254 F.3d 173 (D.C. Cir. 2001)
Federal Election Commission, Appelleev.National Rifle Association of America, et al., Appellants
No. 00-5163
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2001Decided June 29, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeal from the United States District Court  for the District of Columbia (No. 85cv01018)
Richard E. Gardiner argued the cause and filed the briefs  for appellants.  Christopher A. Conte and Michael W. Lojek  entered appearances.
Richard B. Bader, Associate General Counsel, Federal  Election Commission, argued the cause for appellee.  With  him on the brief were Lawrence M. Noble, General Counsel,  and Vivien Clair, Attorney.
Before:  Edwards, Chief Judge, Ginsburg and Tatel,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Concurring opinion filed by Circuit Judge Ginsburg.
Tatel, Circuit Judge:


1
During the 1978, 1980, and 1982  federal election cycles, the National Rifle Association spent  $37,833 on behalf of its political action committee.  In a civil  enforcement action brought by the Federal Election Commission, the district court found that the NRA violated the  Federal Election Campaign Act of 1971, which prohibits  corporations from making contributions or expenditures in  connection with elections for federal office.  On appeal, the  NRA argues that its payments fall into various statutory and  regulatory exceptions to the general prohibition on corporate  contributions.  Alternatively, the NRA argues that because it  is a not-for-profit organization formed to promote the political  views of its members, applying the Act to its activities  violates the First Amendment.  We reject the NRA's statutory claims, as well as its constitutional challenge with respect  to the 1978 and 1982 election cycles.  Although the NRA does  promote the political views of its members, the substantial  contributions it received from for-profit corporations in those  two years justify the application of the Act.  But because the  corporate contributions the NRA received in 1980 were de  minimis, we agree that, on the record before us, the Act  cannot constitutionally be applied to the NRA's activities for  that year.


2
* The Federal Election Campaign Act of 1971 ("FECA"),  2 U.S.C. §§ 431-455, regulates the financing of campaigns for  federal office.  Section 441b(a) prohibits corporations (and  labor organizations, which are not involved in this case) from  making "a contribution or expenditure in connection with any  [federal] election" and also prohibits "any candidate, political  committee, or other person [from] knowingly ... acceptor receiv[ing] any contribution prohibited by this section." Id.   441b(a).  For the purposes of this section, the Act defines "contribution or expenditure" as "any direct or indirect payment, distribution, loan, advance, deposit, or gift of  money, or any services, or anything of value ... to any  candidate, campaign committee, or political party or organization, in connection with any election to any of the offices  referred to in this section."  Id.   441b(b)(2).


3
In FEC v. Massachusetts Citizens for Life, Inc. ("MCFL"),  the Supreme Court articulated the justification for the regulation of corporate political activity:


4
We have described that rationale ... as the need to restrict the influence of political war chests funneled through the corporate form, to eliminate the effect of aggregated wealth on federal elections, to curb the political influence of those who exercise control over large aggregations of capital, and to regulate the substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization.


5
479 U.S. 238, 257 (1986) (internal citations omitted).  FECA  thus "protect[s] the integrity of the marketplace of political  ideas" from the "corrosive influence of concentrated corporate  wealth."  Id.


6
Notwithstanding FECA's prohibition against corporate  contributions to election campaigns, the statute does permit  corporations to participate in the electoral process in a limited  fashion.  Section 441b(b)(2)(C) allows corporations to make  expenditures for "the establishment, administration, and solicitation of contributions to a separate segregated fund to be  utilized for political purposes by a corporation, labor organization, [or] membership organization."  2 U.S.C.    441b(b)(2)(C).  Though the treasuries of a corporation and its fund must be kept separate, Pipefitters Local Union No.  562 v. United States, 407 U.S. 385, 414 (1972), a corporation  can nonetheless control how the separate segregated fund  spends its money, FEC v. Nat'l Right to Work Comm., Inc.,  459 U.S. 197, 200 n.4 (1982);  11 C.F.R.   114.5(d).


7
At issue in this case are campaign-related payments made  by appellant, the National Rifle Association, a not-for-profit  membership organization, and its lobbying and fund-raising  division, the NRA Institute for Legislative Action ("ILA"), on  behalf of the Political Victory Fund ("PVF"), the NRA's  separate segregated fund created pursuant to section  441b(b)(2)(C).  During the 1978, 1980, and 1982 federal election cycles, the NRA paid $37,833 worth of PVF electionrelated expenses for, among other things, direct mail campaigns for and against individual candidates, as well as production and mailing of proand anti-candidate bumper stickers and brochures.  The PVF distributed these materials to  NRA members, firearm dealers, gun and sportsmen clubs,  and gun shows.  NRA money also paid for newspaper advertising, telephone banks, and a fund-raising breakfast for an  individual candidate.  The PVF thereafter reimbursed the  NRA and reported the payments to the Federal Election  Commission as independent expenditures.


8
Suspicious of the PVF's expenditures, the Commission  commenced administrative proceedings, subsequently finding  "reason to believe" that the NRA, ILA, and PVF had violated  FECA.  2 U.S.C.   437g(a)(2).  After conciliation efforts  failed, the Commission found "probable cause to believe" that  the three organizations had violated FECA section 441b.  Id.    437g(a)(4)(A)(i).  Following the failure of additional conciliation efforts, the Commission filed suit seeking declaratory  and injunctive relief in the United States District Court for  the District of Columbia pursuant to section 437g(a)(6)(A),  which authorizes the Commission to seek civil enforcement of  the Act.  See FEC v. NRA, No. 85-1018, at 4-5 (D.D.C. July  27, 1999) (describing the proceedings before the Commission).


9
Defending its actions, the NRA argued that its payments  on behalf of the PVF were "establishment" and "administration" expenses permitted by section 441b(b)(2)(C) and FEC  regulations.  2 U.S.C.   441b(b)(2)(C);  11 C.F.R.   114.1(b). Citing MCFL, the NRA also challenged the constitutionality  of the Act as applied to NRA activities.  In MCFL, the Court  carved out an exception from section 441b for certain political  not-for-profit corporations.  479 U.S. at 254-55, 259-63.  Because such organizations do not present the dangers addressed by the statute--contributions by for-profit corporations to political campaigns--the Court held that requiring  them to create separate segregated funds to finance their  political activities unconstitutionally burdens their First  Amendment free speech rights.  Id.


