three  other  disparity-presuming  contentions
advanced by  Leonard.  Read in  the manner that we  deem fitting,
the statute neither (1) penalizes a  candidate for exercising his
or her  right  to  boycott  public financing,  (2)  denies  equal
protection  of the laws to such a candidate, nor (3) destroys the
voluntariness of the public financing program.

                                38

articulated  rules  designed to  ensure  fairness.   A  fine, but

important,  line  exists  between this  salutary  rulemaking  and

meddlesome  interference in the conduct of elections.  There is a

point where government involvement  in the operation of political

campaigns may become so pervasive  as to imperil first  amendment

values.   Were  a  state to  loan  out  its workers  as  campaign

consultants,   for   example,   voters   and   candidates   might

legitimately complain that it had gone beyond laying down general

rules  for  office-seekers  and  begun tampering  with,  or  even

manipulating,  the  electoral process.   Such  entanglement could

conceivably  prevent the first  amendment from  accomplishing its

fundamental  mission in respect to political  speech:  "to secure

the widest possible dissemination of information from diverse and

antagonistic  sources, and  to assure  unfettered  interchange of

ideas for  the bringing  about of  political  and social  changes

desired by the  people."  Buckley, 424 U.S. at  49 (citations and                                           

internal  quotation marks  omitted).   In short,  entanglement of

this  insidious  stripe  runs too  great  a  risk  of creating  a

convergence of pro-government voices.

          Mindful of these concerns, courts must carefully review

legislative  enactments that  potentially entangle  government in

partisan political  affairs.  In-kind incentives  carry the seeds

of  potential  overinvolvement,  especially  when  they implicate

access to  state-run organs of communication.   Nevertheless, the

first amendment does  not rule out  all in-kind offerings  simply

because some of them may be too entangling.  See, e.g., id. at 93                                                                     

                                39

n.127  (noting   that  the   government's  extension   of  postal

privileges furthers first amendment  values).  Legislative bodies

(and,  ultimately,  courts)  must  separate   wheat  from  chaff,

recognizing that, while some  in-kind benefits may be excessively

entangling,  others represent  valid  and innovative  attempts to

confront new  concerns in  the ever-changing world  of democratic

elections.

          In  our  view,  there   is  a  spectrum  of  government

subsidization  ranging from pure white  and light gray    a range

that  would  include  such  relatively  unintrusive  measures  as

supplying public  funding on politically  neutral terms    to jet

black and navy blue   a range that would subsume such  relatively

intrusive measures  as furnishing  campaign  workers to  specific

candidates.   The  closer an  arrangement  trenches to  the  non-

intrusive end of the spectrum, the less likely it is to fall prey

to a facial  challenge grounded  in the first  amendment.   After

all, so long as interference is slight, offering in-kind benefits

actually   furthers   first   amendment  values   by   increasing

candidates'  available choices  and  enhancing their  ability  to

communicate.  See id. at 92-93.                                

          In this  case, Leonard has advanced  no concrete reason

for  believing  that  the  free-television-time  provisions  will

excessively  entangle the  state  in the  day-to-day details  and

decisions of the campaign.   Because applicable federal laws  and

regulations require  equal time  and treatment for  all competing

candidates insofar  as the electronic media  are concerned, there

                                40

is  no appreciable  danger of lopsided  state involvement  in the

intricate process of scheduling  television appearances.  By like

token, there  is  no  demonstrable  risk that  state  power  will

influence  candidates'  speech in  a  way  that undermines  first

amendment   values.     Accordingly,   there  is   no   excessive

entanglement.  See, e.g., id. at 93 n.126 (concluding that claims                                       

of  excessive  governmental  involvement  in  respect  to  public

funding  of  political  campaigns were  "wholly  speculative  and

hardly a basis for [facial] invalidation").

IV.  CONCLUSION          IV.  CONCLUSION

          In its journey to ensure the integrity of the electoral

process,  a  state legislature  must  march  across the  hallowed

ground  on which  fundamental first  amendment rights  take root.

The  terrain must  be  negotiated with  circumspection and  care:

disparities, in whatever guise, are not casually to be condoned.

          Here, the  Rhode Island General Assembly  traversed the

minefield with mixed  results.  The disclosure threshold  for PAC

contributors,  as   contrasted  with  the   different  disclosure

threshold    for   contributors   to   candidates,   creates   an

impermissible disparity  violative of  associational  rights.   A

second claimed disparity, involving  the contribution cap gap is,

in part due  to its relatively  small size, non-penalizing,  non-

coercive,  justifiable,  and,  hence, constitutional.    For  all

intents and  purposes, the  third claimed disparity  is virtually

non-existent:  given the  imperatives of extant federal  law, the

free-television-time  provisions  of  the  state  statute  do not

produce  significant  differences in  the  benefits available  to

various candidates for the same office.  Thus, we, like the court

                                41

below,   find   that  R.I.   Gen.   Laws      17-25-15(c)(1)   is

unconstitutional, but  that the  plaintiffs' challenges  to other

portions of Rhode Island's campaign finance law are bootless.

          Nihilo ulterius requiremus pergere.  The judgment below                                                      

will be

Affirmed.          Affirmed.                  

                                42
