PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447

CHRISTINE BEAUMONT; LORETTA

THOMPSON; STACY THOMPSON;

BARBARA HOLT; NORTH CAROLINA

RIGHT TO LIFE, INCORPORATED, No. 01-1348

 Plaintiffs-Appellees,

 v.

FEDERAL ELECTION COMMISSION,

 Defendant-Appellant.

4444444444444444444444444444444444444444444444448

4444444444444444444444444444444444444444444444447

CHRISTINE BEAUMONT; LORETTA

THOMPSON; STACY THOMPSON;

BARBARA HOLT; NORTH CAROLINA

RIGHT TO LIFE, INCORPORATED, No. 01-1479

 Plaintiffs-Appellants,

 v.

FEDERAL ELECTION COMMISSION,

 Defendant-Appellee.

4444444444444444444444444444444444444444444444448

Appeals from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

Terrence W. Boyle, Chief District Judge.

(CA-00-2)

Argued: October 31, 2001

Decided: January 25, 2002

Before WILKINSON, Chief Judge, and WIDENER and

GREGORY, Circuit Judges.

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___
Affirmed by published opinion. Chief Judge Wilkinson wrote the

majority opinion, in which Judge Widener concurred as to Parts I, II,

and IV, and in which Judge Gregory concurred as to Parts II.C.1,

II.C.2, and III. Judge Widener wrote an opinion concurring and dissenting. Judge Gregory wrote an opinion concurring in part and dissenting in part.

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___

COUNSEL

ARGUED: David Brett Kolker, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellant. James Bopp, Jr., BOPP,

COLESON & BOSTROM, Terre Haute, Indiana, for Appellees. ON

BRIEF: Lois G. Lerner, Acting General Counsel, Richard B. Bader,

Associate General Counsel, FEDERAL ELECTION COMMISSION,

Washington, D.C., for Appellant. Richard E. Coleson, James R.

Mason, III, BOPP, COLESON & BOSTROM, Terre Haute, Indiana;

Paul Stam, Jr., STAM, FORDHAM & DANCHI, P.A., Apex, North

Carolina, for Appellees.

_________________________________________________________

___

OPINION

WILKINSON, Chief Judge:

 Plaintiffs North Carolina Right to Life, a nonprofit advocacy corporation, its officers, and an eligible voter in North Carolina filed a

challenge to 2 U.S.C. § 441b(a) of the Federal Election Campaign Act

and two implementing regulations. The district court held that these

provisions violated the plaintiffs' First Amendment right to make

expenditures and contributions in connection with federal elections.

However, the court declined to facially invalidate § 441b(a) and the

regulations. We conclude that these provisions burden the First

Amendment speech and association interests of nonprofit advocacy

groups. We further hold that the prohibition on independent expenditures is not narrowly tailored to serve a compelling governmental

interest, and that the proscription on contributions is not closely

drawn to match a sufficiently important interest. Buckley v. Valeo,

424 U.S. 1, 24-25, 44-45 (1976); Nixon v. Shrink Missouri Govern2
ment PAC, 528 U.S. 377, 387-88 (2000). However, because the provisions at issue are constitutional in the overwhelming majority of

applications, we decline to invalidate them facially and affirm the

judgment of the district court.

I.

 Plaintiffs North Carolina Right to Life ("NCRL"), Christine Beaumont, Loretta Thompson, Stacy Thompson and Barbara Holt are challenging 2 U.S.C. § 441b(a) of the Federal Election Campaign Act

("FECA") and two implementing regulations, 11 C.F.R. §§ 114.2(b)

and 114.10. NCRL is a nonprofit corporation, exempt from federal

taxation under § 501(c)(4) of the Internal Revenue Code. NCRL is a

charitable organization that, inter alia, provides crisis pregnancy

counseling, publishes crisis pregnancy literature, and promotes alternatives to abortion. NCRL has no shareholders and none of its earnings inure to the benefit of any individual. Christine Beaumont is an

eligible voter in North Carolina. Loretta Thompson is Vice President

of NCRL. Stacy Thompson is a member of NCRL's Board of Directors, and Barbara Holt is President of NCRL.

 Plaintiffs filed this action against the Federal Election Commission

("FEC" or "Commission") on January 3, 2000, challenging the constitutionality of FECA's prohibitions on corporate independent expenditures and contributions in connection with federal elections. Plaintiffs

sought declaratory and injunctive relief, arguing that 2 U.S.C.

§ 441b(a) and two regulations promulgated thereunder violated their

First Amendment right to make independent expenditures and contributions in connection with federal elections. Plaintiffs moved for

summary judgment and the FEC moved for partial dismissal and partial summary judgment.

 Section 441b(a) makes it "unlawful . . . for any corporation whatever . . . to make a contribution or expenditure in connection with any

election" for federal office. And accompanying regulation 11 C.F.R.

§ 114.2(b) prohibits all corporate contributions to federal candidates

and all expenditures made by non-qualified corporations. The exemption for qualified corporations was created in response to the Supreme

Court's decision that § 441b(a)'s prohibition on independent expenditures from a corporation's general treasury was unconstitutional as

3
applied to Massachusetts Citizens for Life ("MCFL"), a small, nonprofit political advocacy corporation. FEC v. Massachusetts Citizens

for Life, Inc., 479 U.S. 238 (1986) ("MCFL"). The Court identified

three nonprofit characteristics of MCFL that were essential to its

holding that the group could not constitutionally be bound by

§ 441b(a)'s restriction on independent spending.1

 The FEC rigidly

codified these three characteristics in 11 C.F.R. § 114.10. Corporations that meet the criteria in 11 C.F.R. § 114.10 are "qualified nonprofit corporation[s]" not subject to the prohibition on independent

expenditures of § 441b(a) and 11 C.F.R. § 114.2(b). NCRL did not

qualify for the 11 C.F.R. § 114.10 exemption and challenged the regulation for that reason.

 The district court, on October 3, 2000, recognized that "the importance of campaign contributions and expenditures as political speech

is beyond question," and held that NCRL had established a First

Amendment right to make independent expenditures and limited contributions. Beaumont v. FEC, 137 F. Supp. 2d 648, 651, 658

(E.D.N.C. 2000). The court then determined that there were two possible remedies: (1) declare the provisions of FECA unconstitutional

as applied to NCRL, or (2) declare the provisions of FECA facially

unconstitutional. Id. at 658. Instead of determining a remedy on October 3, the court required the parties to address the scope of declaratory

relief and stayed the effect of the October 3 ruling until it issued a

final order. Id. at 658.

 On January 21, 2001, the district court held that 2 U.S.C. § 441b(a)

and 11 C.F.R. §§ 114.2(b) and 114.10 were unconstitutional as

applied to NCRL, and permanently enjoined the FEC from enforcing

violations of those sections against NCRL. The district court declined

to hold the provisions of FECA facially unconstitutional because

NCRL failed to demonstrate that "the constitutional infringements

caused by 2 U.S.C. § 441[b(a)] and the related regulations are `substantial' in relation to their `plainly legitimate sweep.'" The FEC

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 1 First, MCFL was created to promote political ideas, and could not

engage in business activities. Second, it had no shareholders or other persons with a claim on its assets or earnings. And third, it was not established by a business corporation or labor union, and had a policy of

refusing contributions from such entities. MCFL, 479 U.S. at 263-64.

