California Medical Ass'n v. Federal Election Commission

KENNEDY, Circuit Judge:

This is an appeal from an order of the district court certifying four questions concerning the constitutionality of limits on contributions to a political action committee under the Federal Election Campaign Act as amended in 1976.1 2 U.S.C. §§ 431-442, *623451-455 (1976) (as amended, 1980). We hear the appeal en banc pursuant to Fed.R.App.P. 35. Standing and jurisdiction are conferred by, inter alia, 2 U.S.C. § 437h(a) (1976). See Buckley v. Valeo, 424 U.S. 1, 8-12, 96 S.Ct. 612, 629-31, 46 L.Ed.2d 659 (1976) (per curiam).

The case turns on important statutory provisions pertaining to entities defined by the Act as political committees. CALPAC is a political committee affiliated with the California Medical Association (CMA). CALPAC and CMA were two of the plaintiffs below. The other plaintiffs were individual members of CMA named Foster and Rose, who are eligible voters with standing to bring the action pursuant to 2 U.S.C. § 437h(a) (1976). The plaintiffs below are appellants here.

The appellants make two principal arguments. First, they contend the Act’s limit on contributions by CMA to CALPAC is an infringement of their first amendment right of speech and political expression. Second, the appellants challenge the FEC’s interpretation of the Act which requires that administrative support given by associations such as CMA to a multicandidate political committee must be counted as part of the dollar limit set on payments to such committees, when, by contrast, a labor union or corporation may give unlimited administrative support to a subspecies of political committee designated under the Act as a “segregated fund.” The appellants allege that the FEC’s interpretation of the Act is incorrect as a matter of statutory construction, or, that if it is correct, it is unconstitutional. Each of the appellant’s principal contentions is erroneous and each is rejected.

I

In 1976 the Supreme Court held it was constitutional to limit contributions to candidates in federal elections to $1,000. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Following the Buckley decision and as a matter of legislative grace,2 Congress opened a wider avenue by which individuals could channel funds to candidates: any person, including both natural persons and various kinds of organizations, could contribute up to $5,000 to multicandidate political committees, which in turn could contribute up to $5,000 to each candidate. In this way Congress permitted greater individual contribution possibilities.

Appellants would have us dramatically widen this avenue of indirect contributions to candidates. They use the statutory rule permitting a corporation or union to furnish limited kinds of clerical and similar services to its own segregated fund as a fulcrum in an attempt to dislodge as unconstitutional a critical provision of the Act which limits an association’s payments to political committees. The irony of the argument is that corporations and unions are entities generally forbidden to influence federal elections by either expenditures or contributions. To accept appellants’ constitutional theory would allow associations to channel to any and all political committees, and thence to candidates, unlimited amounts of cash, services, or other things of value. To drive this *624wedge through the narrow aperture of section 441a would be to shatter the careful design of the Federal Election Campaign Act. The first amendment does not compel or support that result.

Our colleagues in dissent propose a theory that not only would strike down the provisions before us but also would portend grave consequences for other major features of the Act, not the least of which are the $25,000 annual limit on aggregate individual contributions and the rule that corporations and unions can make no campaign contributions or expenditures at all. Furthermore, an incidental, but nevertheless far-reaching, consequence of the dissent would be to grant associations a special privilege of unlimited and direct contribution ability, a privilege not extended to individual persons.3 That distinction appears to us quite unsupportable.

The provisions we examine here were designed to protect the integrity of the political process and to insure that political debate and political speech are effective, and in this regard Congress acted to vindicate first amendment interests, not to derogate them. We find therefore, that the statutory provisions challenged in this case are constitutional.

