Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NORTH CAROLINA RIGHT TO LIFE,
INCORPORATED,
Plaintiff-Appellant,
and
NORTH CAROLINA RIGHT TO LIFE
POLITICAL ACTION COMMITTEE; NORTH
CAROLINA RIGHT TO LIFE COMMITTEE
FUND FOR INDEPENDENT POLITICAL
EXPENDITURES,
Plaintiffs,
v.
LARRY LEAKE, in his official
capacity as Chairman of the North
Carolina State Board of Elections;
ROY COOPER; GENEVIEVE C. SIMS, in
No. 07-1438
her official capacity as Secretary of
the State Board of Elections;
ROBERT CORDLE, in his official
capacity as a member of the State
Board of Elections; LORRAINE G.
SHINN, in her official capacity as a
member of the State Board of
Elections; CHARLES WINFREE, in his
official capacity as a member of the
State Board of Elections; ROBERT F.
JOHNSON, in his official capacity as
District Attorney for North Carolina
Prosecutorial District 15A,
Defendants-Appellees.
2 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
NORTH CAROLINA RIGHT TO LIFE,
INCORPORATED; NORTH CAROLINA
RIGHT TO LIFE POLITICAL ACTION
COMMITTEE; NORTH CAROLINA
RIGHT TO LIFE COMMITTEE FUND FOR
INDEPENDENT POLITICAL
EXPENDITURES,
Plaintiffs-Appellees,
v.
LARRY LEAKE, in his official
capacity as Chairman of the North
Carolina State Board of Elections;
ROY COOPER; GENEVIEVE C. SIMS, in
her official capacity as Secretary of No. 07-1439
the State Board of Elections;
ROBERT CORDLE, in his official
capacity as a member of the State
Board of Elections; LORRAINE G.
SHINN, in her official capacity as a
member of the State Board of
Elections; CHARLES WINFREE, in his
official capacity as a member of the
State Board of Elections; ROBERT F.
JOHNSON, in his official capacity as
District Attorney for North Carolina
Prosecutorial District 15A,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:99-cv-00798-BO)
Argued: December 4, 2007
Decided: May 1, 2008
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 3
Before WILLIAMS, Chief Judge, and WILKINSON and
MICHAEL, Circuit Judges.
Affirmed in part and reversed in part by published opinion. Judge
Wilkinson wrote the majority opinion, in which Chief Judge Williams
joined. Judge Michael wrote a dissenting opinion.
COUNSEL
ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre
Haute, Indiana, for Appellant/Cross-Appellees. Susan Kelly Nichols,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees/Cross-
Appellants. ON BRIEF: Richard E. Coleson, Jeffrey P. Gallant,
BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for
Appellant/Cross-Appellees. Roy Cooper, Attorney General, Alexan-
der McC. Peters, Special Deputy Attorney General, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees/Cross-Appellants.
OPINION
WILKINSON, Circuit Judge:
In this case, North Carolina Right to Life, Inc. ("NCRL") and two
of its affiliated political committees challenge the constitutionality of
various provisions of North Carolina’s law governing the financing of
political campaigns. For the reasons that follow, we hold that the pro-
visions in question violate the First and Fourteenth Amendments —
and are hence unenforceable against NCRL, its affiliates, and any
similarly situated entities.
In doing so, we recognize that the law of campaign finance is quite
complicated and in some flux. Courts, state governments, and those
involved in the political process are doing what they can to navigate
4 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
this difficult terrain, and we are conscious of the fact that North Caro-
lina went back in good faith to the drawing board to craft a legislative
response to our earlier decision in North Carolina Right to Life, Inc.
v. Bartlett, 168 F.3d 705 (4th Cir. 1999). But it is nevertheless our
unflagging obligation to apply constitutional standards to state legisla-
tive enactments, and, in doing so here, we find that the provisions
before us simply go too far in regulating ordinary political speech to
be considered constitutional.
I.
A.
Three related plaintiffs challenge the constitutionality of North
Carolina’s campaign finance laws. The lead plaintiff is North Caro-
lina Right to Life, Inc. ("NCRL"), a non-profit, membership corpora-
tion, incorporated in North Carolina. NCRL’s purpose is the
protection of human life. In furtherance of that purpose, NCRL,
among other things, provides information to the public about abortion
and euthanasia. In the past, NCRL has directly contributed to candi-
dates for state office, although it did not do so during the election
cycle immediately preceding the commencement of this suit. NCRL
claims that its reluctance to contribute resulted from its fear of being
designated a "political committee" under North Carolina election law,
as such committees are subject to numerous reporting and other
requirements.
The other two plaintiffs in this case are distinct legal entities affili-
ated with NCRL. First, North Carolina Right to Life Political Action
Committee ("NCRL-PAC") is an internal political committee estab-
lished by NCRL in 1982. NCRL-PAC’s primary purpose is to engage
in express advocacy — the support or opposition of specific candi-
dates and political parties — consistent with the views of NCRL. Sec-
ond, North Carolina Right to Life Committee Fund for Independent
Political Expenditures ("NCRL-FIPE") is a political committee estab-
lished by NCRL in 1999. NCRL-FIPE’s sole purpose is to make inde-
pendent expenditures, which are defined as those political
expenditures "made without consultation or coordination with a can-
didate or agent of a candidate." N.C. Gen. Stat. § 163-278.6(9a)
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 5
(2007). Thus, unlike NCRL and NCRL-PAC, NCRL-FIPE makes no
contributions of any kind to political candidates.
B.
This appeal is the next act in a long drama that has played out in
federal court for over a decade. The foundation of the present litiga-
tion was laid in 1996, when NCRL filed suit in federal district court
arguing that several provisions of the North Carolina campaign
finance laws were unconstitutional under the First and Fourteenth
Amendments. This court largely agreed with NCRL and struck down
many of the laws in North Carolina Right to Life, Inc. v. Bartlett, 168
F.3d 705 (4th Cir. 1999) ("NCRL I"), cert. denied, 528 U.S. 1153
(2000).
In response to this court’s decision, the North Carolina General
Assembly set out to revise its system of campaign finance regulation.
After studying and debating the issue, the General Assembly passed
legislation that amended, deleted, and added statutes regulating cam-
paign finance. See N.C. Sess. Laws 1999-31, 424, & 453.
On November 30, 1999, immediately after North Carolina obtained
pre-clearance from the Department of Justice to implement its new
campaign finance regulations, NCRL, NCRL-PAC, and NCRL-FIPE
(collectively, "the plaintiffs") filed the present suit against various
North Carolina officers in their official capacities (collectively,
"North Carolina" or "the defendants"). The plaintiffs sought declara-
tory and injunctive relief under 42 U.S.C. § 1983 and the First and
Fourteenth Amendments, arguing that the court should enjoin the
enforcement of five of North Carolina’s new campaign finance stat-
utes against the plaintiffs and similarly situated parties.
Three of the plaintiffs’ challenges are relevant to this appeal.1 First,
the plaintiffs argued that North Carolina unconstitutionally regulated
issue advocacy in prescribing a standard that, through context,
1
The two other statutes challenged by the plaintiffs, N.C. Gen. Stat.
§ 163-278.12A and N.C. Gen. Stat. § 163-278.39(a)(3), have been
repealed. Therefore, these challenges are moot. See North Carolina Right
to Life, Inc. v. Leake, 482 F. Supp. 2d 686, 697-98 (E.D.N.C. 2007).
6 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
attempts to determine if a communication supports or opposes the
nomination or election of a particular candidate (the "context prong").
See N.C. Gen. Stat. § 163-278.14A(a)(2) (2007). Second, the plain-
tiffs challenged the constitutionality of North Carolina’s definition of
"political committee," because it threatened to impose numerous and
burdensome obligations on organizations not primarily focused on
nominating and electing political candidates. See id. § 163-278.6(14).
Finally, the plaintiffs argued that North Carolina unconstitutionally
applied contribution limits to political committees, such as NCRL-
FIPE, which make only independent expenditures and do not contrib-
ute to candidates’ campaigns. See id. § 163-278.13.
On September 23, 2003, this court affirmed the district court’s
judgment as to the facial unconstitutionality of the "context prong,"
and the unconstitutionality of the contribution limits, as applied to
NCRL-FIPE. See North Carolina Right to Life v. Leake, Inc., 344
F.3d 418, 435 (4th Cir. 2003) ("NCRL II"). The court likewise held
that the definition of political committee was unconstitutionally over-
broad. Id. It thus enjoined the enforcement of all of the statutory pro-
visions at issue.
North Carolina subsequently petitioned the Supreme Court for cer-
tiorari, asking that the matter be remanded for further consideration
in light of the Court’s then recent decision in McConnell v. FEC, 540
U.S. 93 (2003). On April 26, 2004, the Supreme Court granted North
Carolina’s petition, vacated this court’s decision, and remanded the
case to the Fourth Circuit for further consideration in light of McCon-
nell. Leake v. North Carolina Right to Life, Inc., 541 U.S. 1007
(2004). This court in turn remanded the case to the district court on
August 12, 2004.
On remand, the parties filed cross motions for summary judgment
and supporting memoranda addressing the effect of McConnell. In
addition, North Carolina argued, relying partly on McConnell, that the
plaintiffs lacked standing because they had failed to take action after
the statutes in question had been enjoined.
On March 29, 2007, the district court found that the plaintiffs still
had standing to proceed with their challenges.2 See North Carolina
2
We agree with the district court’s determination that the plaintiffs
have standing to pursue their claims. North Carolina law makes it a mis-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 7
Right to Life, Inc. v. Leake, 482 F. Supp. 2d 686, 692-93 (E.D.N.C.
2007). In addition, the district court found that, even after McConnell,
the context prong remained facially unconstitutional, and North Caro-
lina’s contribution limits remained unconstitutional as applied to inde-
pendent expenditure committees such as NCRL-FIPE. See id. at 699-
700. Finally, the district court held that North Carolina’s definition of
political committee was unconstitutional only insofar as it incorpo-
rated the context prong. The definition of political committee was left
otherwise enforceable. Id.
Both parties appeal from this decision. The plaintiffs argue that
North Carolina’s definition of political committee is unconstitution-
ally vague and substantially overbroad, and should therefore be
enjoined. See N.C. Gen. Stat. § 163-278.6(14) (2007). North Carolina
challenges the district court’s decisions holding the "context prong"
facially unconstitutional, see id. § 163-278.14A(a)(2), and the contri-
bution limits unconstitutional as applied to NCRL-FIPE, see id.
§ 163-278.13.
II.
We first consider whether North Carolina’s method for determining
if a communication "supports or opposes the nomination or election
demeanor to "intentionally violate[ ]" various North Carolina campaign
finance statutes, including the contribution limit at issue in this case and
several provisions triggered by North Carolina’s definitions of political
committee and electoral advocacy. See N.C. Gen. Stat. § 163-278.27
(2007).
As we held in NCRL I, when a "plaintiff faces a credible threat of pros-
ecution under a criminal statute he has standing to mount a pre-
enforcement challenge to that statute." NCRL I, 168 F.3d at 710. A stat-
ute that "‘facially restrict[s] expressive activity by the class to which the
plaintiff belongs’ presents such a credible threat," id. (quoting New
Hampshire Right to Life PAC v. Gardner, 99 F.3d 8, 15 (1st Cir. 1996)),
particularly if it threatens to "chill the exercise of First Amendment
rights," NCRL I, 168 F.3d at 710. Since the statutes challenged by the
plaintiffs threaten to subject them to prosecution, and the plaintiffs are
therefore "chilled" from engaging in potentially protected First Amend-
ment political expression, standing exists in this case.
8 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
of one or more clearly identified candidates" unconstitutionally regu-
lates issue advocacy.
A.
Many of North Carolina’s campaign finance regulations — includ-
ing, for example, reporting requirements and contribution limits —
are focused on campaign expenditures and contributions. See, e.g., id.
§ 163-278.8; § 163-278.11; § 163-278.13. Both "expenditure" and
"contribution" are terms of art specifically defined in North Carolina’s
General Statutes. Expenditures are defined to include any "purchase,
advance, conveyance, deposit," etc., made "to support or oppose the
nomination [or] election . . . of one or more clearly identified candi-
dates." Id. § 163-278.6(9). Contributions — at least "to candidates" —
are similarly defined as those "advance[s], conveyance[s]," etc., that
are made "to support or oppose the nomination or election of one or
more clearly identified candidates." Id. § 163-278.6(6). Since the defi-
nitions of "expenditure" and "contribution" are both limited — at least
in part — by this same verbal formula, the determination as to
whether an action is taken "to support or oppose . . . a clearly identi-
fied candidate" is thus one of the foundations of North Carolina’s
campaign finance regulatory scheme.
Section 163-278.14A(a) of North Carolina’s General Statutes
employs a two-pronged test to determine whether "an individual acted
to ‘to support or oppose the nomination or election of one or more
clearly identified candidates.’" Each of the two prongs of § 163-
278.14A(a) delineates a class of "communications." If an individual
"financial[ly] sponsor[s]" a "communication" that meets either of the
two prongs, he or she is deemed to have acted in support or opposi-
tion of a clearly identified candidate.
The first prong of § 163-278.14A(a) classifies communications as
supporting or opposing a clearly identified candidate when they
explicitly use any of a set of carefully delineated election-related
words or phrases. See id. § 163-278.14A(a)(1). Examples of such
phrases include: "vote for," "reelect," "support," "cast your ballot for,"
and "(name of candidate) for (name of office)." Id.
In an attempt to capture communications that support or oppose
candidates while avoiding the use of the words explicitly delineated
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 9
by the first prong, the second prong of North Carolina’s test considers
a communication to be in support or opposition of a candidate if its
"essential nature . . . goes beyond a mere discussion of public issues
in that [it] direct[s] voters to take some action to nominate, elect, or
defeat a candidate in an election." Id. § 163-278.14A(a)(2). In particu-
lar, if the "essential nature" of a communication is "unclear," the stat-
ute states that regulators "may" consider:
contextual factors such as the language of the communica-
tion as a whole, the timing of the communication in relation
to events of the day, the distribution of the communication
to a significant number of registered voters for that candi-
date’s election, and the cost of the communication . . . in
determining whether the action urged could only be inter-
preted by a reasonable person as advocating the nomination,
election, or defeat of that candidate in that election.
Id.
The plaintiffs in this case argue that the second prong of N.C. Gen.
Stat. § 163-278.14A(a) — which attempts to determine the "essential
nature" of a communication by considering "contextual factors" — is
unconstitutionally overbroad and vague. In particular, the plaintiffs
allege that, in enacting this context-based prong, North Carolina’s
legislature exceeded its limited power to regulate electoral speech and
violated the plaintiffs’ First and Fourteenth Amendment rights by reg-
ulating constitutionally protected political speech. The plaintiffs fur-
ther contend that "there is no way for a speaker to know in advance
how to determine" if their communication falls within the ambit of the
context-based prong, therefore rendering § 163-278.14A(a)(2) void
for vagueness. Appellant Reply Brief at 44.
B.
Our analysis of § 163-278.14A(a)(2) begins — as does nearly any
analysis of the constitutionality of campaign finance regulation —
with the Supreme Court’s landmark decision in Buckley v. Valeo, 424
U.S. 1 (1976) (per curiam). In Buckley, the Court recognized that leg-
islatures have the well established power to regulate elections, id. at
13, and that, pursuant to that power, they may establish standards that
10 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
govern the financing of political campaigns. In particular, the Court
identified "limit[ing] the actuality and appearance of corruption" as an
important governmental interest served by campaign finance regula-
tion. Id. at 26. The Court simultaneously noted, however, that cam-
paign finance restrictions "operate in an area of the most fundamental
First Amendment activities," and thus threaten to limit ordinary "po-
litical expression." Id. at 14.
The Buckley Court therefore recognized the need to cabin legisla-
tive authority over elections in a manner that sufficiently safeguards
vital First Amendment freedoms. It did so by demarcating a boundary
between regulable election-related activity and constitutionally pro-
tected political speech: after Buckley, campaign finance laws may
constitutionally regulate only those actions that are "unambiguously
related to the campaign of a particular . . . candidate." Id. at 80. This
is because only unambiguously campaign related communications
have a sufficiently close relationship to the government’s acknowl-
edged interest in preventing corruption to be constitutionally regul-
able. Id.
To date, the Court has only recognized two categories of activity
that fit within Buckley’s unambiguously campaign related standard.
First, legislatures may regulate "communications that in express terms
advocate the election or defeat of a clearly identified candidate for"
public office. Id. at 44. In particular, Buckley delineated specific
words that exemplify such "express advocacy" — words "such as
‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Con-
gress,’ ‘ vote against,’ ‘defeat,’ ‘reject.’" Id. at 44 n.52. Buckley thus
stands for the proposition that legislatures may constitutionally regu-
late communications that use the obviously campaign-related "magic
words of express advocacy." See Fed. Election Comm’n v. Wisconsin
Right to Life, Inc., 127 S. Ct. 2652, 2681 (2007) ("WRTL") (Scalia,
J., dissenting). Focusing regulation in this way ensures that campaign
finance restrictions do not sweep so broadly as to restrict ordinary
political speech.
Second, the Supreme Court has recently held that legislatures have
a very limited authority to regulate campaign communications that are
"the functional equivalent of express advocacy." McConnell v. Fed.
Election Comm’n, 540 U.S. 93, 206 (2003); see also WRTL, 127 S.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 11
Ct. at 2664. Under Buckley’s "express advocacy" standard, the Court
recognized that advertisers were able to insulate themselves from reg-
ulation by simply "eschewing the use of magic words." McConnell,
540 U.S. at 193. Since advertisements could be free of magic words,
but "no less clearly intended to influence [an] election," the Court
stated that strict adherence to Buckley’s approach could render the
legislative power to regulate elections "functionally meaningless." Id.
The Court thus defined a category of activity — beyond the "magic
words" identified in Buckley — to be regulable as the "functional
equivalent of express advocacy." In order to protect political expres-
sion, however, the Court has narrowly circumscribed this category,
because any attempt to identify communications as election-related
without focusing on words that explicitly label them as such threatens
to infringe on protected First Amendment liberties. See WRTL, 127 S.
Ct. at 2663-70.
Therefore, to be considered the "functional equivalent of express
advocacy," a communication must meet two separate requirements.
First, the communication must qualify as an "electioneering commu-
nication," defined by the Bipartisan Campaign Reform Act of 2002
("BCRA"), 116 Stat. 91, 2 U.S.C. § 434(f)(3)(A)(i) (2000 ed. & Supp.
IV), as a "broadcast, cable, or satellite communication" that refers to
a "clearly identified candidate" within sixty days of a general election
or thirty days of a primary election. WRTL, 127 S. Ct. at 2669 n.7
(stating that a communication must meet the "brightline require-
ments" of the BCRA’s definition of "electioneering communication"
to be regulable as the "functional equivalent of express advocacy").
Second, a communication can be deemed the "functional equiva-
lent of express advocacy only if [it] is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a specific
candidate." Id. at 2667. The purpose of this requirement is to avoid
chilling political expression by forcing a speaker to have to defend his
communication from regulation. See id. at 2666-67. Thus, for any test
to meet the "functional equivalent" standard, it must "eschew ‘the
open-ended rough-and-tumble of factors,’" which invite burdensome
discovery and lengthy litigation. Id. at 2666 (quoting Jerome B. Gru-
bart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547
(1995)). Taken together, these two requirements should be suffi-
12 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
ciently "protective of political speech" to allow legislatures to regulate
beyond Buckley’s "magic words" approach. Id. at 2669 n.7.
Before we apply these standards to N.C. Gen. Stat. § 163-
278.14A(a)(2), a quick summary is in order. Pursuant to their power
to regulate elections, legislatures may establish campaign finance
laws, so long as those laws are addressed to communications that are
unambiguously campaign related. The Supreme Court has identified
two categories of communication as being unambiguously campaign
related. First, "express advocacy," defined as a communication that
uses specific election-related words. Second, "the functional equiva-
lent of express advocacy," defined as an "electioneering communica-
tion" that "is susceptible of no reasonable interpretation other than as
an appeal to vote for or against a specific candidate." This latter cate-
gory, in particular, has the potential to trammel vital political speech,
and thus regulation of speech as "the functional equivalent of express
advocacy" warrants careful judicial scrutiny.
C.
Given the Supreme Court’s articulation of the permissible extent of
campaign finance legislation, it is clear that N.C. Gen. Stat. § 163-
278.14A(a)(2) is unconstitutional. Section 163-278.14A(a)(2) regu-
lates speech that is neither "express advocacy" nor its "functional
equivalent" and, therefore, strays too far from the regulation of elec-
tions into the regulation of ordinary political speech.
To begin, § 163-278.14A(a)(2) clearly regulates more than "ex-
press advocacy." Section 163-278.14A(a)(1) — the first prong of
North Carolina’s attempt to identify speech that supports or opposes
a candidate — codifies Buckley’s "magic words"-based approach.
Since the context-based prong of § 163-278.14A(a)(2) does not iden-
tify speech as regulable by delineating election-related words or
phrases, its scope, by definition, extends beyond express advocacy.
To be constitutional, therefore, the regulatory scope of § 163-
278.14A(a)(2) must fall within the ambit of the Supreme Court’s defi-
nition of the "functional equivalent of express advocacy." It does not,
however, since it fails to meet either of the two requirements estab-
lished by the Supreme Court relating to that term of art. First, § 163-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 13
278.14A(a)(2) does not meet the BCRA’s definition of "electioneer-
ing communication." The BCRA carefully limited the definition of
"electioneering communications" to communications that refer to spe-
cific people — "clearly identified candidates" — for a specific period
of time before an election — thirty days before a primary and sixty
days before a general election. In contrast, § 163-278.14A(a)(2) tries
to divine the "essential nature" of a communication from the perspec-
tive of a "reasonable person," and it does so without explicitly limit-
ing its scope to either specific people or a specific time period.
Second, it cannot be said that communications falling within the
ambit of § 163-278.14A(a)(2) are "susceptible of no reasonable inter-
pretation other than as an appeal to vote for or against a specific can-
didate." As stated earlier, WRTL specifically counseled against the use
of factor-based standards to define the boundaries of regulable
speech, since such standards typically lead to disputes over their
meaning and therefore litigation. See WRTL, 127 S. Ct. at 2666.
Section 163-278.14A(a)(2) runs directly counter to the teaching of
WRTL when it determines whether speech is regulable based on how
a "reasonable person" interprets a communication in light of four
"contextual factors." This sort of ad hoc, totality of the circumstances-
based approach provides neither fair warning to speakers that their
speech will be regulated nor sufficient direction to regulators as to
what constitutes political speech. The very terms of North Carolina’s
statute — including, but not limited to, "essential nature," "the lan-
guage of the communication as a whole," "the timing of the commu-
nication in relation to events of the day," "the distribution of the
communication to a significant number of registered voters for that
candidate’s election," and "the cost of the communication" — are
clearly "susceptible" to multiple interpretations and capable of
encompassing ordinary political speech unrelated to electoral activity.
For instance, how is a speaker — or a regulator for that matter — to
know how the "timing" of his comments "relate" to the "events of the
day"? Likewise, how many voters would be considered "significant"?
And at what "cost" does political speech become regulable?
There is no answer to any of these questions. At least not in the text
of § 163-278.14A(a)(2). Neither the regulator nor the regulated can
possibly be expected to know when the "essential nature" of speech
14 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
is deemed to "direct voters to take some action to nominate, elect, or
defeat a candidate in an election" based on these vague criteria. Thus,
§ 163-278.14A(a)(2) fails to satisfy the second requirement of the
Supreme Court’s "functional equivalent of express advocacy"
approach.
It is in short quite clear that the scope of N.C. Gen. Stat. § 163-
278.14A(a)(2) extends beyond both "express advocacy" and its "func-
tional equivalent." Section 163-278.14A(a)(2) is not limited to an
express group of election-related words, and its ad hoc, context-
based, totality of the circumstances approach is "susceptible" of inter-
pretations "other than as an appeal to vote for or against a specific
candidate." It is therefore necessary for us to strike § 163-
278.14A(a)(2) as unconstitutional.
To do otherwise would offend basic First Amendment values. In
limiting campaign finance regulation to "express advocacy" and its
"functional equivalent," the Supreme Court struck a balance between
the legislature’s authority to regulate elections and the public’s funda-
mental First Amendment right to engage in political speech. By care-
fully defining both of these terms of art, the Court not only cabined
the legislature’s regulatory power, but it also ensured that potential
speakers would have clear notice as to what communications could be
regulated, thereby ensuring that political expression would not be
chilled.