4
appeals and the plaintiffs cross-appeal the district court's decision not

to hold 2 U.S.C. § 441b(a) facially unconstitutional.

II.

A.

 We review de novo the district court's grant of the plaintiffs'

motion for summary judgment. See Smith v. Va. Commonwealth

Univ., 84 F.3d 672, 675 (4th Cir. 1996) (en banc). In so reviewing the

judgment, we must determine whether the prohibitions of § 441b(a)

and 11 C.F.R. §§ 114.2(b) and 114.10 burden the exercise of political

speech. If they do, we must first decide whether the proscription on

independent expenditures is narrowly tailored to serve a compelling

governmental interest. Buckley, 424 U.S. at 44-45; see also MCFL,

479 U.S. at 251-52. We must next consider whether the prohibition

on contributions is closely drawn to match a sufficiently important

interest. Shrink Missouri, 528 U.S. at 387-88; Buckley, 424 U.S. at

24-25.

B.

1.

 Any discussion of the First Amendment interests at issue in this

case must begin with the Supreme Court's decision in MCFL. The

Court took pains there to emphasize the special role that nonprofit

advocacy organizations play in the political process. The Court identified several characteristics of these groups that make them special

purveyors of political speech. Far from having as their organizing

purpose the aggregation of capital or the issuance of equity shares,

their central energizing principle is unabashedly political and expressive. These groups, whether incorporated or not, are "formed to disseminate political ideas, not to amass capital." MCFL, 479 U.S. at 259.2

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___

 2 What the Court said of the nonprofit corporation at issue in MCFL

applies with equal force to NCRL. Applying MCFL in North Carolina

Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) ("NCRL I"),

we found that the small amount of corporate contributions NCRL

5
 As a consequence, nonprofit advocacy organizations play a distinctive role in the political scheme. Like the other participants in our

political conversation, they inform and generate"[d]iscussion of public issues and debate on the qualifications of candidates," which are

"integral to the operation of the system of government established by

our Constitution." Buckley, 424 U.S. at 14. See also North Carolina

Right to Life, Inc. v. Bartlett, 168 F.3d 705, 713 (4th Cir. 1999), cert.

denied, 528 U.S. 1153 (2000) (referring to the field of campaign politics as "an area of . . . crucial import to our representative democracy") ("NCRL I"). We live in a republic, where the people are

sovereign. See The Federalist No. 39, at 190 (James Madison) (Garry

Wills ed., 1982). As a consequence, "the ability of the citizenry to

make informed choices among candidates for office is essential, for

the identities of those who are elected will inevitably shape the course

that we follow as a nation." Buckley, 424 U.S. at 14-15. Through their

expressive activities, groups such as MCFL and NCRL help empower

citizens to make informed political choices. That is precisely why the

Court has concluded that it is this kind of speech and these types of

organizations that lend vitality to our political discourse.

 That the functioning of these groups is vital to our democratic

political process is abundantly clear from looking at the types of

activities in which they engage. The Court in MCFL emphasized that

MCFL had accepted voluntary donations from members; engaged in

fundraising activities such as garage sales, bake sales, dances, raffles,

and picnics; organized a public prayer service; sponsored a regional

conference; provided speakers for discussion groups, debates, lectures, and media programs; sponsored an annual march; drafted and

submitted legislation; sponsored testimony on proposed legislation;

urged its members to contact their elected representatives to express

their views on legislative proposals; and published a newsletter. 479

U.S. at 242. Similarly, NCRL engages in these same kinds of endeavors. The group is funded overwhelmingly by private contributions

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received did not result in its "serving as a conduit `for the type of direct

spending [by for-profit corporations] that creates a threat to the political

marketplace.' MCFL, 479 U.S. at 264." NCRL I, 168 F.3d at 714. We

therefore held that "NCRL falls squarely within the MCFL exception."

Id.

6
from individuals, and has organized such traditional fundraising activities as bake sales, walk-a-thons, and raffles. In addition, NCRL publishes a newsletter, candidate surveys, and voter guides. It also holds

conventions, provides counseling and referrals, and publicizes and

promotes numerous service groups.

 Taking stock of such activities reinforces the point that these organizations lie at the expressive heart of our political life. These endeavors are what attract contributions and adherents. It is through projects

such as these that groups become important symbols in political life

and valuable participants in the daily ebb and flow of political discourse.

2.

 All of the above activities embody participatory democracy. It follows ineluctably that restrictions on the expenditures and contributions of such organizations in federal election campaigns "operate in

an area of the most fundamental First Amendment activities." Buckley, 424 U.S. at 14. The First Amendment "protect[s] our cherished

right to political speech." FEC v. Christian Action Network, Inc., 110

F.3d 1049, 1051 (4th Cir. 1997). The First Amendment also protects

political association, and the regulation of contributions and expenditures implicates both of these interests. Buckley, 424 U.S. at 14-23.

It would be foolhardy to pretend that a ban on the ability of advocacy

groups to make contributions and expenditures does not impair their

capacity to participate in the political process. Making expenditures

and funding campaigns are essential means by which citizens in a

democracy can make themselves heard.

 It is revealing that, even where the Court's decisions have not

addressed campaign contributions and expenditures, they have underscored the First Amendment values that may be served by them.

Without the ability to expend funds, it is almost impossible for political expression in our modern society "to assure unfettered interchange

of ideas for the bringing about of political and social changes desired

by the people." Roth v. United States, 354 U.S. 476, 484 (1957). See

also Mills v. Alabama, 384 U.S. 214, 218 (1966) (noting the "practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs,"

7
including "discussions of candidates"); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting our "profound national commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open"). Similarly, without the expenditure of funds, "[e]ffective advocacy of both public and private points

of view, particularly controversial ones," will not be significantly "enhanced by group association." NAACP v. Alabama, 357 U.S. 449, 460

(1958). See also Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973) (stating that "[t]here can no longer be any doubt that freedom to associate

with others for the common advancement of political beliefs and ideas

is . . . protected by the First and Fourteenth Amendments," and that

"[t]he right to associate with the political party of one's choice is an

integral part of this basic constitutional freedom"). This language

from non-funding decisions does not suddenly become inoperative

when contributions and independent expenditures are at issue.