II

$5,000 Limit on Payments to Political Committees

As enacted in 1974, the Federal Election Campaign Act imposed dollar limitations both on contributions to candidates and on independent expenditures made by or on behalf of candidates in federal elections. The provisions on candidate contributions were held valid but limits on independent expenditures by or on behalf of candidates were held unconstitutional in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). In response to the decision, Congress amended the Act. Federal Election Campaign Act Amendments of 1976, Pub.L.No.94-283, 90 Stat. 475 (codified in 2 U.S.C. §§ 431-442, 451-455 (1976) (as amended, 1980)). Consistently with the mandate of the Supreme Court, Congress amended the Act to remove any limitations on independent expenditures. Congress enacted new limitations on permissible payments to political committees, 2 U.S.C. § 441a(a)(l)(C) (1976). It is apparent, therefore, that Congress considered payments to a multicandidate political committee to be subject to the same regulatory power, from a constitutional standpoint, as campaign donations made directly to candidates. Upon consideration of the statutory definition of a political committee and by reason of the substantial latitude permitted associations for political expression, including the right to make unlimited expenditures except for direct candidate contributions or payments to multicandidate political committees, we hold that the Congress was correct in its judgment. Appellants make the assertion that Congress had a very limited purpose for enacting the $5,000 limitation,4 and then proceed to declare that its purpose, as so defined, is just as readily accomplished by other provisions of the Act. They state that the $5,000 limit is only to prevent funneling contributions to a particular candidate and cite section 441a(a)(7)(B)(i) to show that indirect funneling to specific candidates is separately forbidden. This is a crabbed view of the Act and an unrealistic appraisal of the definition and role of a multicandidate political committee.

At the outset it should be noted that a person or an organization, such as CMA, can contribute each year no more than $1,000 to any candidate. 2 U.S.C. § 441a(a)(l)(A). This provision, as we have said, was expressly validated in Buckley. A *625political committee qualified as a multicandidate committee, as CALPAC is, may give a maximum of $5,000 per year to any one candidate. 2 U.S.C. § 441a(a)(2)(A). If the limits on payments to a political committee were to be erased, any association could give unlimited funds to a political committee. Donors could in effect use the multicandidate committee as a vehicle for making $5,000 contributions to an unlimited number of candidates and thereby influence, in fact as well as appearance, the use of vast and substantial sums for direct candidate contributions. , That would be an egregious distortion of the existing contribution limits of the Act, provisions specifically sustained by the Court in Buckley.

The 1976 amendments gave political action committees great and unusual powers in comparison to either candidates or individuals: Political action committees are unlimited in the total amounts of money they receive, expend, and contribute to candidates. To vest such extraordinary power in political action committees, without some reasonable limits such as section 441a(a)(l)(C) on how they can collect money, would be to create novel and potentially enormous opportunities for corruption. As one study has concluded, even as limited by section 441a(a)(l)(C), political action committees have become vast, unaccountable, and low visibility centers of electoral influence that effectively detach candidates from their nominal geographic constituencies. See Institute of Politics, John F. Kennedy School of Government, Harvard University, An Analysis of the Impact of the Federal Election Campaign Act, 1972-78, Prepared for the House Comm, on House Admin., 96th Cong., 1st Sess. 4-5 (Comm. Print 1979) [hereinafter cited as FECA Impact Analysis].

The purpose of the $5,000 limitation, therefore, is to prevent the aggregation of funds for contribution purposes so that candidates as a class — identified or not — are not beholden to or influenced by a multicandidate political committee or its principal supporter, and so that the multicandidate political committee cannot become the vehicle for an association to increase its permitted contributions on a wide scale. The limitation on contributions to multicandidate political committees is necessary for this purpose and it is closely tailored to fit it.

There is a necessity for a limitation on payments to multicandidate political committees if the candidate contribution limits are to remain workable. The discussion above also points out the essential fact that a political committee is, by design as well as definition, a natural conduit for candidate contributions and that the essential purpose of the provision here in question is to limit those contributions, not to limit expenditures for any other type of political advocacy. It is an inevitable fact of politics that there will be strong gravitational attraction between political committees and candidates. Multicandidate political committees are natural targets for candidate influence, and from this it follows that there will be temptations to characterize what in fact are contributions as expenditures, contrary to the strictures of the Act. This description of the purpose and effect of the Act fits with the findings of Congress:

The conferees’ decision to impose more precisely defined limitations on the amount an individual may contribute to a political committee, other than a candidate’s committees, and to impose new limits on the amount a person or a multicandidate committee may contribute to a political committee, other than candidates’ committees, is predicated on the following considerations: first, these limits restrict the opportunity to circumvent the $1,000 and $5,000 limits on contributions to a candidate; second, these limits serve to assure that candidates’ reports reveal the root source of the contributions the candidate has received; and third, these limitations minimize the adverse impact on the statutory scheme caused by political committees that appear to be separate entities pursuing their own ends, but are actually a means for advancing a candidate’s campaign.