10
On cross motions for summary judgment, the district court  found that because the NRA made payments from its corporate treasury for the PVF's electioneering expenses and  because the PVF accepted those payments, the NRA, ILA,  and PVF all violated FECA section 441b.  Persuaded by the  Commission's interpretation of "establishment" costs as limited to initial costs incurred in setting up and running political  committees, the district court concluded that the NRA's  payments did not fall under section 441b(b)(2)(C)'s exception  for establishment, administration, and solicitation costs.  FEC  v. NRA, No. 85-1018, at 11.  The court also rejected the NRA's constitutional challenge, id. at 12, finding that because  the organization had not been formed for the express purpose  of promoting political ideas, and because it had no policy  against accepting corporate contributions, it could not qualify  for an MCFL exception.  Mem. & Order Denying Def.'s Mot.  for Recons., FEC v. NRA, No. 85-1018, at 3 (D.D.C. Aug. 1,  1995).  The court imposed a $25,000 fine on the NRA and  ILA, finding them jointly and severally liable, and a separate  $25,000 fine on the PVF.  Final Order & J., FEC v. NRA,  No. 85-1018 (D.D.C. Apr. 3, 2000).  Renewing their statutory  and constitutional arguments, all three organizations appeal.

II

11
The NRA divides the payments it made on behalf of the  PVF into three categories:  payments to third-party vendors,  in-kind payments, and payments for employee time.  According to the Commission, all payments amounted to illegal  corporate contributions because they were "advance[s]" of  funds within the meaning of section 441b(b)(2) and were made  "in connection with" a federal election.  2 U.S.C.  §§ 441b(b)(2), 441b(a).  The NRA argues that because the PVF fully reimbursed the NRA, and because the payments  fell into various statutory and regulatory exceptions, they  were not "contributions" prohibited by the Act.  We consider  each category in turn.

Payments to Third-Party Vendors

12
The NRA paid $3,710.56 to third-party vendors for services  related to the production of election advocacy materials.  The  services included the design, layout, and preparation of mechanical art;  typography for an anti-candidate brochure;  and  data processing and printing for candidate endorsement letters.


13
According to the NRA, these payments did not run afoul of  the Act because they fell within section 441b(b)(2)(C)'s exception for the "establishment [and] administration" costs of the  corporation's separate segregated fund.  Id.   441b(b)(2)(C). FEC regulations define establishment and administration  costs as "the cost of office space, phones, salaries, utilities,  supplies, legal and accounting fees, fund-raising and other  expenses incurred in setting up and running a separate  segregated fund."  11 C.F.R.   114.1(b).  Declaring that this  regulation is "not intended to be read restrictively," the NRA  argues that the definition covers "direct financial support to  the dissemination of communications advocating the election  or defeat of candidates in federal elections."  Appellant's  Opening Br. at 22.  "Were [such expenditures] not provided  by the corporation," the NRA explains, "[they] would be an  administrative burden on the ... fund which would substantially diminish the amount of money available for contributions and expenditures."  Id. at 22-23.


14
The NRA's argument suffers from two defects.  First,  neither the statute nor the regulation requires separate segregated funds to reimburse their corporations for legitimate  administrative expenses.  If the NRA's payments to thirdparty vendors qualified as such expenses, why did the PVF  reimburse the NRA?  Second, the Commission flatly rejects  the NRA's expansive reading of section 114.1(b).  According  to the Commission, that section permits corporations to pay only for the general administrative overhead and start-up  costs of their separate segregated funds--not for expenses  incurred in producing express electoral advocacy.  The Commission points out that another section of its regulations  expressly provides that "[a] corporation ... may not use the  establishment, administration, and solicitation process as a  means of exchanging treasury monies for voluntary contributions."  11 C.F.R.   114.5(b).


15
We review the Commission's interpretation of its own  regulations pursuant to "an exceedingly deferential standard."  Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 625  (D.C. Cir. 2000).  An agency's interpretation "will prevail  unless it is plainly erroneous or inconsistent with the plain  terms of the disputed regulation."  Everett v. United States,  158 F.3d 1364, 1367 (D.C. Cir. 1998) (internal quotation  omitted).  Applying this standard, we see no basis for questioning the Commission's interpretation of section 114.1(b) as  allowing corporations to cover only the overhead and start-up  costs of their separate segregated funds.  The regulation's  list of covered expenses--"office space, phones, salaries, utilities, supplies, legal and accounting fees, fund-raising and  other expenses incurred in setting up and running a separate  segregated fund"--suggests, as the Commission argues, that  the regulation covers only expenses for administrative overhead, not, as the NRA claims, for production and distribution  of political materials.  Moreover, pointing out that FECA  section 441b(b)(2)(C) does not require reimbursement of administrative payments, the Commission argues that treating  direct support for production and dissemination of political  materials as administrative expenses would enable corporations to use section 441b(b)(2)(C) to dispense money from  their treasuries to pay for direct political activity--precisely  what the statute forbids.  Indeed, as the Commission repeatedly emphasizes, section 441b requires strict segregation  of corporate and fund monies, a purpose that would be  undermined by the NRA's broad interpretation of administrative costs.  In support of this view, the Commission cites  Pipefitters for the proposition that section 441b's predecessor  statute was intended to provide


16
a strong prohibition on the use of corporate and union treasury funds to reach the general public in support of, or opposition to, Federal candidates and a limited permission to corporations and unions ... to make political contributions and expenditures financed by voluntary donations which have been kept in a separate segregated fund.


17
407 U.S. at 431.