Section 163-278.14A(a)(2) upsets this balance. Section 163-
278.14A(a)(2), as noted, does not conform with the definition of
either "express advocacy" or "the functional equivalent of express
advocacy," and therefore threatens to regulate the ordinary political
speech that is democracy’s lifeblood. Whether the speech is pro-life,
pro-choice, or somewhere in between makes no difference — it
addresses an issue of unquestioned public import, and it is on that
account protected. And even if some regulable speech falls within the
ambit of § 163-278.14A(a)(2), the statute’s open-ended terms do not
lend themselves to a principled limiting construction, nor does the
State even propose one. See NCRL II, 344 F.3d at 428 (finding that
§ 163-278.14A(a)(2) is not "readily susceptible" to a limiting con-
struction). Furthermore, these same open-ended terms provide little ex
ante notice to political speakers as to whether their speech will be reg-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 15
ulated. Instead, speakers are left to guess and wonder whether a regu-
lator, applying supple and flexible criteria, will make a post hoc
determination that their speech is regulable as electoral advocacy.
This approach simply guarantees that ordinary political speech will be
chilled, the very speech that people use to express themselves on all
sides of those issues about which they care most deeply.
In WRTL, the Supreme Court noted that "a test based on the actual
effect speech will have on an election or a particular segment of the
target audience . . . unquestionably chill[s] a substantial amount of
political speech." WRTL, 127 S. Ct. at 2666. This insight is plainly
applicable to § 163-278.14A(a)(2), which employs a test based on the
effect a communication has on a "reasonable person" — ostensibly
the target audience of most political communication. We therefore
hold that § 163-278.14A(a)(2) "unquestionably chill[s] a substantial
amount of political speech" and declare the statute unconstitutionally
overbroad and vague.3
In reaching this conclusion, we recognize that plaintiffs must over-
come a "heavy burden" to succeed on a facial challenge to legislation.
McConnell, 540 U.S. at 207; see also Broadrick v. Oklahoma, 413
U.S. 601, 613 (1973). Indeed, our circuit has indicated that the facial
invalidation of a statute for overbreadth is "strong medicine to be
applied sparingly and only as a last resort." United Seniors Ass’n, Inc.
v. Social Sec. Admin., 423 F.3d 397, 406 (4th Cir. 2005) (internal
3
We reject North Carolina’s argument that the first sentence of § 163-
278.14A(a)(2) is merely an "explicative definition of express advocacy,"
and therefore constitutional under Federal Election Commission v. Mas-
sachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ("MCFL"). As this
court noted in NCRL II, the Supreme Court in MCFL did look to the "‘es-
sential nature’" of a communication in determining whether it constituted
"electoral advocacy." NCRL II, 344 F.3d at 425 n.2. However, the MCFL
Court focused on "actual words of advocacy," and § 163-278.14A(a)(2)
is not limited to the plain language of a communication in such a fashion.
Id. This court in NCRL II thus stated that the first sentence of § 163-
278.14A(a)(2) "impermissibly dilutes the Buckley standard" and there-
fore declared it unconstitutional. Since the first sentence of § 163-
278.14A(a)(2) does not meet the criteria for being labeled "the functional
equivalent of express advocacy," as developed in McConnell and WRTL,
this analysis has not changed.
16 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
quotations omitted). We recognize, of course, that McConnell upheld
the facial constitutionality of the BCRA’s regulation of "the func-
tional equivalent of express advocacy," see McConnell, 540 U.S. at
204-06, and that the Court in WRTL was entertaining an "as-applied
challenge" to the same statute, see WRTL, 127 S. Ct. at 2659.
Neither of these cases, however, confronted a statute with the mul-
tiple First Amendment deficiencies that North Carolina’s definition
displays. As discussed above, nothing in BCRA even approached the
First Amendment infirmities present here: that is to say the complete
lack of notice as to what speech is regulable, and the unguided discre-
tion given to the State to decide when it will move against political
speech and when it will not.
The number of as-applied challenges necessary to remedy the over-
breadth and vagueness of this multi-factored statutory test would
involve many different lawsuits and litigation that would take years
to conclude. In the meantime, political speakers would be left at sea,
and, worse, subject to the prospect that the State’s view of the accept-
ability of the speaker’s point of view would influence whether or not
administrative enforcement action was initiated. Nothing in McCon-
nell, WRTL, or any First Amendment tradition that we know of forces
political speakers to incur these sorts of protracted costs to ascertain
nothing more than the scope of the most basic right in a democratic
society — the right to engage in discussion of issues of unquestioned
public importance.
Whatever effect WRTL may or may not have had upon McConnell
(a point on which no circuit court should engage in cloudy crystal
ball-gazing), we think that the infirmities of North Carolina’s
approach — which determines whether speech is regulable based on
how a "reasonable person" interprets the speech’s "essential nature"
in light of four "contextual factors" — are too evident to ignore. Thus,
while we reaffirm the principle in United Seniors Association, 423
F.3d at 406, that striking down legislation on the basis of facial inva-
lidity is "strong medicine" to be "sparingly" applied, to ignore the
challenge here would be to uphold a statute far beyond anything
approved in McConnell, and in direct contradiction to the most recent
formulation by the Supreme Court in this area of campaign finance
law.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 17
III.
We next consider whether North Carolina’s definition of political
committee unconstitutionally burdens political expression.
A.
Although NCRL-PAC and NCRL-FIPE are political committees,
NCRL argues vigorously that it is not. Under North Carolina law,
political committees face a significant regulatory burden. See NCRL
I, 168 F.3d at 712 (noting that "the consequences" of being labeled
a political committee are "substantial"). Not only must they appoint
a treasurer who the State shall train before every election cycle, but
they must also file a statement of organization that reveals all finan-
cial depository information. See N.C. Gen. Stat. § 163-278.7. In addi-
tion, political committees face costly and timely disclosure
requirements that essentially allow a state to scrutinize in detail an
organization’s affairs. See id. (must self-identify as affiliated with a
candidate, political party, or other political committee); id. § 163-
278.8 (must keep detailed records of and report all disbursements,
with additional requirements for "media expenses"); id. § 163-278.9
(detailing reports that must be filed with the State Board of Elec-
tions); id. § 163-278.11 (must report detailed information about
donors). Among other regulations, political committees also face lim-
its on the amount of donations they can receive in any one election
cycle from any individual or entity. See id. § 163-278.13.
Unsurprisingly, given the burdensome consequences of the appella-
tion, "political committee" is a term of art specifically defined by the
North Carolina code. Section 163-278.6(14) of North Carolina’s Gen-
eral Statutes defines a political committee as:
a combination of two or more individuals . . . that makes,
or accepts anything of value to make, contributions or
expenditures and has one or more of the following charac-
teristics:
a. Is controlled by a candidate;
18 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
b. Is a political party or executive committee of a political
party or is controlled by a political party or executive com-
mittee of a political party;
c. Is created by a corporation, business entity, insurance
company, labor union, or professional association pursuant
to § 163-278.19(b); or
d. Has as a major purpose to support or oppose the nomina-
tion or election of one or more clearly identified candidates.
Id. § 163-278.6(14), amended by N.C. Sess. Laws 2007-391.4
The plaintiffs in this case argue that North Carolina’s definition of
political committee is unconstitutionally overbroad and vague. Specif-
ically, the plaintiffs contend that Supreme Court precedent only per-
mits the regulation of entities that have the major purpose of
supporting or opposing a candidate, and, therefore, § 163-278.6(14),
by regulating entities that have the support or opposition of a candi-
date as "a major purpose," unconstitutionally burdens protected politi-
cal speech. Furthermore, the plaintiffs argue that the manner in which
North Carolina determines an organization’s "major purpose" pro-
vides little guidance to potentially regulated entities and is thus void
for vagueness.
B.
Our analysis of North Carolina’s political committee definition
begins at precisely the same point as our previous analysis of the
"context prong": with Buckley v. Valeo’s mandate that campaign
finance laws must be "unambiguously related to the campaign of a
particular . . . candidate." See Buckley, 424 U.S. at 80. As discussed
4
At the time this litigation commenced, § 163-278.6(14) further stated
that an entity is "rebuttably presumed to have as a major purpose" the
support or opposition of a candidate if it "contributes or expends or both
contributes and expends during an election cycle more than three thou-
sand dollars." This monetary disbursement trigger has since been
repealed by the North Carolina legislature, so we do not consider it here.
See N.C. Sess. Laws 2007-391.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 19
earlier, this requirement ensures that the constitutional regulation of
elections — and the financing of campaigns, in particular — does not
sweep so broadly as to become an unconstitutional infringement on
protected political expression.
Buckley applied this "unambiguously campaign related" require-
ment when analyzing the permissible scope of political committee
regulation. Since designation as a political committee often entails a
significant regulatory burden — as evidenced by the requirements
imposed by North Carolina — the Court held that only entities "under
the control of a candidate or the major purpose of which is the nomi-
nation or election of a candidate" can be so designated. Id. at 79
(emphasis added).
The parties in this case dispute the meaning of Buckley’s directive
that only organizations that have "the major purpose" of supporting
or opposing a candidate can be regulated as a political committee. The
plaintiffs contend that the definite article is crucial — the Court meant
what it said when it said "the major purpose" — and that the support
or opposition of a candidate must at least be the primary purpose of
an organization for it to be designated as a political committee. Con-
versely, North Carolina argues that the definite article is not critical
— the Court could have just as easily said "a major purpose" — and
that supporting or opposing a candidate need only be an important
goal of an organization for it to be regulable.
Viewed in light of Buckley’s goals, it is clear that the importance
the plaintiffs attach to the definite article is correct. Buckley’s articu-
lation of the permissible scope of political committee regulation is
best understood as an empirical judgment as to whether an organiza-
tion primarily engages in regulable, election-related speech. Thus, the
Court in Buckley must have been using "the major purpose" test to
identify organizations that had the election or opposition of a candi-
date as their only or primary goal — this ensured that the burdens fac-
ing a political committee largely fell on election-related speech, rather
than on protected political speech. Id. (stating that political commit-
tees, as defined by "the major purpose" test, are "by definition, cam-
paign related"). If organizations were regulable merely for having the
support or opposition of a candidate as "a major purpose," political
committee burdens could fall on organizations primarily engaged in
20 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
speech on political issues unrelated to a particular candidate. This
would not only contravene both the spirit and the letter of Buckley’s
"unambiguously campaign related" test, but it would also subject a
large quantity of ordinary political speech to regulation. See, e.g., id.
at 80.
Subsequent case law affirms the plaintiff’s interpretation. To begin,
the Supreme Court reaffirmed Buckley’s "the major purpose" test in
Federal Election Commission v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238 (1986) ("MCFL"). There, the Court stated that an orga-
nization could be classified as a political committee if "the organiza-
tion’s major purpose may be regarded as campaign activity," and
referred to regulable political committees as "groups whose primary
objective is to influence political campaigns." Id. at 262 (emphasis
added). Furthermore, McConnell recently quoted Buckley’s "the
major purpose" language favorably. See McConnell, 540 U.S. at 170
n.64. The Supreme Court has thus not relaxed the requirement that an
organization have "the major purpose" of supporting or opposing a
candidate to be considered a political committee. And given the
Supreme Court’s direction on this issue, it is unsurprising that a num-
ber of lower courts have also adopted Buckley’s "the major purpose"
test in some form, highlighting that regulation as a political commit-
tee is only proper if an organization primarily engages in election-
related speech. See, e.g., California Pro-Life Council, Inc. v. Getman,
328 F.3d 1088, 1104 n.21 (9th Cir. 2003); Fed. Election Comm’n v.
Machinists Non-partisan Political League, 655 F.2d 380, 391-92
(D.C.Cir. 1981); Richey v. Tyson, 120 F. Supp. 2d 1298, 1311 (S.D.
Ala. 2000); Volle v. Webster, 69 F. Supp. 2d 171, 174-76 (D. Me.
1999); New York Civil Liberties Union, Inc. v. Acito, 459 F. Supp. 75,
84 n.5, 89 (S.D.N.Y. 1978).5
5
North Carolina directs this court to its discussion of Buckley in NCRL
I. See Appellee Brief at 63. In that case, we stated that Buckley "defined
political committee as including only those entities that have as a major
purpose engaging in express advocacy in support of a candidate." NCRL
I, 168 F.3d at 712 (emphasis added and omitted).
The question of whether Buckley requires a state to show that an entity
has "the" or "a" major purpose of influencing elections to be designated
a "political committee" was not before the court in NCRL I, however.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 21
Thus, we are convinced that the Court in Buckley did indeed mean
exactly what it said when it held that an entity must have "the major
purpose" of supporting or opposing a candidate to be designated a
political committee. Narrowly construing the definition of political
committee in that way ensures that the burdens of political committee
designation only fall on entities whose primary, or only, activities are
within the "core" of Congress’s power to regulate elections. Buckley,
424 U.S. at 79. Permitting the regulation of organizations as political
committees when the goal of influencing elections is merely one of
multiple "major purposes" threatens the regulation of too much ordi-
nary political speech to be constitutional.
C.
Given the Supreme Court’s insistence that political committees can
only be regulated if they have the support or opposition of candidates
as their primary purpose, it is clear that N.C. Gen. Stat. § 163-
278.6(14) is unconstitutional. In this most sensitive of all areas —
political speech — North Carolina has produced the same infirmity
with its definition of political committee as it did with its attempt to
identify communications that were the functional equivalent of
express advocacy. See supra, section II. By imposing a political com-
mittee designation — and its associated burdens — on entities when
influencing elections is only "a major purpose" of the organization,
North Carolina not only expands the definition of political committee
beyond constitutional limits, but also neglects to provide potentially
regulated entities with any idea of how to comply with the law.
Our single use of the indefinite article was not intended to lay down a
set of criteria or definition of political committee — an issue that only
now is the subject of extensive briefing and argument before this court.
This court’s explicit reservation, in NCRL II, of the question of
"[w]hether an entity can have multiple major purposes" supports this
point. NCRL II, 344 F.3d at 429. It would not have been possible for the
panel in NCRL II to reserve the question of whether Buckley requires "a"
or "the" major purpose if NCRL I had already decided the issue.
In the event, however, that the use of this one word created later con-
fusion, we regret the miscommunication and acknowledge, as we did at
the outset of this decision, our belief that North Carolina has proceeded
in this matter in the best of faith.
22 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
As noted earlier, the entire aim of Buckley’s "the major purpose"
test was to ensure that all entities subjected to the burdens of political
committee designation were engaged primarily in regulable, election-
related speech. By diluting Buckley’s test and regulating entities that
have the opposition or support of political candidates as merely "a
major purpose," North Carolina runs the risk of burdening a substan-
tial amount of constitutionally protected political speech. A single
organization can have multiple "major purposes," and imposing polit-
ical committee burdens on a multi-faceted organization may mean
that North Carolina is regulating a relatively large amount of constitu-
tionally protected speech unrelated to elections merely to regulate a
relatively small amount of election-related speech.
The problems presented by § 163-278.6(14)’s sweep into constitu-
tionally protected political speech are compounded by the statute’s
vagueness. While "the major purpose" of an organization may be
open to interpretation, it provides potentially regulated entities with
sufficient direction to determine if they will be designated as a politi-
cal committee. Basically, if an organization explicitly states, in its by-
laws or elsewhere, that influencing elections is its primary objective,
or if the organization spends the majority of its money on supporting
or opposing candidates, that organization is under "fair warning" that
it may fall within the ambit of Buckley’s test.6
Conversely, § 163-278.6(14) provides absolutely no direction as to
how North Carolina determines an organization’s "major purposes."
In addition to influencing elections, NCRL has many other objectives:
it disseminates information on pro-life issues; it "work[s] for pro-life
alternatives to abortion and humane solutions to the problems of
women who seek abortions;" it "foster[s] and encourage[s] public
6
The plaintiffs ask us to adopt a bright-line standard for determining
whether "the major purpose" of an organization is the support or opposi-
tion of candidates. They argue that an entity should only fall within the
ambit of "the major purpose" test if (1) the organic documents of the
organization list electoral advocacy as the organization’s major purpose
or (2) if the organization spends over 50% of its money on influencing
elections. See Appellant Brief at 31-32. While this standard would be
constitutional, we need not determine in this case whether it is the only
manner in which North Carolina can apply the teachings of Buckley.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 23
health programs;" it "assist[s] in the establishment of a comprehen-
sive medical, social, and recreational care program for unwed moth-
ers;" and, finally, it "promote[s] anti-poverty programs . . . directed
toward the family unit." JA 34 (quoting NCRL Articles of Incorpora-
tion).
In this sort of setting, it becomes difficult to understand when the
"purpose" of supporting or opposing a candidate becomes "a major
purpose." Is a purpose "major" if an organization has only one or two
other purposes? Is there a share of total expenditures that determines
when a purpose is "major"? An absolute dollar amount? Or perhaps
frequency of participation is the relevant criteria: maybe if an organi-
zation engages in electoral advocacy three times during one election
cycle then the support or opposition of a candidate is "a major pur-
pose"? Given the vagueness of § 163-278.6(14)’s test, it is hard to
argue with the plaintiff’s contention that, in designating organizations
as political committees, North Carolina is essentially handing out
speeding tickets without "telling anyone . . . the speed limit." Appel-
lant Reply Brief at 22.
Furthermore, if a board of regulators is to decide when a purpose
becomes "a major purpose," especially on the basis of unannounced
criteria, this leaves the application of § 163-278.6(14) open to the risk
of partisan or ideological abuse. This is nowhere so dangerous as
when protected political speech is involved. Section 163-278.6(14)’s
"we’ll know it when we see it approach" simply does not provide suf-
ficient direction to either regulators or potentially regulated entities.
Unguided regulatory discretion and the potential for regulatory abuse
are the very burdens to which political speech must never be subject.
In fact, North Carolina’s vague definition may create the perverse
situation where an entity such as NCRL would have to go through the
costly and time-consuming process of disclosing the very information
it is attempting to protect in order to fight off a complaint that it is
regulable as a political committee. When faced with such a choice,
who could blame an organization for deciding not to exercise its right
to engage in political speech?
Moreover, narrower means exist for North Carolina to achieve its
regulatory objectives. North Carolina is surely right to think that orga-
24 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
nizations — particularly large organizations — can have a substantial
impact on the electoral process even if influencing elections is merely
one of their many "major purposes." When faced with such organiza-
tions, however, North Carolina does not have to impose the substan-
tial burdens of political committee designation to achieve its goal of
preventing corruption. Instead, North Carolina could impose one-time
reporting requirements — as it already does on certain individual
expenditures and contributions by non-political committee organiza-
tions, see N.C. Gen. Stat. § 163-278.12 — based on the communica-
tion, not the organization. In doing so, North Carolina would produce
the same benefits of transparency and accountability while only
imposing regulatory burdens on communications that are "unambigu-
ously campaign related." See Buckley, 424 U.S. at 80.
It is thus clear that North Carolina’s definition of political commit-
tee, § 163-278.6(14), is overbroad and vague. Not only does the stat-
ute threaten to regulate organizations primarily engaging in protected
political speech, but it also magnifies its overbreadth by providing
insufficient direction to speakers and leaving regulators free to oper-
ate without even the guidance of discernable, neutral criteria. Further-
more, narrower means exist for North Carolina to achieve its
regulatory goals. We therefore hold § 163-278.6(14) to be facially
unconstitutional.
IV.
Finally, we consider whether North Carolina can constitutionally
apply a $4,000 contribution limit to independent expenditure commit-
tees such as NCRL-FIPE.
A.
Section 163-278.13 of North Carolina’s General Statutes places a
$4,000 limit on the amount any "individual, political committee, or
other entity" can "contribute to any candidate or other political com-
mittee" in any given election cycle. N.C. Gen. Stat. § 163-278.13
(2007). In addition, the statute also prohibits all "candidate[s] and
political committee[s]" from "accept[ing] or solicit[ing] any contribu-
tion[s]" over $4,000 in any given election cycle from "any individual,
other political committee, or other entity." Id. As the text of the stat-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 25
ute indicates, these $4,000 contribution limits apply to all political
committees.
In this case, the plaintiffs challenge § 163-278.13 as applied to
political committees, such as NCRL-FIPE, that only make indepen-
dent expenditures. As stated earlier, independent expenditures are
defined as those political expenditures "made without consultation or
coordination with a candidate or agent of a candidate whose nomina-
tion or election the expenditure supports or whose opponent’s nomi-
nation or election the expenditure opposes." Id. § 163-278.6(9a). The
plaintiffs argue that North Carolina’s interest in preventing corruption
or the appearance of corruption is insufficient to support such a limit
on contributions to committees that only make independent expendi-
tures. This is because "the corruptive influence of contributions for
independent expenditures is more novel and implausible than that
posed by contributions to candidates." NCRL II, 344 F.3d at 434.
B.
Again, our analysis starts with the Supreme Court’s decision in
Buckley v. Valeo. In Buckley, the Court established what has become
one of the foundational principles of its campaign finance jurispru-
dence: a state may limit campaign contributions if the limits are
"closely drawn" and the state demonstrates that the limits support its
interest in preventing corruption and the appearance thereof. Buckley,
424 U.S. at 24-29. In the thirty years since Buckley, the Court has
consistently affirmed this principle, see, e.g., Nixon v. Shrink Mis-
souri Gov’t PAC, 528 U.S. 377 (2000), including most recently in
Randall v. Sorrell, 126 S. Ct. 2479, 2491-92 (2006).
Unsurprisingly, the strength of the state’s interest in preventing
corruption is highly correlated to the nature of the contribution’s
recipient. Thus, the state’s interest in the prevention of corruption —
and, therefore, its power to impose contribution limits — is strongest
when the state limits contributions made directly to political candi-
dates. Direct contributions to political candidates run the greatest risk
of making candidates "too compliant with the wishes of large"
donors, Shrink Missouri, 528 U.S. at 389, providing those donors with
"undue influence" over the candidate’s political decisionmaking,
NCRL II, 344 F.3d at 433. Given this, the Court has consistently
26 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
allowed states to apply limits to direct candidate contributions. See,
e.g., Shrink Missouri 528 U.S. at 397-98; Buckley, 424 U.S. at 29.
As one moves away from the case in which a donor gives money
directly to a candidate, however, the state’s interest in preventing cor-
ruption necessarily decreases. This is because the danger that contri-
butions will be given "as a quid pro quo for improper commitments
from the candidate" is simply not as real when the candidate himself
is removed from the process. Buckley, 424 U.S. at 47.
Of course, some organizations are so closely tied to candidates that
the Court has deemed it constitutional for states to apply contribution
limits to them. Otherwise, donors could "circumvent" valid contribu-
tion limits — and raise fears of corruption — by indirectly funneling
money to candidates through political intermediaries. See Fed. Elec-
tion Comm’n v. Colorado Republican Fed. Campaign Comm., 533
U.S. 431, 456 (2001) ("Colorado Republican II") (describing "cir-
cumvention" as a "valid theory of corruption"). Thus, the Court has
held that it is constitutional for states to apply contribution limits to
political committees that make contributions directly to candidates.
California Med. Ass’n v. Fed. Election Comm’n, 453 U.S. 182 (1981)
("Cal-Med") (upholding the application of contribution limits to
multi-candidate political committees, which accept money from
donors and then make direct contributions to political candidates).
Since these political committees are "essentially conduits for contri-
butions to candidates," candidates would be able to easily evade con-
tribution limits by routing large ticket donors to such committees. Id.
at 203 (Blackmun, J., concurring).
The Court has further held that it is constitutional, in certain
instances, to apply contribution limits to political parties. See McCon-
nell, 540 U.S. at 144-45 (upholding the application of contribution
limits to a federal candidate’s national party and state and local party
allies). While contributions made to political parties may not be
passed through directly to candidates, the "special relationship and
unity of interest" between political parties and candidates makes par-
ties logical "‘agents for spending on behalf of those who seek to pro-
duce obligated officeholders.’" McConnell, 540 U.S. at 145 (quoting
Colorado Republican II, 533 U.S. at 452). In reaching this conclu-
sion, the Court in McConnell highlighted the "ample record" demon-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 27
strating both that political parties have embraced their role in
facilitating the "widespread circumvention" of federal contribution
limits and that "lobbyists, CEOs, and wealthy individuals alike have
candidly admitted donating substantial sums" to "secur[e] influence
over federal officials." Id. at 145-47.