H.R.Rep.No.10057, 94th Cong., 2d Sess. 31, 57-58 (1976), reprinted in [1976] U.S.Code *626Cong. & Admin.News, pp. 929, 946, 972-73. The accuracy of this judgment has since been confirmed by a study commissioned by the House of Representatives. See FECA Impact Analysis, supra.

Even if the purpose of the limit were narrowly confined, as the appellants view it, to the first two of the goals listed above, it would not be redundant. It is quite plausible that the difficulty of tracing tunneling to candidates, especially by tacit arrangements falling short of coordination, is sufficiently great that a preventive limitation is required in the form of an absolute dollar ceiling on the ability of “persons” (including associations) to contribute to political action committees (which might then “funnel” excessively to candidates). A similar preventive measure based on this kind of enforcement difficulty was specifically approved by Buckley, see 424 U.S. at 27-30, 96 S.Ct. at 638-40. But, even more important, the $5,000 limit serves the additional goals described earlier. See pp. 624 625, supra.

A multicandidate political committee, such as CALPAC, is, by statutory definition and as a practical matter, an entity with a dominant function of making direct political contributions to candidates. The statute defines such a committee as an entity which has been in existence for six months, has received contributions from fifty or more persons, and has made contributions to five or more candidates. 441a(a)(4). We conclude, therefore, that a multicandidate political committee is sufficiently related to the mechanisms of the Act regulating candidate contributions that the validity of the limits here in question must be sustained upon the authority of Buckley.5

It appears also from an examination of the statutory history quoted above that Congress also was concerned about preventing any one person or association from dominating a multicandidate political committee, thereby gaining control over the contributions made by others. It works at cross purposes, therefore, for the appellants to insist that CALPAC is simply the mouthpiece of CMA. As noted, a multicandidate political committee by definition must receive funds from more than fifty persons. Indeed, one of appellants’ major objections is that the Act impairs CMA’s ability to use a political committee as a vehicle for transmitting as much of its revenue as possible directly to candidates. Therefore, appellants do not, and cannot, equate the limit on payments to the committee with a restriction that is unrelated to a regulation of candidate contributions.

The limit on payments to a multicandidate political committee does not in*627trude upon the right of associations except in a most minimal way. A critical point in this case is that CMA and any other association may spend as much as it chooses to collect for political speech, including advocacy of a particular candidate’s election. The limitation here in question applies only to candidate contributions and payments to multicandidate political committees. And the intrusive potential of the limitation is further diminished when it is noted that, as forcefully and often as it chooses, CMA can solicit its members, and anyone else, to give directly to CALPAC. Thus, if CMA members do equate their own interest with that of CALPAC, they can support CALPAC as individuals.

The first amendment analysis of the Supreme Court in Buckley controls this case and supports the conclusion that payments to a political committee may be restricted consistently with the Constitution. Buckley, and the more recent decision in First National Bank v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), stand for the central proposition that the ideal of the first amendment, certainly in respect to political expression, is to permit the maximum “quantity of political speech,” as determined by the speaker. See Buckley, supra, 424 U.S. at 17, 18, 19, 39, 55, 96 S.Ct. at 633, 634, 635, 644, 652. The attempted restrictions on campaign expenditures in both cases were held invalid because political speech in its essential aspect was diminished. The Court’s decision in Buckley stands for the further proposition that spending is entitled to the maximum protection when the speaker and the spender are one and the same. 424 U.S. at 20-21, 96 S.Ct. at 635. At that point the individual and idiomatic character of political speech is at its highest, for the articulation of the idea is by the one who originates the speech. By contrast, the donee of a contributor has the power to distort, alter, or transform the contributor’s message. This was the rationale the Court used to strike down attempted limits on expenditures by political advocates or by candidates on their own behalf, and to sustain limits on campaign contributions. Id.

Campaign contributions, by contrast with expenditures, were viewed by the Court primarily as symbolic acts showing support, rather than as expository acts of advocacy. A contribution is potential speech dependent upon the recipient for its ultimate articulation. The articulation of ideas by a speaker is more central to political expression than is the symbolic support embodied in a contribution, which is essentially a proxy.

By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or a political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication.

424 U.S. at 20-21, 96 S.Ct. at 635 (emphasis added). See also id. at 23, 96 S.Ct. at 636 (“expenditure ceilings impose significantly more severe restrictions” than contribution limits), 21, 96 S.Ct. 635 (contribution is “undifferentiated, symbolic act”), 39, 96 S.Ct. 644; Polsby, Buckley v. Valeo: The Special Nature of Political Speech, 1976 Sup.Ct. Rev. 1, 20-25.