 It is true that there exists a differentiation in the weight the First

Amendment accords to contributions and expenditures, and that an

interest of the highest First Amendment order attaches to independent

expenditures. The Court in Buckley concluded that "although

[FECA's] contribution and expenditure limitations both implicate

fundamental First Amendment interests, its expenditure ceilings

impose significantly more severe restrictions on protected freedoms

of political expression and association than do its limitations on financial contributions." 424 U.S. at 23. See also FEC v. Colorado Republican Fed. Campaign Comm., 121 S.Ct. 2351, 2356 (2001)

("Colorado II"); Shrink Missouri, 528 U.S. at 386-88; Colorado

Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 610, 614-

15 (1996) ("Colorado I"); MCFL, 479 U.S. at 259-60. At the same

time, however, the Court has been careful in all of these cases not to

expel financial contributions from the circle of First Amendment values. This is so for good reason. Individuals and groups that stand for

ideas have a First Amendment interest in pursuing various outlets for

those ideas. Independent expenditures are one such channel, and contributions are another.

 Making a contribution to a candidate not only "serves as a general

expression of support for the candidate and his views," but also

"serves to affiliate a person with a candidate." Buckley, 424 U.S. at

21-22. In addition, making a contribution to a candidate "enables like8
minded persons to pool their resources in furtherance of common

political goals." Id. Indeed, while citizens certainly can and do participate as individuals in the process of determining political change,

they often do not possess the time, information, and resources to

effectively influence public debate. Contributions to an advocacy

group from an individual permit the individual to take advantage of

the group's closer attention to political developments. And contributions from the advocacy group to a candidate in turn put the individual's donation to a more efficient and informed political effect. As the

Court noted in MCFL:

[I]ndividuals contribute to a political organization in part

because they regard such a contribution as a more effective

means of advocacy than spending the money under their

own personal direction. Any contribution therefore necessarily involves at least some degree of delegation of authority to use such funds in a manner that best serves the shared

political purposes of the organization and contributor.

479 U.S. at 261. By making a contribution to an advocacy group, the

individual citizen authorizes and empowers the organization receiving

the money to serve as his or her proxy in political debate.

 In sum, nonprofit advocacy organizations such as NCRL have a

strong First Amendment interest in expressing their ideas and associating with others who share the same views. These entities significantly enhance the effectiveness of political expression by facilitating

political association. And these groups advance both the values of

political speech and association not only by making independent

expenditures, but also by making contributions to candidates who

share their beliefs.

3.

 With these general principles in mind, it is clear that the statutory

and regulatory provisions at issue in this case burden the plaintiffs'

First Amendment speech and association interests. Taken together, 2

U.S.C. § 441b(a), 11 C.F.R. § 114.2(b), and 11 C.F.R. § 114.10 ban

corporate contributions and expenditures in connection with federal

elections, with an exception to the prohibition on corporate expendi9
tures for certain "qualified" nonprofit corporations so narrow that

NCRL does not fit into it. In view of the Court's conclusion in Buckley that FECA's "contribution and expenditure limitations both implicate fundamental First Amendment interests," 424 U.S. at 23

(emphasis added), there is no question that a complete ban on

NCRL's making contributions and expenditures burdens those very

same interests.3

 The FEC responds that, contrary to the district court's characterization, FECA and its implementing regulations do not impose a blanket

prohibition. Rather, the Commission submits that the Act takes a different approach. It allows all corporations to make campaign contributions through a separate segregated fund, and corporations that do

not fall within 11 C.F.R. § 114.10's exception to make independent

expenditures through such a fund. See §§ 441b(a) and (b)(2)(C).

Given the availability of this alternative avenue through which to

make contributions and expenditures, the FEC maintains that it is factually incorrect to contend that an absolute ban is at issue in this case.

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 3 The FEC argues that NCRL lacks standing to challenge 11 C.F.R.

§ 114.10, relying on our holding in NCRL I that "NCRL falls squarely

within the MCFL exception." 168 F.3d at 714. The Commission correctly

observes that NCRL I entitles NCRL to make independent expenditures

in connection with federal elections regardless of the FEC's regulation

or intentions. See supra note 2. Thus, the Commission submits that the

mere existence of a regulation that it cannot enforce against NCRL cannot cause NCRL any injury.

 We are not persuaded. The FEC has made inconsistent statements

throughout this litigation, and its present position is not sufficient to dispel the "credible threat of prosecution" under which NCRL operates.

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979);

Va. Soc'y for Human Life, Inc. v. FEC, 263 F.3d 379, 386 (4th Cir.

2001). Though the Commission agrees that it is bound by NCRL I, it has

not foresworn its ultimate intention to prohibit NCRL even from making

independent expenditures. On the contrary, the FEC argued below that

if in the future NCRL were to receive a more substantial portion of its

funding from for-profit corporations, it would not qualify for the MCFL

exception even under the holding in NCRL I. Because we cannot conclude that NCRL does not presently operate under the potential threat of

an enforcement action, we agree with the district court that NCRL has

standing to challenge 11 C.F.R. § 114.10.

10
 However, the FEC's view has already been rejected by the

Supreme Court in MCFL. While restricting MCFL's campaign spending to use of a separate segregated fund "is not an absolute restriction

on speech, it is a substantial one. Moreover, even to speak through a

segregated fund, MCFL must make very significant efforts." MCFL,

479 U.S. at 252 (plurality opinion).4

 A segregated fund is a "political

committee" under the Act. 2 U.S.C. § 431(4)(B). As a consequence,

organizations that use a segregated fund must adhere to significant

reporting requirements, staffing obligations, and other administrative

burdens. These burdens stretch far beyond the more straightforward

disclosure requirements on unincorporated associations. See MCFL,

479 U.S. at 252-53. As noted in MCFL, 479 U.S. at 253-54, these

additional burdens include:

! appointing a treasurer, § 432(a);

! forwarding contributions to the treasurer within 10 or 30

days of receiving them, depending on the amount,

§ 432(b)(2);

! ensuring that the treasurer keeps an account of (1) every

contribution regardless of amount; (2) the name and

address of anyone who makes a contribution in excess of

$50; (3) all contributions received from political committees; and (4) the name and address of every person to

whom a disbursement is made regardless of amount,

§ 432(c);

! preserving receipts for all disbursements over $200 and

all records for three years, §§ 432(c) and (d);

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 4 In her concurring opinion, Justice O'Connor pointedly emphasized

that "the significant burden on MCFL in this case comes . . . from the

additional organizational restraints imposed upon it by the Act," as well

as from the Act's "solicitation restrictions." 479 U.S. at 266 (O'Connor,

J., concurring in part and concurring in the judgment). Therefore, a

majority of the Court in MCFL rejected the argument that the FEC is

presently urging upon us.

