479 U.S. 1309

LEDBETTER v. BALDWIN

635

Cite as 107 S.Ct. 635 (1986)

The basically legislative character of the
Court’s decision is dramatically illustrated
by its effort to carve out a constitutional
niche for “[g]roups such as MCFL.” Ante,
at 628. The three-part test gratuitously
announced in today’s dicta, ante, at 630-
681, adds to a well-defined ‘prohibition a
vague and barely adumbrated exception
certain to result in confusion and costly
litigation. If we sat as a council of revision
to modify legislative judgments, I would
hesitate to join the Court’s effort because
of this fact alone. But we do not sit in that
capacity; we are obliged to leave the draw-
ing of lines in cases such as this to Con-
gress if those lines are within constitution-
al bounds. Believing that the Act of Con-
gress in question here passes this test, I
dissent from the Court’s contrary conclu-
sion.

Justice WHITE, while joining THE
CHIEF JUSTICE’s opinion, adheres to
his dissenting views expressed in
Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612,
46 L.Ed.2d 659 (1976), First National
Bank v. Bellotti, 485 U.S. 765, 98 S.Ct.
1407, 55 L.Ed.2d 707 (1978), and FEC v.
National Conservative Political Action
Committee, 470 U.S. 480, 105 S.Ct. 1459,
84 L.Ed.2d 455 (1985).

and absolute limitation on independent expendi-

479. U.S. 1309, 93 L.Ed.2d 689
_LisooJames D. LEDBETTER, Commission-
er, Georgia Dept. of Human Resources
v.
Vernita BALDWIN et al.
No. A-448.

Dee. 18, 1986.

Georgia Commissioner of Department
of Human Resources sought stay of order
of United States District Court for the
Northern District of Georgia, 647 F.Supp.
628, which declared certain AFDC regula-
tions unconstitutional. The Supreme
Court, Justice Powell, sitting as Circuit
Justice, held that: (1) state demonstrated
that it would suffer irreparable injury if
decision were not stayed, and (2) case
raised issues sufficiently meritorious for
Court to note probable jurisdiction and
there was a significant possibility that
Court would reverse lower court decision.

Application granted.

1. Federal Courts 446

In order to grant application for stay
pending appeal to Supreme Court, there
must be reasonable probability that four
members of Supreme Court would consider
underlying issues sufficiently meritorious
to justify notation of probable jurisdiction,
there must be significant possibility of re-
versal of lower court’s decision, and there
must be likelihood that irreparable harm
would result from lower court’s decision if
not stayed. (Per Justice Powell, as Circuit
Justice.)

2. Federal Courts 6-446

Stay would be issued with respect to
district court injunction against application
of certain Georgia AFDC regulations im-
plementing provision of federal law requir-
ing state to consider child support pay-
ments to certain children living with the

tures by corporations.


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 U.S. 261
been established for the purpose of making
direct contributions to political candidates.
459 U.S., at 200, 108 S.Ct., at 555. We
have consistently held that restrictions on
contributions require less compellinggo jus-
tification than restrictions on independent
spending. NCPAC, 470 U.S. 480, 105 S.Ct.
1459, 84 L.Ed.2d 455 (1985); California
Medical Assn. v. FEC, 453 U.S. 182, 194,
196-197, 101 S.Ct. 2712, 2720, 2721-2722,
69 L.Ed.2d 567 (1981); Buckley, supra, 424
US., at 20-22, 96 S.Ct., at 635-36.

In light of the historical role of contribu-
tions in the corruption of the electoral pro-
cess, 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, how-
ever, 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 pro-
phylactic rule cannot justify treating alike
business corporations and appellee in the
regulation of independent spending.