This classification of payments to multicandidate political committees as sharing the essential characteristics of candidate contributions follows from Buckley for two reasons. First, this classification is instrumental to the efficacy of a regulatory goal which the Court found constitutional, i. e., controlling payments to candidates. Second, it is consonant with the Court’s analysis of the characteristics of restraints on different kinds of expression and associational rights. The regulation in question does not significantly diminish the effectiveness or the quantity of political speech. The entity wishing to enter the political debate, here an association, retains potent alternative means of expression, including the right of unlimited spending on its own and the right to urge its members, and any other interested citizens, to show support for a political committee by contributing to the committee directly. This restriction does not significantly diminish the quantity *628of political advocacy or alter its content over the wishes of the initial speaker. While we believe it has been demonstrated that the $5,000 limitation is closely and necessarily related to the legitimate and important objective of regulating campaign contributions, we disagree with the appellants’ use of Buckley’s close scrutiny of expenditure limits to attack the limits on payments to multicandidate political action committees here at issue.

In Buckley, it was evident at each point of the Court’s analysis that far greater deference was given to legislative balancing in the sphere of contribution regulation than in the case of limitations on expenditures unrelated to contributions. See 424 U.S. at 44-45, 96 S.Ct. at 647 (“markedly greater burden” of expenditure limits requires stronger justification than contribution limits under “exacting scrutiny applicable to limitations on core First Amendment rights”). This follows from the Court’s conclusions that contributions are somewhat removed from the core of political expression.

In Buckley the Court granted the legislature substantial deference in drawing the Act’s contribution limits, without insisting upon the most narrow of categories. The Court was willing to assume that contributions in sums larger than $1,000 might in some cases be nonsuspect, but nevertheless it allowed the limit as a preventive measure. 424 U.S. at 28, 30, 96 S.Ct. at 639, 640. The Court noted also that groups could circumvent the contribution limit merely by proliferating the number of political committees, each of which would be able to make the maximum candidate contributions; yet this imprecision was permitted.6 Finally, the Court acknowledged that challengers and minority party candidates might be adversely affected by the contribution limitations. This is a most sensitive point in the integrity of the electoral process.7 The Court nevertheless permitted the legislation to stand, at least absent a showing of actual prejudice. It is powerful evidence that contribution limitations are a minimal intrusion upon the essentials of political speech that the Court found the Act constitutional despite these imprecisions in its operation. The limits at issue here are at least as “closely drawn,” 424 U.S. at 25, 96 S.Ct. at 637, as those sustained in Buckley. The scrutiny given to a classification affecting a constitutional right is not, therefore, entirely a mechanical inquiry, determined in the abstract simply by reference to which constitutional amendment is being considered. Buckley establishes that the constitutional justification required depends in part upon the degree to which the essentials of a constitutional right are exposed to regulation in the particular case.8

We are prepared to assume that a restriction on payments to a political committee does make association slightly less convenient. But see 424 U.S. at 22, 96 S.Ct. at 636 (inconveniencing effect of candidate contribution limits not unconstitutional because substantially equivalent forms of association still available). We think, therefore, it could not be sustained absent demonstration of a discernible, important, and legitimate policy of the Congress. We find *629such a policy inherent in the structure of the Act. The Act prohibits excessive contributions to candidates and the $5,000 limit properly viewed, is a proper mechanism to insure compliance with the prohibition as well as to prevent multicandidate political committees from being thrust by the statute into a position of such prominence that the legitimate objectives of the statute are defeated. The restrictions on contributions to multicandidate political committees are to prevent the fact or appearance of excessive ties between a committee or its donors, on the one hand, and direct contributions to candidates on the other.

The minimal nature of the statutory constraints, taken together with the importance of the governmental interest to be served by the regulation, operate to sustain the constitutionality of the provision in question.