Importantly, however, the Court has never held that it is constitu-
tional to apply contribution limits to political committees that make
solely independent expenditures. In fact, Justice Blackmun stressed in
his Cal-Med concurrence that "contributions to a committee that
makes only independent expenditures pose no . . . threat" of corrup-
tion or the appearance thereof. See Cal-Med, 453 U.S. at 203 (Black-
mun, J., concurring). This makes perfect sense: independent
expenditures are made without candidate consultation, rendering it
unlikely that such expenditures would be made in exchange for "im-
proper commitments from the candidate." Buckley, 424 U.S. at 47
(noting that "independent expenditures may well provide little assis-
tance to the candidate’s campaign and indeed may prove counterpro-
ductive").
Moreover, McConnell specifically emphasized the difference
between political parties and independent expenditure political com-
mittees, which explains why contribution limits are acceptable when
applied to the former, but unacceptable when applied to the latter. To
begin, the Court noted that independent expenditure committees "do
not select slates of candidates for elections," "determine who will
serve on legislative committees, elect congressional leadership, or
organize legislative caucuses." McConnell, 540 U.S. at 188. Con-
versely, "[p]olitical parties have influence and power in the Legisla-
ture that vastly exceeds that of any interest group." Id. Furthermore,
"party affiliation is the primary way . . . voters identify candidates,"
and therefore parties "have special access to and relationships with"
those who hold public office. Id. It is thus not an exaggeration to say
that McConnell views political parties as different in kind than inde-
pendent expenditure committees.
Thus, while the state’s power to impose contribution limits is well-
established, that power exists only when the contribution limits are
"closely drawn" to the state’s interest in preventing corruption. As the
state attempts to regulate entities further and further removed from the
28 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
candidate, the state interest in preventing corruption necessarily
decreases. At the extreme, the entities furthest removed from the can-
didate are political committees that make solely independent expendi-
tures. As such, it is "implausible" that contributions to independent
expenditure political committees are corrupting. NCRL II, 344 F.3d at
434.
C.
In this case, we find that North Carolina has fallen short of demon-
strating that application of its $4,000 contribution limit to independent
expenditure political committees furthers its interest in preventing
corruption. We thus declare § 163-278.13 unconstitutional as applied
to NCRL-FIPE and all similarly situated entities.
Given the remove of independent expenditure committees from
candidates themselves, we must require North Carolina to produce
convincing evidence of corruption before upholding contribution lim-
its as applied to such organizations. Id. (citing Colorado Republican
Fed. Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 604, 618
(1996)). Rather than producing convincing evidence, however, North
Carolina puts largely the same evidence before this court as it did in
NCRL II.7 In that case, we held that the "state [has] failed to proffer
7
North Carolina put forward, by way of new evidence, affidavits from
Robert H. Hall and Thomas E. Mann, experts in campaign finance, and
the draft chapter of a book on the influence of 527 Groups on elections.
This new evidence largely supports arguments North Carolina made
before this court in NCRL II: for example, that it is sometimes difficult
for the State to distinguish independent from coordinated expenditures;
that large donors may fund independent expenditure political commit-
tees; and that, at times, politicians react to the messages produced by
independent expenditure political committees.
Importantly, however, North Carolina has failed to present the type of
systematic and concrete evidence of corruption that led the Supreme
Court to uphold contribution limits as applied to political parties in
McConnell. Thus, North Carolina’s evidence does not justify the remedy
it seeks in this case: the ability to impose strict contribution limits on
independent expenditure committees. The Supreme Court has not held
such limits to be constitutional, and we will not do so here.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 29
sufficiently convincing evidence" to demonstrate that there is a "dan-
ger of corruption due to the presence of unchecked contributions" to
independent expenditure political committees.8 NCRL II, 344 F.3d at
434.
We see no reason to change this determination. McConnell did
expand the application of contribution limits to political parties, but,
as discussed earlier, it also made clear that independent expenditures
do not present a danger of corruption. McConnell, 540 U.S. at 221.
In fact, McConnell emphasized that there is little "danger" that inde-
pendent expenditures "will be given as a quid pro quo for improper
commitments from [a] candidate." Id. (quoting Buckley, 424 U.S. at
47). Since the Supreme Court’s views on the dangers of independent
expenditures have not changed, North Carolina’s evidence is still
insufficient.
For example, a discussion of "Farmers for Fairness" is probably the
primary piece of evidence discussed in North Carolina’s briefing.
Appellee Brief at 49-50; JA 313-16. North Carolina claims that the
actions of "Farmers" "triggered widespread suspicion of corruption
and damaged public confidence in the electoral process," as "legisla-
tors, regulators, the media, civic groups, [and] opinion leaders . . .
We need not ask if there will ever be a case in which North Carolina
can present convincing evidence that contributions to independent expen-
diture committees are corruptive. Instead, we hold that the case for such
limits was not made in NCRL II, nor was it made here.
8
North Carolina also argues that NCRL-FIPE is not actually an inde-
pendent expenditure committee because it is "closely intertwined" with
NCRL and NCRL-PAC. See Appellee Brief at 37-43. However, while
NCRL-FIPE does share staff and facilities with its sister and parent enti-
ties, it is independent as a matter of law. See North Carolina Right to
Life, Inc. v. Leake, 482 F. Supp. 2d 686, 699 (E.D.N.C. 2007).
Thus, North Carolina is, in essence, asking us to pierce the corporate
veil. We decline to do so, particularly absent any evidence that the plain-
tiffs are abusing their legal forms or "any legal authority that considers
[political committees] and their sponsoring corporation as identical enti-
ties." Id.
30 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
were witnessing firsthand the awesome power of concentrated wealth
when it enters the electoral arena." Id.
"Farmers for Fairness" is an independent expenditure committee
that used substantial contributions from "a dozen hog producers and
suppliers" to fund advertisements supporting hog industry interests.
JA 313. In April 1998, "Farmers" spent over $10,000 a week on issue
advocacy targeted at a state representative who had led efforts to
increase regulation of the hog industry. Id. That representative was
defeated in her primary election, and two of the three other legislators
targeted by "Farmers for Fairness" were defeated in the general elec-
tion. Id. The State also claims that "Farmers" showed legislative lead-
ers their advertisements before they were broadcast, in order to
demonstrate to the leaders "the group’s seriousness about impacting
the political process." Id. Finally, North Carolina presents evidence
that "Farmers" "discussed" regulatory relief with political party prin-
cipals, although "no clear quid pro quo could be established." JA 314.
This evidence does not constitute the type of convincing evidence
required to uphold the application of contribution limits to indepen-
dent expenditure committees. For one, the fact that "Farmers for Fair-
ness" spent money that was successful in convincing voters to oust
their targeted candidates can hardly be termed corruptive. This fact —
alone — simply means that a group felt passionately about an issue
and discussed it. After all, one of the primary purposes of political
speech is to persuade the electorate. Perchance the message of "Farm-
ers for Fairness" is very much misguided. Those who believe it so
should make the case. For the way to counter speech is with opposing
speech, not with laws designed to dampen and depress it.
For two, the fact that "Farmers" demonstrated their "seriousness
about impacting the political process" is also not evidence of corrup-
tion. It goes without saying that it is not a sin to be serious about "im-
pacting the political process" — in fact, the First Amendment is
largely about providing every citizen with just that opportunity. If
robust advocacy alone is sufficient to demonstrate corruption, the
term corruption would cease to have meaning.
Finally, the evidence that "Farmers for Fairness" discussed its ads
with legislative leaders does not constitute evidence that contributions
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 31
to independent expenditure committees are corruptive. If anything,
this constitutes evidence that organizations that claim to be indepen-
dent expenditure committees are, in fact, coordinating their expendi-
tures with candidates. If independent expenditure committees are not
in fact independent, they risk forfeiting their exemption from North
Carolina’s contribution limits. In such instances, North Carolina is
free to apply in a constitutional manner its contribution limits against
these purportedly "independent" expenditure committees.
The bottom line is this: independent expenditure political commit-
tees do not serve as mouthpieces for political candidates. In fact, such
committees do not even coordinate their messages with candidates.
Instead, independent expenditure political committees offer an oppor-
tunity for ordinary citizens to band together to speak on the issue or
issues most important to them. In other words, they allow ordinary
citizens to receive the benefits that result from economies of scale in
trying to convince the electorate of a political message.
Of course, candidates may be influenced by the impact that such
independent expenditures have on the electorate — but this is the
entire purpose of allowing free political discourse. As the Supreme
Court has said: "The fact that candidates and elected officials may
alter or reaffirm their own positions on issues in response to political
messages paid for by [political committees] can hardly be called cor-
ruption." Fed. Election Comm’n v. Nat’l Conservative Political
Action Comm., 470 U.S. 480, 498 (1985).
In fact, we would go further. Candidates and elected officials alter-
ing their positions in response to a political debate is the very essence
of democracy. Nothing could be further removed from the spirit of the
First Amendment than labeling speech corruptive merely because it
is effective. We thus hold § 163-278.13 unconstitutional as applied to
independent expenditure political committees such as NCRL-FIPE.
V.
Finally, we address our colleague’s dissenting opinion. The dissent
contends we broaden First Amendment protections beyond recog-
nized boundaries in order to "severely restrict[ ] the well-established
power of a state to regulate its elections." Post at 53. Our decision,
32 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
the dissent insists, will leave unchecked the "pernicious influence of
too much money in politics," id. (internal quotations omitted), and
thereby unleash a parade of horribles on the citizens of North Caro-
lina. See, e.g., id. at 54 (alleging that our decision will "allow many
politically active organizations to escape regulation and hide their
identities and activities from public scrutiny"); id. at 67 (arguing that
our decision will result in "the invalidation of many election regula-
tions that have been carefully drafted to honor and comply with First
Amendment principles, as established by decades of Supreme Court
precedent"); id. at 95 (stating that our decision will give organizations
"an explicit green light . . . to circumvent campaign finance regula-
tion").
All this, of course, is hyperbolic. We respect without question the
state’s legitimate interest in ensuring the integrity of the electoral pro-
cess. To the extent the state regulates electoral advocacy within the
scope of these interests it is well within constitutional bounds. By
contrast, it is the dissent’s position that sweeps broadly and portends
dramatic consequences. The dissent fails to set forth any meaningful
limits on the consignment of our most basic political speech to layer
upon layer of intense regulation. One searches the dissent for some
end to the reach of regulatory authority, but there is none. Instead, the
dissent envisions an order in which the bureaucratic ministries of the
state would have nearly unbridled discretion to allow or disallow
political messages based, inter alia, on the regulator’s own prefer-
ences and predilections.
This is not some marginal or incidental freedom with which the
dissent is dealing. Rather it is the essential freedom that defines our
ability — both individually and collectively — to speak in unfettered
fashion on the most pressing issues of the day, and to express
approval or disapproval of the functioning of our representative gov-
ernment. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964),
noted our "profound national commitment to the principle that debate
on public issues should be uninhibited, robust, and wide-open." The
Court has long made clear that political speech is "indispensable to
decisionmaking in a democracy," and that the courts play a critical
role in its protection. First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 777 (1978).
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 33
For the regulator’s hand, once loosed, is not easily leashed. The
Code of Federal Regulations, or its state equivalent, is no small thing.
It is no unfounded fear that one day the regulation of elections may
resemble the Internal Revenue Code, and that impossible complexity
may take root in the very area where freedom from intrusive govern-
mental oversight should matter most. For while appropriate regulation
may serve good and useful purposes in many areas, the Constitution
makes clear that excessive regulation of political speech is suspect.
Campaign finance regulation has been termed "baffling and con-
flicted." Majors v. Abell, 361 F.3d 349, 355 (7th Cir. 2004). It is an
area in which speakers are now increasingly forced to navigate a
maze of rules, sub-rules, and cross-references in order to do nothing
more than project a basic political message. Only those able to hire
the best team of lawyers may one day be able to secure the advisory
opinions, see N.C. Gen. Stat. § 163-278.23 (2007), or otherwise fig-
ure out the myriad relevant rulings with any degree of assurance that
they will escape civil and criminal sanctions for their speech. See,
e.g., id. § 163-278.27 (imposing a Class 2 misdemeanor for violation
of campaign finance laws); id. § 163-278.34 (imposing various civil
penalties, including fines, for failure to comply with campaign
finance laws). The Supreme Court has warned against exactly this.
See WRTL, 127 S. Ct. at 2666 (citing Virginia v. Hicks, 539 U.S. 113,
119 (2003)).
North Carolina’s regulations do not meet basic First Amendment
requirements. Instead, they set out vague standards that empower
administrators to burden core political expression (N.C. Gen. Stat.
§§ 163-278.14A(a)(2) & 163-278.6(14)) and regulate beyond the
periphery of any plausible state interest in preventing corruption
(N.C. Gen. Stat. § 163-278.13). To uphold these regulations is to
usher in a regime in which the winners are ungovernable complexity,
the state enforcement apparatus, and the experts in the arcana of elec-
tion law whose fees will increasingly make affluence a prerequisite
for many forms of political participation. The losers, sadly, will be
persons of all points of view who wish only to engage in robust politi-
cal discussion.
A.
The dissent initially contends that we err by invalidating North
Carolina’s "context prong" for identifying speech that "support[s] or
34 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
oppose[s] the nomination or election of one or more clearly identified
candidates." See N.C. Gen. Stat. § 163-278.14A(a)(2) (2007). In par-
ticular, the dissent alleges that we have declared a statute overbroad
when it would unconstitutionally regulate pure political speech only
in "rare instances," and vague when it provides "particularly clear
direction to both speakers and regulators." Post at 80, 67.
1.
The dissent commits several errors in evaluating the constitutional-
ity of § 163-278.14A(a)(2). To begin, the dissent virtually ignores the
import of FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652
(2007), the Supreme Court’s most recent decision addressing the
issues in this case. In fact, the dissent goes so far as to suggest that
WRTL has no "relevan[ce]" or meaning for major areas of campaign
finance law. See post at 78.
I find this dismissiveness unfortunate. To say that WRTL is "not
relevant" outside the realm of expenditure requirements, see id., is to
say that other campaign finance regulations — however vague and
overbroad — pose no danger to political speech. Given its plain appli-
cation and unquestioned relevance, it is simply wrong for the dissent
to give WRTL such short shrift. Indeed, the dissent fails even to recog-
nize that WRTL sought to limit and confine the definition of the
"functional equivalent of express advocacy" in order to prevent state
regulation from vitiating political speech. See id. at 62-63.
Specifically, WRTL only allows political speech to be regulated if
it both "meets the brightline requirements of BCRA § 203" and "is
susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate." See WRTL, 127 S. Ct. at
2669 n.7, 2667. The dissent never claims that § 163-278.14A(a)(2)
meets this standard, nor can it: as discussed earlier, North Carolina’s
"context prong" sweeps far more broadly than WRTL’s "functional
equivalent of express advocacy" test. See supra at 12-15.
The "context prong," as noted, is intended to regulate "communica-
tions whose essential nature expresses electoral advocacy." Section
163-278.14A(a)(2) resorts to "contextual factors" to identify a com-
munication’s "essential nature" when and "[i]f the course of action is
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 35
unclear." N.C. Gen. Stat. § 163-278.14A(a)(2) (2007) (emphasis
added). This last is nothing short of an explicit confession from the
statute itself of its fatal vagueness and overbreadth. Despite the fact
that "the benefit of the doubt" must be given to speech, rather than
censorship, see WRTL, 127 S. Ct. at 2674, North Carolina’s "context
prong," when faced with uncertainty, subjects speech to more scrutiny
and possible regulation. This is patently unconstitutional: "[w]here the
First Amendment is implicated, the tie goes to the speaker, not the
censor." Id. at 2669.
Furthermore, North Carolina simply compounds the constitutional
infirmities by using "contextual factors" in a misguided attempt to
bring clarity to § 163-278.14A(a)(2)’s quixotic search for a communi-
cation’s "essential nature." As stated earlier, WRTL expressly rejects
the constitutionality of the "‘open-ended rough-and-tumble of fac-
tors’" as a means of identifying regulable electoral advocacy or its
functional equivalent, since such factors invariably burden speech by
"‘invit[ing] complex argument in a trial court and a virtually inevita-
ble appeal.’" WRTL 127 S. Ct. at 2666 (quoting Jerome B. Grubart,
513 U.S. at 547). In other words, WRTL emphatically rejects the
resort to a multi-factored, totality of the circumstances approach for
defining regulable electoral advocacy. In stark contrast, North Caro-
lina has explicitly adopted just such a test. This is squarely at odds
with the clear direction offered by the Supreme Court, and as a lower
court we are bound to follow the Court’s instructions. Doing other-
wise will set both the inferior federal courts and the states themselves
on a dangerous path.
The dissent claims that we "simply misread[ ] WRTL" in forbidding
the use of factors, since nothing in WRTL forbids "the consideration
of context." Post at 73-74. But it is the dissent that misreads WRTL.
The problem with § 163-278.14A(a)(2)’s use of "contextual factors"
is not the consideration of context (which is, indeed, inevitable in
such an objective inquiry), but rather the use of factors. As discussed
earlier, see supra at 13, the "contextual factors" listed in § 163-
278.14A(a)(2) are nothing if not a lexicon of bureaucratic empower-
ment, and an invitation to endless litigation during which the speaker
is left at sea.
In order to demonstrate this, it bears repeating the "contextual fac-
tors" referenced in the statute: "the language of the communication as
36 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
a whole, the timing of the communication in relation to the events of
the day, the distribution of the communication to a significant number
of registered voters for that candidate’s election, and the cost of the
communication." N.C. Gen. Stat. § 163-278.14A(a)(2) (2007). Nebu-
lous terms do not "assist[ ]" regulators by providing "direction" as the
dissent suggests, see post at 69; they further muddy the waters. North
Carolina’s loose mélange of factors do not elucidate WRTL’s objec-
tive test; instead, they present the very infirmity identified by WRTL,
namely, that of supplying regulators with nearly endless possibilities
for discovering whether a communication can "only be interpreted by
a reasonable person as advocating the nomination, election, or defeat
of that candidate in that election." N.C. Gen. Stat. § 163-
278.14A(a)(2) (2007). Consider, for example: what are the significant
"events of the day"? How many days are sufficient for a communica-
tion to escape being "relat[ed]" by "timing" to the "events of the day"?
What is a "significant number" of voters? The "context prong" pro-
vides no answers to these or other questions, and instead threatens to
regulate large quantities of pure political speech.
The dissent contends that we incorrectly use the "brightline
requirements of BCRA § 203" as a "rigid" test for overbreadth. Post
at 64-65. To the contrary, we use the BCRA definition to illustrate
just how incredibly far the contextual definition in this case has
broadened the scope of electoral advocacy from what was approved
in McConnell. Indeed, BCRA § 203 only regulates communications
that refer to specific individuals ("clearly identified candidates") at
specific times (thirty days before a primary and sixty days before a
general election) and reach at least a specific number of people
(50,000 in the district or state the candidate seeks to represent). By
contrast, § 163-278.14A(a)(2) determines whether communications
are regulable by divining their "essential nature" (which the statute
itself admits is "unclear") from a set of vague and undefined "contex-
tual factors." Compare BCRA, 116 Stat. 91, 2 U.S.C.
§ 434(f)(3)(A)(i), (C) (2000 ed. & Supp. IV) with N.C. Gen. Stat.
§ 163-278.14A(a)(2) (2007). The two approaches are different in
kind, and the latter, therefore, is hardly a suitable substitute for the
former as a means to identify the "functional equivalent of express
advocacy."
And even if the dissent is correct and WRTL did not intend to man-
date the specific dictates of BCRA § 203 as a necessary prerequisite
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 37
for functional equivalency, it is inconceivable that the Supreme Court
would ever allow a state to substitute a test as vague and broad as this
"context prong" as an alternative standard. For even a cursory reading
of § 163-278.14A(a)(2) uncovers its serious constitutional infirmities
— infirmities the dissent has failed to acknowledge, much less
address.
In fact, the dissent is unable to identify a single case that has
upheld a definition of the "functional equivalent of express advocacy"
as broad as § 163-278.14A(a)(2) since the Supreme Court’s WRTL
decision. Instead, the dissent points to three cases that specifically
address BCRA, see Citizens United v. Fed. Election Comm’n, 530 F.
Supp. 2d 274, 276-77 (D.D.C. 2008); Shays v. Fed. Election Comm’n,
508 F. Supp. 2d 10 (D.D.C. 2007); Fed. Election Comm’n v. Kalo-
gianis, No. 8:06-cv-68-T-23EAJ, 2007 WL 4247795 (M.D. Fla. Nov.
30, 2007), and two cases that address statutes containing none of the
infirmities discussed above, see Cal. Pro-Life Council, Inc. v. Ran-
dolph, 507 F.3d 1172, 1180-83 (9th Cir. 2007); Voters Educ. Comm.
v. Wash. State Public Disclosure Comm’n, 166 P.3d 1174, 1180
(Wash. 2007). None of these cases contains a definition of regulable
electoral advocacy that is remotely as overbroad and indeterminate as
the enactment before us.
Indeed, the dissent does not quote from any of the statutes at issue
in any of those cases for a very good reason: most follow BCRA, and
all avoid such phrases as "if the course of action is unclear," "the tim-
ing of the communication in relation to the events of the day," and
"the distribution of the communication to a significant number of reg-
istered voters." It is thus plain that § 163-278.14A(a)(2) does not pro-
vide a constitutionally adequate test for express advocacy or its
functional equivalent, and is thus substantially vague and overbroad.
Moreover, despite the dissent’s arguments to the contrary, the fact
that "a potential speaker may seek further guidance" in the form of "a
binding advisory opinion," does not fix § 163-278.14A(a)(2)’s multi-
ple constitutional infirmities. Post at 70. If states were able to address
a statute’s breadth and lack of clarity simply by adding another layer
to their regulatory apparatus, the overbreadth and void for vagueness
doctrines would be a dead letter. Simply put, the ability to engage in
38 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
political speech cannot be made into a matter of repetitive supplica-
tion.
Despite this, the dissent accuses us of failing to perform a "proper
overbreadth analysis" that takes into account the various "type[s] of
regulations implicated" by § 163-278.14A(a)(2). Id. at 65, 74-78.
According to the dissent, the burdens imposed on political speech and
the state’s interests may vary by the type of regulation, and, therefore,
analyzing § 163-278.14A(a)(2) regulation by regulation demonstrates
that it is only unconstitutional in "rare" applications, and thus not
facially overbroad. Id. at 79-80. The dissent would thus have us
uphold § 163-278.14A(a)(2) in full and wait to consider the constitu-
tionality of each of its applications in an as-applied fashion.
Even if the dissent were correct that the scope of regulable speech
may vary slightly based on regulation type, this does not mean that
a patently overbroad definition like § 163-278.14A(a)(2) acquires a
halo of constitutionality when the context shifts. Speakers are going
to have to contend with this same definition and its same infirmities
for both expenditures and contributions, regardless of whether the
regulatory context is one of disclosure, reporting, or limitation. There
is simply no reason to subject speakers to such an imposition when
a statute explicitly announces that its own "unclear" definition threat-
ens the regulation of protected speech, and when other overbroad
"contextual factors" doubly and triply compound the problem.
If we decided to proceed incrementally in an as-applied fashion, as
the dissent suggests, it would require protracted litigation to sort
through all of the "context prong’s" uncertain and problematic appli-
cations. During this time, speech would be at the leave of bureaucratic
discretion and potentially subject to bewildering and inconsistent rul-
ings and decisions: the very blueprint for chilling political discussion.
Speakers must not be put in "‘circumstances wholly at the mercy of
the varied understanding of [their] hearers,’" in this case regulators
hypothesizing about some hypothetical audience. Buckley, 424 U.S.
at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)). Faced
with such prospects, many speakers, "rather than undertake the con-
siderable burden (and sometimes risk) of vindicating their rights
through case-by-case litigation, will choose simply to abstain from
protected speech — harming not only themselves but society as a
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 39
whole, which is deprived of an uninhibited marketplace of ideas."
Hicks, 539 U.S. at 119 (citing Dombrowski v. Pfister, 380 U.S. 479,
486-87 (1965)).
The dissent argues that the Supreme Court’s recent decision in
Washington State Grange v. Washington State Republican Party, 128
S. Ct. 1184 (2008), offers more proof that facial challenges are disfa-
vored in the First Amendment context. See post at 58, 100, 101.