11
! filing a statement of organization containing (1) its name

and address; (2) the name of its custodian of records; and

(3) its banks, safety deposit boxes, or other depositories,

§§ 433(a) and (b);

! reporting any change in the above information within 10

days, § 433(c);

! terminating only upon filing a written statement that it

will no longer receive any contributions or make any disbursements, and that it has no outstanding debts or obligations, § 433(d)(1);

! filing either (1) monthly reports with the FEC; or (2)

quarterly reports during election years, a pre-election

report no later than the 12th day before an election, a

post-election report within 30 days after an election, and

reports every 6 months during nonelection years,

§§ 434(a)(4)(A) and (B);

! including in such reports information regarding (1) the

amount of cash on hand; (2) the total amount of receipts

in multiple categories; (3) the identification of each political committee and candidate's authorized or affiliated

committee making contributions, and any persons making loans, providing rebates, refunds, dividends, interest,

or any other offset to operating expenditures in an aggregate amount above $200; (4) the total amount of all disbursements in numerous categories; (5) the names of all

authorized or affiliated committees to which transfers

have been made; (6) persons to whom loan repayments

or refunds have been made; and (7) the total sum of all

contributions, operating expenses, outstanding debts and

obligations, and the settlement terms of the retirement of

any debt or obligation, § 434(b); and

! soliciting contributions for its separate segregated fund

only from its "members," §§ 441b(b)(4)(A) and (C),

which, under FEC v. National Right to Work Committee,

459 U.S. 197, 203-206 (1982) ("NRWC"), does not

12
include persons who have merely contributed to or

expressed support for the group in the past.

Many small groups may be unable to bear the substantial costs of

complying with these regulations. These "more extensive requirements and more stringent restrictions . . . may create a disincentive

for such organizations to engage in political speech." MCFL, 479 U.S.

at 254. This is because:

Faced with the need to assume a more sophisticated organizational form, to adopt specific accounting procedures, to

file periodic detailed reports, and to monitor garage sales

lest nonmembers take a fancy to the merchandise on display,

it would not be surprising if at least some groups decided

that the contemplated political activity was simply not worth

it.

Id. at 255. And Justice O'Connor emphasized in her concurring opinion that "the additional organizational restraints" imposed on "groups

such as MCFL" by the Act amount to a "significant burden" on their

First Amendment interests. 479 U.S. at 266 (O'Connor, J., concurring

in part and concurring in the judgment).

 Thus, what was true of MCFL is equally true of NCRL:

[W]hile § 441b does not remove all opportunities for independent spending by organizations such as MCFL, the avenue it leaves open is more burdensome than the one it

forecloses. The fact that the statute's practical effect may be

to discourage protected speech is sufficient to characterize

§ 441b as an infringement on First Amendment activities.

MCFL, 479 U.S. at 255. The "practical effect" of § 441b(a) on NCRL

"is to make engaging in protected speech a severely demanding task."

MCFL, 479 U.S. at 256. Accordingly, we have little difficulty concluding that the prohibitions of § 441b(a) and 11 C.F.R. §§ 114.2(b)

and 114.10 burden the exercise of political speech and association.

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C.

1.

 Having determined that 2 U.S.C. § 441b(a) and the associated regulations burden a significant First Amendment interest in the exercise

of political speech and association, we must first determine whether

the prohibition on expenditures is narrowly tailored to serve a compelling governmental interest. Buckley, 424 U.S. at 44-45. Then we

must determine whether the proscription on contributions is closely

drawn to match a sufficiently important governmental interest. Shrink

Missouri, 528 U.S. at 387-88. "The Supreme Court has regularly recognized that the prevention of real and perceived corruption in the

electoral process qualifies as a compelling state interest." Adventure

Communications, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429,

442 (4th Cir. 1999); see also FEC v. Nat'l Conservative Political

Action Comm., 470 U.S. 480, 496-97 (1985) (" NCPAC"); Shrink Missouri, 528 U.S. at 388-89. The danger of corruption or the appearance

of corruption is especially keen in the context of corporate contributions and expenditures because of the unique legal and economic

characteristics of the corporate form. Corporations benefit from state

laws that grant them special advantages such as limited liability,

favorable treatment for asset accumulation, and perpetual life. These

state-created advantages allow corporations to attract capital and

deploy resources in order to maximize shareholder wealth in ways

that other business forms cannot. Corporations could use that wealth

to influence federal elections. See, e.g., Austin v. Michigan State

Chamber of Commerce, 494 U.S. 652, 658-59 (1990). Consequently,

the Court has identified certain types of corruption that may warrant

legislative regulation of a corporation's ability to make expenditures

or contributions in connection with federal elections.

 The first and most obvious type of corruption identified by the

Court is quid pro quo corruption, where an officeholder takes money

with the explicit understanding that he will perform certain duties for

the donor in return. See generally Thomas Burke, The Concept of

Corruption in Campaign Finance Law, 14 Const. Comment. 127,

131-33 (1997). As the Court noted in Buckley, "To the extent that

large contributions are given to secure a political quid pro quo from

current and potential office holders, the integrity of our system of rep14
resentative democracy is undermined." 424 U.S. at 26. Simply put,

"[t]he hallmark of corruption is the financial quid pro quo: dollars for

political favors." NCPAC, 470 U.S. at 497.

 Quid pro quo corruption is related to a second form of corruption,

monetary influence. Corruption through monetary influence is a more

subtle and hence more pervasive form of corruption than the quid pro

quo, one in which officeholders consider monetary influences when

performing their public duties. Monetary influence need not involve

an explicit deal between a donor and an officeholder. Burke, supra,

at 131-33. The corrupting effect of monetary influences has been clarified in the case law as the concern over the power of corporations to

utilize the special advantages of the corporate form to create political

"war chests" which could be used to incur political debts. NRWC, 459

U.S. at 207-08. The concern here has to do with permitting corporations to use "resources amassed in the economic marketplace" to

obtain "an unfair advantage in the political marketplace." MCFL, 479

U.S. at 257. Accordingly, the Court has recognized as compelling the

governmental interest in preventing corruption, which supports

restricting the influence of political "war chests" funneled through the

corporate form. NRWC, 459 U.S. at 207-08; see also MCFL, 479 U.S.

at 257.

 Third, the possibility of distortion of political support for corporate

causes has been recognized as a form of corruption significant enough

to warrant government regulation. Burke, supra, at 133-135. Distortion involves the concern that "[t]he resources in the treasury of a

business corporation . . . are not an indication of popular support for

the corporation's political ideas." MCFL, 479 U.S. at 258. Instead,

these resources may reflect only "the economically motivated decisions of investors and customers." Id. The fear here is that shareholders or members of certain corporations will have an "economic

disincentive for disassociating with [the corporation] if they disagree

with its political activity." Id. at 264; see also Austin, 494 U.S. at 663.

Accordingly, the potential for distortion is also a compelling governmental interest for limiting political expression. MCFL, 479 U.S. at

263-64; Austin, 494 U.S. at 663.

2.

 Nevertheless, the Supreme Court has also made it clear that the

"[r]egulation of corporate political activity. . . has reflected concern

15
not about use of the corporate form per se, but about the potential for

unfair deployment of wealth for political purposes." MCFL, 479 U.S.

at 259. This potential presents a real danger when for-profit corporations are involved. However, such a danger is not present when the

corporation at issue is a nonprofit advocacy corporation.

 To begin with, when independent expenditures are considered, the

potential for corruption, whether it be quid pro quo, monetary influence, or distortion, is "substantially diminished." Buckley, 424 U.S. at

47. Hence, the Supreme Court has crafted an exception to the expenditure prohibition contained in 2 U.S.C. § 441b(a) for nonprofit advocacy corporations. This is the so-called MCFL exception. This court

has already held that NCRL is entitled to the MCFL exception. NCRL

I, 168 F.3d at 714.