Ill

Administrative Support to Politicai Committees

The appellants argue that even if the $5,000 limitation is valid, the FEC’s interpretation of the Act is incorrect in another respect because it imposes a particular burden on an association’s advocacy not imposed upon the advocacy permitted corporations and unions. As interpreted by the FEC, the Act operates so that any administrative support given by an association such as CMA to a political committee is counted as a contribution subject to the Act’s limits, whereas unions and corporations can provide administrative support in unlimited amounts to their segregated funds. The provision which grants unions and corporations this exemption is section 431(e)(5)(F). Appellants challenge the FEC’s interpretation and claim they too are entitled to give unlimited administrative support to a political committee. The appellants argue further that even if the FEC’s statutory interpretation were correct, denial of the exemption to associations is burdensome and discriminatory and thus violates their first amendment right of speech and their fifth amendment right to be free of classifications that offend due process. The entire court agrees that appellants’ statutory argument is unwarranted, and the majority rejects most emphatically the conclusion that associations are burdened in a way that corporations and unions are not and that the distinctions render the limitation provision unconstitutional.

We turn first to the question of statutory interpretation. A “separate segregated fund” is simply a subspecies of political committee. All parties concede this. While the statute was ambiguous on this point at one time, recent amendments have clarified the Act, and it now provides specifically that segregated funds are political committees. See Pub.L.No.96-187, tit. 1, § 301(4)(B), 93 Stat. 1339 (1980), reprinted in [1979] U.S.Code Cong. & Admin.News, p. 2860.

The concept of a “separate segregated fund” for corporations and unions was introduced as part of the Federal Election Campaign Act of 1971.9 Prior to this enactment, corporations and unions were simply prohibited from spending money directly or indirectly to influence federal elections. The exception was the work of Representative Hansen. The Hansen Amendment in 1971 allowed corporations and unions to help certain persons affiliated with them in interest to organize and to participate in political spending, while direct corporate and union participation in influencing elections remained prohibited. Contributions or expenditures by corporations and unions remained unlawful, but the Hansen Amendment permitted “the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes.” 2 U.S.C. § 441b(b)(2)(C) (1976). The legislative history of this amendment is nearly nonexistent,10 but the general purpose seems to *630have been to continue the prohibition against vast corporate or union revenues being used in active electioneering while permitting the practice, which had persisted even before the Hansen Amendment specifically permitted it, of a corporation’s or a union’s serving as a focal point for the interests of closely affiliated persons. Thus, a corporation or union could serve as a clearinghouse to facilitate individual or pooled individual political participation, but could not participate itself.

The question, raised by appellants, whether or not organizations such as CMA can be embraced by the phrase “membership organizations,” thus falling within the exemption for unlimited administrative support under sections 431(e)(5)(F) and 441b(b)(2)(C), must be answered in the negative, at least in the sense that appellants ask it. The legislative history indicates that the “membership organizations” language was only intended to rescue organizations that would otherwise fall within section 441b’s blanket prohibition of any election activity; CMA is not such an organization.11 This interpretation, moreover, is consistent with the FEC’s own interpretation of the statute, and we owe deference to the agency that administers the Act. See Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979).

We do not agree with the appellants’ suggested interpretation of the statute under which an association would be entitled to furnish unlimited administrative support to a political committee. Associations are limited in the contributions that they may make to political committees by the terms of section 441a(a)(l)(C). The term “contribution” is defined in section 431(e). That definitional section does provide an exemption for administrative support, but by its terms the exemption is confined only to “a corporation or a labor organization.” Under no permissible interpretation of this statute can we conclude that associations, such as CMA, are within this exclusion. We agree, therefore, that the value of administrative services donated by an association to a political committee is included in computation of contributions for purposes of the $5,000 limit imposed by section 441a.

We turn finally to appellants’ arguments that they are disadvantaged vis-a-vis a union or a corporation. The reason Congress did not provide an unlimited exemption for an association to render administrative services to political committees, while a somewhat similar exemption was granted to corporations and unions for segregated funds,12 is that an association is regulated for entirely different purposes. and by an entirely different statutory scheme from the one applicable to corporations and unions. See generally F. Hilder & T. Watkins, Regulation of Corporate Political Activity (BNA Corporate Practice Series No. 16, 1979). It is quite beside the point to argue that “ . . . unincorporated associations may annually donate no more than $5,000 in money or administrative support to political *631committees, while corporations and labor organizations may annually give such committees unlimited administrative support.” The phrase “such committees” obscures the fact that a committee in the case of a corporation or union means only a segregated fund. The fundamental distinction between the regulatory scheme applied to segregated funds maintained by corporations or unions, on the one hand, and the operation of political committees funded by associations on the other, prevents simple comparison between the two. This misapprehension leads to an entirely false issue, i. e., an attempted comparison between these entities. The false comparison cannot be used to declare a major portion of the Act unconstitutional. Without the exemption for administrative support, corporations and unions simply could not maintain segregated funds. But segregated funds are different from all other kinds of political committees. Segregated funds can be maintained only for individuals in a narrowly defined class, solicited under the Act’s severe restrictions. A corporation or union may solicit only for its own segregated fund, and even then solicitation is restricted in other respects, e. g., solicitations are permitted only twice a year. 2 U.S.C. § 441b(b)(4)(B) (1976).