The Commission next argues in support
of § 441b that it prevents an organization
from using an individual’s money for pur-
poses that the individual may not support.
We acknowledged the legitimacy of this
concern as to the dissenting stockholder
and union member in National Right to
Work Committee, 459 U.S., at 208, 103
S.Ct., at 559, and in Pipefitters, 407 US.,
at 414-415, 92 S.Ct., at 2264. But such
persons, as noted, contribute investment
funds or union dues for economic gain, and
do not necessarily authorize the use of
their money for political ends. Further-
more, because such individuals depend on
the organization for income or for a job, it
is not enough to tell them that any unhap-
piness with the use of their money can be
redressed simply by leaving the corporation
or the union. It was thus wholly reason-
able for Congress to require the establish-

629

ment of a separate political fund to which
persons can make voluntary contributions.

This rationale for regulation is not com-
pelling with respect to independent expend-
itures by appellee. Individuals who con-
tribute to appellee are fully aware of its
political. purposes, and in fact contribute
precisely because they support_j2si:those
purposes. It is true that a contributor may
not be aware of the exact use to which his
or her money ultimately may be put, or the
specific candidate that it may be used to
support. However, individuals 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 di-
rection. Any contribution therefore neces-
sarily involves at least some degree of del-
egation of authority to use such funds in a
manner that best serves the shared politi-
cal purposes of the organization and con-
tributor. In addition, an individual desiring
more direct control over the use of his or
her money can simply earmark the contri-
bution for a specific purpose, an option
whose availability does not depend on the
applicability of § 441b. Cf. § 434(c)(2)(C)
(entities other than political committees
must disclose names of those persons mak-
ing earmarked contributions over $200).
Finally, a contributor dissatisfied with how
funds are used can simply stop contribu-
ting.

The Commission maintains that, even if
contributors may be aware that a contribu-
tion to appellee will be used for political
purposes in general; they may not wish
such money to be used for electoral cam-
paigns in particular. That is, persons may
desire that an organization use their contri-
butions to further a certain cause, but may
not want the organization to use their mon-
ey to urge support for or: opposition to
political candidates solely on the basis of
that cause. This concern can be met, how-
ever, by means far more narrowly tailored
and less burdensome than § 441b’s restric-
tion on direct expenditures: simply requir-


620

ecumenical prayer service for the unborn in
front of the Massachusetts Statehouse;
sponsored a regional conference to discuss
the issues of abortion and euthanasia; pro-
vided speakers for discussion groups, de-
bates, lectures, and media programs; and
sponsored an annual March for Life. In
addition, it has drafted and submitted legis-
lation, some of which has become law in
Massachusetts; sponsored testimony on
proposed legislation; and has urged its
members to contact their elected represent-
atives to express their opinion on legisla-
tive proposals.

MCFL began publishing a newsletter in
January 1973. It was distributed as a mat-
ter of course to contributors, and, when
funds permitted, to noncontributors who
had expressed support for the organization.
The total distribution of any one issue has
never exceeded 6,000. The newsletter was
published irregularly from 1973 through
1978: three times in 1973, five times in
1974, eight times in 1975, eight times in
1976, five times in 1977, and four times in
1978. Id., at 88. _tzsEach of the newslet-
ters bore a masthead identifying it as the
“Massachusetts Citizens for Life Newslet-
ter,” as well as a volume and issue number.
The publication typically contained appeals
for volunteers and contributions and infor-
mation on MCFL activities, as well as on
matters such as the results of hearings on
bills and constitutional amendments, the
status of particular legislation, and the out-
come of referenda, court decisions, and ad-
ministrative hearings. Newsletter recipi-
ents were usually urged to contact the
relevant decisionmakers and express their
opinion.

B

In September 1978, MCFL prepared and
distributed a “Special Edition” prior to the
September 1978 primary elections. While
the May 1978 newsletter had been mailed
to 2,109 people and the October 1978 news-
letter to 3,119 people, more than 100,000
copies of the “Special Edition” were printed
for distribution. The front page of the
publication was headlined “EVERYTHING

107 SUPREME COURT REPORTER

479 U.S. 242

YOU NEED TO KNOW TO VOTE PRO-
LIFE,” and readers were admonished that
“{nJo pro-life candidate can win in Novem-
ber without your vote in September.”
“VOTE PRO-LIFE” was printed in large
bold-faced letters on the back page, and a
coupon was provided to be clipped and tak-
en to the polls to remind voters of the
name of the “pro-life” candidates. Next to
the exhortation to vote “pro-life” was a
disclaimer: “This special election edition
does not represent an endorsement of any
particular candidate.” Jd., at 101.