Washington State Grange, of course, is about primary design and
access, not the financing of political campaigns. See 128 S. Ct. at
1187-89. It involves a different set of constitutional interests: the
associational rights of political parties, rather than the individual right
to the freedom of political speech. See id. at 1189-90. In fact, Wash-
ington State Grange does not so much as reference Buckley, McCon-
nell or WRTL (or for that matter any other campaign finance case)
even once. If the Supreme Court wanted to establish a sweeping new
approach to evaluating campaign finance cases in Washington State
Grange, it would at the very least have alluded to its own decisional
law.
Moreover, the Court took pains to except the situation before us in
this case — a challenge to a statute’s overbreadth and vagueness —
from its holding in Washington State Grange. Recognizing the differ-
ent constitutional interests at stake in an overbreadth challenge, the
Court in Washington State Grange held that a challenge to a statute’s
overbreadth was a "second type of facial challenge" different than the
one presented in Grange. See Grange, 128 S. Ct. at 1190 n.6. The
Court then stated that the facial standard for overbreadth ("a substan-
tial number of [a statute’s] applications are unconstitutional") is less
onerous than the facial standard applied in Grange ("a plaintiff can
only succeed in a facial challenge by establishing that no set of cir-
cumstances exists under which the Act would be valid"). Id. at 1190
& n.6 (internal quotations omitted). In fact, the Court in Washington
State Grange used the exact same "strong medicine" language we do
in describing the appropriate standard for facial overbreadth chal-
lenges. See id. at 1190 n.6 (internal quotations omitted).
To understand substantial overbreadth in this area, we need look no
further than the Supreme Court’s own decisions. As noted, the Court
has made clear that, in order to avoid overbreadth concerns, campaign
40 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
finance statutes must both conform to BCRA § 203 and avoid the
"rough-and-tumble" of multi-factored tests. See WRTL, 127 S. Ct. at
2666, 2669 n.7. North Carolina’s "context prong" does neither. It is
thus unconstitutional. We hardly need speculate, as the dissent terms
it, on the overbroad applications of N.C. Gen. Stat. § 163-
278.14A(a)(2). See post at 100 (quoting Grange, 128 S. Ct. at 1190).
The statute is substantially overbroad under the Supreme Court’s own
explicit terms.
Thus, while we recognize that WRTL involved an as-applied chal-
lenge, that does not mean that the entire holding and reasoning of that
decision is without any facial implications. The Constitution does not
require that we go application by application, case by case, month by
month, year after year to eradicate the very infirmities the Supreme
Court warned against and insisted we avoid.
2.
To conclude, we address the dissent’s concern that our decision
invalidates "many election regulations," allowing "organizations and
individuals to conceal their identities, spend unlimited amounts on
campaign advertising masked as discussion of issues, and ‘hide them-
selves from the scrutiny of the voting public.’" Post at 67, 53 (quoting
McConnell, 540 U.S. at 197).
The dissent’s concerns are overblown. While we do indeed invali-
date N.C. Gen. Stat. § 163-278.14A(a)(2) as impermissibly vague and
substantially overbroad, North Carolina remains free to enforce all
campaign finance regulations that incorporate the phrase "to support
or oppose the nomination or election of one or more clearly identified
candidates." See N.C. Gen. Stat. § 163-278.14A(a) (2007). And, while
the dissent apparently contends that our decision makes it impossible
for North Carolina to draft a constitutional context prong, see post at
69-70, North Carolina remains free to adopt a definition of express
advocacy consistent with the standards approved by McConnell and
WRTL. Furthermore, we leave the core of the state’s regulatory power
in this area untouched: for example, the state is still free to regulate
contributions to political campaigns, and to impose reporting and dis-
closure requirements on political campaigns and other entities histori-
cally considered to be political committees. We simply hold that
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 41
North Carolina cannot rely on the overbroad and vague "context
prong."
North Carolina has tasked its State Board of Elections with broad
responsibilities and granted it far-reaching powers to achieve its
goals. The State Board is directed to investigate any potential viola-
tion of North Carolina’s election laws. See N.C. Gen. Stat. § 163-
22(d) (2007). In order to perform these investigations, the chairman
of the Board has the "power to administer oaths, issue subpoenas,
summon witnesses, and compel the production of papers, books,
records and other evidence." Id. § 163-23. And if the Board has "rea-
son to believe there has been a violation" of North Carolina’s cam-
paign finance laws, it can direct "the appropriate district attorney" to
"prosecute the individuals or persons alleged to have violated" North
Carolina’s election laws. Id. § 163-278.27.
The danger in this area — when dealing with a broadly empowered
bureaucracy — is not that speakers may disguise electoral messages
as issue advocacy, but rather that simple issue advocacy will be sup-
pressed by some regulator who fears it may bear conceivably on some
campaign. If the First Amendment protects anything, it is the right of
political speakers to express their beliefs without having to fear subse-
quent civil and criminal reprisals from regulators authorized to
employ broad and vague definitions as they see fit. See Buckley, 424
U.S. at 43 (quoting Thomas, 323 U.S. at 535).
Of course, the dissent is right to point out that our decision may
enable speakers to more easily influence elections using issue advo-
cacy. See post at 53. But that is no affront to democracy. In fact, the
only way to stop political speech from ever influencing the outcome
of elections would be to ban it entirely. For, as the Supreme Court has
just noted, the very purpose of political speech is to provide people
with "information" about important issues so that they can make
informed "voting decisions." See WRTL, 127 S. Ct. at 2667; see also
Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940).
The answer to avoidance of political speech restrictions is not
invariably more political speech restrictions, or an increase in the
breadth, depth, and complexity of the state’s regulatory apparatus.
There is no end in sight to that approach, nor does the dissent so much
42 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
as suggest one. At some point — a point reached far before the sub-
stantial and unprecedented overbreadth of § 163-278.14A(a)(2) —
enough is simply enough. See WRTL, 127 S. Ct. at 2672.
B.
The dissent next takes issue with our analysis of North Carolina’s
political committee definition. Under North Carolina law, four types
of entities can be labeled political committees: candidate-controlled
committees; political parties or their affiliates; corporations or other
business and professional groups, including unions; and, finally, any
entity that "[h]as as a major purpose to support or oppose the nomina-
tion or election of one or more clearly identified candidates." N.C.
Gen. Stat. § 163-278.6(14) (2007). Only the last of these entities is in
any way at issue. The dissent contends that we err in holding this last
portion of the political committee definition — the "a major purpose"
test — unconstitutionally vague and overbroad. See post at 80-82.
As an initial matter, the dissent would have us decline to follow the
very language used not only by Buckley v. Valeo, but also by numer-
ous other cases as well. See supra at 18-20. But, just as we observed
with respect to the treatment of WRTL, declining to follow the
Supreme Court is not an option. Buckley explicitly states that political
committee regulations "can cover groups ‘the major purpose of which
is the nomination or election of a candidate.’" Post at 81 (quoting
Buckley, 424 U.S. at 79) (emphasis omitted). If this is Buckley’s for-
mulation, then it must be ours, and the question is why it is not the
dissent’s as well.
Despite Buckley’s clear mandate, the dissent argues that North Car-
olina is not required to "rigidly adhere" to "the major purpose" test.
Post at 80. According to the dissent, North Carolina’s "a major pur-
pose" standard is sufficiently clear to provide direction to political
speakers, see id. at 82-84, and "careful not to frustrate issue advocacy
or general political speech," id. at 88.
This view fails to appreciate the difference between the definite
and indefinite articles in this context. The dissent contends that
"North Carolina’s ‘a major purpose’ test is just as clear as a ‘the
major purpose’ test to both speakers and regulators." Id. at 84. Like-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 43
wise, the dissent contends that "the substitution of ‘a’ for ‘the’ in
Buckley’s major purpose test does not expand the reach of the Act in
any way that overly burdens First Amendment freedoms." Id. With
these arguments, however, the dissent simply ignores the fact that,
under North Carolina’s "a major purpose" approach, an organization
can have multiple "major purposes," while under the Supreme Court’s
"the major purpose" approach, an organization can have but one
"major purpose." The constitutional importance of this distinction is
self-evident.
To begin, although there may be disputes in rare circumstances,
organizations and regulators should agree on an organization’s fore-
most or "primary" purpose. MCFL, 479 U.S. at 262. Conversely,
North Carolina’s "a major purpose" standard leaves the "line between
innocent and condemned conduct . . . a matter of guesswork." Lau-
rence H. Tribe, American Constitutional Law § 12-31, at 1033 (2d ed.
1988). This is particularly true because North Carolina provides abso-
lutely no statutory direction as to when a "purpose" becomes "a major
purpose" in a multi-faceted organization like NCRL. See supra at 23.
Is it based on the number of purposes? The money spent on each? The
frequency of electoral participation? The statute does not provide
notice as to which of these standards apply; this, of course, means that
regulators will once again be empowered to make these judgments to
the maximum conceivable extent.
Moreover, under North Carolina’s "a major purpose" standard,
organizations can be subjected to regulation as a political committee
even if the majority of their activity is not election related. Since
political committee burdens apply across the board to all of an organi-
zation’s activities, this means that, under § 163-278.6(14), substantial
amounts of pure political speech will be burdened in an effort to regu-
late relatively minor amounts of electoral advocacy. The dissent is
well aware of this. In fact, it readily admits that "most organizations
— including NCRL — do not have just one major purpose." Post at
86. But the dissent thinks North Carolina’s "a major purpose" stan-
dard is appropriate regardless, since it enables the regulation of orga-
nizations "heavily focused on electoral advocacy" — that is,
organizations that spend "forty-five percent of [their] resources on
lobbying and forty-five percent of [their] resources on supporting or
opposing specific candidates." Id.
44 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
Of course, the dissent’s stylized example does not address the orga-
nization that has four equally important purposes, only one of which
is electoral advocacy. Nor does it consider the organization that has
seven equally important purposes. Or ten. But under North Carolina’s
"a major purpose" standard, each of these organizations could be sub-
jected to regulation just as surely as the dissent’s hypothetical exam-
ple. The dissent simply never addresses the plain fact that performing
our duty to follow Buckley’s "the major purpose" standard is the only
way to ensure that political committee burdens fall primarily on elec-
toral advocacy. See supra at 21-22.
The dissent also underestimates the burdens attendant to designa-
tion as a political committee. The dissent claims that North Carolina’s
political committee requirements "impose only marginal restrictions
on speech." Post at 85. This belies both the precedent of this circuit
— which has termed "the consequences" of being labeled a political
committee "substantial," NCRL I, 168 F.3d at 712 — and the actual
nature of the obligations. We have detailed earlier in this opinion the
welter of regulations placed on political committees under North Car-
olina law. See supra at 25-26. Political committees must, inter alia,
appoint a treasurer to be trained by the State before every election
cycle, see N.C. Gen. Stat. § 163-278.7 (2007), abide by contribution
limits, see id. §§ 163-278.13, and comply with time-consuming dis-
closure requirements that allow the state to scrutinize their affairs,
see, e.g., id. §§ 163-278.9. These requirements are more than just nui-
sances, and indeed are precisely the sort of burden that discourages
potential speakers from engaging in political debate. See Buckley, 424
U.S. at 64-65.
Finally, the dissent is too quick to discount the possibility that
North Carolina can achieve its regulatory objectives through less
restrictive means. The dissent does not contest the fact that one-time
reporting requirements of contributions and expenditures will produce
many of the same benefits of accountability and transparency as the
more onerous political committee designation. Nonetheless, the dis-
sent still finds this less burdensome alternative too "tepid" and "mini-
malist." Post at 87. This is because one-time requirements do not
"enable the state" to either "undertake prompt investigation of inci-
dents of potential misconduct" or "limit[ ] extremely large contribu-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 45
tions to organizations that then spend that money on direct electoral
advocacy." Id. at 134-35.
Neither of the dissent’s concerns carry the day, however. The mere
possibility that an organization may "potentially" engage in miscon-
duct is not a sufficient reason to regulate large quantities of political
expression. Hypothetical harms do not justify infringement on First
Amendment freedoms. See, e.g., Edenfield v. Fane, 507 U.S. 761,
770-71 (1993). Likewise, the dissent does not recognize that "large
contributions" given to organizations with only "a major purpose" of
influencing elections will more likely than not be used to fund pro-
tected First Amendment activities. This is hardly the sort of tailoring
required in this most sensitive of areas. See, e.g., McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 347 (1995).
The dissent’s analysis of North Carolina’s political committee defi-
nition thus mirrors its analysis of the "context prong." Dissatisfied
with regulatory options that conform to clear Supreme Court prece-
dent, the dissent writes North Carolina what is, in essence, a blank
check to trample on protected political speech.
C.
The dissent finally contends that we err by striking "down [North
Carolina’s] $4,000 contribution limit insofar as it applies to ‘indepen-
dent expenditure political committees’ such as NCRL-FIPE." Post at
88. The dissent claims that we "improperly" discount the "substantial
evidence of the corruptive influence of independent expenditures"
that North Carolina has produced. Id. at 96. According to the dissent,
this evidence is "sufficient" to justify the application of § 163-278.13
to independent expenditure committees. Id. at 92.
The specific evidence discussed by the dissent, however, does not
constitute the type of proof necessary to warrant the regulation of
pure political expression. In particular, the dissent discusses three
pieces of evidence: (1) an expert declaration concerning how, in the
2004 federal campaigns, national parties routed large-ticket donors
toward independent expenditure committees that were able to "‘effec-
tively aid a campaign without any formal coordination,’" id. at 92
(quoting JA 325); (2) the previously discussed Farmers for Fairness
46 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
advertising campaign "directly opposing certain legislative candi-
dates," post at 93; and, finally, (3) general evidence of "actual corrup-
tion in North Carolina politics," id. at 94 n.11.
This evidence does not support the conclusion that independent
expenditure committees are corrupting North Carolina politics. The
only evidence the dissent presents on the actual use of independent
expenditure committees to circumvent contribution limits involves
national parties and federal elections. Indeed, the dissent presents no
evidence specific to North Carolina linking either the systematic cir-
cumvention of contribution limits or quid pro quo corruption to inde-
pendent expenditure committees.
In fact, it is worth pausing on the evidence the dissent does present
concerning North Carolina politics in order to demonstrate its insuffi-
ciency. Although the dissent discusses a single independent expendi-
ture committee, Farmers for Fairness, at length, the dissent never once
even alleges that the Farmers coordinated their expenditures with can-
didates or engaged in traditional quid pro quo corruption. Instead, the
dissent finds it sufficient that the Farmers proposed to run ads that
took issue with incumbent legislators on positions "unrelated" to "its
central issue, deregulation of the hog industry." Id. at 93.
It is difficult to see how these facts support the regulation of inde-
pendent expenditure committees. The fact that such committees may
find it worthwhile to support issues other than their primary focus
hardly constitutes corruption or even the appearance thereof. Like-
wise, we see no harm in using pure political speech in an attempt to
achieve legislative ends.
Our disagreement with the dissent on this latter point is fundamen-
tal. The dissent’s vague assertion of intimidation simply does not sup-
port the regulation of pure political speech. Political speakers have
every right to make incumbents answer for their record. Legislators
are not without their bully pulpit, and incumbents are not without
their fundraising and name-recognition advantages. It is virtually
unassailable that political speech is as necessary for political chal-
lengers as for sitting legislators, and the dissent simply pays no heed
to the fact that the regulation of political speech can very easily serve
as a front for incumbency protection. See Randall v. Sorrell, 126 S.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 47
Ct. 2479, 2492-94 (2006). "The first instinct of power is the retention
of power, and, under a Constitution that requires periodic elections,
that is best achieved by the suppression of election-time speech."
McConnell, 540 U.S. at 263 (Scalia, J., dissenting). The appropriate
legislative response to potentially effective speech from organizations
like the Farmers for Fairness is not to silence them through regulation,
but rather to appeal to the electorate with effective counter-speech.
See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring) (stating that the appropriate "remedy to be applied" to
objectionable speech "is more speech, not enforced silence").
The dissent’s other evidence specific to North Carolina consists of
"examples of actual corruption in North Carolina politics." Post at 94
n.11. According to the dissent, the fact that politicians in North Caro-
lina have engaged in corruption "support[s] the state’s reasonable pre-
diction that state politicians and contributors will likely find and
exploit any existing loopholes in campaign finance regulations." Id.
This evidence is similarly unpersuasive: general evidence of corrup-
tion hardly justifies the specific regulation of independent expenditure
committees. In fact, some may argue that free political speech is the
best remedy for, rather than a cause of, corruption. Indeed, indepen-
dent expenditure committees may be the very ones to take up the
lance against corrupt public practices. By embracing ever greater bur-
dens upon political speech, the dissent is slowly ridding our democ-
racy of one of its foremost cleansing agents. See, e.g., Mills v.
Alabama, 384 U.S. 214, 218 (1966) (noting that "there is practically
universal agreement that a major purpose of [the First] Amendment
was to protect the free discussion of governmental affairs").
Finally, we address the dissent’s final argument: that the corporate
structure of NCRL, NCRL-PAC, and NCRL-FIPE justifies applica-
tion of North Carolina’s contribution limits to independent expendi-
ture committees. According to the dissent, our decision allows
interlocked organizations that share management (like NCRL and its
affiliates) to "circumvent campaign finance regulation" by coordinat-
ing with candidates through political committees (e.g., NCRL-PAC),
while accepting large-ticket donations to independent expenditure
committees (e.g., NCRL-FIPE). Post at 95.
While we recognize the theoretical risk of abuse in this area, the
dissent’s argument is at least two steps away from justifying across-
48 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
the-board application of contribution limits to independent expendi-
ture committees. First, as discussed earlier, there is no evidence in the
record that NCRL has abused its corporate form. See supra at 29 n.8.
Second, even if there was evidence that NCRL was using NCRL-
FIPE to circumvent North Carolina’s contribution limits, this would
hardly be sufficient justification to regulate all independent expendi-
ture committees. Such committees would be judged guilty with no
chance of proving their innocence, while the state neglected the use
of a more narrowly tailored regulatory option: applying contribution
limits to independent expenditure committees shown to have abused
their corporate form.
D.
Our colleague in dissent charges that "[i]t is not our place to rewrite
precedent, even if our beliefs about the First Amendment conflict
with those of the Supreme Court." See post at 100. Surely this sugges-
tion must have occasioned introspection. For it is the dissent which
has contravened no fewer than three Supreme Court precedents in a
single action. It seeks to uphold the very multi-factor test that WRTL
said emphatically should not be upheld. It seeks to sustain a statute
unprecedented in its lack of clarity against a vagueness challenge,
even though the statute extends far beyond the specific set of require-
ments the Supreme Court approved in McConnell. And, finally, the
dissent rejects the exact formulation used by Buckley and its progeny
to define political committee in a manner that infringes least substan-
tially on political speech. While it is assuredly true that courts of
appeal enjoy interstitial latitude in interpreting Supreme Court deci-
sions, we do not possess the authority to set them aside. That is the
plain effect of what is urged by the dissent, and it would only add to
the problems and uncertainties besetting this area.
The dissent further disregards Supreme Court precedent by invent-
ing a First Amendment standard out of whole cloth. The dissent con-
cedes that North Carolina’s regulations "may affect speech," but
refuses to declare the statutes unconstitutional because they "do not
silence" speech. Post at 98; see also id. at 97. This "silencing" stan-
dard is no friend of the First Amendment. Indeed, the dissent’s sur-
mise about the quantum of political speech lost to North Carolina’s
overbroad campaign finance regulations is nothing more than guess-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 49
work. With its new "silencing" standard, the dissent suggests that
political speech must be placed in some meat locker before First
Amendment implications arise. This is not how we understand the
First Amendment, because it gives the benefit of every doubt to regu-
latory censorship.
In fact, the dissent seems to be unaware of the risks presented to
free political speech by empowering state actors with vague and broad
statutes. The dissent claims that "[d]ecades of campaign finance regu-
lation have not silenced political speech." Id. at 97. While this is a
matter of opinion, not evidence, it hardly helps the dissent, for politi-
cal debate in this country has never had to navigate regulations as
vague and overbroad as those before us in this case.
The dissent, however, does make its own overbroad assertions
about the effect this opinion will have on the place of money and the
level of transparency in politics, see post at 100-101; yet, in doing so,
it ignores the limited nature of our holding, which we have empha-
sized throughout. We repeat that the important task of ensuring elec-
toral integrity leaves considerable room to regulate within
constitutional bounds. We repeat also that North Carolina remains
free to, inter alia, impose disclosure and reporting requirements on
political candidates and committees, so long as it does so in accor-
dance with WRTL and McConnell. North Carolina is also free to regu-
late all traditional political committees — for example, those
controlled by candidates, political parties, or those created by corpo-
rations and unions. See N.C. Gen. Stat. § 163-278.6(14)(a)-(c) (2007).
But the legislation challenged in this case represents a giant step
beyond these Supreme Court decisions. The state here seeks to
expand its control so that it may regulate not only electoral advocacy,
but pure political speech, as well.
Debate on political issues can be reasoned and calm. It can also be
passionate, long-winded, funny, uplifting, dull, or downright outra-
geous. Whatever it is, speakers ought to be able to engage in it with-
out wondering all the while whether a regulator now possessed of
unprecedented discretion will find they have committed the mortal sin
of uttering "the functional equivalent of express advocacy." Our dis-
senting colleague would permit the state to oversee political speech
— no questions asked. The dissent would force political speech to
50 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
navigate the Scylla of vagueness and all its chilling effects and the
Charybdis of impossibly intricate regulation, which even the cogno-
scenti may be unable to divine. Indeed, the dissent replaces the
Supreme Court’s faith in the workings of the First Amendment with
a faith in the powers of government to manage what we say on what
matters most. This approach surrenders to the state an awesome con-
trol over those political issues that determine the quality of our
democracy and the values that give purpose and meaning to our lives.
VI.
To summarize our decision: we hold North Carolina’s statutory
attempt to use context to identify communications in support of or
opposition to a candidate, N.C. Gen. Stat. § 163-278.14A(a)(2),
facially unconstitutional; North Carolina’s use of "a major purpose"
test to identify political committees, N.C. Gen. Stat. § 163-278.6(14),
amended by N.C. Sess. Laws 2007-391, facially unconstitutional; and
North Carolina’s $4,000 contribution limit, N.C. Gen. Stat. § 163-
278.13, unconstitutional as applied to NCRL-FIPE and other similarly
situated entities.The decision of the district court is thus
AFFIRMED IN PART AND REVERSED IN PART.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 51
Volume 2 of 2
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 53
MICHAEL, Circuit Judge, dissenting:
North Carolina has enacted, within the bounds of the First Amend-
ment, a campaign finance law that is aimed at promoting transparency
and openness in the electoral processes of that state. Today the major-
ity strikes down key provisions in that law and severely restricts the
well-established power of a state to regulate its elections. One result
will be that organizations and individuals will be able to easily dis-
guise their campaign advocacy as issue advocacy, thereby avoiding
regulation. The majority thus allows these organizations and individu-
als to conceal their identities, spend unlimited amounts on campaign
advertising masked as discussion of issues, and "hide themselves
from the scrutiny of the voting public." McConnell v. Fed. Election
Comm’n, 540 U.S. 93, 197 (2003) (internal quotation marks omitted).
Another result is that there can be no limits on the size of contribu-
tions to independent political committees. Allowing unlimited contri-
butions to these political committees is a heavy blow to the state’s
interest in combating the "‘pernicious influence’" of too much money
in politics. See id. at 115 (quoting United States v. Int’l Union United
Auto., Aircraft & Agric. Implement Workers of Am., 352 U.S. 567,
572 (1957)).
First, the majority invalidates, as unconstitutional on its face, the
North Carolina Act’s test for determining whether a political adver-
tisement "support[s] or oppose[s] the nomination or election of one or
more clearly identified candidates." N.C. Gen. Stat. § 163-
278.14A(a)(2). The test allows factors — such as timing, cost, reach,
and language — to be considered in determining whether an adver-
tisement "could only be interpreted by a reasonable person as advo-
54 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
cating the nomination, election, or defeat" of a specific candidate in
a specific election. Id. (emphasis added). This objective test is consti-
tutional because sufficient governmental interests justify the minimal
burden it places on speech. Furthermore, the test is vital to the North
Carolina Act because, as the Supreme Court has recognized, the most
effective campaign advertisements often couch their message in sub-
tle language, thereby avoiding regulation in the absence of a more
encompassing test like North Carolina’s. McConnell, 540 U.S. at 127.