Corporations and unions, moreover, are flatly forbidden by the Act to make any expenditures or contributions to influence federal elections. By contrast, associations can spend unlimited amounts. Associations may also make unlimited solicitations for contributions to political committees. A solicitation may run to all persons without restriction. Any comparison between the rule that allows corporations and unions to maintain a segregated fund, on the one hand, and the rule that administrative support is counted toward an association’s committee contribution on the other, is entirely misplaced. It is not true a priori or from the face of the Act, and we doubt that it can be shown empiracally, that corporations or unions by use of segregated funds can match in any degree the power of associations to influence federal elections, whether or not associations choose to exercise that power alone, or through political committees. The comparison is inapt, and no constitutional discrimination or first amendment burden or injury can be demonstrated from the differential treatment.13

The rule that administrative assistance from an association is counted as a contribution when rendered to a political committee would, of course, be invalid if it did not serve a legitimate purpose, and therefore it must be examined under its own terms, even if it is not invalid by comparison to the restrictions upon a union and a corporation. We have already concluded that there is a legitimate purpose for a limit on an association’s contributions to political committees. The administrative assistance provisions are simply a necessary part of this statutory scheme. The Act prevents evasion by including administrative assistance in computation of the dollar limit. Since there is a valid purpose in limiting such contributions, the Act’s inclusion of administrative support as part of contribution limits is a proper concomitant regulation and is constitutional. The claims of the appellants are therefore rejected, and each of the certified questions is answered in the negative.

IV

The questions we have addressed were certified in accordance with a procedural section of the Act, 2 U.S.C. § 437h, which additionally states that “all questions of constitutionality of this Act” shall be heard by “the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.” Various difficult questions can be raised about the meaning and constitutionality of the section’s en banc requirement. These include the extent to which the breadth of the statutory *632phrase “all questions of constitutionality” may trench upon á court’s independence in the manner and scope of its decisionmaking. See generally Leventhal, Courts and Political Thickets, 77 Colum.L.Rev. 345 (1977); Redish and Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U.Pa.L.Rev. 45 (1975). The suggestion in Judge Wallace’s concurring opinion that a proper construction of the language is to limit en banc hearings to eases presenting issues of “facial” validity, contrasted with “as applied” validity, does not avoid difficult constitutional questions, and it may compound them. In any case, an analysis that is “facial” and yet which purports to answer certified questions concerning CMA only is an anomaly. The negative implication that filing a 437h certificate confines the court to a range of questions more narrow than might otherwise be the case is troubling. The distinction between facial issues and other issues, moreover, is an unstable juridical category. The difficulties it presents are sufficiently metaphysical that the occasions to draw such fine lines should not be multiplied beyond necessity. See Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Weehsler’s The Federal Courts and the Federal System 637-40 (2d ed. 1973).

Construction of section 437h is further hampered by the obscurity of its purpose. It originated as an amendment offered by Senator Buckley to expedite authoritative Supreme Court determination of the Act’s constitutionality. The en banc requirement apparently was deemed to be an expediting mechanism due to a misconception that an en banc hearing was a matter of right following a hearing by a panel of three appellate judges; to require an initial en banc hearing was thus thought to eliminate a merely “preliminary” three-judge hearing. See Markup — Federal Election Campaign Act Amendments of 1974, Transcript of Proceedings Before the House Comm, on House Admin., 704-11 (June 26, 1974), reprinted in Appendix to Appellees’ Brief. That proposition is, of course, inaccurate: en banc hearings are discretionary. See Fed.R.App.P. 35(a). It has been suggested that the effect of an en banc requirement may be to impede rather than expedite. See Leventhal, supra, 77 Colum. L.Rev. at 384-87. We are not prepared to say that has occurred in the instant case, but if mandatory en banc hearings were multiplied, the effect on the calendars of this court as to such matters and as to all other business might be severe and disruptive.