To aid the reader in selecting candidates,
the flyer listed the candidates for each
state and federal office in every voting
district in Massachusetts, and identified
each one as either supporting or opposing
what MCFL regarded as the correct posi-
tion on three issues. A “y” indicated that
a candidate supported the MCFL view on a
particular issue and an “n” indicated that
the candidate opposed it. An asterisk was
placed next to the names of those incum-
bents who had made |244a “special contribu-
tion to the unborn in maintaining a 100%
pro-life voting record in the state house by
actively supporting MCFL legislation.”
While some 400 candidates were running
for office in the primary, the “Special Edi-
tion” featured the photographs of only 13.
These 13 had received a triple “y” rating,
or were identified either as having a 100%
favorable voting record or as having stated
a position consistent with that of MCFL.
No candidate whose photograph was fea-
tured had received even one “n” rating.

The “Special Edition” was edited by an
officer of MCFL who was not part of the
staff that prepared the MCFL newsletters.
The “Special Edition” was mailed free of
charge and without request to 5,986 con-
tributors, and to 50,674 others whom
MCFL regarded as sympathetic to the or-
ganization’s purposes. The Commission as-
serts that the remainder of the 100,000
issues were placed in public areas for gen-
eral distribution, but MCFL insists that no
copies were made available to the general


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 U.S. 269
ed States, 407 U.S. 385, 414-415, 92 S.Ct.
2247, 2264, 88 L.Ed.2d 11 (1972); United
States v. CIO, 385 U.S. 106, 118, 68 S.Ct.
1849, 1858, 92 L.Ed. 1849 (1948). In light
of the “special advantages that the State
confers on the corporate form,” FEC v.
National Conservative Political Action
Committee, 470 U.S. 480, 495, 105 S.Ct.
1459, 1468, 84 L.Ed.2d 455 (1985) (NCPAC),
we have considered these dangers suffi-
cient to justify restrictions on corporate
political activity. See also California
Medical Assn. v. FEC, 453 U.S. 182, 201,
101 S.Ct. 2712, 2724, 69 L.Ed.2d 567 (1981).

The Court, rejecting the “teachings of
our earlier decisions,” NRWC, supra, 459
US., at 210, 108 S.Ct. at 560, and the
judgment of Congress,! confidently con-
cludes that these dangers are not

_igsspresent here. “Groups such as MCFL,”
the Court assures us, do not pose “the
potential for unfair deployment of wealth
for political purposes.” Ante, at 628. Be-
cause MCFL was formed to disseminate
political ideas, we are told, the money it
spends—at least in the form of independent
expenditures—reflects the political ideas
for which it stands without the threat or
appearance of corruption. Ante, at 628-629.
Nor does the Court find any need to
protect the interests of contributors to
MCFL by requiring the establishment of a
separate segregated fund for its political
expenditures. Individual contributors can
simply withhold their contributions if they
disagree with the corporation’s choices;
those who continue to give will be protect-
ed by requiring notice to them that their
money might be used for political purposes.

‘ Ante, at 629-630.

I do not dispute that the threat from
corporate political activity will vary depend-
ing on the particular characteristics of a
given corporation; it is obvious that large
and successful corporations with resources

1. It is, of course, clear that Congress intended
§ 441b to apply to corporations like MCFL.
The section makes it unlawful for “any corpora-
tion ... to make a contribution or expenditure
in connection with” certain federal elections. 2
U.S.C. § 441b(a) (emphasis added). Other pro-
visions of the statutory scheme make clear that