18
We are equally unpersuaded by the NRA's argument that  its payments to third-party vendors were legal because they  were reimbursed and "made ... for the administrative convenience of [the] PVF."  Appellant's Opening Br. at 24.  Because virtually any reimbursed payment by a corporation to  or for its separate segregated fund could be so characterized,  the NRA's interpretation of section 441b(b)(2)(C)'s administrative cost exception would eviscerate the distinction between corporations and their funds and swallow the statute's  prohibition on corporate advances.

In-Kind Contributions

19
During the three election cycles at issue in this case, the  NRA provided the PVF with $26,076.76 worth of goods and  services.  These in-kind contributions from NRA in-house  inventories and facilities included envelopes, postage, data  processing, photocopying, mail and machine room processing,  and graphics work, all of which the PVF used to produce and  distribute advocacy materials for various election campaigns.


20
In defense of these payments, the NRA cites section  114.9(c) of the Commission's regulations:  "Any person who  uses the facilities of a corporation or labor organization to  produce materials in connection with a Federal election is  required to reimburse the corporation or labor organization  within a commercially reasonable time for the normal and  usual charge for producing such materials in the commercial  market."  11 C.F.R.   114.9(c).  The NRA then points out  that the statute defines "person" as "an individual, partnership, committee, association ... or any other organization or  group of persons."  2 U.S.C.   431(11).  According to the NRA, these provisions, when read together, authorize a separate segregated fund--a "committee" under the terms of the  statute--to use corporate facilities as long as the fund reimburses the corporation.  The NRA argues that because the  PVF reimbursed the NRA within a commercially reasonable  period of time--a claim not disputed by the Commission--the  in-kind payments did not violate FECA.


21
The Commission responds that section 114.9(c) applies only  to the use of corporate facilities by stockholders and employees engaged in individual volunteer activity.  According to the  Commission, it never intended section 114.9(c) to apply to  financial transactions between corporations and their separate segregated funds, which are subject to a different section  of the regulations--section 114.5.  See FEC Advisory Opinion  1984-24, 1 Fed. Election Campaign Fin. Guide (CCH) p 5771,  at 11,083 (concluding that 11 C.F.R.   114.9(c) applies only to  the use of corporate facilities by individuals engaged in their  own volunteer activities and does not authorize a reimbursement payment method for separate segregated funds).  The  Commission explains that it created different rules for separate segregated funds because "[t]he relationship between a  corporation ... and its own separate segregated fund is  unique and raises concerns about circumvention of the prohibition in section 441b that are not presented by others that  are not acting under the corporation's ... control and for its  benefit."  Appellee's Br. at 29.


22
The legality of the NRA's in-kind contributions, like the  legality of its payments to third party vendors, turns on the  Commission's interpretation of its own regulations, so our  review is again at its most deferential.  See Trinity Broad.,  211 F.3d at 625.  Not only has the NRA given us no basis for  questioning the Commission's reasonable reading of section  114.9(c), but the Commission's position comports well with  FECA's basic purpose:  keeping corporate and fund treasuries separate.  Because the relationship between corporations  and their separate segregated funds presents risks that do  not arise when individuals use corporate facilities, it makes  perfect sense for the Commission to distinguish between corporations and individuals, prohibiting reimbursement arrangements for the former but not for the latter.

Payments for Employee Time

23
During the 1980 election cycle, several NRA employees  worked for the PVF on the campaigns of two candidates for  the House of Representatives.  During that time, the employees earned $3,729.64 from the NRA.  The PVF reimbursed  the NRA within 30 days.  In defense of this arrangement, the  NRA points to the definition of "contribution" contained in  section 431, the statute's general definition section:


24
The term contribution includes--(i) any gift, subscription, loan, advance, or deposit ... or anything of value made by any person for the purpose of influencing any election for Federal office;  or (ii) the payment by any person of compensation for the personal services of another person which are rendered to a political committee without charge for any purpose.


25
2 U.S.C.   431(8)(A).  The NRA contends that because the  PVF reimbursed it for the $3,729.64 worth of employee time,  the employees' services were not provided "without charge." According to the NRA, it would have been "absurd" for  Congress to have intended section 431(8)(A)(ii) to require  candidates to pay for personal services either in advance or at  the very moment those services are rendered.  Reading the  Act that way, the NRA argues, would prevent candidates  from using temporary employment agencies without paying in  advance.


26
We think the NRA misreads the statute.  Section  431(8)(A)(ii) has nothing to do with this case.  The issue here  relates to whether the NRA's payments amounted to illegal  corporate contributions within the meaning of section  441b(b)(2), which contains its own definition of contribution: "For the purposes of this section ... the term 'contribution  or expenditure' shall include any direct or indirect payment,  distribution, loan, advance, deposit, or gift of money, or any  services, or anything of value."  This definition includes nothing comparable to section 431(8)(A)(ii)'s provision regarding  "personal services" provided "without charge."


27
In Advisory Opinion 1984-24, moreover, the Commission  expressly ruled that a corporation--in that case the Sierra  Club--may not provide to its separate segregated fund the  services of its employees to work on congressional campaigns,  even if the fund fully reimburses the corporation within thirty  days.  1 Fed. Election Campaign Fin. Guide at 11,082-83. Stating that a "corporation's donation of the services of its  employees and the use of its facilities incident to its employees' services qualifies as a gift of something of value to the  candidate," id. at 11,083, the Commission explained:


28
[T]he initial disbursement of corporate treasury monies is a loan, advance, or something of value to both the candidate and the corporation's separate segregated fund....  None of the exceptions in the Act or regulations remove such a disbursement from the general prohibition of   441b....  [O]nce the [corporation] disburses its treasury funds to pay an employee for political services rendered to a Federal candidate, ... the [corporation] makes a prohibited contribution or expenditure and a violation of the Act occurs....  [A] reimbursement payment method ... does not cause the violation to abate.