The majority’s elimination of this test means that much electoral
advocacy in North Carolina will be free of contribution limits, disclo-
sure requirements, and limits on corporate and union spending.
Second, the majority strikes down North Carolina’s definition of
political committee — an organization with "a major purpose" of
electoral advocacy. § 163-278.6(14)d. The majority requires use of
the words "the major purpose" that appear in Buckley v. Valeo, 424
U.S. 1, 79 (1976) (per curiam). Buckley holds that "groups engaged
purely in issue discussion" may not be regulated as political commit-
tees. Id. Nothing in Buckley suggests that placing the article "the"
before "major purpose" is an absolute requirement. Nothing in Buck-
ley prevents a state from concentrating on the word "major" and regu-
lating organizations with "a major purpose" of electoral advocacy.
The regulation is clear because, after all, a major purpose is simply
a principal or conspicuous purpose, one that will be readily detectible.
Completely excluding organizations that have electoral advocacy as
a major purpose will allow many politically active organizations to
escape regulation and hide their identities and activities from public
scrutiny.
Finally, the majority strikes down North Carolina’s contribution
limits, § 163-278.13, as applied to independent expenditure commit-
tees. In doing so, the majority ignores that North Carolina has met its
burden for imposing such limits. The state has provided substantial
evidence of the corrupting influence of independent expenditures in
the political process. There is no constitutional basis for depriving the
state of an important tool — limits on contributions to independent
committees — in combating this corruptive influence.
I respectfully dissent.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 55
I.
I begin with an overview of Supreme Court precedent.
The power of the legislative branches to regulate elections "is well
established." Buckley v. Valeo, 424 U.S. 1, 13 (1976) (per curium).
Accordingly, for over a century Congress and state legislatures have
enacted legislation "to purge . . . politics of what was conceived to be
the pernicious influence of ‘big money’ campaign contributions."
McConnell v. Fed. Election Comm’n, 540 U.S. 93, 115 (2003) (quot-
ing United States v. Int’l Union United Auto., Aircraft & Agric.
Implement Workers of Am., 352 U.S. 567, 572 (1957)) (internal quo-
tation marks omitted); see also Auto. Workers, 352 U.S. at 570-76. In
an effort to protect against the "political potentialities of wealth" that
"shake the confidence of the plain people of small means of this coun-
try in our political institutions," legislatures have imposed a variety
of regulations on the financing of political campaigns. McConnell,
540 U.S. at 115, 116 (quoting Auto. Workers, 352 U.S. at 571, 577-
78) (internal quotation marks omitted).
The Supreme Court has reviewed these legislative efforts with
"‘considerable deference,’" McConnell, 540 U.S. at 117 (quoting Fed.
Election Comm’n v. Nat’l Right to Work Comm., 459 U.S. 197, 209
(1982)), because of the vital governmental interests in protecting "the
‘free functioning of our national institutions’" and fostering the confi-
dence of our citizens, Buckley, 424 U.S. at 66 (quoting Communist
Party v. Subversive Activities Control Bd., 367 U.S. 1, 97 (1961)).
Foremost among the governmental interests recognized by the Court
is that of preventing "the actuality and appearance of corruption
resulting from large individual financial contributions." Buckley, 424
U.S. at 26. The Court has taken a broad view of this interest. Hence,
it has "‘recognized a concern not confined to bribery of public offi-
cials, but extending to the broader threat from politicians too compli-
ant with the wishes of large contributors.’" McConnell, 540 U.S. at
143 (quoting Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 389
(2000)). In addition, the Court has recognized the need for legislative
regulation to guard against the appearance of corruption and to pre-
vent "‘the cynical assumption that large donors call the tune,’" an
assumption that "‘could jeopardize the willingness of voters to take
part in democratic governance.’" Id. at 144 (quoting Shrink Missouri,
56 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
528 U.S. at 390). The Court has further recognized that the unrelent-
ing and imaginative efforts of some political participants to circum-
vent almost every new campaign finance regulation qualifies as "‘a
valid theory of corruption,’" a theory that is sufficient to justify pro-
phylactic laws that extend beyond the regulation of direct political
contributions. Id. (quoting Fed. Election Comm’n v. Colo. Republican
Fed. Campaign Comm., 533 U.S. 431, 457 (2001)). Thus, the Court
has held that the weighty governmental interest in preventing political
corruption and its appearance justifies a broad range of regulations,
including prohibitions on certain campaign expenditures and contri-
butions from general treasury funds of for-profit corporations, non-
profit corporations, and unions; federal caps on contributions to and
from state and federal political parties, state and federal candidates,
and political committees; public disclosure requirements for political
contributions and expenditures; comprehensive regulation of political
committees; and limits on how and for whom a candidate or political
party can solicit funds. See, e.g., McConnell, 540 U.S. at 133-224;
Fed. Election Comm’n v. Beaumont, 539 U.S. 146 (2003); Nat’l Right
to Work, 459 U.S. 197; Buckley, 424 U.S. at 23-38, 60-84; Burroughs
v. United States, 290 U.S. 534, 544-48 (1934).
The Court has also recognized several additional important govern-
mental interests that justify disclosure requirements. "Disclosure pro-
vides the electorate with information ‘as to where political campaign
money comes from and how it is spent by the candidate’ in order to
aid the voters in evaluating those who seek . . . office." Buckley, 424
U.S. at 66-67 (citation omitted). "[R]ecordkeeping, reporting, and dis-
closure requirements are also an essential means of gathering the data
necessary to detect violations" of substantive regulations. Id. at 67-68;
see McConnell, 540 U.S. at 196. Furthermore, the government has a
significant interest in "assuring that disclosures are made promptly
and in time to provide relevant information to voters." McConnell,
540 U.S. at 200.
Of course, our inquiry into the validity of a campaign finance regu-
lation does not end with the recognition of important governmental
interests. We must examine the degree to which the regulation bur-
dens First Amendment rights and evaluate whether the governmental
interests are sufficient to justify that burden. See, e.g., Buckley, 424
U.S. at 68. Thus, because limits on political contributions "entail[ ]
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 57
only a marginal restriction upon the contributor’s ability to engage in
free communication," Buckley, 424 U.S. at 20, these regulations are
"closely drawn to match [the] sufficiently important interest" of pre-
venting corruption and its appearance. McConnell, 540 U.S. at 136
(internal quotation marks omitted); see also Buckley, 424 U.S. at 25.
Likewise, disclosure requirements "do not prevent anyone from
speaking," McConnell, 540 U.S. at 201 (internal quotation marks and
alteration omitted), although they can "infringe on privacy of associa-
tion and belief guaranteed by the First Amendment," Buckley, 424
U.S. at 64. We therefore require that "there be a ‘relevant correlation’
or ‘substantial relation’ between [an important] governmental interest
and the information required to be disclosed." Id. (citations omitted);
see McConnell, 540 U.S. at 196. Regulations requiring disclosure of
campaign-related contributions and expenditures and those requiring
political committees to make regular reports meet this test. See Buck-
ley, 424 U.S. at 68, 79-82.1
In one specific area — complete bans on independent political
expenditures — the Supreme Court has held that "the governmental
interest in preventing corruption and the appearance of corruption is
inadequate to justify" the regulation. Id. at 45. Unlike other campaign
regulations, bans on independent expenditures "impose direct and
substantial restraints on the quantity of political speech." Id. at 39.
They are unconstitutional as a general proposition because they leave
the speaker no alternative forum for speech.
In Buckley and the cases that followed, the Supreme Court estab-
lished these clear rules for determining whether a campaign finance
regulation is overly broad. Nonetheless, the majority inexplicably
questions the well-established proposition that "the burdens imposed
on political speech and the state’s interests may vary by the type of
regulation." Ante at 38. This refusal to accept decades of Supreme
Court precedent highlights the majority’s fundamental misunderstand-
ing and resulting misapplication of the law. Instead of applying prece-
dent, the majority employs its own theory — that any regulation of
1
Such regulations can, however, pose an unconstitutional burden if
those regulated are able to show evidence of threats or reprisals as the
result of the disclosures. See McConnell, 540 U.S. at 197-99; Buckley,
424 U.S. at 69-72.
58 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
campaign expenditures or contributions amounts to a direct and there-
fore inherently suspect restraint on speech, regardless of the type of
regulation. As a result, the majority requires all regulations to meet
an improperly high bar in order to pass constitutional muster. See,
e.g., ante at 9-16 (applying test from Wisconsin Right to Life, Inc. v.
Federal Election Commission, ___ U.S. ___, 127 S.Ct. 2652 (2007),
developed in the strict scrutiny context, to strike down portions of
North Carolina’s contribution, disclosure, and political committee
regulations); id. at 23 (striking down political committee definition
because "narrower means exist"); id. at 38 (refusing to distinguish
between types of regulations because "[s]peakers are going to have to
contend with [the] same infirmities for both expenditures and contri-
butions regardless of . . . the regulatory context"). In contrast, the
Supreme Court requires that in an overbreadth challenge we consider
each regulation’s actual burden on speech and weigh that burden
against the governmental interests that justify it. Further, the "strong
medicine" of overbreadth may only be applied to strike down a statute
when "a substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep." Wash.
State Grange v. Wash. State Republican Party, ___ U.S. ___, ___,
128 S. Ct. 1184, 1190 n.6 (2008) (internal quotation marks omitted);
see McConnell, 540 U.S. at 207.
In addition to the requirement that an election regulation may not
be overly broad, the regulation may not be unconstitutionally vague.
As the majority explains, to overcome vagueness concerns, a regula-
tion must be sufficiently clear to avoid "foster[ing] arbitrary and dis-
criminatory application," and it must "give fair notice to those to
whom [it] is directed." McConnell, 540 U.S. at 223 (quoting Buckley,
424 U.S. at 41 n.48; Am. Commc’ns Ass’n. v. Douds, 339 U.S. 382,
412 (1950)) (internal quotation marks omitted).
To succeed in a facial challenge, a plaintiff must carry the "heavy
burden of proving" that a regulation is overly broad, McConnell, 540
U.S. at 207, or vague. As the Supreme Court recently explained in
rejecting a facial challenge to a state election regulation, "[f]acial
challenges are disfavored for several reasons." Id. at 1191. Facial
challenges "often rest on speculation," "run contrary to the fundamen-
tal principle of judicial restraint," and, perhaps most important,
"threaten to short circuit the democratic process by preventing laws
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 59
embodying the will of the people from being implemented in a man-
ner consistent with the Constitution." Id. Instead of following these
instructions to tread carefully in assessing facial challenges, the
majority impermissibly relies on "hypothetical and imaginary" exam-
ples, many of which were not even posited by the plaintiffs, to strike
down North Carolina’s regulations. Id. at 1190 (internal quotation
marks omitted).
The contested provisions of the North Carolina Act are well within
the boundaries established by the Supreme Court, as the following
discussion makes clear.
II.
The majority holds N.C. Gen. Stat. § 163-278.14A(a)(2) unconsti-
tutionally overbroad and vague. It is neither.
A.
Section 163-278.14A provides regulators (and likewise, speakers)
guidance for determining whether "communications are ‘to support or
oppose the nomination or election of one or more clearly identified
candidates.’" § 163-278.14A. The guidance provided in § 163-
278.14A is important to the Act because many of its regulations hinge
on whether a given communication "supports or opposes the nomina-
tion or election of one or more clearly identified candidates." This
operative phrase is used in the separate definitions of "contribution,"
"expenditure," "independent expenditure," "political committee," and
"referendum committee." § 163-278.6(6), (9), (9a), (14), (18b). These
activities or organizations are, in turn, regulated throughout the Act
in the following ways. Political committees and referendum commit-
tees are subject to regular reporting requirements and must have a
designated treasurer to keep accurate records. § 163-278.7 to .11.
Candidates, committees, and individuals must disclose information
about their contributions and expenditures. § 163-278.8, .9, .9A, .11,
.12, .39. Contributions to a political committee, referendum commit-
tee, or candidate are capped at $4000 per donor, per election. § 163-
278.13.2 Finally, certain types of corporations and labor unions are
2
Contributions to candidates for the state supreme court and court of
appeals are capped at $1000. § 163-278.13(e2).
60 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
forbidden from making contributions or expenditures, except from
segregated funds. § 163-278.19. The words "support or oppose" also
appear in a provision requiring additional disclosures for "television
and radio advertisements supporting or opposing the nomination or
election of one or more clearly identified candidates." § 163-278.39A.
Section 163-278.14A has two parts that describe the evidence that
a regulator can use to determine, for enforcement purposes, whether
a communication "supports or opposes" a candidate. The first part,
which the plaintiffs do not challenge, lists specific words and phrases
that, when used, are a means of determining whether a communica-
tion "supports or opposes" a specific candidate. § 163-278.14A(a)(1).
These phrases include a list of "magic words," such as "vote for" and
"reject," similar to those set forth in Buckley. See Buckley, 424 U.S.
at 44 n.52. The second part allows regulators to consider additional
evidence if a specific phrase or word listed in the first part does not
appear in the communication. Under the second part, a regulator may
consider "[e]vidence of financial sponsorship of communications
whose essential nature expresses electoral advocacy to the general
public and goes beyond a mere discussion of public issues in that they
direct voters to take some action to nominate, elect, or defeat a candi-
date in an election." § 163-278.14A(a)(2). However,
[i]f the course of action is unclear, contextual factors such
as the language of the communication as a whole, the timing
of the communication in relation to events of the day, the
distribution of the communication to a significant number of
registered voters for that candidate’s election, and the cost
of the communication may be considered in determining
whether the action urged could only be interpreted by a rea-
sonable person as advocating the nomination, election, or
defeat of that candidate in that election. Id.
The majority, using a rigid test that it has developed with no sup-
port in precedent, holds that § 163-278.14A(a)(2) is overly broad and
vague.
B.
I begin by explaining how the majority seriously misconstrues
Supreme Court precedent with respect to the regulation of express
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 61
electoral advocacy and issue advocacy. In Buckley the Supreme Court
found the definition of "expenditure" in the Federal Election Cam-
paign Act of 1971 (FECA), 86 Stat. 3 (1972), as amended by 88 Stat.
1263 (1974), to be vague and potentially overbroad. Buckley, 424
U.S. at 40-45, 79-80. In order to ensure that FECA’s expenditure lim-
itations hewed to the purposes of the statute, and thus were not over-
broad, Buckley interpreted the term "expenditure" to apply only to
"communications that in express terms advocate the election or defeat
of a clearly identified candidate." Id. at 44. In addition, the Court pro-
vided several examples of words ("vote for," "elect," "support") that
would appear in communications that fit its definition of "express
advocacy." Buckley, 424 U.S. at 44 & n.52, 80. Several circuit courts
interpreted Buckley to mean that any definition of express advocacy
in state campaign finance regulations must be limited to speech that
includes only "magic words" such as those listed in Buckley. See, e.g.,
N.C. Right to Life, Inc. v. Leake (NCRL II), 344 F.3d 418, 424-27 (4th
Cir. 2003), vacated, 541 U.S. 1007 (2004).
In McConnell, however, the Supreme Court rejected this interpreta-
tion of Buckley, emphasizing that
a plain reading of Buckley makes clear that the express
advocacy limitation, in both the expenditure and disclosure
contexts, was the product of statutory interpretation rather
than a constitutional command. In narrowly reading the
FECA provisions in Buckley to avoid problems of vagueness
and overbreadth, we nowhere suggested that a statute that
was neither vague nor overbroad would be required to toe
the same express advocacy line.
McConnell, 540 U.S. at 191-92 (footnote omitted). McConnell
explained that, instead of requiring a formal division between differ-
ent types of advocacy, the First Amendment allows legislatures to
craft their own regulations as long as they do not directly prohibit
speech and are sufficiently related to important concerns about the
electoral process. Congress operated within these bounds in enacting
the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81
(2002), because
Buckley’s magic words requirement is functionally mean-
ingless. Not only can advertisers easily evade the line by
62 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
eschewing the use of magic words, but they would seldom
choose to use such words even if permitted. And although
the resulting advertisements do not urge the viewer to vote
for or against a candidate in so many words, they are no less
clearly intended to influence the election. Buckley’s express
advocacy line, in short, has not aided the legislative effort
to combat real or apparent corruption, and Congress enacted
BCRA to correct the flaws it found in the existing system.
Id. at 193-94 (citations and footnotes omitted).
In rejecting the notion "that the First Amendment erects a rigid bar-
rier between express advocacy and so-called issue advocacy" that
only allows regulation of express advocacy, id. at 193, the Court in
McConnell refused to declare BCRA’s regulation of "electioneering
communications" unconstitutional simply because it failed to incorpo-
rate the Buckley express advocacy test. Instead, McConnell examined
the regulation for overbreadth and vagueness and concluded that it
was both substantially related to its campaign regulation purpose and
sufficiently clear, and thus facially constitutional. Id. at 189-211.
McConnell holds that courts may no longer require legislatures "to
treat so-called issue advocacy differently from express advocacy." Id.
at 194. Rather, courts must allow legislatures to craft carefully, within
the general limits imposed by the First Amendment, regulations to
respond to the changing realities of modern electoral advocacy,
including efforts to circumvent every new round of regulation.
Accordingly, when courts review a facial challenge to a campaign
finance regulation, McConnell requires that deference be accorded to
legislative decisions about the types of communications that should
be regulated. A regulation may be struck down only if it is unconstitu-
tional in a substantial number of applications or is too vague to pro-
vide notice.
Of course, because a facially valid election regulation can have
unconstitutional applications, the regulation remains susceptible to a
proper as-applied challenge. See Wis. Right to Life, Inc. v. Fed. Elec-
tion Comm’n (WRTL I), 546 U.S. 410 (2006) (per curium). Thus, in
Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL
II), ___ U.S. ___, 127 S. Ct. 2652 (2007), a plurality of the Court con-
cluded that BCRA § 203’s prohibition of "electioneering communica-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 63
tions" (approved on its face in McConnell) could not be applied to a
specific broadcast, unless that broadcast "is susceptible of no reason-
able interpretation other than as an appeal to vote for or against a spe-
cific candidate." 127 S. Ct. at 2667 (opinion of Roberts, C.J.).
According to the Court, this is "the proper standard for an as-applied
challenge" to a statute that is permissible on its face. Id. at 2666
(emphasis added). This standard does not affect McConnell’s holding
that § 203 is facially constitutional. Holding a statute facially uncon-
stitutional requires "‘prohibiting all enforcement’" of the statute, a
drastic result that can only be justified if the statute’s "application to
protected speech is substantial." McConnell, 540 U.S. at 207 (quoting
Virginia v. Hicks, 539 U.S. 113, 120 (2003)). Section 203 is facially
constitutional because it does not, on its face, apply to a substantial
amount of protected speech; it mostly applies to "election-related
advertising," which can be constitutionally regulated. Id. McConnell
necessarily recognizes, however, that the section might be applied to
protected speech in limited circumstances. Id. WRTL II’s reasonable-
ness test by its own terms is only designed to identify and remedy this
small subset of unconstitutional applications of an otherwise facially
valid election regulation.
Ignoring the Court’s distinction between as-applied and facial chal-
lenges, the majority claims that McConnell and WRTL II established
a bright line rule for facial challenges that divides acceptable regula-
tions (covering express advocacy) from unacceptable regulations
(covering issue advocacy). All election regulations are unconstitu-
tional unless they expressly adhere to the majority’s strict construct,
which is as follows. The majority first, and uncontroversially, states
that any election regulation is facially constitutional if it is limited to
regulating specific "magic words." If, however, a legislature wishes
to regulate any speech that avoids the magic words, the majority
would require the statute to include (exactly) the following formula-
tion on its face: (1) the exact terms required by the definition of "elec-
tioneering communication" in BCRA, that is, the communication
must (a) refer to a clearly identified candidate (b) within 60 days of
a general election or 30 days of a primary election and (c) be able to
be received by 50,000 or more persons in the candidate’s district or
state, see 2 U.S.C. § 434(f)(3)(A)(I), (C); and (2) the communication
must be "susceptible of no reasonable interpretation other than as an
64 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
appeal to vote for or against a specific candidate." Ante at 11. This
narrow, rigid approach has several fatal flaws.
First, the majority fails to recognize that McConnell explicitly "re-
jected the notion that the First Amendment requires [legislatures] to
treat so-called issue advocacy differently from express advocacy."
McConnell, 540 U.S. at 194. Instead of drawing a rigid line between
speech that can and can not be regulated as the majority does today,
the Court granted legislatures leeway to craft election regulations that
meaningfully address the realities of modern electoral advocacy — as
long as those regulations are substantially related to the government’s
important interests in protecting the democratic process. See id. at
189-94. Unlike the majority, McConnell grants deference to these leg-
islative judgments by requiring courts reviewing facial challenges to
conduct traditional vagueness and overbreadth analyses in determin-
ing whether regulations comply with the First Amendment.
Second, the majority holds, as a constitutional rule, that an election
regulation that goes beyond Buckley’s magic words is permissible
only if it adopts the exact requirements Congress imposed in BCRA
for "electioneering communications." See ante at 11 ("[T]he [regu-
lated] communication must qualify as an ‘electioneering communica-
tion’ defined by [BCRA] . . . ." (emphasis added)). But the only
support the majority cites for this proposition is a footnote in WRTL
II — a case analyzing an as-applied challenge to the direct expendi-
ture limit in BCRA § 203. Id. The WRTL II footnote responds to a
concern that the plurality’s reasonableness test is too vague by
admonishing the reader to "keep in mind" that the test is also limited
by "the bright line requirements of BCRA § 203." 127 S. Ct. at 2669
n.7. Nowhere does WRTL II state that the specific requirements of
BCRA § 203 are the only way that a statute could be sufficiently
clear; nor does WRTL II even purport to adopt BCRA’s requirements
to avoid overbreadth. Furthermore, in addition to BCRA § 203, the
Supreme Court has found various formulations of regulatory language
to be acceptable, especially in areas other than direct expenditures
limits, even though they encompass more speech than Buckley’s defi-
nition of express advocacy. See, e.g., Buckley, 424 U.S. at 23 n.24
(allowing regulation of contributions made for "political purposes");
McConnell, 540 U.S. at 170 n.64, 184-85 (upholding regulation of "a
communication that ‘refers to a clearly identified candidate . . . and
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 65
that promotes or supports a candidate . . . or attacks or opposes a can-
didate’" (quoting 2 U.S.C. § 431(20)(A)(iii))). The majority clearly
errs by mandating the elements of BCRA § 203, which is simply an
example of a clear and sufficiently tailored statute, as an essential part
of any campaign regulation.
Third, the majority fails to recognize that the WRTL II reasonable-
ness test for the "functional equivalent of express advocacy" was
developed to determine whether, in the actual application of BCRA
§ 203, an organization could be forbidden from broadcasting a partic-
ular advertisement. McConnell had already held that, in a facial chal-
lenge, the regulator need only show that a statute is not vague or
overbroad. McConnell, 540 U.S. at 192. According to McConnell,
BCRA’s definition of "electioneering communication" — a commu-
nication that refers to a clearly identified candidate; is made within 60
days of a general election or 30 days of a primary; and can be
received by at least 50,000 persons in the candidate’s district or state
— withstood vagueness and overbreadth challenges. Id. at 189-211.
Needless to say, BCRA was not, on its face, required to include
WRTL II’s reasonableness test.
Fourth, the majority adopts its test without regard for the type of
regulation implicated. It ignores the fact that a proper overbreadth
analysis considers the burden on First Amendment rights as balanced
against the strength of the governmental interest. McConnell rejected
a bright line test like the majority’s and mandated a return to tradi-
tional overbreadth analysis. McConnell, 540 U.S. at 192, 205. None-
theless, the majority states that every regulation must pass its test
regardless of the actual impact that the regulation has on speech or the
governmental interests that might justify it.3 As a result, the majori-
ty’s decision to strike down § 163-278.14A(a)(2) on its face means
that no election regulation is constitutional unless its terms limit its
application to extremely narrow circumstances: specifically, all regu-
lations must enumerate words of express advocacy or incorporate
3
Although the majority mentions one important governmental interest
— "‘limit[ing] the actuality and appearance of corruption,’" ante at 10
(quoting Buckley, 424 U.S. at 26) — it fails to either conduct an over-
breadth analysis or recognize the full range of governmental interests
served by election regulations.