 In NCRL I, we determined that "the list of nonprofit corporate characteristics in MCFL was not `a constitutional test for when a nonprofit

must be exempt,' but `an application, in three parts, of First Amendment jurisprudence to the facts in MCFL.'" 168 F.3d at 714 (quoting

Day v. Holahan, 34 F.3d 1356, 1363 (8th Cir. 1994)). After examining the factors identified in MCFL, we were persuaded that NCRL

was entitled to the MCFL exception. Id. When applying MCFL, we

noted that "NCRL displays all the typical characteristics of the nonprofit form — it does not engage in profit-making activity, it has no

shareholders or other persons who might have [a claim] on its assets

and earnings, and it is exempt from federal income taxation." Id.

Unlike MCFL, NCRL did not have a policy against accepting corporate donations. However, NCRL was funded overwhelmingly by private, individual donations. While NCRL had accepted some corporate

donations in the past, these donations made up only between zero and

eight percent of NCRL's total revenues. Id. We concluded that "this

modest percentage of revenue" did not disqualify NCRL for the

MCFL exemption. Id. In addition, many of those corporate contributions were not of the traditional form because they were "part of a

program by which phone company customers may direct their phone

bill refunds to a nonprofit of their choice." Id. Therefore, we held that

"NCRL falls squarely within the MCFL exception." Id.

 Because NCRL has not changed in any relevant way since our

decision in NCRL I, NCRL does not "serv [e] as [a] conduit[ ] for the

16
type of direct spending that creates a threat to the political marketplace." MCFL, 479 U.S. at 264. This constitutionally entitles NCRL

to an exemption from the provisions banning independent expenditures in § 441b(a) and 11 C.F.R. § 114.2(b). And because the exception in 11 C.F.R. § 114.10 constitutes merely a rigid codification of

the factors in MCFL, it is also unconstitutional as applied to NCRL.

3.

 While the FEC recognizes that our decision in NCRL I controls the

outcome of this case insofar as independent expenditures are concerned, it contends that we must consider contributions separately and

hold the contribution portion of the statute and regulations constitutional as applied to NCRL. The Supreme Court has not addressed

whether the risk of corruption from direct contributions is present

when the contributors are nonprofit advocacy corporations who neither have shareholders nor investing members, and accept the overwhelming share of their donations from private individuals. We do

not believe that it is.

 Viewing every direct campaign contribution from a nonprofit advocacy corporation to be corrupting would be devastating to the proper

functioning of the political process. The argument that only an absolute ban on nonprofit contributions can serve the important public

interest in preventing corruption simply proves too much. If this were

true, contributions would also have to be banned in every situation

where contributing individuals or unincorporated associations bore a

strong commitment to an issue or candidate. Instead, limits, not total

bans, have been adopted for individuals and unincorporated advocacy

groups.

 NCRL is more akin to an individual or an unincorporated advocacy

group than a for-profit corporation. Neither individuals nor unincorporated advocacy groups pose so great a risk of quid pro quo or monetary influence corruption that a ban on contributions is required.

Similarly, nonprofit advocacy corporations do not avail themselves of

the state-conferred advantages associated with the corporate form,

which is the rationale for regulating corporate activity in the first

place. See, e.g., Austin, 494 U.S. at 658-59. Advocacy groups rely on

donations to fund a variety of projects, none of which involve making

17
a profit in the capital markets. It is simply implausible to argue that

a small nonprofit accepting individual contributions from like-minded

donors poses the same risk to our political order as a Fortune 500

company.

 However, the FEC argues that by virtue of taking the corporate

form, NCRL now poses those risks. But MCFL requires a different

conclusion. The Court emphasized that taking the corporate form does

not, by itself, transform an otherwise benign group into one that poses

an inherent risk of corruption. As noted earlier, NCRL, like MCFL,

"was formed to disseminate political ideas, not to amass capital."

MCFL, 479 U.S. at 259. Thus, NCRL does not utilize the advantages

states confer on corporations that enable them to amass capital. The

advantages NCRL derives from taking on the corporate form are

those "that redound to its benefit as a political organization, not as a

profit-making enterprise." Id.

 NCRL also poses no threat of distortion of political support

because the very reason people join and contribute to NCRL is that

their views are aligned with those of the organization. NCRL's members have no underlying economic incentive to join the group, making

NCRL distinctly different from for-profit corporations and many nonprofits as well. See, e.g., Austin, 494 U.S. 652. There is simply no

danger that a nonprofit advocacy group's cause will bear no relation

to the beliefs of its contributors and members because the group's raison d'etre is to amplify and publicize those beliefs. Nor is there the

danger that an individual donor would feel alienated because his

views are diametrically opposed to those of the organization. In fact,

as the Court recognized in MCFL, individuals contribute to political

organizations "precisely because they support those purposes," and

because they believe that contribution is a "more effective means of

advocacy" than spending the money on their own. 479 U.S. at 260-61.

Thus, allowing NCRL to make limited contributions creates no credible threat of distortion to the political process.

 To be sure, it would be administratively more convenient if all

direct contributions to candidates were prohibited. After all, a brightline rule would be easier to administer and would tend to avoid litigation. It could likewise be said, of course, that convenience would be

served if all corporate independent expenditures were prohibited. But

18
the Court in MCFL flatly refused to credit administrative convenience

as an adequate basis for such a blanket rule, stating that "the desire

for a bright-line rule . . . hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom." 479 U.S. at 263. Although administrative convenience

constitutes a legitimate state interest where rational basis scrutiny of

regulatory enactments is involved, such convenience is insufficient to

justify state action that triggers any level of heightened scrutiny. See,

e.g., Craig v. Boren, 429 U.S. 190, 198 (1976) (citing decisions that

"rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications"). And while the

Court has differentiated the level of scrutiny applied to expenditure

restrictions and contribution restrictions, see Shrink Missouri, 528

U.S. at 386-88, we do not understand it to have relegated the latter

to a mere matter of rational basis review. The Court has recently

stated that "a contribution limit involving `significant interference'

with associational rights . . . [can] survive if the Government demonstrate[s] that contribution regulation [is] `closely drawn' to match a

`sufficiently important interest.'" Shrink Missouri, 528 U.S. at 387-88

(quoting Buckley, 424 U.S. at 25). This formulation requires something more exacting than rational basis review. As a result, a rationale

of administrative convenience cannot successfully be advanced to

sustain § 441b(a) and the FEC's sweeping regulatory ban at issue in

this case.

 Organizations that in substance pose no risk of "unfair deployment

of wealth for political purposes" may not be banned from participating in political activity simply because they have taken on the corporate form. MCFL, 479 U.S. at 259. The rationale utilized by the Court

in MCFL to declare prohibitions on independent expenditures unconstitutional as applied to MCFL-type corporations is equally applicable

in the context of direct contributions. In neither case is there the threat

of quid pro quo, monetary influence, or distortion corruption that the

prohibitions seek to prevent. We cannot sustain a measure that drains

lifeforce from democracy when that measure does not reflect the public interest that would warrant such a drastic step. A corporation that

qualifies for an MCFL exception poses no special threat to the political process. See MCFL, 479 U.S. at 263 ("It is not the case . . . that

MCFL merely poses less of a threat of the danger that has prompted

regulation. Rather, it does not pose such a threat at all."). As a conse19
quence, neither NCRL's expenditures nor its contributions may be

prohibited under the First Amendment.