633

to fund a political war chest constitute a
more potent threat to the political process
than less successful business corporations
or nonprofit corporations. It may also be
that those supporting some nonbusiness
corporations will identify with the corpora-
tions’ political views more frequently than
the average shareholder of General Motors
would support the political activities of that
corporation. These distinctions among cor-
porations, however, are “distinctions in de-
gree” that do not amount to “differences in
kind.” Buckley v. Valeo, 424 US. 1, 30, 96
S.Ct. 612, 640, 46 L.Ed.2d 659 (1976) (per
curiam). Cf. NCPAC, supra, 470 US., at
498-499, 105 S.Ct., at 1469-1470. As such,
they are more properly drawn by the Legis-
lature than by the Judiciary. See Buckley,
supra, 424 US., at 30, 96 S.Ct, at 640.
Congress expressed its judgment in § 441b
that the threat posed by corporate political
activity warrants a prophylactic measure
applicable to all jssgroups that organize in
the corporate form. Our previous cases
have expressed a reluctance to fine-tune
such judgments; I would adhere to that
counsel here.

I would have thought the distinctions
drawn by the Court today largely foreclos-
ed by our decision in NRWC, supra. We
considered there the requirement of
§ 441b(b)(4)(C) that separate segregated
funds solicit only from “members.” The
corporation whose fund was at issue was
not unlike MCFL—a nonprofit corporation
without capital stock, formed to educate
the public on an issue of perceived public
significance. See NRWC, 459 U.S., at 199-
200, 108 S.Ct., at 555. We were asked to
adopt a broad definition of members be-
cause the solicitations involved “would nei-
ther corrupt officials nor coerce members
of the corporation holding minority political
views....” Id., at 206, 103 S.Ct. at 558.

corporations “without capital stock” are within
the regulatory sphere. See § 441b(b)(4)(C).
This is accordingly not a case of statutory con-
struction, but rather one in which the Court
rejects the judgment of Congress that such regu-
lation is appropriate. Cf. United States v. CIO,
335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948).


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 U.S. 254
through a segregated fund, MCFL must
make very significant efforts.

If it were not incorporated, MCFL’s obli-
gations under the Act would be those speci-
fied by § 434(c), the section that prescribes
the duties of “[e]very person (other than a
political committee).” ® Section 434(c) pro-
vides that any such person that during a
year makes independent expenditures ex-
ceeding $250 must: (1) identify all contribu-
tors who contribute in a given year over
$200 in the aggregate in funds to influence
elections, § 434(c)(1); (2) disclose the name
and address of recipients of independent
expenditures exceeding $200 in the aggre-
gate, along with an indication of whether
the money was used to support or oppose a
particular candidate, § 434(c)(2)(A); and (8)
identify any persons who make contribu-
tions.over $200 that are earmarked for the
purpose of furthering independent expendi-
tures, § 484(c)(2)(C). All unincorporated
organizations whose major purpose is not
campaign advocacy, but who occasionally
make independent expendituress;; on be-
half of candidates, are subject only to these
regulations.

Because it is incorporated, however,
MCFL must establish a “separate segre-
gated fund” if it wishes to engage in any
independent spending —_ whatsoever.
§§ 441b(a), (b)(2)(C). Since such a fund is
considered a “political committee” under
the Act, § 431(4)(B), all MCFL independent
expenditure activity is, as a result, regulat-
ed as though the organization’s major pur-
pose is to further the election of candi-
dates. This means that MCFL must com-
ply with several requirements in addition to
those mentioned. Under § 432, it must
appoint a treasurer, § 432(a); ensure that
contributions are forwarded to the treasur-
er within 10 or 30 days of receipt, depend-
ing on the amount of contribution,
§ 482(b)(2); see that its treasurer keeps an

6. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46
L.Ed.2d 659 (1976), this Court said that an entity
subject to regulation as a “political committee”
under the Act is one that is either “under the
control of a candidate or the major purpose of
which is the nomination or election of a candi-

625

account of every contribution regardless of
amount, the name and address of any per-
son who makes a contribution in excess of
$50, all contributions received from political
committees, and the name and address. of
any person to whom a disbursement is
made regardless of amount, § 432(c); and
preserve receipts for all disbursements
over $200 and all records for three years,
§§ 482(c), (d). Under § 433, MCFL must
file a statement of organization containing
its name, address, the name of its custodi-
an of records, and its banks, safety deposit
boxes, or other depositories, §§ 433(a), (b);
must report any change in the above infor-
mation within 10 days, § 433(c); and may.
dissolve only upon filing a written state-
ment that it will no longer receive any
contributions nor make. disbursements, and
that it has no outstanding debts or obli-
gations, § 433(d)(1).