66 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
BCRA’s definition of "electioneering communication" and WRTL II’s
reasonableness test. The majority imposes this same rule on all types
of regulations, whether they be disclosure requirements, contribution
limits, political committee definitions, or direct restraints on expendi-
tures. The Supreme Court has consistently applied exactly the oppo-
site rule, subjecting different types of regulations, depending on the
burdens imposed on speech, to different levels of scrutiny. If the
majority had considered the substantive regulations affected by
§ 163-278.14A(a)(2), it would have recognized that they (inasmuch as
they affect the plaintiffs) do not impose expenditure limits, the
restraint on speech addressed in WRTL II. Instead, the majority’s rule
applies the WRTL II analysis to disclosure requirements, contribution
limits, and political committee designations. No other court has
applied WRTL II to all types of campaign finance regulations; instead,
every court to address the issue has rejected any application beyond
direct limits on corporate expenditures. See Cal. Pro-Life Council,
Inc. v. Randolph, 507 F.3d 1172, 1177 n.4 (9th Cir. 2007) (WRTL II
analysis is inapplicable to analysis of disclosure requirements); Citi-
zens United v. Fed. Election Comm’n, 530 F. Supp. 2d 274, 280-81
(D.D.C. 2008) (same); Shays v. U.S. Fed. Election Comm’n, 508 F.
Supp. 2d 10, 29 (D.D.C. 2007) (WRTL II analysis is inapplicable to
coordinated expenditures); Fed. Election Comm’n v. Kalogianis, No.
8:06-cv-68-T-23EAJ, 2007 WL 4247795, at *4 (M.D. Fla. Nov. 30,
2007) (WRTL II analysis is inapplicable to analysis of corporate con-
tribution limits); Voters Educ. Comm. v. Wash. State Public Disclo-
sure Comm’n, 166 P.3d 1174, 1183 n.8 (Wash. 2007) (WRTL II
analysis is inapplicable to vagueness challenge to political committee
definition).
Thus, the majority errs by ignoring McConnell’s rejection of any
rigid constitutional rule that divides constitutionally protected speech
from speech that can be regulated in the area of campaign finance reg-
ulation; errs by requiring the exact terms of BCRA referred to in pass-
ing by WRTL II; errs by ignoring the difference in treatment between
facial and as-applied challenges that the Supreme Court requires; and
errs by applying the same rule to every type of regulation, rather than
conducting an overbreadth analysis based on the purpose and effect
of the regulation. Furthermore, because the majority’s holding strikes
down § 163-278.14A(a)(2) on its face, it strikes down every applica-
tion of the statute — from disclosure requirements to contribution
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 67
limits and even to limits on corporations and unions that North Caro-
lina Right to Life, Inc. (NCRL) has no standing to challenge.4 The
majority’s rigid rule lacks any supportable basis: it is constructed
from a mixture of ideas that are either taken out of context or
extended far beyond precedent. The result, as this case demonstrates,
will be the invalidation of many election regulations that have been
carefully drafted to honor and comply with First Amendment princi-
ples, as established by decades of Supreme Court precedent. When
the plaintiffs’ overbreadth and vagueness challenges are analyzed
under the traditional constitutional standards required by McConnell
and other relevant precedent, the error in the majority’s approach
becomes even clearer. I turn now to that analysis.
C.
The majority holds that the definition of "to support or oppose the
nomination or election of one or more clearly identified candidates"
in § 163-278.14A(a)(2) is unconstitutionally vague. Ante at 13. I dis-
agree because the definition gives particularly clear direction to both
speakers and regulators, thus meeting the standard for constitutional
clarity.
The Supreme Court has explicitly rejected a vagueness challenge
to BCRA § 301(20)(A)(iii), which defines a type of "federal election
activity" as "a public communication that refers to a clearly identified
candidate for Federal office . . . and that promotes or supports a candi-
date for that office, or attacks or opposes a candidate for that office
(regardless of whether the communication expressly advocates a vote
for or against a candidate)." 2 U.S.C. § 431(20)(A)(iii); see McCon-
nell, 540 U.S. at 170 n.64. The Court held that "[t]he words ‘pro-
mote,’ ‘oppose,’ ‘attack,’ and ‘support’ clearly set forth the confines
within which potential . . . speakers must act in order to avoid trigger-
ing the provision." McConnell, 540 U.S. at 170 n.64; see also Voters
Educ. Comm., 166 P.3d at 1184 (the phrase "in support of, or opposi-
4
Further, it is unclear how striking down part (a)(2) remedies the
majority’s concerns because the remaining provision states that the
magic words are "not necessarily the exclusive or conclusive means" of
coming under the "support or oppose" language. § 163-278.14A(a).
68 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
tion to, any candidate" in state political committee definition is not
unconstitutionally vague).
BCRA § 301(20)(A)(iii) is nearly identical to the "support or
oppose" phrase that appears throughout the North Carolina Act. Thus,
the legislature need not have provided any clarification of "support or
oppose" because the Supreme Court has recognized that this phrase
is sufficiently clear on its face. Nonetheless, the legislature took pains
to provide additional guidance to regulators and speakers by explain-
ing the type of evidence that could be used in determining whether
a certain communication actually does "support or oppose the nomi-
nation or election of one or more clearly identified candidates." This
extra legislative guidance does not render a clear phrase unconstitu-
tionally vague; instead it provides additional clarity and helps to
streamline the decision making process when questions arise regard-
ing application of the language to particular communications.
Even considering the clarifying terms outside of their context, as
the majority does, their meaning is clear. The first sentence in part
(a)(2) allows regulators to consider "[e]vidence of financial sponsor-
ship of communications whose essential nature expresses electoral
advocacy to the general public and goes beyond a mere discussion of
public issues in that they direct voters to take some action to nomi-
nate, elect, or defeat a candidate in an election." § 163-278.14A(a)(2).
The majority complains that the phrase "essential nature" is imper-
missibly vague. Ante at 13. "Essential" means "constituting an indis-
pensable structure, core, or condition of a thing : basic, fundamental."
Webster’s Third New Int’l Dictionary 777 (2002). It is plain that the
sentence in question clarifies "supports or opposes" to apply only to
communications that direct voters to act for or against a candidate.
The phrase "essential nature" clarifies that the sentence cannot reach
any communication that is incidentally directed at campaign issues;
instead the communication’s basic message must direct voter action
regarding a candidate. See Fed. Election Comm’n v. Mass. Citizens
for Life, Inc. (MCFL), 479 U.S. 238, 249 (1986) ("The fact that [the
flier’s] message is marginally less direct than ‘Vote for Smith’ does
not change its essential nature.").
The majority also complains that there is a lack of clarity in the
remainder of § 163-278.14A(a)(2), which allows a regulator to con-
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 69
sider various contextual factors (in an objective light) "[i]f the [regu-
lator’s] course of action is unclear" after evaluating the
communication under the first sentence of part (a)(2). § 163-
278.14A(a)(2). The majority seizes on the quoted phrase as "an
explicit confession from the statute itself of its fatal vagueness and
overbreadth." Ante at 35. But the phrase recognizes the realities of
political advocacy; it is not a confession of a fatal flaw. As an initial
matter, the legislature cannot be confessing to vagueness and over-
breadth in the governing term, "support or oppose," a term the
Supreme Court has upheld against both vagueness and overbreadth
challenges as I explained above. Rather, the legislature wrote the sen-
tence beginning with the phrase "If the course of action is unclear" to
provide additional guidance to regulators. In other words, the legisla-
ture acknowledged that in some circumstances a regulator might be
assisted by direction beyond the first sentence in part (a)(2) in deter-
mining whether a communication "supports or opposes" a candidate;
and the legislature then provided a solution by spelling out the objec-
tive factors.
The majority finally finds fault with the factors listed for consider-
ation in the second sentence of part (a)(2): "‘the language of the com-
munication as a whole,’ ‘the timing of the communication in relation
to events of the day,’ ‘the distribution of the communication to a sig-
nificant number of registered voters for that candidate’s election,’ and
‘the cost of the communication.’" Ante at 13. Again, the majority fails
to consider these terms in the context of the entire provision. The
terms spell out the factors that "may be considered in determining
whether the action urged could only be interpreted by a reasonable
person as advocating the nomination, election, or defeat of that candi-
date in that election." § 163-278.14A(a)(2) (emphasis added). Thus,
the evidentiary factors that the majority finds unclear are not the end-
point of the inquiry, but rather they assist the regulator in reaching a
clear and objective conclusion. Read as a whole, the second part of
the "support or oppose" test provides an objective basis for a regulator
to determine whether a communication is clearly, and indisputably,
electoral advocacy. The majority’s decision to strike down this test
blocks the legislature’s careful effort to provide the maximum amount
of guidance. The majority concludes that "North Carolina remains
free to enforce all campaign finance regulations that incorporate the
phrase ‘to support or oppose the nomination or election of one or
70 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
more clearly identified candidates.’" Ante at 40. Under this ruling
North Carolina can best accomplish its goals by eliminating § 163-
278.14A entirely, providing no explanation or direction for how regu-
lators should apply the phrase. If this section was eliminated, the
remainder of the statute would necessarily survive a facial challenge
under McConnell, while providing far less guidance than the statute
as it stands. The majority would apparently accept this perverse result,
overlooking the increase in regulatory discretion that would surely
follow.
Section 163-278.14A(a)(2) gives clear guidance to regulators and
speakers — significantly more than that required by the Supreme
Court. The provision not only carefully defines its reach as covering
communications that "support or oppose the nomination or election of
one or more clearly identified candidates," a standard effectively
identical to one deemed constitutional in McConnell. It goes further
by indicating the kind of evidence that is relevant to determining
whether a communication "supports or opposes" a candidate. Accord-
ing to this provision, the Act’s requirements are triggered when the
communication either (1) uses one of the exact words or phrases spec-
ified or (2) could only be objectively interpreted "as advocating the
nomination, election, or defeat" of a specific candidate in a specific
election and is not a "mere discussion of public issues." § 163-
278.14A(a)(2). And the Act provides yet more guidance by directing
a regulator to consider the timing, cost, reach, and language of the
communication in determining whether a communication is electoral
advocacy, thereby ensuring that the Act’s reach is limited. Id. Finally,
if there is any remaining question of ambiguity, a potential speaker
may seek further guidance from regulators, who must issue a binding
advisory opinion, an option the plaintiffs in this case chose not to pur-
sue. § 163-278.23; see McConnell, 540 U.S. at 170 n.64; Buckley, 424
U.S. at 40 n.47; J.A. 125. Section 163-178.14A(a)(2) — replete with
direction to regulators and notice to speakers — is not unconstitution-
ally vague.
D.
Applying its new and rigid rule, the majority also holds § 163-
278.14A(a)(2) to be overbroad. Again, I disagree.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 71
To decide whether a regulation impermissibly restricts protected
speech, we must "look to the extent of the burden that [the regulation]
place[s] on individual rights" and "determin[e] whether [the govern-
mental] interests are sufficient to justify" that burden. Buckley, 424
U.S. at 68. The level of governmental interest required (either impor-
tant or compelling) and the degree to which the regulation must be
tailored to that interest depends on the type of regulation imposed.
Thus, a court must look directly to the limits imposed by the regula-
tion — an examination the majority fails to undertake.
1.
I begin with the terms of the regulation to determine whether its
reach is sufficiently related to its purpose of protecting the electoral
process. On its face § 163-278.14A(a)(2) limits the Act’s regulations
to clear electoral advocacy. Section 163-278.14A explains the "evi-
dence" that shows "that communications are ‘to support or oppose the
nomination or election of one or more clearly identified candidates.’"
§ 163-278.14A. This section provides guidance to regulators enforc-
ing the substantive provisions of the Act. Again, part (a)(1) of the sec-
tion provides a list of examples of the types of words that may be
used to determine that a communication is electoral advocacy. Part
(a)(2) provides additional direction when the communication does not
use an enumerated word or phrase. As discussed below, part (a)(2),
the challenged part, is facially valid under the First Amendment.
Section 163-278.14A(a)(2) begins by allowing a regulator to con-
sider "[e]vidence of financial sponsorship of communications whose
essential nature expresses electoral advocacy to the general public and
goes beyond a mere discussion of public issues in that they direct vot-
ers to take some action to nominate, elect, or defeat a candidate in an
election." This sentence restates Buckley’s express advocacy test
through the language used by the Supreme Court in MCFL, rather
than through the examples of specific words. In MCFL the Court
noted that even though a flier describing candidates’ voting records
on abortion and urging readers to "VOTE PRO-LIFE" did not use the
same language cited in Buckley and contained a disclaimer stating that
it was not an endorsement of any candidate, it constituted express
electoral advocacy. 479 U.S. at 243, 249. The MCFL Court explained:
72 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
The Edition [the flier] cannot be regarded as a mere discus-
sion of public issues that by their nature raise the names of
certain politicians. Rather, it provides in effect an explicit
directive: vote for these (named) candidates. The fact that
this message is marginally less direct than "Vote for Smith"
does not change its essential nature. The Edition goes
beyond issue discussion to express electoral advocacy. . . .
The "Special Edition" thus . . . represents express advocacy
of the election of particular candidates distributed to mem-
bers of the general public.
MCFL, 479 U.S. at 249-50. In the first sentence of
§ 163.278.14A(a)(2) North Carolina adopts, with little alteration, the
express advocacy test provided in MCFL. It thus requires that the
communication’s "essential nature" constitute "express[ ] electoral
advocacy" and "go[ ] beyond a mere discussion of public issues" to
direct "the general public" to vote for or against a specific candidate.
§ 163-278.14A(a)(2); MCFL, 479 U.S. at 249-50.
Thus, like in MCFL, the first sentence of part (a)(2) only allows the
term "support or oppose" to cover advocacy that directly and explic-
itly asks the public to vote for or against a candidate. This sentence
advises a regulator to look to the text of the communication in order
to determine whether it expressly advocates election or defeat of a
candidate through the use of different words or symbols than the ones
listed in part (a)(1). This sentence is therefore a vital stopgap to pre-
vent easy circumvention of the magic words group, a problem that
North Carolina combated in the past. See J.A. 867, 1017 (citing
advertisements that escaped regulation by avoiding the "magic words"
and using instead XXX or a circle with a line through it over the can-
didate’s face). Given that North Carolina adopted the exact language
used by the Supreme Court in MCFL for the express advocacy test in
the first sentence of part (a)(2), it is impossible to see how the major-
ity could strike down this language as impermissibly broad.
The second sentence of part (a)(2) allows a regulator to consider
additional evidence in determining whether a communication sup-
ports or opposes a clearly identified candidate "[i]f the [regulator’s]
course of action is unclear." § 163-278.14A(a)(2). This evidence is
strictly limited to that showing the communication "could only be
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 73
interpreted by a reasonable person as advocating the nomination, elec-
tion, or defeat of [a specific] candidate in [a specific] election." Id.
Thus, under this provision the substantive terms of the Act may only
impact communications that advocate specific electoral action for or
against a specific candidate in a specific election; the provision
ensures that the Act’s terms do not impact communications that solely
support or oppose issues. In other words, the communication must be
"susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate." WRTL II, 127 S. Ct. at 2667.
North Carolina’s statute thus clearly and adequately limits the defini-
tion of "support or oppose" to electoral advocacy.
The majority holds that the use of "contextual factors," such as
those outlined in the second sentence of part (a)(2), is forbidden by
WRTL II. Ante at 9, 13. The majority simply misreads WRTL II.
WRTL II rejected consideration of certain factors that would show the
"subjective intent" of the sponsor of the communication, which was
"irrelevant in an as-applied challenge." 127 S. Ct. at 2668 (emphasis
added); see id. at 2664-66 (distinguishing McConnell’s holding that
the "electioneering communication" prohibition survived a facial
challenge because studies showed that the majority of covered ads
were "intended to influence the voters’ decisions," McConnell, 540
U.S. at 206). Further, WRTL II explicitly recognized that "[c]ourts
need not ignore basic background information that may be necessary
to put an ad in context." WRTL II, 127 S. Ct. at 2669. The contextual
inquiry must, however, be limited to the objective nature of the com-
munication. Id. at 2668-69. Thus, nothing in WRTL II says that the
North Carolina legislature may not allow for the consideration of con-
text in the application of its objective test for determining whether a
communication is the functional equivalent of express advocacy. In
fact, WRTL II adopts just such an objective test, relying like North
Carolina on a "reasonable interpretation" of the effect of the commu-
nication. That the majority takes issue with North Carolina’s "could
only be interpreted by a reasonable person" standard is nothing short
of remarkable in light of its (the majority’s) clear approval of WRTL
II’s "reasonable interpretation" test. See ante at 13. In addition, the
factors listed in part (a)(2) closely track the BCRA requirements that
— at least as a facial matter — are constitutional. Like BCRA § 203,
part (a)(2) focuses on timing in relation to an election, clear identifi-
cation of a specific candidate, and "distribution of the communication
74 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
to a significant number of registered voters for that candidate’s elec-
tion." § 163-278.14A(a)(2). Compare 2 U.S.C. § 434(f)(3)(A)(i)
(requiring clear identification of a candidate, time frames, and "tar-
get[ing] to the relevant electorate").
In writing the second part of its test for determining support of or
opposition to a candidate, North Carolina sought to cover all electoral
advocacy, including "phony issue ads." J.A. 1027. This governmental
interest was clearly recognized by the Supreme Court in McConnell
when it upheld regulations of "public communication[s] that pro-
mote[ ] or attack[ ] a clearly identified federal candidate," because
such communications "directly affect[ ] the election in which [the
candidate] is participating." McConnell, 540 U.S. at 170; see also id.
at 185 (allowing Congress to respond to "[t]he proliferation of sham
issue ads"). If anything, McConnell and WRTL II provide further sup-
port for part (a)(2), which limits the definition of "support or oppose"
to an objective test like the one approved by WRTL II. Thus, by
adopting § 163-278.14A(a)(2), the North Carolina legislature worked
to cover all express electoral advocacy and guard against circumven-
tion of its regulations, while still protecting true issue advocacy from
any unconstitutional regulatory burden.
2.
Section 163-278.14A does not operate alone; its purpose is to
define the Act’s substantive terms. Therefore, we can only truly
understand any burdens imposed by the provision, and the various
governmental interests that support it, by considering how it is used
in the Act’s substantive regulations. The Act imposes four general
types of regulation: political committee organizational requirements,
disclosure requirements, contribution limits, and limits on expendi-
tures by certain types of corporations and labor unions. I go through
each of these categories of regulation to determine whether § 163-
278.14A(a)(2) defines "support or oppose" in a way that causes the
substantive regulations to impose burdens that outweigh the govern-
mental interests that justify them. I conclude — using the second part
of the definition of "support or oppose" — that the regulations are
sufficiently correlated to important governmental interests, and there-
fore the second part does not render the Act’s regulations overbroad.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 75
First, the Act imposes a regulatory burden on any group that
"makes, or accepts anything of value to make, contributions or expen-
ditures" and "[h]as as a major purpose to support or oppose the nomi-
nation or election of one or more clearly identified candidates." § 163-
278.6(14). Such a group, by this definition, is a political committee
and is therefore subject to regular reporting of its contributions and
expenditures and is required to designate a treasurer who has record
keeping responsibilities. § 163-278.7 to .11. As long as the definition
of political committee does not "reach groups engaged purely in issue
discussion," but instead covers groups focused on "the nomination or
election of a candidate," the Supreme Court has approved regulation
of such groups (or political committees) as sufficiently tailored to
important governmental interests. Buckley, 424 U.S. at 79. The phrase
"support or oppose the nomination or election of one or more clearly
identified candidates," with the attendant requirements that limit its
meaning, is, if anything, more narrowly focused to the governmental
purpose of regulating political committees than Buckley’s formulation
— "the nomination or election of a candidate." Even the majority rec-
ognizes that political committee regulations can permissibly reach
organizations that have the primary objective of "influencing elec-
tions." Ante at 24. It is inexplicable how, given this (correct) under-
standing, the majority can then limit the political committee definition
only to organizations sponsoring communications that either use the
magic words or comply with both BCRA’s requirements and the
WRTL II test. In limiting the political committee definition to those
groups involved in sponsoring express electoral advocacy, according
to § 163-278.14A, North Carolina has developed a more narrowly tai-
lored political committee definition than that required by the Supreme
Court. Thus, § 163-278.14A(a)(2) is not overly broad as it applies to
the definition of political committee.
Second, the Act imposes several different types of reporting and
disclosure requirements when money is spent to "support or oppose"
a candidate. Candidates, political committees, and referendum com-
mittees must regularly report their contributions and expenditures,
unless these are less than $3000 for an election cycle. § 163-278.7, .9,
.9A, .10, 10A, .11. Individuals must periodically report contributions
or independent expenditures exceeding $100. § 163-278.12. In addi-
tion, all advertisements funded through contributions or expenditures
must contain certain disclosures about their sponsors and the candi-
76 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
dates they support, unless they are funded through an independent
expenditure from an individual who has spent less than $1000 in the
election cycle. § 163-278.38Z, .39, .39A, .39C. Disclosure of funding
information related to communications that "support or oppose the
nomination or election of one or more clearly identified candidates"
does not prohibit speech. See McConnell, 540 U.S. at 201. Nor have
plaintiffs offered any evidence that such disclosure subjects them to
threats or reprisals. See McConnell, 540 U.S. at 197-99; Buckley, 424
U.S. at 69-74. Disclosure requirements do burden (rather than pro-
hibit) speech. The Act’s disclosure requirements, as circumscribed by
§ 163-278.14A(a)(2), only cover campaign-related contributions and
expenditures, not pure issue advocacy. Disclosure of campaign-
related financing has a substantial relationship to the accepted govern-
mental interests of "providing the electorate with information, deter-
ring actual corruption and avoiding any appearance thereof, and
gathering the data necessary to enforce more substantive electioneer-
ing restrictions." McConnell, 540 U.S. at 196; see Buckley, 424 U.S.
at 66-68. Furthermore, even if § 163-278.14A(a)(2) did encompass
more speech than that allowed by the WRTL II test, the Supreme
Court has not adopted that test for disclosure requirements and,
indeed, has approved of disclosure requirements for otherwise consti-
tutionally protected speech. See Cal. Pro-Life Council, 507 F.3d at
1177 n.4; Citizens United, 530 F. Supp. 2d at 281 (citing MCFL, 479
U.S. at 259-62; Citizens Against Rent Control/Coal. for Fair Housing
v. City of Berkeley, 454 U.S. 290, 297-98 (1981); First Nat’l Bank of
Boston v. Bellotti, 435 U.S. 765, 791-92 & n.32 (1978)); see also Cal.
Pro-Life Council, 507 F.3d at 1181 (approving disclosure provision
that allows regulators to consider "the surrounding circumstances" to
determine whether "a payment" was "made . . . [f]or the purpose of
influencing . . . the action of voters for or against the . . . election of
a candidate"). As a result, § 163-278.14A(a)(2) is not overbroad in its
application to disclosure requirements.
Third, the Act imposes a $4000 cap on contributions to candidates
or political committees, and the same limit on contributions from a
political committee, for each election cycle. § 163-278.6(6), 13.5 As
the Supreme Court has recognized, contribution limits "impose[ ]
5
Again, the Act imposes a $1000 limit on contributions for some judi-
cial candidates. § 163-278.13(e2).
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 77
only ‘a marginal restriction upon the contributor’s ability to engage
in free communication.’" McConnell, 540 U.S. at 120 (quoting Buck-
ley, 424 U.S. at 20-21). North Carolina defines "contribution" as pay-
ment of "anything of value whatsoever, to a candidate to support or
oppose the nomination or election of one or more clearly identified
candidates, to a political committee, to a political party, or to a refer-
endum committee." § 163-278.6(6). Thus, the limits only cover con-
tributions for clear electoral advocacy under the objective test in
§ 163-278.14A and contributions to or from a group that is focused
on engaging in this type of advocacy (again defined by § 163-
278.14A). Because the limits on money given to support clear elec-
toral advocacy bear a substantial relationship to the governmental
purpose of preventing corruption and the appearance thereof, and only
marginally burden speech, these limits are constitutional. Indeed, the
Supreme Court has upheld limits on "contributions" defined much
more broadly than the term in the North Carolina Act. See Buckley,
424 U.S. at 23-35 (upholding limit on "contributions" defined as
"[f]unds provided to a candidate or political party or campaign com-
mittee either directly or indirectly through an intermediary[, or] dol-
lars given to another person or organization that are earmarked for
political purposes," 424 U.S. at 24 n.24); McConnell, 540 U.S. at 170
(upholding contribution caps for a "public communication that pro-
motes or attacks a clearly defined candidate"); see also Fed. Election
Comm’n v. Beaumont, 539 U.S. 146 (2003) (upholding a ban on any
contributions from NCRL’s general treasury). Thus, the use of § 163-
278.14A(a)(2) in defining contribution is not overly broad.