4.

 In making this determination, we seek only to respect the Supreme

Court's basic pronouncement in MCFL on the role that nonprofit

advocacy groups play in our political life. We do not think that other

decisions undermine the Supreme Court's commitment to the expressive and associational values that these organizations promote. In

Austin, the Supreme Court held that a state statute banning direct contributions could be applied to the Michigan State Chamber of Commerce, a nonprofit corporation. 494 U.S. at 654-55. Although Austin

did uphold a state ban on contributions as applied to the Chamber, the

Court noted that the Chamber was established for many varied purposes and was not inherently a political advocacy group like MCFL.

Id. at 661-65. In fact, the Chamber's educational goals were "not

expressly tied to political goals," and many of the Chamber's members, much like shareholders in a for-profit corporation, might be

reluctant to withdraw their membership if they did not agree with the

Chamber's political expression. Id. at 662-63. The Austin Court also

noted that the Chamber had for-profit members and did not exhibit

the characteristics identified in MCFL that would require the state to

grant an exemption. In contrast, we have earlier held that NCRL

exhibits the precise characteristics identified in MCFL and is entitled

to the MCFL exception. NCRL I, 168 F.3d at 714.

 Similarly, we are not persuaded that the Court's decision in NRWC

requires the sweeping holding that an absolute ban on nonprofit contributions is constitutional. In NRWC, the Court had to determine

whether National Right to Work Committee ("NRWC"), a nonprofit

corporation, had violated 2 U.S.C. § 441b(b)(4)(C) by using its general funds to solicit contributions for its separate segregated political

fund from persons who were not its "members." 459 U.S. at 198-99.

The issues in NRWC were whether NRWC's mailing had been sent

to persons who did not fall within the statutory definition of "member," and, if so, whether the restriction on soliciting only "members"

was constitutional. Id. at 198, 200-01, 206-11. The NRWC Court did

not decide the constitutionality of the corporate ban provision as

20
applied to MCFL-type corporations. However, that is precisely the

question that confronts us today.

 The District of Columbia Circuit took the approach that we now

adopt in determining whether the FEC could successfully bring a civil

enforcement action against the National Rifle Association ("NRA")

for allegedly impermissible contributions and expenditures made during different years. FEC v. National Rifle Ass'n., 254 F.3d 173 (D.C.

Cir. 2001). That court expressed the view that corporate ban provisions are valid only insofar as they prevent certain threats to the political process. Id. at 191-92. It held that corporations which do not pose

such threats may not be subject to § 441b(a)'s restrictions regardless

of whether the restriction is on expenditures or contributions. The

D.C. Circuit noted, "As we read MCFL and Austin, the [FEC] must

demonstrate that the NRA's political activities threaten to distort the

electoral process through the use of resources that, as MCFL put it,

reflect the organization's `success in the economic marketplace'

rather than the `power of its ideas.'" Id. at 191 (quoting MCFL, 479

U.S. at 258-59). Since the FEC could not meet this burden with

respect to one of the years at issue, § 441b(a) could not constitutionally be applied to the NRA's contributions and expenditures during

that year. Id. at 192-93.

5.

 Finally, the FEC has failed to meet its other burden in this case. In

addition to showing that a sufficiently important governmental interest justifies the prohibition on contributions in the statute and regulations, the FEC was required to prove that the provisions are closely

drawn to match it. Shrink Missouri, 528 U.S. at 387-88. In Buckley,

the Court held that a $1,000 limit on contributions to candidates for

federal elective office by an individual or a group was constitutional

because "the Act's contribution limitations in themselves do not

undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues." 424 U.S. at 28-

29. Yet, when a limit becomes a ban, the burden of demonstrating that

the regulation is closely drawn becomes that much more difficult.

This is especially the case when that ban, combined with the costs and

burdens associated with forming a separate segregated fund, could

21
effectively cripple small, nonprofit advocacy groups that may have

few or no ties to the world inhabited by for-profit corporations.

 As noted earlier, it is possible to respect the congressional interest

in minimizing corruption and to simultaneously doubt that an all-out

ban on contributions by nonprofit advocacy corporations is necessary

to prevent this potential abuse. The government has not met its burden

of showing that § 441b(a) is closely drawn as applied to nonprofit

advocacy corporations when other means, such as contribution limits,

are fully available to address the important public interest in honest

elections.

 It is, of course, the task of Congress, not the courts, to set limits

on campaign contributions. Such contribution limits for individuals,

corporations, and political committees have withstood numerous constitutional challenges. See Buckley, 424 U.S. 1; California Med. Ass'n

v. FEC, 453 U.S. 182 (1981) (allowing limits on contributions to

political committees). Such contribution limits reduce the risk that

either individuals or for-profit corporations can circumvent FECA and

§ 441b(a) by establishing and utilizing nonprofit advocacy groups to

funnel money that could not otherwise be placed into the pockets of

political candidates. The utilization of an absolute ban on advocacy

group contributions becomes especially suspect when more closely

drawn and widely utilized means, such as contribution limits, exist to

address the asserted problem.

 In sum, the issue is whether political associations that are incorporated, but present no risk whatever to the political process, see MCFL,

479 U.S. at 263, may be altogether prohibited from making contributions or expenditures out of their general treasuries simply by virtue

of their corporate status. The district court correctly found "the distinction between contributions and expenditures to be immaterial in

this case." Beaumont v. FEC, 137 F. Supp. 2d 648, 657 (E.D.N.C.

2000). The issue is whether the FEC has demonstrated a sufficient

interest "in prohibiting even limited contributions by all corporations,

even those that `do[ ] not pose such a threat.'" Id. (quoting MCFL,

479 U.S. at 263). Because we find that the FEC has not met this burden, we hold that the absolute ban on contributions and expenditures

in § 441b(a) and its implementing regulations cannot constitutionally

be applied to NCRL. If we held otherwise, we believe we would be

22
effectively eviscerating the political role of nonprofit advocacy

groups highlighted by the Supreme Court in MCFL .

III.

 The plaintiffs ask us to go beyond the district court's decision that

§ 441b(a) and its implementing regulations are unconstitutional as

applied to NCRL, and hold these provisions facially unconstitutional.

This step would fly in the face of Supreme Court precedent, and we

decline to take it.

 A ruling of facial invalidity based on overbreadth "is, manifestly,

strong medicine. It has been employed by the Court sparingly and

only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613

(1973). See also Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S.

