concurring in part and dissenting in part:
While I concur in Part A of the majority’s opinion, I am unable to concur in Part B as I do not believe the “solicits any contribution” clause of § 441d(a) provides a constitutionally adequate means of reaching these defendants.
The majority purports to avoid the primary, and quite difficult, question briefed by the parties — whether defendants’ July 1984 mailing constitutes express electoral advocacy and so falls under the first prong of § 441d(a), covering “expenditures for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate.” The majority prefers to rest its decision on the second prong of § 441d(a): that, although the mailing may not itself constitute express advocacy, it solicits contributions which are “earmarked for” express advocacy.
I find this resolution problematical. I do not think the majority, by basing its ruling on the contributions clause rather than the expenditures clause of § 441d, is able to avoid the conundrum of “express advocacy”; rather, it removes the question to a greater level of abstraction. If, as the district court found, the mailing falls short of expressly advocating President Reagan’s defeat, I fail to see how the majority can divine that contributions raised by the mailing would be put to more explicit use. The second inquiry necessarily incorporates the first: instead of asking whether the mailings engage in “express advocacy,” it asks, do they solicit contributions which themselves would be used to do so? In the circumstances before us, I find the second question no easier than the first.
The difficulty in answering both questions lies in the particular nature of the defendants before us. As described at length in Part A of the majority’s opinion, SEF meets the *299criteria set out by the Court in MCFL for a nonprofit political advocacy organization independent of corporate and labor interests: “(1) it was formed solely for the purpose of political advocacy and education; (2) it has no members or shareholders with an economic disincentive to dissociate with SEF if they disagree with its political advocacy; and (3) it is independent from corporate influence.” Supra at 292.1 Additionally, both defendants, so far as can be determined from the record, were likewise not affiliated with any specific political parties and did not endorse any candidates for public office.
Reviewing the July 1984 mailing as a whole, and taking into account the independent, issue-oriented nature of defendants, I would conclude that the mailing falls short of express electoral advocacy, and at least equally short of soliciting contributions for that purpose.
As the majority notes, the Supreme Court in Buckley and MCFL addressed the constitutional requirement that, in order to fall under various requirements of FECA, a communication must “expressly advocate” the election or defeat of a specific candidate for federal office. See MCFL, 479 U.S. at 248-49, 107 S.Ct. at 622-23; Buckley, 424 U.S. at 42-44, 80, 96 S.Ct. at 645-47, 664. The rationale for this requirement, the Court noted, was that “[cjandidates, especially incumbents, are intimately tied to public issues,” and accordingly “[t]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application.” MCFL, 479 U.S. at 249, 107 S.Ct. at 623 (quoting Buckley, 424 U.S. at 42, 96 S.Ct. at 646). Accordingly, the Court held in Buckley that to constitute “express advocacy,” a communication must “eontain[ ] express words of advocacy of election or defeat, such as Vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’ ” 424 U.S. at 44 n. 52, 96 S.Ct. at 647 n. 52.
Whether the July 1984 mailing reaches this level of explicitness, I admit, is a close question. The mailing falls somewhere between cases that have come out on different sides of this issue — in particular, between MCFL, 479 U.S. at 248-50, 107 S.Ct. at 622-24, which found express advocacy, and Federal Election Comm’n v. Central Long Island Tax Reform Immediately Comm. (“CLI-TRIM”), 616 F.2d 45, 53 (2d Cir.1980) (in banc), which did not. In my judgment, the mailing, since it does not endorse any candidates but only criticizes an incumbent in the course of staking out positions on issues of public import, falls short of the express electoral advocacy found in MCFL.
In MCFL, the Court examined a pamphlet circulated by a pro-life advocacy group. The pamphlet announced “VOTE PRO-LIFE” and included 13 photographs of candidates who had earned a “triple yes” rating on pro-life issues; it also included a disclaimer which said, “This special election edition does not represent an endorsement of any particular candidate.” 479 U.S. at 243, 107 S.Ct. at 620. The Court concluded that, despite the disclaimer, the pamphlet met the Buckley test of express advocacy because it “not only urges voters to vote for ‘pro-life’ candidates, but also identifies and provides photographs of specific candidates fitting that description.” The pamphlet, the Court concluded, “cannot be regarded as a mere discussion 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.” Id. at 249, 107 S.Ct. at 623.
In CLITRIM, in contrast, the in banc Second Circuit concluded that a somewhat similar issue-oriented leaflet fell on the other side of the “express advocacy” line. This case concerned a leaflet distributed shortly before the 1976 Congressional election by CLITRIM, a non-profit advocacy group affiliated with the John Birch Society. Two pages of the four-page leaflet set out the organization’s anti-tax positions in general; the remaining two pages contained a photograph of a local Congressman, Representative Jerome Ambro, and a chart of his voting *300record, which was characterized as for “Higher Taxes and More Government.” The leaflet informed readers, “If your Representative consistently votes for measures that increase taxes, let him know how you feel. And thank him when he votes for lower taxes and less government.” 616 F.2d at 50-51 & n. 6. Although the leaflet clearly took aim at Representative Ambro on the eve of an election, we concluded that the leaflet “contains nothing which could rationally be termed express advocacy,” in that it did not expressly “call[] for anyone’s election or defeat.” Id. at 53. We rejected as “totally meritless” the position taken by the FEC, which “would apparently have us read ‘expressly advocate the election or defeat’ to mean for the purpose, express or implied, of encouraging election or defeat.” Id.