29
Id.


30
In response, the NRA, relying on Christensen v. Harris  County, 529 U.S. 576 (2000), argues that FEC advisory  opinions are entitled to no deference.  We disagree.  Distinguishing between interpretive rules and guidelines on the one  hand and "norms that derive from the exercise of the Secretary's delegated lawmaking powers" on the other, Christensen declined to give deference to an opinion letter issued by a  division of the Department of Labor.  Id. at 587 (quoting  Martin v. OSHRC, 499 U.S. 144, 157 (1991)).  The critical  Christensen passage reads:


31
[We] confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal  adjudication or notice-and-comment rulemaking.  Interpretations such as those in opinion letters--like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference.  Instead, interpretations contained in formats such as opinion letters are 'entitled to respect' under our decision in Skidmore v. Swift, 323 U.S. 134, 140 (1944).


32
Id. (internal citations omitted).  Just last week, the Supreme  Court, citing Christensen, declined to give Chevron deference  to U.S. Customs Service ruling letters.  United States v.  Mead Corp., U.S., 121 S.Ct. 2164, 2174, L.Ed.2d (2001).


33
We have previously considered Christensen's implications  for the deference owed to FEC interpretations of FECA,  though in a different context:  an FEC probable cause determination made pursuant to FECA section 437g(a)(4).  See In  re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000).  Pointing  out that Christensen "appeared to make the interpretation's  legal effect the touchstone," id. at 780, we held that, for  several reasons, the probable cause determination and its  underlying statutory interpretation had sufficient legal effect  to warrant Chevron deference.  Id. at 780-81.  First, the  Commission makes probable cause determinations pursuant  to detailed statutory procedures analogous to formal adjudication.  Id. at 780.  The FEC's interpretation of its statute  therefore assumes a "form expressly provided for by Congress."  Id. (citing Martin, 499 U.S. at 157).  Second, in  making probable cause determinations, the Commission fulfills its statutorily granted responsibilities, giving ambiguous  statutory language concrete meaning through case-by-case  adjudication.  Id. Finally, the Commission itself--not its  staff--makes probable cause determinations, which in the  case of a "no probable cause" finding precludes further FEC  enforcement.  Id.


34
FEC advisory opinions possess the same three characteristics.  First, FECA section 437f establishes a detailed framework for issuing advisory opinions.  Any candidate, person, or authorized committee may request an opinion concerning the  statute's application to a "specific transaction."  2 U.S.C.    437f(a)(1).  The Commission must make public all requests  for advisory opinions and "shall accept written comments  submitted by any interested party."  Id.   437f(d).  Second,  in issuing advisory opinions, the Commission fulfills its statutorily granted responsibility to interpret the Act.  See, e.g.,  id.   437f(a)(1).  Indeed, a House Report concerning later  amendments to FECA says quite specifically that "[t]he  Committee reaffirms its opinion that the advisory opinion  process is central to the Commission's responsibility to clarify  the Act."  H.R. Rep. No. 96-422, at 20 (1979);  cf. FEC v.  Democratic Senatorial Campaign Comm., 454 U.S. 27, 37  (1981) (concluding that the FEC is "precisely the type of  agency to which deference should presumptively be afforded").  In pre-Christensen cases involving advisory opinions,  we too have acknowledged that section 437f authorizes the  Commission to formulate general policy with respect to the  Act's administration and to resolve ambiguities in the statute's language.  See, e.g., Orloski v. FEC, 795 F.2d 156, 164  (D.C. Cir. 1986);  cf. In re Sealed Case, 237 F.3d 657, 670  (D.C. Cir. 2001) (concluding that "choices made by FEC  attorneys--without the Commission's ratification and acceptance--do not stand as the authoritative interpretation of the  agency requiring deference").  Finally, advisory opinions  have binding legal effect on the Commission.  Any person  involved in either the specific transaction or another materially indistinguishable transaction may rely on the opinion.  2 U.S.C.   437f(c)(1).  As the Commission pointed out at oral  argument, the statute creates a "safe harbor" for parties who  rely on advisory opinions, providing that "any person who ...  acts in good faith in accordance with the provisions and  findings of such ... opinions shall not ... be subject to any  sanction provided by this Act."  Id.   437f(c)(2).


35
To be sure, Advisory Opinion 1984-24 involved the Sierra  Club, not the NRA, whereas the parties to In re Sealed Case,  223 F.3d 775, were the same parties involved in the earlier  probable cause determination.  But this is a distinction without a significant difference.  Our decision in In re Sealed Case to give Chevron deference to the probable cause determination had nothing to do with the fact that the case and the  earlier proceedings involved the same parties.  The difference  between this case and In re Sealed Case, moreover, does  nothing to change the fact that FEC advisory opinions not  only reflect the Commission's considered judgment made  pursuant to congressionally delegated lawmaking power, but  also have binding legal effect.


36
The appropriateness of giving FEC advisory opinions Chevron deference is reinforced by the significant differences  between them and the Labor Department letter at issue in  Christensen.  Unlike FEC advisory opinions, the Labor Department letter bound neither the requesting party nor the  agency, nor was the letter the product of a statutorily created  decision-making process.  Rather, the Labor Department official who issued the letter did so pursuant to informal agency  procedures.  Virtually every relevant post-Christensen decision has declined to give Chevron deference to just this type  of informal agency action.  See, e.g., Scales v. INS, 232 F.3d  1159, 1165 (9th Cir. 2000) (concluding that a State Department Foreign Affairs Manual is not entitled to deference  because the Attorney General, not the State Department, has  statutory authority to interpret immigration statutes);  Madison v. Res. for Human Dev., 233 F.3d 175, 185-87 (3d Cir.  2000) (denying Chevron deference to interpretations of FLSA  authorized by the Secretary of Labor as interpretive guidelines with no legal effect);  United States v. 162 Megamania  Gambling Devices, 231 F.3d 713, 719 (10th Cir. 2000) (concluding that opinion letters issued by the National Indian  Gaming Commission are not entitled to Chevron deference); Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 365 (4th Cir.  2000) (concluding that a statutory interpretation advanced by  the Secretary of Labor as a litigating position in an amicus  brief was entitled only to Skidmore deference);  Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 829 (10th Cir. 2000)  (holding that agency policies still in draft form are not  entitled to Chevron deference);  Bussian v. RJR Nabisco,  Inc., 223 F.3d 286, 296-97 (5th Cir. 2000) (finding that although public notice was given of a proposed rulemaking, the notice did not focus on the issue involved in a DOL interpretive bulletin, which lacked the force of law, and was therefore  not entitled to Chevron deference).  FEC advisory opinions  are equally distinguishable from the U.S. Customs Service  ruling letter at issue in Mead:  the Court there found "no  indication that Congress meant to delegate authority to Customs to issue classification rulings with the force of law." Mead, U.S., 121 S.Ct. 2164, 2172, L.Ed.2d.