469, 484-85 (1989); Colorado I, 518 U.S. at 623-24. Thus, rulings of

facial invalidity are distinctly disfavored as a brusque intrusion on the

legislative branch and a real breach of the separation of powers. A

court properly holds a statute facially invalid only where "the overbreadth [is] substantial . . ., judged in relation to the statute's plainly

legitimate sweep." Broadrick, 413 U.S. at 615.

 Applying this test, we agree with the district court's conclusion that

§ 441b(a) is not facially overbroad. Despite the list of nonprofit, taxexempt corporations that the plaintiffs compiled in support of its overbreadth claim, the district court properly found that they had failed as

an empirical matter "to demonstrate that the constitutional infringements caused by [§ 441b(a)] and the related regulations are `substantial' in relation to their `plainly legitimate sweep.'" First, the plaintiffs

fail to distinguish between those nonprofit corporations that are

exempt and those that are not. And the Court held in Austin that an

almost identical state statute may be properly applied to some nonprofit corporations. See 494 U.S. at 661-65.

 Second, even if we were to assume that every one of the corporations on the plaintiffs' list are entitled to an exemption, no calculations are necessary to conclude that hundreds or even thousands of

constitutionally protected advocacy groups pale in comparison to the

infinitely larger number of for-profit corporations that exist in this

country. And the plaintiffs do not suggest that § 441b(a) and the regu23
lations are unconstitutional with respect to for-profit corporations, not

to mention the many labor organizations and national banks to which

the provisions also apply. Indeed, the Supreme Court and other courts

have upheld § 441b(a)'s validity in routine applications. See, e.g.,

NRWC, 459 U.S. at 207-211; Nat'l Rifle Ass'n, 254 F.3d at 191-92

(upholding application of § 441b(a) for certain years); Mariani v.

United States, 212 F.3d 761, 773 (3d Cir. 2000) (en banc), cert.

denied, 531 U.S. 1010 (2000). In short, the plaintiffs cannot establish

substantial overbreadth in this case.

 A further fatal flaw in the plaintiffs' overbreadth position is that the

Supreme Court has rejected it. In Austin, the Court held that a state

statute, modeled on § 441b(a) and almost identical to it, was "not substantially overbroad." 494 U.S. at 661. The Court then went on to

apply the MCFL exception, which was not contained in the statute, to

determine whether the statue was constitutional as applied. Id. at 661-

65. Thus, the plaintiffs' argument that § 441b(a) is facially invalid

because its text does not contain an MCFL exception fails in view of

the Court's own refusal in Austin to declare an almost identical state

statute facially invalid for the same reason. The Supreme Court has

consistently endorsed as-applied rulings in reviewing the constitutionality of FECA and analogous state statutes. See Colorado II, 121 S.Ct.

2351; Colorado I, 518 U.S. at 613-14, 623-26; Austin, 494 U.S. at

661-65; MCFL, 479 U.S. at 263-64; Buckley, 424 U.S. at 68-74.

Indeed, MCFL explicitly anticipated the possibility that only a "small"

group of corporations would be exempt from § 441b(a)'s prohibitions

on independent expenditures. 479 U.S. at 264.

 Finally, Congress included a severability clause in FECA that provides for retaining as much of the statute as possible where it is found

invalid in particular applications. Specifically, the clause states that

"[i]f any provision of this Act, or the application thereof to any person

or circumstance, is held invalid, the validity of the remainder of the

Act and the application of such provision to other persons and circumstances shall not be affected thereby." 2 U.S.C. § 454. Congress

has made its intent clear. And after applying conventional overbreadth

doctrine in this case, we see no reason to frustrate it.

 For all of these reasons, we hold that § 441b(a) and the associated

regulations are not facially overbroad. Whatever overbreadth exists

24
"should be cured through case-by-case analysis of the fact situations

to which its sanctions, assertedly, may not be applied." Broadrick,

413 U.S. at 615-16. If every partial constitutional shortcoming in a

statute mandated its wholesale demise, the courts would assume for

themselves more fearsome powers than our Constitution posits.

IV.

 This court would not lightly conclude that any federal statute was

unconstitutional in any of its applications. We also view seriously the

interest in keeping American elections rigorously honest, as well as

expressively robust. However, it is important to consider in perspective the sweeping nature of the position that the FEC is urging us to

take. The Commission asks us to hold that an absolute ban on every

direct contribution by every nonprofit advocacy corporation in America is altogether legitimate. No matter how small the organization, no

matter how modest the contribution, and no matter how absent the

threat the group poses to the political process, the FEC argues that the

contribution can be prohibited.

 This position overlooks the difference between for-profit corporations and nonprofit advocacy groups funded overwhelmingly by individual donors who simply happen to believe in their ideas. An

advocacy group, the Supreme Court has noted, does not "merely

pose[ ] less of a threat of the danger that has prompted regulation.

Rather, it does not pose such a threat at all." MCFL, 479 U.S. at 263.

Yet the FEC would require that the full panoply of regulatory requirements be imposed upon nonprofit corporations before they can begin

to participate in the political process in what the Supreme Court has

emphasized is a meaningful and important way. See 2 U.S.C. §§ 432,

433, 434, and 441b(b)(4)(A) and (C). Viewed in this light, the step

we take is a cautious and modest one. It is only the consequences of

failing to take it that would loom immeasurably large for the vitality

of the democratic system of government that the First Amendment is

intended to protect.

 In its order of judgment of January 24, 2001, the district court

declared that 2 U.S.C. § 441b and 11 C.F.R. §§ 114.2(b) and 114.10

were unconstitutional as applied to NCRL, a non-profit, MCFL-type

corporation. The court therefore permanently enjoined the FEC from

25
prosecuting the plaintiffs for violations of § 441b and 11 C.F.R.

§§ 114.2(b) and 114.10. For the foregoing reasons, its judgment is

AFFIRMED.

WIDENER, Circuit Judge, concurring and dissenting:

 I concur in the result of affirmance and in all of the opinion of

Judge Wilkinson, with the exception of Part III.

 As to part III, I am of opinion we should decline to consider the

broader question of whether 2 U.S.C. § 441b(a) and its implementing

regulations are facially unconstitutional, that being unnecessary to an

affirmance. I would follow Rule 2 of Ashwander : "The Court will not

anticipate a question of constitutional law in advance of the necessity

of deciding it . . . . It is not the habit of the Court to decide questions

of a constitutional nature unless absolutely necessary to a decision of

the case." Ashwander v. TVA, 297 U.S. 288, 341, 346-347 (1935)

(Justice Brandeis concurring, internal quotations and citations omitted).

GREGORY, Circuit Judge, concurring in part and dissenting in part:

 I concur in Parts II.C.1 and II.C.2 of the court's opinion. I agree

that, insofar as independent expenditures are concerned, this case is

controlled by North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d

705, 713 (4th Cir. 1999), cert. denied, 528 U.S. 1153 (2000). I also

concur in Part III of the Court's opinion; § 441b(a) is not substantially

overbroad. I respectfully dissent, however, from Parts II.C.3 through

II.C.5. That portion of the opinion, which holds that NCRL must be

given an MCFL-type exemption for its campaign contributions, is

inconsistent with FEC v. National Right to Work Committee, 459 U.S.