Delicate questions such as those here suggested are to be decided only when necessary. We think the better course is to let out decision to hear the case en banc rest on our authority under Fed.R.App.P. 35. See Buckley v. Valeo, 519 F.2d 821, 902 n.2 (D.C.Cir.1975) (per curiam) (en banc), aff’d in part and rev’d in part, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). The importance of the case warrants that determination. If Congress in its legislative discretion chooses to reexamine the en banc provision, the necessity for our addressing the point may not arise in any future case.

The foregoing explains our decision to hear the case en banc pursuant to our authority under Fed.R.App.P. 35.

EUGENE A. WRIGHT, GOODWIN, SNEED, and TANG, Circuit Judges, join in all parts of the foregoing opinion, for a majority of the court. CHOY and HUG, Circuit Judges, concur only in Part IV.

. The district court certified both the plaintiffs’ and the defendants’ questions, as follows: Plaintiffs’ questions:

a. Does the $5,000 calendar year limit established by 2 U.S.C. § 441a(a)(l)(C) on contributions to a political committee, when applied to contributions of administrative support as specified in § 441b(b)(2)(C) by CMA, an unincorporated association, to CALPAC, CMA’s political action committee, violate the First and Fifth Amendments to the Constitution, when these provisions, and 2 U.S.C. §§ 431(e)(5)(F) and 431(f)(4)(H), on their face and as interpreted by the Federal Election Commission, allow unlimited contributions of such administrative support by corporations and labor organizations to their respective political action committee?
b. Does the $5,000 calendar year limit established by 2 U.S.C. § 441a(a)(l)(C) on contributions to a political committee, when applied to CALPAC’s receipt of contributions of administrative support as specified in § 441b(b)(2)(C) from CMA, an unincorporated association and CALPAC’s connected organization as defined in 11 C.F.R. § 100.15, violate the First and Fifth Amendments to the Constitution when these provisions, and 2 U.S.C. §§ 431(e)(5)(F) and 431(f)(4)(H), on their face and as interpreted by the Federal Election Commission, allow receipt of unlimited contributions of such administrative support by political action committees sponsored by corporations and labor organizations? Defendants’ questions:
a. Do §§ 441b(b)(2)(C), 431(e)(5)(F) and 431(f)(4)(H), which on their face exclude expenditures by corporations and labor organizations for the establishment, administration and solicitation of contributions to a separate segregated fund to be utilized for political purposes from the definitions of contributions limited by § 441a(a), but do not on their face exclude expenditures for similar purposes by CMA, an unincorporated association, from the same definitions, violate plaintiffs’ rights under the First and Fifth Amendments to the United States Constitution?
*623b. Do §§ 441b(b)(2)(C), 431(e)(5)(F) and 431(f)(4)(H), which on their face exclude the receipt of contributions from corporations and labor organizations by separate segregated funds for the establishment, administration and solicitation of contributions to the separate segregated funds to be utilized for political purposes from the definitions of contributions limited by § 441a(a), but do not on their face exclude the receipt of contributions from CMA, an unincorporated association, by CALPAC from the same definitions, violate plaintiffs’ rights under the First and Fifth Amendments to the United States Constitution?

. We recognize that before the passage of the 1976 amendments there was no limitation on contributions by persons to political action committees. According to our analysis of the Supreme Court’s Buckley opinion, Congress was empowered to limit contributions from persons to multicandidate political action committees to $1,000, inasmuch as we view the limits on committee contributions to be essentially similar to those on direct candidate contributions. Nevertheless, Congress enacted a more generous, $5,000, limitation on contributions by persons to political action committees.

. The $25,000 annual aggregate ceiling on contributions does not apply to associations, only to individuals. 2 U.S.C. § 441a(a)(3) (1976).

. Because we do not accept the argument that the strictest possible scrutiny is the appropriate standard by which to review the contribution limitation at issue here, we consider a broader range of justifying purposes for the statutory limitation than would otherwise be appropriate. See, e. g„ page 624, infra.