Fourth, the Act makes it "unlawful for any corporation, business
entity, labor union, professional association or insurance company" to
(1) "make any expenditure to support or oppose the nomination or
election of a clearly identified candidate" or (2) "make any contribu-
tion to a candidate or political committee." § 163-278.19(a)(1). The
provision excepts segregated funds of these entities, incorporated
political committees, and non-profit, non-shareholder corporations
that have an educational or social mission. § 163-278.19(b), (f), (g).
NCRL (a non-profit) and its segregated funds — North Carolina
Right to Life Political Action Committee (NCRL-PAC) and North
Carolina Right to Life Committee Fund for Independent Political
Expenditures (NCRL-FIPE) — are thus clearly excluded from the
reach of this provision. As a result, the plaintiffs in this case cannot
78 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
allege any "injury in fact" and thus do not have standing to challenge
§ 163-278.14A as it is used to define the reach of § 163-278.19. See
McConnell, 540 U.S. at 225-30. Nonetheless, ignoring this threshold
jurisdictional requirement, the majority strikes down North Carolina’s
regulation of corporate and union spending on electoral advocacy that
avoids the use of the magic words.6
The majority claims that I give "short shrift" to WRTL II in this
analysis. Ante at 34. However, as I explained above, every court that
has considered the application of WRTL II outside the expenditure
limit context has determined that WRTL II is not relevant when con-
sidering contribution limits, political committee regulations, or disclo-
sure requirements. See supra at 66. There is good reason that these
courts have recognized WRTL II’s limited applicability. The Supreme
Court has consistently distinguished expenditure limits, which impose
a direct restraint on speech and therefore are subject to strict scrutiny,
from other campaign finance regulations that do not directly limit
speech and thus are subject only to intermediate scrutiny. Further,
despite the majority’s assertions, even if WRTL II did apply (which
it does not), the majority misstates the WRTL II test as requiring "the
brightline requirements of BCRA § 203." Ante at 34 (internal quota-
tion marks omitted). Thus, the majority is correct that I "never
6
Even if the plaintiffs could demonstrate standing to challenge the use
of § 163-278.14A(a)(2) to define the term "expenditure" in the context
of corporate expenditure limits, they could not prevail on their claim.
The Supreme Court has held that direct expenditure and contribution lim-
its on such entities are constitutional regulations, not "‘complete ban[s]’
on expression," because corporations have the opportunity to engage in
advocacy through the use of segregated funds (such as, for instance,
NCRL’s use of NCRL-PAC). McConnell, 540 U.S. at 204 (quoting
Beaumont, 539 U.S. at 162). These regulations are justified by the com-
pelling governmental interests of avoiding "the corrosive and distorting
effects" of corporate involvement in politics as well as "circumvention
of valid contribution limits." Id. at 205 (internal quotation marks and
alterations omitted). In this case, as described above, the Act only regu-
lates express advocacy and its functional equivalent, as defined by the
Supreme Court. Because § 163-278.19 limits contributions and expendi-
tures that clearly advocate for or against a specific candidate in a specific
election, it is clear that the provision does not limit a substantial amount
of pure issue advocacy. See id. at 203-09.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 79
claim[ ] that § 163-278.14A(a)(2) meets [the majority’s] standard." Id.
at 34. I do not apply this standard because, for the many reasons I
have outlined above, it is both unsupported and irrelevant to the chal-
lenge before us today.
The majority further complains that I am "unable to identify a sin-
gle case that has upheld a definition of the ‘functional equivalent of
express advocacy’ as broad as § 163-278.14A(a)(2) since the
Supreme Court’s WRTL [II] decision." Ante at 37. I, like the majority,
have cited no cases applying WRTL II’s test for a simple reason: no
court has applied this test beyond its context — an as-applied chal-
lenge to a direct expenditure limit. See Citizens United, 530 F. Supp.
2d at 278-80 (determining, as the only court after WRTL II to apply
the test, that an advertisement qualified as the functional equivalent
of express advocacy and was properly prohibited under BCRA); see
also supra at 66. Thus, the majority is also unable to identify a single
case that has taken the extreme measure of striking down a portion
of a contribution, political committee, or disclosure regulation as
facially invalid using WRTL II’s functional equivalent test. Nor can
the majority find cases prior to WRTL II that take such a drastic step.
In contrast to the absence of authority for the majority’s position, I
have cited decades of Supreme Court precedent that approves defini-
tions at least as broad the one employed by North Carolina to clarify
the reach of contribution, political committee, and disclosure regula-
tions. See, e.g., McConnell, 540 U.S. at 170 & n.64 (approving sup-
port or oppose language); MCFL, 479 U.S. at 249 (employing
"essential nature" language); Buckley, 424 U.S. at 79 (approving defi-
nition of political committee as a group focused on "the nomination
or election of a candidate"); id. at 24 n.24 (approving definition of
contribution as funds "that are earmarked for political purposes").
Simply put, the majority cites no relevant support for its conclusion
because none exists.
In sum, the plaintiffs have failed to show that § 163-278.14A(a)(2)
is overly broad on its face. The provision does not, on its face, cover
a substantial amount of pure issue advocacy. Instead, its terms limit
its application to communications that both "go[ ] beyond a mere dis-
cussion of public issues" and either expressly direct voters to take
specific electoral action on behalf of "a clearly identified individual"
or could, under an objective standard sanctioned by WRTL II, only be
80 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
understood as urging specific electoral action. The provision limits
North Carolina’s imposition of political committee regulations, dis-
closure requirements, contribution ceilings, and corporate contribu-
tion and expenditure restrictions to communications that direct voters
to vote for or against a specific candidate in a specific campaign. The
regulations that apply to the plaintiffs in this case only marginally
burden speech, and they are justified by sufficient governmental inter-
ests, meeting the tests for constitutionality established by Buckley and
McConnell. Nonetheless, the majority refuses to apply the test estab-
lished by the Supreme Court and strikes the provision down as "pa-
tently overbroad" in all of its applications in this facial challenge.
Ante at 38. The majority fails to provide any guidance for states
attempting to regulate elections, noting instead that "[a]t some point
. . . enough is simply enough." Ante at 42. But such vague and conclu-
sory assessments are an insufficient basis for overturning the will of
the people of North Carolina through a blanket invalidation of a statu-
tory provision. Perhaps in rare instances the statute could prove to be
unconstitutional in its application. But today’s case gives us no facts
that would support such an as-applied challenge. Nor do the plaintiffs
come close to carrying their heavy burden of showing that the regula-
tion would chill a substantial amount of protected speech. Thus, I
would hold § 163-278.14A(a)(2) constitutional on its face.
III.
The majority also holds that North Carolina’s definition of political
committee unconstitutionally burdens political expression because it
embraces organizations with "a major purpose" (rather than "the
major purpose") of supporting or opposing a candidate. The majority
holds that states must rigidly adhere to a formulation enunciated in
Buckley v. Valeo, 424 U.S. 1 (1979) (per curiam). Buckley, however,
only defined the outer limits of permissible political committee regu-
lation when it held that regulation in this area (1) cannot cover
"groups engaged purely in issue discussion" and (2) can cover groups
"the major purpose of which is the nomination or election of a candi-
date." Buckley, 424 U.S. at 79. Buckley left room for legislative judg-
ment within these limits, so long as the resulting regulation does not
prohibit a substantial amount of non-electoral speech. Because North
Carolina’s definition of political committee does not cover "groups
engaged purely in issue discussion" and gives organizations the
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 81
option to create segregated funds to protect non-campaign related
information, it has a substantial relationship to the several important
governmental interests it serves. The definition is therefore constitu-
tional.
A.
In Buckley the Supreme Court applied a narrowing construction to
FECA’s definition of "political committee" in order to avoid concerns
about constitutional vagueness and overbreadth. 424 U.S. at 79.
Under FECA this term encompassed "‘any committee, club, associa-
tion, or other group of persons which receives contributions or makes
expenditures during a calendar year in an aggregate amount exceed-
ing $1,000.’" Id. at 79 n.105. Both "contributions" and "expenditures"
were defined "in terms of the use of money or other valuable assets
‘for the purpose of . . . influencing’ the nomination or election of can-
didates for federal office." Id. at 77. Once designated a political com-
mittee, a group was subject to registration and reporting requirements
similar to those imposed by the North Carolina Act. See id. at 60-63;
N.C. Gen. Stat. § 163-278.7, .8, .9, .11, .13; see also N.C. Right to
Life, Inc. v. Bartlett (NCRL I), 168 F.3d 705, 712 (4th Cir. 1999).
FECA did not define the phrase "for the purpose of influencing."
See Buckley, 424 U.S. at 77. Because the definition of political com-
mittee incorporated this phrase, the Court expressed concern that
"groups engaged purely in issue discussion" would be encompassed
in the definition of political committee and subjected to regulation.
Buckley, 424 U.S. at 79. Accordingly, it adopted a narrowing con-
struction of the term "[t]o fulfill the purposes of the Act." Id. Thus,
the Court construed the definition to "only encompass organizations
that are under the control of a candidate or the major purpose of
which is the nomination or election of a candidate." Id. With the defi-
nition of political committee so construed, the definition of "expendi-
ture" did not need to be interpreted narrowly in the context of political
committee disclosure requirements because the political committee
expenditures were, "by definition, campaign related." Id. Given the
Supreme Court’s interpretation, the definition of political committee
was not unconstitutionally vague; nor was the disclosure law overly
broad because it served substantial governmental interests in enforc-
82 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
ing the contribution limits, deterring corruption and the appearance
thereof, and providing valuable information to voters. Id. at 76-82.
NCRL argues that, in order to ensure that North Carolina’s regula-
tions are not vague or overly broad, the state must adopt word for
word the language suggested by Buckley. Thus, the North Carolina
legislature violated the Constitution by drafting the statute to require
that election activity be "a major purpose" of an organization rather
than "the major purpose." The majority errs in its wholesale adoption
of this argument. As I will explain, Buckley did not establish a bright
line rule; rather, it established parameters that were adhered to by the
North Carolina legislature.
B.
Unlike the definition of "political committee" in Buckley, the North
Carolina Act’s definition of the term is clear on its face. The Act
defines "political committee" as
a combination of two or more individuals . . . that makes,
or accepts anything of value to make, contributions or
expenditures and has one of the following characteristics:
a. Is controlled by a candidate;
b. Is a political party or executive committee of a political
party or is controlled by a political party or executive
committee of a political party;
c. Is created by a corporation, business entity, insurance
company, labor union, or professional association pur-
suant to G.S. 163-278.19(b); or
d. Has as a major purpose to support or oppose the nomi-
nation or election of one or more clearly identified can-
didates.
N.C. Gen. Stat. § 163-278.6(14).
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 83
The majority argues that the use of "a major purpose" rather than
"the major purpose" in § 163-278.6(14)d renders the statute unconsti-
tutionally vague because, although regulators and speakers can easily
determine "the major purpose" of an organization, they are left "with
absolutely no direction" as to how to determine "a major purpose" of
an organization. Ante at 22. The majority reasons that groups and reg-
ulators can determine what is "the major purpose" of an organization
by considering whether it "explicitly states in its by-laws or else-
where, that influencing elections is its primary objective, or if the
organization spends the majority of its money in supporting or oppos-
ing candidates." Ante at 22. Of course, consistent with Federal Elec-
tion Commission v. Massachusetts Citizens for Life (MCFL), 479 U.S.
238 (1986), the majority does not specify these factors as the only
ones a regulator may consider in determining "the major purpose" of
an organization. Ante at 22 n.6; see MCFL, 479 U.S. at 241-42, 252
n.6, 262 (concluding that the plaintiff’s "central organizational pur-
pose [was] issue advocacy," based on its articles of incorporation, the
sources of its funding, its activities, and how extensive its campaign
related spending was). Thus, a regulator’s determination of "the major
purpose" of an organization allows for a fact specific analysis of a
group’s organizational documents, its finances, its activities, and
other relevant factors. The majority fails to explain why this same
analysis would be appreciably more difficult for a regulator to apply
in determining whether electoral advocacy is "a major purpose" of an
organization.
It is clear that the same analysis can be used for both phrases. The
key word providing guidance to both speakers and regulators in "the
major purpose" test or "a major purpose" test is the word "major," not
the article before it. "Major" means "notable or conspicuous in effect
or scope : considerable, principal." Webster’s Third New Int’l Dictio-
nary 1363 (2002). Thus, regardless of whether a regulator is identify-
ing "a major purpose" or "the major purpose" of an organization, the
regulator considers the same evidence to determine whether electoral
advocacy constitutes a considerable or principal portion of the organi-
zation’s total activities.
Likewise, an organization is just as able to determine whether elec-
toral advocacy comprises one of its major purposes as it is able to
determine whether such activity is "the major purpose." NCRL con-
84 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
firmed its own ability to make this determination at oral argument,
when its counsel emphatically stated that advocacy for a candidate
was not any of its major purposes. And, again, if a group is concerned
about how it might be categorized, the North Carolina Act makes
binding advisory opinions available. § 163.278.23; see McConnell v.
Fed. Election Comm’n, 540 U.S. 93, 170 n.64 (2003); Buckley, 424
U.S. at 40 n.47. Thus, because North Carolina’s "a major purpose"
test is just as clear as a "the major purpose" test to both speakers and
regulators, it is not unconstitutionally vague.
C.
In addition, the substitution of "a" for "the" in Buckley’s major pur-
pose test does not expand the reach of the Act in any way that overly
burdens First Amendment freedoms. In arriving at the major purpose
test to avoid overbreadth, Buckley expressed concern that requiring
disclosure of expenditures (broadly defined) by "groups engaged
purely in issue discussion" would not serve the campaign-related pur-
poses of FECA. 424 U.S. at 79. Instead of conducting the same sort
of overbreadth analysis used in Buckley, which gives proper deference
to other branches of government, the majority again applies a new,
rigid requirement: all state political committee definitions must adopt,
word for word, Buckley’s definition of such a committee.
The substitution of "a" for "the" in the political committee defini-
tion would only render the definition unconstitutional if it resulted in
limiting a substantial amount of pure issue advocacy.7 As an initial
matter, North Carolina’s political committee regulations require a
committee to designate a treasurer to keep accurate financial records,
make regular periodic disclosures of income and disbursements if it
receives or spends more than $3000 during an election, and limit each
political contribution it receives or makes in an election cycle to
$4000. § 163-278.7 to .11. While these regulations may impose sub-
7
The reporting requirements would also be an unconstitutional burden
on associational rights if the disclosure of donor information resulted in
threats or reprisals to donors, a claim that must be substantiated with evi-
dence for the plaintiffs to prevail. See Buckley, 424 U.S. at 69-72. While
the majority expresses a concern about reprisals or threats throughout its
opinion, the record contains no evidence to support that concern.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 85
stantial obligations in the administration of a political committee,
NCRL I, 168 F.3d at 712, under Supreme Court precedent they
impose only marginal restrictions on speech, see McConnell, 540 U.S.
at 201; Buckley, 424 U.S. at 20-21. Of course, even marginal restric-
tions on speech may not be imposed on pure issue advocacy groups,
because those restrictions would not serve important governmental
interests. Buckley, 424 U.S. at 79. But North Carolina’s "a major pur-
pose" test runs little risk of encompassing pure issue advocacy groups
or discouraging non-campaign related speech. First, as I have dis-
cussed, North Carolina requires that direct campaign advocacy be "a
major purpose" of the group. NCRL I, 168 F.3d at 712. Heeding our
holding in NCRL I, the state was careful to exclude organizations with
only "incidental" campaign related purposes. Id. Further, the defini-
tion of political committee can not possibly cover organizations
engaging solely in issue advocacy; instead, the organization must
focus a considerable or principal amount of its activities on campaign-
ing for or against a clearly defined candidate before those activities
become a major purpose of the organization. See Webster’s Third
New Int’l Dictionary 1363.
Furthermore, North Carolina’s contribution limits and disclosure
requirements create lesser burdens on speech than other requirements
that have been upheld by the Supreme Court. The Supreme Court has
approved a ban on any political contributions from issue-based non-
profit corporations. Fed. Election Comm’n v. Beaumont, 539 U.S. 146
(2003). Such a ban imposes a far greater burden than subjecting a
group with "a major purpose" of electioneering to disclosure require-
ments and contribution limits.8 Additionally, as Beaumont advised,
organizations that meet the "a major purpose" test can avoid disclo-
sure requirements and contribution limits on non-campaign related
work by creating segregated political committees, such as NCRL has
done with NCRL-PAC and NCRL-FIPE. The regulations would not
8
In fact, North Carolina adopted the "a major purpose" test as a more
limited attempt to address the corrosive effect of non-profit election
spending after this court struck down the state’s ban on expenditures and
contributions from the general treasury funds of non-profit corporations.
J.A. 975 (deposition of the bill’s sponsor, state representative Philip A.
Baddour); see NCRL I, 168 F.3d at 713-14. Of course, after Beaumont,
NCRL I’s holding as it relates to contribution bans has been abrogated.
86 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
reach the parent organization in this circumstance because at most it
would only engage in an incidental amount of electoral advocacy.
The majority also argues that the "a major purpose" language over-
burdens issue advocacy groups because it forces them to divulge
information to defend against political committee designation. Ante at
23. However, the substitution of "a" for "the" in the test poses no
greater burden on an organization defending against political commit-
tee designation. Under either formulation, an organization must
divulge the same type of information with respect to purpose in
defending against designation.
Furthermore, North Carolina has important interests in regulating
political parties with a major purpose of electoral advocacy. Again,
these interests include preventing corruption and the appearance of
corruption in the electoral process, providing information to voters,
and providing data to regulators to assist with enforcement of the law.
See supra at 55-56. North Carolina’s political committee definition is
closely drawn to these interests. In tailoring its statute, North Carolina
heeded Buckley’s concern that regulation of "groups engaged purely
in issue discussion" would not be sufficiently correlated to the gov-
ernmental interests that justify regulation. See Buckley, 424 U.S. at
79. Thus, North Carolina’s statute, which only regulates organizations
with a major campaign-related purpose, is closely tailored to govern-
mental interests.9
In fact, the Act is tailored to address a fundamental organizational
reality. As NCRL’s counsel concedes, most organizations — includ-
ing NCRL — do not have just one major purpose. For example,
NCRL states that its two major purposes are educating to promote life
and lobbying at the state and national levels and its minor purpose is
occasionally supporting or opposing specific candidates. Because
NCRL’s campaign-related activities are incidental to its overall activi-
ties, it would not be subject to regulation as a political committee. On
the other hand, some other organization might spend forty-five per-
cent of its resources on lobbying and forty-five percent of its
9
North Carolina has also tailored the reporting requirements to its
interests by only requiring groups that spend or collect more than $3000
during an election to file reports. § 163-278.10A.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 87
resources on supporting or opposing specific candidates. The pur-
poses of the contribution limits and disclosure provisions of the Act
— providing information to voters, preventing corruption and the
appearance thereof, and enforcing the other provisions of the Act —
are closely tied to regulating such an organization because it must be
heavily focused on electoral advocacy to have that activity constitute
one of its major purposes.
The majority argues that North Carolina should employ "narrower
means . . . to achieve its regulatory objective," namely, requiring what
it characterizes as "one-time reporting" of campaign-related expendi-
tures and contributions for all organizations unless they meet the "the
major purpose" test. Ante at 23-24. But the majority errs in requiring
North Carolina to employ the least restrictive means of achieving its
goals. The narrow tailoring analysis does not apply to the political
committee regulations at issue here (disclosure and reporting require-
ments and contribution limits); under Buckley the state must only
show "relevant correlation" between its interests and the regulation.
See Buckley, 424 U.S. at 64, 78-79 (quotation marks omitted); see
also McConnell, 540 U.S. at 136. Thus, the "possibility" of "less
restrictive means" suggested by the majority, ante at 44, does not
defeat North Carolina’s regulation. Moreover, this tepid requirement
would not be sufficiently correlated with the state’s interest. It is a
minimalist approach for regulating organizations with a major pur-
pose of electoral advocacy; it would significantly undermine the
state’s interest in data collection and deterrence because it would
allow these organizations to avoid the careful accounting and regular
reporting requirements that enable the state to undertake prompt
investigation of incidents of potential misconduct. See Buckley, 424
U.S. at 59-68. Furthermore, the majority’s holding also strikes down
on their face the contribution limits imposed by § 163-278.13 for
organizations that fit the "a major purpose" test. The state has a clear
interest in limiting extremely large contributions to organizations that
then spend that money on direct electoral advocacy. See Buckley, 424
U.S. at 23-35 (upholding limit on "dollars given to another person or
organization that are earmarked for political purposes," 424 U.S. at 24
n.24). The majority’s suggestion that groups with a major purpose of
electioneering be subjected only to minimal reporting requirements
(and no contribution limits) would be ineffective and would defeat the
state’s important interests in regulating electoral advocacy.
88 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
North Carolina’s political committee definition establishes limits
on contributions and requires disclosures by organizations centrally
engaged in electoral advocacy. To the extent that the regulations
impact an organization’s issue advocacy by requiring disclosure of all
donor information and financial receipts and disbursements and by
imposing limits on all contributions to it, the regulations encourage
groups to set up separate political committees for their electoral advo-
cacy. The availability of this option both limits any burden on a
group’s issue advocacy and furthers the state’s interest in transpar-
ency in electoral advocacy. See Beaumont, 539 U.S. 146 (upholding
federal ban on contributions from NCRL, with the alternative of a
segregated fund). Not only does the majority ignore this option
entirely, but its holding also actively discourages this positive
approach. The majority effectively encourages advocacy groups to
circumvent the law by not creating political action committees and
instead to hide their electoral advocacy from view by pulling it into
the fold of their larger organizational structure. When electoral advo-
cacy comprises "a major purpose" of the organization rather than the
organization’s only purpose, the organization can avoid the book-
keeping requirements, regular reporting, and contribution limits
imposed on political committees. This result is decidedly not required
by the First Amendment.
North Carolina has devised a standard that addresses organizational
reality and is careful not to frustrate issue advocacy or general politi-
cal speech. The statute only reaches organizations with direct elec-
tioneering as a major purpose and leaves options that allow those
organizations to avoid regulation of any of their pure issue advocacy.
Because the provision restricts issue advocacy even less than regula-
tions approved by the Supreme Court and is closely matched to
important governmental interests, I would hold it constitutional on its
face.
IV.
The majority also strikes down the Act’s $4000 contribution limit
insofar as it applies to "independent expenditure political committees"
such as NCRL-FIPE.10 In taking this drastic step, the majority adopts
10
The plaintiffs do not argue that the disclosure and reporting provi-
sions applicable to "political committees" should not apply to NCRL-
FIPE, and the majority’s holding does not reach these other provisions.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 89
a "crabbed view of corruption, and particularly of the appearance of
corruption." See McConnell v. Fed. Election Comm’n, 540 U.S. 93,
152 (2003).
In contrast to its other two holdings, the majority avoids the temp-
tation to create some new rigid rule for contribution limits. But, while
the majority properly states the overbreadth test, it strikes down the
contribution limit by relying on our vacated decision in North Caro-
lina Right to Life, Inc. v. Leake (NCRL II), 344 F.3d 418 (4th Cir.
2003), and ignoring the Supreme Court’s recent decisions. As the
majority recognizes, contribution caps are subject only to heightened
scrutiny (rather than strict scrutiny) because they do not directly limit
the donor’s speech and do not preclude association. McConnell, 540
U.S. at 134-36; Buckley v. Valeo, 424 U.S. 1, 20-23 (1975) (per
curiam). Instead, they allow organizations to receive (substantial, in
this case) contributions from individual donors and to make expendi-
tures of any amount they wish. Thus, contribution limits are permissi-
ble if they are "closely drawn to match a sufficiently important
interest." McConnell, 540 U.S. at 136 (internal quotation marks omit-
ted). In this context, the Supreme Court has recognized important
governmental interests in preventing corruption, the appearance of
corruption, and circumvention of election regulations. Id. at 136-37,
144, 185. The greater the novelty of the state’s justification, the more
evidence it must provide to support the regulation. Id. at 144.