197 (1982) ("NRWC"). I would join the Sixth Circuit in upholding

§ 441b(a)'s ban on contributions by non-profit ideological corporations such as NCRL. Kentucky Right To Life, Inc. v. Terry, 108 F.3d

637 (6th Cir. 1997).

 I see no way to avoid the import of the Supreme Court's analysis

in NRWC. See also FEC v. Nat'l Conservative PAC, 470 U.S. 480,

26
495 (1985) (noting that NRWC upheld "the prohibition of corporate

campaign contributions"). The majority relies almost exclusively on

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)

("MCFL"), to reach its result. In doing so, however, the majority turns

a blind eye not only to NRWC, but to the extended discussion of

NRWC contained in both the MCFL majority and dissenting opinions.

This subsequent endorsement of the holding of NRWC, adhered to by

every Member of the Court, confirms the validity of § 441b(a)'s ban

on corporate contributions, even as applied to non-profit corporations

such as NCRL.

 In NRWC, the Supreme Court addressed § 441b's regulation of corporate campaign contributions as applied to non-profit corporations.

Specifically, the Court considered the scope of the exemption contained in § 441b(b)(2)(C) and §§ 441b(b)(4)(A) and (C) to § 441b(a)'s

ban on corporate contributions and expenditures. 459 U.S. at 207-21.

Section 441b(b)(2)(C) exempts "the establishment, administration,

and solicitation of contributions to a separate segregated fund to be

utilized for political purposes by a corporation . . . ." Sections

441b(b)(4)(A) and (C) further define the scope of the exemption by

limiting "solicitation of contributions" by corporations without capital

stock to its "members." The issue in NRWC was whether the corporation had "limited its solicitation of funds to`members'," but that specific question was "but the tip of the statutory iceberg" because the

solicitation of funds was part of an exemption from the general rule

prohibiting corporate contributions. Id. at 198, n.1.

 The Court found two purposes sufficient to justify § 441b's "prohibitions and exceptions." The first purpose was "to ensure that substantial aggregations of wealth amassed by the special advantages which

go with the corporate form of organization should not be converted

into political `war chests' which could be used to incur political debts

from legislators who are aided by the contributors." Id. at 207. The

second purpose was "to protect the individuals who have paid money

into a corporation . . . for purposes other than the support of candidates from having that money used to support political candidates to

whom they may be opposed." Id. at 208.

 NRWC was a non-profit corporation similar to MCFL and NRCL,

funded by solicitations that "would neither corrupt officials nor coerce

27
members of the corporation holding minority political views . . . ."

459 U.S. at 207. The definition NRWC sought for the term "members" would only include persons who were "philosophically compatible" with the corporation. Id. at 206, 210; see also MCFL, 479 U.S.

at 269 (Rehnquist, C.J., dissenting). But the Court "declined the invitation to modify the statute to account for the characteristics of different corporations," MCFL, 479 U.S. at 269, finding that § 441b was

"sufficiently tailored" to "avoid undue restriction" on NRWC's First

Amendment rights:

In order to prevent both actual and apparent corruption,

Congress aimed a part of its regulatory scheme at corporations. The statute reflects a legislative judgment that the special characteristics of the corporate structure require

particularly careful regulation. While § 441b restricts the

solicitation of corporations and labor unions without great

financial resources, as well as those more fortunately situated, we accept Congress's judgment that it is the potential

for such influence that demands regulation. Nor will we second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. As

we said in California Medical Association v. FEC, 453 U.S.

182, 201 (1982), the "differing structures and purposes" of

different entities "may require different forms of regulation

in order to protect the integrity of the electoral process."

NRWC, 459 U.S. at 209 (citations omitted). Repeating the acknowledged interests in preventing corruption and the appearance of corruption, the Court concluded that "there is no reason why it may not in

this case be accomplished by treating unions, corporations, and similar organizations differently from individuals." Id. at 208, 210; Buckley v. Valeo, 424 U.S. 1, 26-27 (1976); First Nat'l Bank of Boston v.

Bellotti, 435 U.S. 765, 788, n.26 (1978).

 I understand the majority's point that NRWC dealt with the definition of "members" for § 441b segregated fund solicitations purposes,

but the NRWC Court's discussion of the exception cannot be so easily

divorced from its discussion of the general rule. In considering the

scope of the exception to § 441b's prohibition, the Court also considered the prohibition itself. Indeed, the Court's analysis of the excep28
tion was largely determined by the need to give broad prophylactic

effect to the ban on corporate contributions.

 The majority rejects NRWC in favor of MCFL, arguing that the

Constitution ought to view § 441b's ban on contributions the same as

it views the ban on expenditures. The respective discussions in both

the majority and dissenting opinions in MCFL demonstrate that the

Supreme Court struggled with this very question. Chief Justice Rehnquist, writing in dissent in MCFL, and joined by three other Justices,

took the view that there was no constitutional difference between contributions and independent expenditures in the context of § 441b. 479

U.S. at 270. According to the Chief Justice's view, NRWC required

a finding of constitutionality in MCFL. See MCFL, 479 U.S. at 269

("I would have thought the distinctions drawn by the Court today

largely foreclosed by our decision in NRWC."). Justice Brennan, writing for a majority of the Court, thought otherwise, specifically distinguishing NRWC by noting that NRWC involved direct contributions

to candidates:

[T]he political activity at issue in that case was contributions . . . . (citations omitted.) We have consistently held that

restrictions on contributions require less compelling justification than restrictions on independent spending. (citations

omitted.) In light of the historical role of contributions in the

corruption of the electoral process, the need for a broad prophylactic rule was thus sufficient in National Right to Work

Committee to support a limitation on the ability of a committee to raise money for direct contributions to candidates.

The limitation on solicitation in this case, however, means

that nonmember corporations can hardly raise any funds at

all to engage in political speech warranting the highest constitutional protection. Regulation that would produce such a

result demands far more precision than § 441b provides.

Therefore, the desirability of a broad prophylactic rule cannot justify treating alike business corporations and [MCFL]

in the regulation of independent spending.

MCFL, 479 U.S. at 260 (emphasis added).

 If MCFL had not mentioned NRWC, I might question its continuing

vitality. The amount of deference shown to legislative judgment cer29
tainly differs between NRWC and MCFL. Compare NRWC, 459 U.S.

at 210 ("[W]e accept Congress's judgment that it is the potential for

such influence that demands regulation."), with MCFL, 479 U.S. at

260 ("Regulation that would produce such a result demands far more

precision than § 441b provides."). Or if the Court in MCFL had distinguished NRWC in the way the majority does here, instead of going

out of its way to confirm NRWC as applied to corporate contributions,

I might be persuaded by the majority in this case. But the Court took

neither of those two options, instead expressly reaffirming NRWC,

and explaining it as a contributions case. After considering this

caselaw, I cannot escape the conclusion that NRWC is dispositive

with respect to § 441b's ban on corporate contributions. I respectfully

dissent.

30