. A superficially plausible argument might be made that the effect of the limitation in restricting money spent by committees for independent expenditures, rather than for candidate contributions, should be given serious consideration in evaluating the constitutionality of the limitation. Consideration of the possible types of relations between persons and their political action committees vitiates this argument, however. If one were to assume a political action committee with a broad and diverse constituency of supporters, holding, in the aggregate, widely disparate views on the subjects of their committee’s electioneering, then the symbolic, proxy-like character of their contributions to the committee, as opposed to true individual expenditures, becomes apparent. In the case of such a committee, the possible transformation and distortion of the contributing persons’ views is most conspicuous, and therefore their act of contribution is that much removed from “core political expression.” If we are to assume the opposite hypothesis, one in which a political committee precisely mirrors the views of a narrowly defined constituency of committee supporters, the similarity of the limitation to one on core political expression becomes closer, but the severity of the restriction’s impact becomes that much less significant. This is because the “quantity of political expression” that would be achieved by the political action committee’s expenditure of contributed funds for independent expenditures can be precisely equalled, both as to amount and content of the speech, merely by the individual members’ independently spending money advocating the same objects that would otherwise be advocated by the political action committee. In any event, this issue is more apparent than real: the appellants focus in this case on the limitation’s restriction of their ability to channel funds via multicandidate committees to candidates, and this is only to be expected, inasmuch as the chief, if not the sole, attractive feature of multicandidate political action committees is their enhanced ability to contribute money to candidates, five times an individual’s ability.

. See 424 U.S. at 28 n.31, 96 S.Ct. at 639 n.31. This loophole has since been closed. See 2 U.S.C. § 441a(a)(5) (1976).

. A complete discussion of this discriminatory effect and the level of scrutiny ordinarily applicable thereto is found in Nicholson, Buckley v. Valeo: The Constitutionality of the Federal Election Campaign Act Amendments of 1974, 1977 Wis.L.Rev. 323, 346-57. See Comment, Buckley v. Valeo: The Supreme Court and Federal Election Campaign Reform, 76 Colum.L. Rev. 852, 863-64 (1976).

. There is some dispute over whether the different conclusions about different types of regulation in Buckley were the product of different levels of scrutiny, see The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 178-79 (1976), or rather the product of the same analysis but with different results based on application to different regulations, see Note, The Unconstitutionality of Limitations on Contributions to Political Committees in the 1976 Federal Election Campaign Act Amendments, 86 Yale L.J. 953, 961-62 (1977). The distinction is narrowly semantic, but we assume the latter. See Comment, supra note 7, at 863-64.

. Pub.L.No.92-225, 86 Stat. 3 (1971), Reprinted in [1972] U.S.Code Cong. & Admin.News 3.

. See Comment, Corporate Political Action Committees: Effect of the Federal Election Campaign Act Amendments of 1976, 26 Cath. *630U.L.Rev. 756, 761-62 (1977). The Hansen Amendment was overshadowed by the 1971 Act’s far more controversial limits on candidates’ media spending. What little authoritative interpretation that there is of the Hansen Amendment’s purpose can be gleaned from three sources: brief floor debate, see 117 Cong. Rec. 43,379-81 (1971); the Supreme Court’s nearly contemporaneous construction of the amendment in Pipefitters Local 562 v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972), and the Federal Election Commission’s Sun Oil advisory opinion, F.E.C. Advisory Opinion 1975-23, 40 Fed.Reg. 56,584 (1975).

. See, e. g„ 122 Cong.Rec. 7197-98 (1976) (remarks of Sen. Allen, author of amendment).

. Title 11 C.F.R. § 114.1(b) (1979) and F.E.C. Advisory Opinion 1978-13, reprinted in [1978] Fed. Election Campaign Financing Guide (CCH) •' 5319, do support this interpretation of the “establishment, administration, and solicitation” language of § 441b(b)(2)(C). It might have been more appropriate for the FEC to construe this language narrowly, such as by interpreting “administration” to mean the supplying of legal and accounting services necessary to comply with the Act. This would retain a parity between incorporated and unincorporated associations, because the latter can also supply these services to an unlimited extent. See 2 U.S.C. § 431(e)(4) (1976).

. Any suggestion that our approval of the different regulatory mechanisms used in the case of corporations and labor unions, on the one hand, and associations, on the other, is the same as the impermissible “differential muffling” that was disapproved in First National Bank, supra, 435 U.S. at 788-92, 98 S.Ct. at 1422-24, rests on an inapposite analogy between the issues and holdings in that case and in ours.