The majority quotes our vacated opinion in NCRL II in concluding
that North Carolina’s concerns about the corruptive influence of con-
tributions to independent expenditure committees are "‘implausible.’"
Ante at 28 (quoting NCRL II, 344 F.3d at 434). In light of the
Supreme Court cases decided after our last opinion, I disagree with
this assessment. McConnell requires courts to accept as plausible that
corruption can extend beyond the "quid pro quo corruption inherent
in" contributions and expenditures expressly coordinated with a can-
didate. 540 U.S. at 152 (internal quotation marks omitted). Courts
should allow legislatures to address corruption or the appearance
thereof that is indicated by factors such as the "size [of the contribu-
tion or expenditure], the recipient’s relationship to the candidate or
officeholder, [the contribution’s or expenditure’s] potential impact on
a candidate’s election, its value to the candidate, or its unabashed and
explicit intent to purchase influence." Id.
90 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
McConnell found support for this expanded understanding of cor-
ruption in, among other cases, California Medical Ass’n v. Federal
Election Commission (Cal-Med), 453 U.S. 182 (1981). Cal-Med
upheld a provision of FECA in response to a facial overbreadth chal-
lenge. As McConnell explained, the FECA provision "restricted . . .
the source and amount of funds available to engage in express advo-
cacy and numerous other noncoordinated expenditures." 540 U.S. at
152 n.48. In his concurrence in Cal-Med Justice Blackmun stated that
the provision would likely be unconstitutional if applied to groups
making independent political expenditures rather than groups that
coordinate their expenditures with a candidate. Cal-Med, 453 U.S. at
203 (Blackmun, J., concurring). McConnell rejected Justice Black-
mun’s reasoning, explaining that Cal-Med held the FECA provision
constitutional on its face, even though the provision clearly imposed
limits on contributions for independent political expenditures. 540
U.S. at 152 n.48. In other words, if the governmental interests only
justified regulation of coordinated expenditures — as Justice Black-
mun argued — the statute would have been facially overbroad (and
therefore unconstitutional) because it imposed limits on all groups
making expenditures. Id. But Cal-Med held that the provision was not
facially overbroad, so (according to McConnell) the First Amendment
must allow legislatures to regulate contributions to fund independent
political expenditures. Id. Despite McConnell’s clear rejection of the
majority’s reasoning in this case, the majority relies on Justice Black-
mun’s concurrence in Cal-Med rather than the Supreme Court’s
recent statement of the law and reading of its precedent. Ante at 27.
While ignoring McConnell’s interpretation of Cal-Med and its
approach to corruption, the majority relies on out-of-context quotes
from McConnell to support its contention that the Court "views politi-
cal parties as different in kind than independent expenditure commit-
tees." Ante at 27. The language quoted by the majority is taken from
a portion of McConnell that addresses an equal protection challenge
to BCRA provisions that regulate only political parties (a subset of
political committees) and not "special interest groups." McConnell,
540 U.S. at 187-88. The Court stated that Congress was "fully entitled
to consider the real-world differences between political parties and
interest groups when crafting a system of campaign finance regula-
tion." Id. at 188. Thus, the Court allowed Congress to make reason-
able distinctions in the drafting of regulations. The Court did not,
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 91
however, mandate that all legislatures reach the same conclusions as
Congress about the difference between political parties and interest
groups (or for that matter the difference between political committees
and independent expenditure groups). Nor did the Court mandate that
all legislatures draw lines of distinction in exactly the same way.
Indeed, as described above, McConnell recognized the "more sub-
tle but equally dispiriting forms of corruption" that could result from
backdoor involvement of formally "independent" individuals and
groups in the federal political process — even without explicit coordi-
nation with candidates. Id. at 153-54. The legislature, with its strong
interest in avoiding circumvention of the law, thus has the right to
make reasonable predictions and adopt prophylactic measures. Id. at
185; Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 159 (2003).
Within these parameters, McConnell rejected overbreadth challenges
to federal regulation of groups and individuals that operated indepen-
dently from federal candidates. Id. at 154-56 (upholding limits on
contributions to federal political parties), 162-73 (upholding limits on
contributions to state and local political parties), 174-81 (upholding
a ban on party solicitations for, and contributions to, tax-exempt orga-
nizations), 184-85 (upholding restrictions on state candidates and
officeholders).
Because of the Supreme Court’s awareness of the influence
brought to bear on federal campaigns by groups making independent
expenditures, McConnell only required "substantial evidence" to sup-
port Congress’s concern about corruption caused by contributions to
state and local party committees, candidates, and officeholders that
were formally independent from the federal campaigns. 540 U.S. at
154; see id. at 164-65, 176-77, 185. McConnell thus recognizes the
plausibility of legislative concerns that contributions to fund indepen-
dent expenditures can lead to the appearance of corruption in the elec-
toral process. McConnell’s broader view of corruption means that our
reasoning in NCRL II, a decision that the Court vacated and remanded
for reconsideration in light of McConnell, no longer stands on firm
ground. North Carolina’s regulation of all political committees
(whether formally coordinated or independent) is similar to BCRA’s
regulation of independent individuals and groups, and the reason for
regulation — the potential for corruption or the appearance thereof —
is likewise similar. Because McConnell recognizes that North Caroli-
92 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
na’s proffered justification for its regulation is plausible, the state
must only produce substantial evidence to support its position.
North Carolina has provided a thorough record of the threat of cor-
ruption, the appearance of corruption, and the circumvention of elec-
tion laws that attend the operation of independent expenditure
committees. This evidence is sufficient to satisfy the state’s burden of
showing substantial evidence. The state shows that a vast amount of
campaign funding at the national level has shifted from party commit-
tees to so-called independent committees. Moreover, the evidence
shows that contributors to these independent committees still expect
— and have reason to believe — that their contributions will gain
them special access to elected officials and allow them to influence
the political process. Thomas E. Mann, a respected senior fellow at
the Brookings Institution, explains in his declaration the pervasive
influence of independent committees and those who fund them, using
the 2004 federal campaigns as an example:
The [national] parties’ IEPC [Independent Expenditure
Political Committee] strategies were similar. They encour-
aged people closely and visibly associated with them to
form and operate officially independent IEPCs, which the
party through its officials and leading members could then
identify to donors as appropriate funding vehicles. Those
IEPCs could, in turn, because of their management by peo-
ple so intimately familiar with the needs and aims of the
party effectively aid a campaign without any formal coordi-
nation. The risk for any donors seeking access and influence
was slight. Who contributed was a matter of public knowl-
edge and their money would be, so far as the party itself was
concerned, well spent.
IEPC activities can undermine democratic politics by cre-
ating corruption or the appearance of corruption. Some con-
tributions are so large . . . that they would certainly be
remembered vividly by party officials and cast doubt in the
public’s eye that the contributor enjoyed no special influ-
ence over or access to the party and its candidates. Spending
by IEPCs, moreover, greatly benefits federal candidates and
thus has great value to them. Nothing suggests, in fact, that
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 93
it is much less effective than spending by the parties them-
selves. Given the close ties between those who manage the
most influential IEPCs . . . and the major political parties
and their candidates, actual coordination between the IEPCs
and the parties and candidates is unnecessary.
J.A. 325-26.
The campaign waged in North Carolina by the independent group
Farmers for Fairness (Farmers) provides another example of the cor-
ruptive influence of independent expenditures. Farmers created adver-
tisements directly opposing certain legislative candidates. Instead of
simply running the advertisements during election time, Farmers
scheduled meetings with legislators and screened the advertisements
for them in private. Farmers then explained that, unless the legislators
supported its positions, it would run the advertisements that attacked
the candidates on positions unrelated to those advocated by Farmers.
The majority interprets this activity as the "group feel[ing] passion-
ately about an issue and discuss[ing] it." Ante at 30. This could not
be further from reality. The record reveals that Farmers did not dis-
cuss its central issue, deregulation of the hog industry, in its advertise-
ments. Instead, it threatened and coerced candidates to adopt its
position, and, if the candidate refused, ran negative advertisements
having no connection with the position it advocated. This activity is
not "pure political speech," ante at 46; it is an attempt to use pooled
money for behind-the-scenes coercion of elected officials. The major-
ity also opines that inasmuch as Farmers discussed its intention to run
the advertisements with the candidates, their activities were coordi-
nated. Ante at 30-31. This is simply wrong. A threat cannot qualify
as coordination because the targeted candidate would not be willingly
cooperating if he or she chose to surrender to the demands of the
Farmers group. If the candidate chose not to surrender, and Farmers
then made good on its threat to broadcast negative advertisements, it
is equally clear that the candidate would not have directed or other-
wise cooperated with the airing of the advertisement. The Farmers
example shows exactly how independent expenditures can create the
same appearance of corruption and potential for actual corruption as
do excessively large contributions. The only difference between these
two methods (other than, after today’s decision, that one may be regu-
lated and the other may not) is that the independent expenditures
94 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
made by Farmers had the potential to influence candidates through
threats and reprisals, while excessively large direct contributions have
the potential to influence candidates by rendering them beholden to
the donor. In short, the method may differ, but the corrosive effect on
the electoral process remains the same.
These examples are certainly not exhaustive. The record contains
hundreds of pages of testimony and reports supporting the judgment
of the North Carolina legislature that independent expenditure politi-
cal committees are sufficiently harmful to the electoral process to jus-
tify the $4000 contribution limit.11 All of these examples show that
North Carolina has an important interest in limiting the corruption or
appearance of corruption that can stem from large contributions to
independent committees with significant informal ties to coordinated
committees, political parties, and candidates. The evidence shows that
independent expenditures can have a large "potential impact on a can-
didate’s election," and are of great "value to the candidate," even if
the committee does not take any direction from a candidate. See
McConnell, 540 U.S. at 152.
The organizational structure of the plaintiffs in this case further
illustrates the legitimacy of North Carolina’s concerns about allowing
independent expenditure committees to receive unlimited contribu-
tions. As the majority notes, NCRL-FIPE is an entity legally separate
from NCRL and NCRL-PAC, with the mission of making uncoordi-
nated expenditures. Ante at 29 n.8. However, NCRL-FIPE shares
facilities, directors, staff, and other resources with NCRL and (espe-
cially) NCRL-PAC. Executive meetings and board meetings address
issues for all of the various NCRL groups, and the same officers plan
strategy and activities and raise funds for all of the NCRL entities.
While NCRL-FIPE does not officially coordinate its expenditures
with candidates, NCRL and NCRL-PAC do coordinate expenditures
with candidates and make direct contributions. Thus, at any given
11
North Carolina also cites examples of actual corruption in North Car-
olina politics, supporting the state’s reasonable prediction that state poli-
ticians and contributors will likely find and exploit any existing
loopholes in campaign finance regulations. See They Stained State’s
Honorable Reputation, The News & Observer, Sept. 9, 2007, at B2 (list-
ing jailed and fined politicians and their crimes).
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 95
moment, the same director or staffer is on the one hand ensuring that
NCRL-PAC’s activities follow a candidate’s campaign strategy, while
on the other hand "independently" designing NCRL-FIPE’s expendi-
ture strategy to promote that same candidate. It is hard to understand
how NCRL-FIPE could, whether intentionally or not, avoid incorpo-
rating the coordinated campaign strategies used by NCRL-PAC into
its own ostensibly independent campaign work. Similarly, it is hard
to understand how a donor, approached by the same fundraiser on
behalf of both NCRL-PAC and NCRL-FIPE, could not believe that
his or her contributions to each would be linked. I do not argue that
we should "pierce the corporate veil," ante at 29 n.8, or that "NCRL
has abused its corporate form," ante at 48; the corporate structure here
is legitimate. However, under the majority’s new rule of constitu-
tional law, organizations are given an explicit green light to use the
legal loophole created by today’s holding to circumvent campaign
finance regulation. The majority’s rule exempts from contribution
limits NCRL-FIPE and all other independent expenditure committees
that are closely intertwined with politically connected groups. The
majority’s decision enables political advocacy groups to create funds
through which they can funnel unlimited campaign contributions after
large donors have exhausted their ability to contribute directly to can-
didates or political committees. This approach is a complete rejection
of the important governmental interest in limiting the influence of
money in politics to prevent the appearance and reality of corruption.
The majority’s approach also strips the legislature of its right "to
anticipate and respond to concerns about circumvention of regulations
designed to protect the integrity of the political process." McConnell,
540 U.S. at 137.
North Carolina has provided substantial support for its interest in
regulating contributions to independent expenditure political commit-
tees. The regulation is closely drawn to match the state’s interest. The
contribution limits are quite accommodating — each individual donor
may give up to $4000 to NCRL-FIPE for each election. Much lower
contribution limits have been approved by the Supreme Court. See
Randall v. Sorrell, 548 U.S. 230, ___, 126 S. Ct. 2479, 2493 (2006)
(listing state and federal contribution limits). The majority argues that
the regulations would "silence" speech. Ante at 47. But the law does
not limit in any way NCRL-FIPE’s ability to engage in political
speech; it can amass as much funding as it pleases and spend it all on
96 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
12
campaign advertisements. The regulation allows it to expand its
donor base to gather additional funds — a prospect that should invig-
orate, not detract from, public engagement in the political sphere. See
McConnell, 540 U.S. at 140. Nor is the speech of its donors particu-
larly limited by the regulation. They still may donate, repeatedly,
large sums of money to use on independent expenditures (and donate
again to NCRL-PAC the same amount for use as candidate contribu-
tions). And they can continue to associate with an organization that
supports their ideals and their political agenda. See McConnell, 540
U.S. at 141; Buckley, 424 U.S. at 22.
In sum, the majority ignores the import of McConnell and instead
relies on our vacated opinion to characterize North Carolina’s interest
in the regulation as implausible. By resurrecting our vacated reason-
ing, the majority places an improperly heavy evidentiary burden on
North Carolina, rather than only requiring it to show the substantial
evidence necessary after McConnell. North Carolina has provided
substantial evidence of the corruptive influence of independent expen-
ditures, justifying its contribution limit for all political committees.
Because the $4000 limit on contributions for each contributor for each
election to each independent expenditure committee is closely drawn
to the important governmental interest of preventing the reality and
appearance of corruption, I conclude that § 163-278.13 is constitu-
tional as applied to NCRL-FIPE and similarly situated groups.
V.
The State of North Carolina has, within constitutional bounds,
enacted a campaign finance law that (1) provides an appropriate test
for determining whether an advertisement "support[s] or oppose[s] a
clearly identified candidate," N.C. Gen. Stat. § 163-278.14A(a)(2); (2)
properly defines a political committee as one that has electoral advo-
cacy as "a major purpose," § 163-278.6(14)d; and (3) imposes dollar
limits on contributions to independent political committees, § 163-
12
Despite its purported concern about the limits on its speech imposed
by the $4000 limit on contributions from each contributor, NCRL-FIPE
has only raised a total of $3359 since it was created by NCRL and has
only spent $339 on its independent expenditures, making it doubtful that
the statute limits its ability to speak in any way.
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 97
278.13, that are fully justified by substantial evidence of the corrupt-
ing influence of independent expenditures in today’s politics.
In striking down these provisions, the majority relies almost exclu-
sively on its view that campaign finance regulations are inherently
suspect because they directly threaten the "ordinary political speech
that is democracy’s lifeblood." Ante at 14. According to the majority,
enforcement of North Carolina’s regulations would subject political
speech to "layer upon layer of intense regulation," giving states
"nearly unbridled discretion to allow or disallow political messages
based, inter alia, on the regulator’s own preferences and predilec-
tions." Ante at 32. The majority sees "ungovernable complexity" in
the regulations that would serve as "a lexicon of bureaucratic empow-
erment" and would require potential speakers to "hire the best team
of lawyers" to "figure out" how to escape penalties for violations.
Ante at 33, 35, 33. Further, the majority asserts, North Carolina’s reg-
ulations would "serve as a front for incumbency protection" and "si-
lence [organizations] through regulation," thereby "slowly ridding our
democracy of one of its foremost cleansing agents." Ante at 47. The
majority concludes that I "replace[ ] . . . faith in the workings of the
First Amendment with a faith in the powers of government to manage
what we say on what matters most," thereby "surrender[ing] to the
state an awesome control over those political issues that determine the
quality of our democracy and the values that give purpose and mean-
ing to our lives." Ante at 50.
The majority characterizes my expressed concerns as "hyperbolic"
and "overblown," ante at 32, 40, yet apparently sees no irony in mak-
ing these doomsday-like predictions in support of its own position.
My concerns are based on the realities of politics in North Carolina
and elsewhere — realities that have been recognized by the Supreme
Court, are documented in the record, and provided the basis for legis-
lative action that culminated in passage of the Act. The majority’s
grave predictions, on the other hand, have no historical foundation.
Decades of campaign finance regulation have not silenced political
speech or allowed government regulators to run amok and censor
speech at whim. North Carolina’s Act is simply another effort at rea-
sonable (and necessary) regulation. The Act is the result of the legis-
lature fulfilling its duty to protect the political processes of the state
from the undue influence of money. In stopping the state from enforc-
98 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
ing key provisions of the Act, the majority severely hobbles the legis-
lature’s authority to combat the appearance and reality of corruption
in politics.
The majority’s approach, as reflected in the statements noted
above, "takes a difficult constitutional problem and turns it into a lop-
sided dispute between political expression and government censor-
ship." Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 399 (2000)
(Breyer, J., concurring). The majority treats political contributions
and expenditures as the equivalent of speech, thus concluding that the
regulation of campaign finance restricts "pure political speech." Ante
at 36, 43, 46, 49. Indeed, the majority appears to favor the argument
that "free political speech," that is, political speech immune from
campaign finance regulation, "is the best remedy for, rather than a
cause of, corruption." Id. at 47. This simplistic view of the First
Amendment, while popular with some, has been expressly and consis-
tently rejected by the Supreme Court since the time of Buckley. The
Supreme Court has repeatedly held that the First Amendment guaran-
tee of free speech requires a balance between competing interests in
the area of campaign finance regulation. On the one hand, the First
Amendment protects the freedom of political expression and associa-
tion; on the other hand, and no less fundamentally, it protects "the
integrity of the electoral process" through which political speech is
transformed into governmental action. Shrink Missouri, 528 U.S. at
400-01 (Breyer, J., concurring). Because campaign finance regulation
"significantly implicates competing constitutionally protected inter-
ests in complex ways," the courts (and legislatures) must balance
those interests. Id. at 402. The majority’s First Amendment analysis
misinterprets the nature of the interests on one side of the balance and
completely fails to consider the other side.
First, "a decision to [spend money to support or oppose] a cam-
paign is a matter of First Amendment concern — not because money
is speech (it is not); but because it enables speech." Id. at 400. The
regulations at issue here — disclosure requirements, contribution lim-
its, and political committee regulations — may affect speech, but they
do not silence it, as Supreme Court precedent makes clear. North Car-
olina’s regulations would have little, if any, constraining effect on the
average citizen interested in debating political issues or attempting to
influence electoral outcomes. The contribution regulations limit
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 99
amounts of money donated from each source, but they do not limit the
amount of speech the donor or recipient may engage in; the disclosure
and political committee regulations ensure an injection of more, not
less, information about candidates’ support and positions into the pub-
lic sphere. The majority’s parade of horribles notwithstanding, "the
essential freedom . . . to speak in unfettered fashion on the most press-
ing issues of the day," ante at 32, remains vibrant and protected under
the North Carolina regulations, because the regulations stop no one
from speaking.
Second, the majority ignores the Supreme Court’s longstanding
recognition that campaign finance regulations also serve the interest
of preserving the vitality of our democratic institutions, which in turn
serves the purposes of the First Amendment. As the Court has
explained in the context of contribution limits, judicial evaluation of
campaign regulations
reflects more than the limited burdens they impose on First
Amendment freedoms. It also reflects the importance of the
interests that underlie [regulation] — interests in preventing
both the actual corruption threatened by large financial con-
tributions and the eroding of public confidence in the elec-
toral process through the appearance of corruption. . . .
[T]hese interests directly implicate the integrity of our elec-
toral process, and, not less, the responsibility of the individ-
ual citizen for the successful functioning of that process.
Because the electoral process is the very means through
which a free society democratically translates political
speech into concrete governmental action, contribution lim-
its, like other measures aimed at protecting the integrity of
the process, tangibly benefit public participation in political
debate.
McConnell v. Fed. Election Comm’n, 540 U.S. 93, 136-37 (2003)
(quoting Fed. Election Comm’n v. Nat’l Right to Work Comm., 459
U.S. 197, 208 (1982); Shrink Missouri, 528 U.S. at 401 (Breyer, J.,
concurring)) (internal quotation marks and citations omitted).
The majority today fails to recognize this entire side of the consti-
tutional equation and instead focuses exclusively on the First Amend-
100 NORTH CAROLINA RIGHT TO LIFE v. LEAKE
ment interest in protecting the right to spend money to influence
politics. This one-sided approach has direct implications for the
majority’s analysis. The majority treats all types of regulations as
highly suspect, even though — because money is not the exact equiv-
alent of speech — different types of regulations related to campaign
financing impose varying burdens on protected activity. The majority
thus fails to "show[ ] proper deference to [the legislature’s] ability to
weigh competing constitutional interests in [this] area in which it
enjoys particular expertise." Id. at 137. Like Congress and the
Supreme Court, North Carolina’s legislature has concluded that the
unregulated use of money in politics is not, as "some may argue . . .
the best remedy for . . . corruption." Ante at 47. Instead, it has crafted
election regulations that "provid[e] the electorate with relevant infor-
mation about the candidates and their supporters" and combat "‘the
corrosive and distorting effects of immense aggregations of wealth’"
on the political process. McConnell, 540 U.S. at 121, 205 (quoting
Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990)).
It is not our place to rewrite precedent, even if our beliefs about the
First Amendment conflict with those of the Supreme Court. Instead,
we should carefully and methodically apply precedent to determine
whether North Carolina has overstepped its bounds. The majority
sidesteps this process, relying instead on its instinct that "[a]t some
point . . . enough is simply enough." Ante at 42. On the side of the
balance protecting free expression, the majority is right that these reg-
ulations could — in some hypothetical case not before us today —
affect political expression in an unconstitutional way. But under
Supreme Court precedent we may not "go beyond the statute’s facial
requirements and speculate about hypothetical or imaginary cases," as
the majority has done. Wash. State Grange v. Wash. State Republican
Party, ___ U.S. ___, ___, 128 S. Ct. 1184, 1190 (2008) (quotation
marks omitted).
On the other side of the balance, the regulations protect the demo-
cratic process by publicizing information about the financial backers
of political candidates through disclosure and reporting requirements;
the contribution limits further promote broad-based political partici-
pation by encouraging candidates and political committees to expand
their donor bases. As I have explained, without the Act’s clarifying
definition of "support or oppose the nomination or election of one or
NORTH CAROLINA RIGHT TO LIFE v. LEAKE 101
more clearly identified candidates" in § 163-278.14A(a)(2), those
seeking to influence elections will continue to avoid contribution lim-
its and disclosure requirements by thinly disguising their advertise-
ments as issue discussion. As a result, voters will be deprived of
valuable information about candidates’ supporters, and each donor
will be allowed to inject unlimited amounts of money into the politi-
cal process. Without the "a major purpose" political committee defini-
tion in § 163-278.6(14)d, organizations with electoral advocacy as a
major purpose will continue to escape regular reporting, accounting,
and contribution limits by rejecting transparency and blending their
major political activity into their other work. And without the applica-
tion of contribution limits to independent political committees
through § 163-278.13, political groups will continue to exert coercive
influence over elected officials without any constraints on the size of
contributions from individual donors.
The North Carolina legislature concluded that, on balance, the First
Amendment supports these limited and carefully drawn regulations.
Nonetheless, without conducting its own balancing as required by
precedent, the majority strikes down the provisions at issue today.
The majority’s decision will not result in more speech or a more rea-
soned political discourse. Instead, the net result will be a less
informed electorate and a step back toward a political system in
which large donors call the tune. The plaintiffs have not carried their
heavy burden of showing that the regulations lack "a plainly legiti-
mate sweep." Wash. State Grange, 128 S. Ct. at 1190 (quotation
marks omitted); see also McConnell, 540 U.S. at 207. I would there-
fore reverse the judgment of the district court and remand with the
direction that summary judgment be entered in favor of the defen-
dants, the state officials in charge of elections in North Carolina.