37
This brings us to the Chevron question presented by the  NRA's payments for employee time:  does Advisory Opinion  1984-24 represent a "permissible construction of the statute"? Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467  U.S. 837, 843, 863 (1984).  We think it does.  To begin with,  interpreting "advance" to include a corporation's payment of  its employees to work for its separate segregated fund is  consistent with the statute's language.  Although there may  be other possible interpretations, Chevron deference does not  require that we "conclude that the agency construction was  the only one it permissibly could have adopted ... or even  the reading the court would have reached."  Id. at 843 n.11; see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321  (D.C. Cir. 1998) ("[U]nder Chevron, courts are bound to  uphold an agency interpretation as long as it is reasonable-regardless whether there may be other reasonable, or even  more reasonable, views.").  As the Commission explains,  moreover, its interpretation would not restrict candidates  from using temporary employment agencies without paying in  advance.  The extension of credit by an employment agency,  the Commission points out, would constitute a perfectly legal  arm's length commercial transaction.  But because the NRA  does not engage in the business of contracting out its employees, allowing the PVF to use NRA employees for campaign  work is not "in the ordinary course of [the] corporation's  business."  1 Fed. Election Campaign Fin. Guide at 11,083. Permitting reimbursement arrangements such as the one at  issue here would thus compromise the separation of corporate  and fund treasuries--a separation that both Congress and the  Supreme Court consider essential to preventing the use of corporate wealth to fund political advocacy.  See Pipefitters,  407 U.S. at 414.

III

38
Having rejected the NRA's statutory claims, we turn to its  as-applied constitutional challenge.  The NRA contends that  as a political, not-for-profit membership organization, it is  exempt from FECA under the Supreme Court's decision in  FEC v. Massachusetts Citizens for Life.  In MCFL, the  Supreme Court sustained the Massachusetts Citizens for  Life's as-applied challenge to the statute, finding that section  441b, by encompassing all corporations, swept too broadly. 479 U.S. at 263.  The Court observed that the Act's requirement that corporations establish separate segregated funds to  finance their political activities amounts to a substantial burden that threatens to discourage organizations from engaging  in political speech:


39
These [FECA regulations] may create a disincentive for such organizations to engage in political speech.  Detailed record-keeping and disclosure obligations, along with the duty to appoint a treasurer and custodian of the records, impose administrative costs that many small entities may be unable to bear.  Furthermore, such duties require a far more complex and formalized organization than many small groups could manage.  Restriction of solicitation of contributions to "members" vastly reduces the sources of funding for organizations with either few or no formal members, directly limiting the ability of such organizations to engage in core political speech.  It is not unreasonable to suppose that, as in this case, an incorporated group of like-minded persons might seek donations to support the dissemination of their political ideas and their occasional endorsement of political candidates, by means of garage sales, bake sales, and raffles.  Such persons might well be turned away by the prospect of complying with all the requirements imposed by the Act.  Faced with the need to assume a more sophisticated organizational form, to adopt specific ac counting procedures, to file periodic detailed reports, and to monitor garage sales lest nonmembers take a fancy to the merchandise on display, it would not be surprising if at least some groups decided that the contemplated political activity was simply not worth it.


40
Id. at 254-55.  At the same time, the Court acknowledged  that the statute's "concern over the corrosive influence of  concentrated corporate wealth reflects the conviction that it is  important to protect the integrity of the marketplace of  political ideas."  Id. at 257.  This concern justifies imposing  such a burden in some cases to prevent "resources amassed  in the economic marketplace" from being "used to provide an  unfair advantage in the political marketplace."  Id.;  see also  id. at 258-59.


41
Balancing these interests, the Court concluded that FECA  could not constitutionally be applied to an organization like  the MCFL:


42
MCFL was formed to disseminate political ideas, not to amass capital.  The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace.  While MCFL may derive some advantages from its corporate form, those are advantages that redound to its benefit as a political organization, not as a profit-making enterprise. In short, MCFL is not the type of traditional corporation organized for economic gain that has been the focus of regulation of corporate political activity.


43
Id. at 259 (internal citations omitted);  see also id. at 263.  In  support of this conclusion, the Court pointed to several characteristics of the MCFL that made it look more like a  "[v]oluntary political association" than a traditional business  corporation.  Id. at 263.  First, MCFL members formed the  organization and participated in its activities for the express  purpose of promoting its political ideas.  Id. at 264.  Second,  individuals connected with the MCFL, unlike corporate  shareholders, would have had no economic reason to continue  their association with the organization if they disagreed with  its political positions.  Id.  Finally, because of the MCFL's policy against accepting corporate contributions, the organization could not become a conduit for direct corporate spending  on election campaigns.  Id.


44
A few years later, the Court explored the limits of the  MCFL exception in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).  There, the Michigan Chamber of  Commerce challenged the constitutionality of a state campaign finance statute modeled on FECA.  Again applying a  demanding standard of review, the Court asked whether the  statute "burdens the exercise of political speech and, if it  does, whether it is narrowly tailored to serve a compelling  state interest."  Id. at 657.  This time, however, the Court  upheld the statute, concluding that the Michigan Chamber of  Commerce was not the type of voluntary, political organization that qualified for the MCFL exception.  To begin with,  as the Court pointed out, not all Chamber goals were inherently political.  Id. at 669.  "Unlike MCFL's, the Chamber's  educational activities are not expressly tied to political goals; many of its seminars, conventions, and publications are politically neutral and focus on business and economic concerns." Id. at 662.  Moreover, though the Chamber "lacks shareholders, many of its members may be similarly reluctant to  withdraw as members even if they disagree with the Chamber's political expression, because they wish to benefit from  the Chamber's nonpolitical programs and to establish contacts with the other members of the business community." Id. at 663.  Finally, because more than three-fourths of  Chamber members were corporations, the organization ran  the risk of becoming precisely the type of conduit for corporate funding that the campaign finance statute was designed  to prevent.  Id. at 664.