I believe CLITRIM, rather than MCFL, controls the case before us. While the mailing in question is arguably more explicit than the CLITRIM bulletin in advocating an incumbent’s defeat, it does not, as in MCFL, specifically endorse a candidate. Rather, like the CLITRIM bulletin, it employs an attack on an incumbent, in the context of an upcoming election, as a means of bringing into sharp focus the organizations’ longstanding concerns about issues of public importance. Although it comes close to express advocacy (e.g., “Vote Peace in ’84”), the mailing, like the CLITRIM bulletin, lacks the “express words of advocacy of election or defeat” which the Buckley Court requires, 424 U.S. at 44 n. 52, 96 S.Ct. at 647 n. 52; it never expressly directs the reader to vote against President Reagan.
Furthermore, I believe that an issue-oriented attack on an incumbent by nonpartisan issue-oriented advocacy groups such as CLI-TRIM or the defendants in this ease, must be distinguished from a mailing which expressly advocates on behalf of specific candidates, as in MCFL. Incumbents naturally provide the most convenient targets for anti-status-quo advocacy groups, and the best opportunities for sharply focused rhetoric in aid of ongoing issue advocacy. It is in such circumstances, I believe, that the warning of the MCFL Court — that the distinction between discussion of issues and advocacy for or against candidates “may often dissolve in practical application,” MCFL, 479 U.S. at 249, 107 S.Ct. at 623 — is most apt. Accordingly, I would characterize the July 1984 mailing not as express advocacy but as what the Supreme Court concluded MCFL’s “Special Edition” was not — a “discussion of public issues that by their nature raise the names of certain politicians.” Id.; see also Faucher v. Federal Election Comm’n, 928 F.2d 468, 470-71 (1st Cir.), cert. denied, 502 U.S. 820, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991); Federal Election Comm’n v. National Org. for Women, 713 F.Supp. 428, 433-35 (D.D.C.1989).
The majority concludes that the contributions provision, construed so as to stay within constitutional limits,2 reaches the mailing at issue. The majority (supra at 295) bases its conclusion, apparently, on one sentence in the cover letter from Dr. Spock, which says, “your special election-year contribution today will help us communicate your views to hundreds of thousands of members of the voting public, letting them know why Ronald Reagan and his anti-people policies must be stopped.” This statement, the majority concludes, suffices to bring the mailing within the reach of the contributions clause since it “leaves no doubt that the funds contributed would be used to advocate President Reagan’s defeat at the polls, not simply to criticize his policies during the election year.” Supra at 295.
I cannot agree. The above-quoted passage, as well as the remainder of the cover letter by Dr. Spock and the two-page survey on the effect of a second Reagan term, inextricably mixes advocacy on public issues with an attack on the President. That contributions will be used to fund work by SEF and NMS on “pro-peace” issues, rather than simply to fund or oppose a candidate, is made particularly clear by the “voter certificate” which readers are urged to return with their contribution. This form does not say, for example, “I am enclosing my contribution to *301help fund NMS’s efforts to defeat Ronald Reagan.” Rather, it says:
YES, I HAVE VOTED “NO” TO WAR IN CENTRAL AMERICA. And because I want to continue helping National MOBILIZATION FOR SURVIVAL exert maximum election-year pressure to stop the violence in Central America, ban nuclear weapons, halt the arms race, promote safe energy, and meet human needs, I am enclosing my contribution ...
As noted above, when one asks whether such an advocacy group is engaging in express advocacy, one is required to examine whether its purpose is primarily to seek votes against the incumbent, or instead to advocate with regard to issues “that by their nature raise the names of certain politicians,” MCFL, 479 U.S. at 249, 107 S.Ct. at 623. When the question is recast as “Is the group seeking funds targeted to the defeat of a candidate?” the question is no less difficult. At least when we attempt to determine whether a mailing constitutes “express advocacy,” we have the benefit of a writing before us, the express language of which we can scrutinize. When instead the question becomes “For what goal are the funds targeted?” we are forced, at least to some degree, to abandon the writing and to attempt to speculate as to what advocacy the group might engage in in the future. In a close case like this — one, furthermore, in which the groups have not endorsed any candidates but have merely attacked the incumbent — I find the process of divining whether funds are “targeted for” express advocacy both uncertain and altogether too intrusive.
We have more than once expressed concern that the FECA be applied only to partisan political groups rather than to “movements dealing with national policy.” See United States v. National Comm, for Impeachment, 469 F.2d 1135, 1141-42 (2d Cir.1972); CLITRIM, 616 F.2d at 54-55 (Kaufman, C.J., concurring). A broader attempt by the FEC to “regulat[e] the expression of opinion on fundamental issues of the day,” we concluded, would be “intolerable.” National Comm. for Impeachment, 469 F.2d at 1142. Although the specific holding of Impeachment has become moot in light of subsequent amendments to the FECA, the concerns expressed there have not.
Accordingly, I dissent.
. As the majority notes (supra at 295), Buckley provides a necessary limiting principle for the contributions clause: the provision may constitutionally reach only solicitations of contributions “that will be converted to expenditures subject to regulation under FECA.”