45
Before addressing the NRA's reasons for believing that it  resembles the MCFL, not the Chamber, we pause to consider  the Commission's contention that because the NRA failed to  raise its constitutional defense in either its answer or a  subsequent amendment, the issue is not properly before us. See Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d  339, 345 (D.C. Cir. 1997) (holding that "a party must first  raise its affirmative defenses in a responsive pleading before it can raise them in a dispositive motion").  According to the  NRA, it did raise the constitutional defense by bringing the  MCFL decision to the district court's attention in a "Notice of  Related Decision" filed on January 6, 1987.  We agree that  this was sufficient.  The requirement that a party raise  affirmative defenses in a responsive pleading is designed to  "give[ ] the opposing party notice of the defense ... and  permit[ ] the party to develop in discovery and to argue  before the District Court various responses to the ... defense."  Harris, 126 F.3d at 343.  The record demonstrates  that the Commission had notice of the NRA's constitutional  claim, conducted discovery on the issue, and had ample  opportunity to respond.


46
The NRA claims entitlement to an MCFL exception because the organization has features "more akin to voluntary  political associations than business firms."  MCFL, 479 U.S.  at 263.  Like the MCFL, the NRA was not formed to amass  capital, and its resources reflect not the "economically motivated decisions of investors and customers, but rather its  popularity in the political marketplace."  Appellant's Opening  Br. at 33.  The very first goal listed in the NRA's bylaws is:


47
To protect and defend the Constitution of the United States, especially with reference to the inalienable right of the individual American citizen guaranteed by such Constitution to acquire, possess, transport, carry, transfer ownership of, and enjoy the right to use arms, in order that the people may always be in a position to exercise their legitimate individual rights of selfpreservation and defense of family, person, and property, as well as to serve effectively in the appropriate militia for the common defense of the Republic and the individual liberty of its citizens.


48
NRA Bylaws, Art. I,   1.  Moreover, the NRA tells us that,  like the MCFL, "NRA members and supporters, unlike  shareholders of a business corporation, 'are fully aware of its  political purposes, and in fact contribute precisely because  they support those purposes.' "  Appellant's Opening Br. at  34 (quoting MCFL, 479 U.S. at 260-61).


49
The NRA acknowledges that it differs from the MCFL in  some respects.  For example, the NRA sponsors seemingly  non-political activities, such as firearm competitions and training classes, and provides non-political goods and services to  its members, such as magazines, fraternal items, and accident  insurance.  The organization also has no policy against accepting corporate contributions.  According to the NRA, however, none of these differences disqualifies it from an MCFL  exception.  The organization's non-political activities and the  individuals participating in them are "supportive of, and  enmeshed with, its primary, and plainly political, purpose." Id. at 36.  The NRA's political mission, moreover, extends  well beyond defending the right to bear arms and includes  the promotion of "public safety, law and order, ... the  national defense,....  hunter safety, ... and hunting as a  shooting sport."  NRA Bylaws, Art. I,  2-5.  Finally, the  NRA argues, because contributions received from for-profit  corporations during the three years at issue in this case  amounted to an "insignificant portion of [its total] revenues,"  its "actual practice was tantamount to such a policy [prohibiting contributions]."  Appellant's Opening Br. at 37.


50
The NRA also distinguishes itself from the Michigan  Chamber of Commerce.  Not only did the Chamber compile  and disseminate information relating to social, civic, and  economic conditions unrelated to any political objectives, but  its publications focused primarily on business and economic  issues.  By contrast, the NRA claims that its publications and  activities all relate to its political goals.  The NRA also  contends that, unlike the Chamber, it neither was established  by business corporations nor has for-profit corporate members.  For these reasons, the NRA believes that, in contrast  to the Chamber, it does not risk becoming a conduit for direct  corporate spending on election campaigns.


51
The Commission has a very different view of the NRA.  In  contrast to the MCFL, described by the Commission as  having a narrow political focus, the NRA performs a wide  variety of services for its members, only some of which are  political in nature.  The Commission points out that in the  1970s the NRA amended its corporate charter to include the education and training of "citizens of good repute in the safe  and efficient handling of small arms" and the promotion of  "public safety, hunter safety, ... [and] efficiency in the use of  such arms on the part of members of law enforcement  agencies [and] of the armed forces."  Certificate of Amendment of the Certificate of Incorporation, May 9, 1978.  The  NRA also sponsors shooting competitions, sells accidental  death and dismemberment insurance, helps train the United  States Olympic shooting team, and provides grants for wildlife studies.  According to the Commission, the NRA's business activities, including its sales of magazines and fraternal  items, also distinguish it from the MCFL, whose resources  came from garage sales, bake sales, dances, raffles, and  picnics.  MCFL, 479 U.S. at 242.


52
As to the issue of corporate contributions, the Commission  reads MCFL and Austin as establishing a prophylactic requirement that an organization have a policy against accepting such contributions in order to qualify for an MCFL  exception.  According to the Commission, because the NRA  has no policy against corporate contributions, and because it  accepted such contributions during the election cycles at issue  in this case, the organization should not be exempted from  the Act.


53
In deciding how to resolve this debate and whether to  apply section 441b to the NRA, we tread within closely  guarded First Amendment territory.  FECA "operate[s] in  an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of  candidates are integral to the operation of the system of  government established by our Constitution."  Buckley v.  Valeo, 424 U.S. 1, 14 (1976).  Precisely because of the fundamental freedoms at stake, MCFL rejected a rigid, bright-line  interpretation that would have subjected all corporations to  FECA requirements, fearing that such an approach might  unduly burden "core political speech."  See 479 U.S. at 263. Instead, "[w]here at all possible, government must curtail  speech only to the degree necessary to meet the particular  problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation."  Id.  at 265.


54
As we read MCFL and Austin, the Commission must  demonstrate that the NRA's political activities threaten to  distort the electoral process through the use of resources  that, as MCFL put it, reflect the organization's "success in  the economic marketplace" rather than the "power of its  ideas."  Id. at 258-59.  And because important First Amendment rights are involved, the Commission "must do more  than simply posit the existence of the disease sought to be  cured.  It must demonstrate that the recited harms are real,  not merely conjectural, and that the regulation will in fact  alleviate these harms in a direct and material way."  Turner  Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (internal  citation omitted);  see also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n.22 (1984) ("[This  Court] may not simply assume that the ordinance will always  advance the asserted state interests sufficiently to justify its  abridgement of expressive activity.").


55
Applying this demanding standard, we think the Commission has failed to demonstrate that the NRA resembles a  business firm more closely than a voluntary political association.  The NRA repeatedly emphasizes not only that its  political and non-political activities interrelate, but also that  its members join precisely because all NRA activities are  enmeshed in the organization's core political purpose--defending the constitutional right to bear arms.  Although the  Commission had full discovery, it offers no factual basis for  questioning these claims.  It merely asserts that the "variety  of activities [the NRA] actually undertook reinforces conclusion" that the NRA's purposes are not strictly political. Appellee's Br. at 40.  This is not enough.  To justify subjecting the NRA to FECA regulation, the Commission must  actually demonstrate that, as in the case of the Michigan  Chamber of Commerce, the NRA's political advocacy is sufficiently distinct from its allegedly non-political activities such  that members who disagree with the former are still likely to  participate in the latter.


56
This conclusion, however, does not end our task.  Notwithstanding the fact that, on this record, the NRA appears to be  a voluntary political association akin to the MCFL, we must  determine whether the corporate contributions it received in  the three years at issue nevertheless justify subjecting it to  FECA's requirements.  After all, the Supreme Court never  would have exempted the MCFL had there been evidence  that, even given the organization's core political mission, it  had accepted substantial corporate contributions that it could  have used for campaign purposes.


57
To begin with, we are unpersuaded by the Commission's  argument that the absence of a policy against the receipt of  corporate contributions automatically makes the NRA ineligible for an MCFL exception.  As we read Austin, the Court  relied not on the Chamber's failure to have a policy against  corporate contributions, but rather on the likelihood that the  Chamber could become a conduit for political spending by its  corporate members.  The Court emphasized that over threefourths of Chamber members were corporations and that  they "could circumvent the Act's restrictions by funneling  money through the Chamber's general treasury."  Austin,  494 U.S. at 664.  All three of our sister circuits to have  addressed this issue have read Austin as we do.  See N.C.  Right to Life, Inc. v. Bartlett, 168 F.3d 705, 714 (4th Cir.  1999) (holding that courts should be concerned with the  amount of contributions received and whether the "acceptance of those contributions means that [the organization] is  serving as a conduit for the type of direct spending by for  profit corporations that creates a threat to the political marketplace") (internal quotation omitted);  FEC v. Survival  Educ. Fund, Inc., 65 F.3d 285, 292-93 (2d Cir. 1995) (noting  that "[t]he only concern that justifies application of   441b to  nonprofit political advocacy corporations is the prospect that  business firms or labor unions would funnel their wealth,  which derives from the commercial marketplace, into the  political marketplace of ideas," and not the absence of a policy  against corporate contributions);  Day v. Holahan, 34 F.3d  1356, 1364 (8th Cir. 1994) (holding that a corporate expenditures statute could not be applied constitutionally to a not-forprofit organization that received no "significant contributions  from for-profit corporations," even though it did not have a  policy against such contributions).  Were we to interpret  Austin differently, an organization that has no policy banning  corporate contributions but that nevertheless receives no such  contributions would be subject to the statute despite the fact  that it would not be serving as a conduit for corporate  campaign contributions.  We agree with the Second Circuit  that a not-for-profit organization with no corporate ties "does  not surrender its First Amendment freedoms for the want of  ... a policy" against corporate contributions.  Survival Educ.  Fund, 65 F.3d at 293.


58
Like our sister circuits, we therefore focus not on the  absence of a policy against corporate contributions, but on  whether such contributions could have turned the NRA into a  potential conduit for corporate funding of political activity. In 1978 and 1982, the NRA received $7000 and $39,786,  respectively, in contributions from for-profit corporations. We disagree with the NRA that because these contributions  represented a small percentage of its total revenues, they  were de minimis and thus beyond the Act's purview.  See  Day, 34 F.3d at 1365 ("[T]he key issue here is the amount of  for-profit corporate funding a nonprofit receives.") (emphasis  added).  The harm contemplated by the statute stems from  the absolute amount of corporate money an organization has  to spend in the political process, not from the relationship  between corporate contributions and the organization's total  revenues.  But see N.C. Right to Life, 168 F.3d at 714  (holding that because corporate contributions represented a  "modest percentage" of the right to life organization's revenues, the organization qualified for the nonprofit exemption)  (emphasis added);  Survival Educ. Fund, 65 F.3d at 293  (same).  Because corporate contributions in 1978 and 1982  were substantial, we see no constitutional barrier to applying  the Act to the NRA for those two years.


59
But 1980 is a different matter.  In that year, the NRA  received only $1000 in corporate contributions.  Hinting that  the actual amount might be greater, the Commission points  out that the organization did not record corporate contributions of less than $500.  But First Amendment rights cannot  turn on such speculation.  See Turner, 512 U.S. at 664.  The  Commission also points to the substantial revenues the NRA  received from corporate advertising in its magazines, yet  offers nothing to suggest that the purchasing of advertisements was not legitimate.  Because we consider the $1000 to  be de minimis, and because the Commission, as an alternative  to its argument that the NRA lacks a policy against corporate  contributions, does not claim that even this small amount  demonstrates that the organization was serving as a conduit  for corporate funding of election campaigns, we hold that the  Act cannot constitutionally be applied to the NRA for the  1980 election cycle.

IV

60
The decision of the district court is vacated, and this matter  is remanded with instructions to recalculate the penalties  based on the 1978 and 1982 violations.


61
So ordered.

Ginsburg, Circuit Judge, concurring:

62
I write separately to  point out that the Commission's interpretation of 2 U.S.C.    441b, to which the court accords deference under Chevron  step two, see Ct. Op. at 15-16, seems to be inconsistent with  the statute.  Because the NRA failed to argue the point,  however -although it feints in the right direction -I join in  the court's opinion, leaving the neglected argument to another  day when it may be fully developed and debated by the  parties.


63
Section 441b prohibits "any corporation" from making a  "contribution or expenditure in connection with any election  to any political office."  2 U.S.C.   441b(a).  The statute  defines "contribution or expenditure" broadly as


64
any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business).


65
Id.   441b(b)(2).  The Commission holds it unlawful for a  corporation's employees to provide services for the benefit of  a candidate and for which the corporation is reimbursed by  its separate segregated fund within a commercially reasonable time;  this arrangement, according to the Commission,  involves the corporation giving a "loan, advance, or something  of value to both the candidate and the corporation's separate  segregated fund."  FEC Advisory Opinion 1984-24, 1 Fed.  Election Campaign Fin. Guide (CCH) p 5771, at 11,083.  This  near quotation of the statutory definition of "contribution,"  see 2 U.S.C.   441b(b)(2) ("contribution" means "loan, advance, ... or anything of value") makes it clear that the  Commission views that definition as embracing the extension  of ordinary trade credit for the period between rendition of  the services and reimbursement therefor.


66
The Commission's interpretation is not necessarily unreasonable.  It does, however, imply that a corporate vendor  may not lawfully enter into an ordinary commercial contract  with a candidate to provide goods and services for which the  candidate will be subsequently and promptly billed.  The


67
NRA argues in particular that the Commission's interpretation must be in error because it would be impractical and  "absurd" to require a candidate wishing to engage a temporary personnel firm to pay for such services in advance;  for  the ordinary arrangement whereby services are rendered and  the bill then paid would constitute an illegal "loan, advance or  something of value" provided to the candidate by the firm. The same might be said also of in-kind contributions, see Ct.  Op. at 8-10 -although the argument is not relevant to the  NRA's third-party contributions, which indisputably are advances, see Ct. Op. at 181-82.


68
The Commission responds to this criticism by invoking its  own regulation under which a corporation may "extend credit  to a candidate ... provided that the credit is extended in the  ordinary course of a corporation's business and the terms are  substantially similar to extensions of credit to nonpolitical  debtors."  11 C.F.R.   114.10(a) (1980), current version at 11  C.F.R.   116.3(b) (2000);  see 1 Fed. Election Campaign Fin.  Guide at 11,083 to 11,083-2.  By recognizing this "exception  in the ... regulations," 1 Fed. Election Campaign Fin. Guide  at 11,083, the Commission makes its ban upon rendering  services to a candidate in advance of payment applicable only  to corporations not acting in the ordinary course of business -such as the NRA or other corporations "more akin to  voluntary political associations than business firms," FEC v.  Massachusetts Citizens for Life, Inc., 479 U.S. 238, 263  (1986).


69
The statute, however, unequivocally prohibits "any corporation" -commercial or ideological -from providing "any ...  loan [or] advance," etc., to a candidate without regard to  whether it does so in the ordinary course of business.  2  U.S.C.   441b(a).  It is clear, moreover, that the Congress  considered whether the Act might prohibit ordinary commercial transactions and crafted an exception to the Act in order  to avoid that result:  no corporation may make a "loan" to a  candidate "except a loan of money by a national or State bank  made ... in the ordinary course of business."  Id.    441b(b)(2).  No such exception is provided for corporations  other than banks.  "[W]here Congress includes particular language in one section of a statute but omits it in another  section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."  Russello v. United States, 464 U.S. 16, 23  (1983) (internal quotations and citations omitted);  see also  NextWave Personal Communications, Inc. v. FCC,  254 F.3d 130, 152-53 (D.C.Cir. 2001).


70
The Commission might reasonably read   441b strictly and  deem an ordinary commercial transaction, that is, one in  which performance precedes payment, a prohibited "loan,  advance ... or [ ]thing of value."  2 U.S.C.   441b(b)(2). Perhaps it could also reasonably permit such a transaction by  reading that phrase as not including the extension of ordinary  trade credit for services rendered if payment is made within a  commercially reasonable time.  What the Commission cannot  reasonably do, however, is distinguish between the provision  of a service by a commercial vendor in the ordinary course of  business and the provision of the same service by a noncommercial corporation not in the ordinary course of its  business;  the statute, with its explicit exception for banks  acting in the ordinary course of business, cannot reasonably  be read to contain a broader but implicit exception for  commercial vendors acting in the ordinary course of business.


71
Nor do I see how holding that the Commission may not ban  the extension of ordinary trade credit by a corporation to a  candidate or to its separated segregated fund except when  such credit is extended in the ordinary course of business  would meaningfully "compromise the separation" between a  corporation's treasury and that of its separate segregated  fund, see Ct. Op. at 15.  Were the Commission to construe  "advance" broadly, and thus to bar services not paid for in  advance -whether provided by a commercial vendor or by  any other corporation -that separation would not be affected at all.  Were the Commission to construe "loan, advance,  ... or anything of value" narrowly, and thus to permit the  provision of services by any corporation so long as it was  promptly reimbursed by the segregated fund, the corporation  presumably would still be required to provide such services  upon commercially reasonable terms.  That a fund and the  candidates it supports could briefly enjoy the time value of  not paying for employee services until billed in the ordinary


72
course would in no way alter the relationship between the  corporation andthe separate segregated fund envisioned in  the Act.