Under § 434, MCFL must file either
monthly reports with the FEC or reports
on the following schedule: quarterly re-
ports during election years, a pre-election
report no later than the 12th day before an
election, a postelection report within 30
days after an election, and reports every 6
months during nonelection —_years,
§§ 434(a)(4)(A), (B). These reports must
contain information regarding the amount
of cash on_jgsshand; the total amount of
receipts, detailed by 10 different catego-
ries; the identification of each political
committee and candidate’s authorized or
affiliated committee making contributions,
and any persons making loans, providing
rebates, refunds, dividends, or interest or
any other offset to operating expenditures
in an aggregate amount over $200; the
total amount of all disbursements, detailed
by 12 different categories; the names of all
authorized or affiliated committees to
whom expenditures aggregating over $200
have been made; persons to whom loan

date.” Id,, at 79, 96 S.Ct, at 663. It is undisput-
ed on this record that MCFL fits neither of these
descriptions. Its central organizational purpose
is issue advocacy, although it occasionally en-
gages in activities on behalf of political candi-
dates.


622

[2] That history clearly confirms that
§ 441b was meant to proscribe expendi-
tures in connection with an election. We
have exhaustively recounted the legislative
history of the predecessors of this section
in prior decisions. See Pipefitters v. Unit-
ed States, 407 U.S. 385, 402-409, 92 S.Ct.
2247, 2258-2261, 33 L.Ed.2d 11 (1972);
United States v. Automobile Workers, 352
U.S. 567, 570-587, 77 S.Ct. 529, 580-539, 1
L.Ed.2d 563 (1957). This history makes
clear that Congress has long regarded it as
insufficient merely to restrict payments
made directly to candidates or campaign
organizations. The first explicit expression
of this came in 1947, when Congress
passed the Taft-Hartley Act, ch. 120, § 304,
61 Stat. 136, 159, as amended, 18 U.S.C.
§ 610 (1970 ed.), the criminal statute pro-
hibiting corporate contributions and ex-
penditures to candidates. The statute as
amended forbade any corporation or labor
organization to make a “contribution or
expenditure in connection with any election
...” for federal office. The 1946 Report of
the House Special Committee to Investi-
gate Campaign 1_ja7Expenditures explained
the rationale for the amendment, noting
that it would undermine the basic objective
of § 610

“Gf it were assumed that the term ‘mak-

ing any contribution’ related only to the

donating of money directly to a candi-
date, and excluded the vast expenditures
of money in the activities herein shown
to be engaged in extensively. Of what
avail would a law be to prohibit the con-
tributing direct to a candidate and yet
permit the expenditure of large sums in
his behalf?” H.R.Rep. No. 2739, 79th

Cong., 2d Sess., 40, quoted in Automo-

bile Workers, supra, at 581, 77 S.Ct., at

536.

During the legislative debate on the bill,
Senator Taft was asked whether § 610 per-
mitted a newspaper published by a railway
union to put out a special edition in support
of a political candidate, or whether such
activity would be considered a political ex-

4. See also 117 Cong-Rec. 43381 (1971) (remarks
of Rep. Hays); id, at 3383-43385 (remarks of

107 SUPREME COURT REPORTER

479 U.S. 246

penditure. The Senator replied: “If it
were supported by union funds contributed
by union members as union dues it would
be a violation of the law, yes. It is exactly
as if a railroad itself, using its stockhold-
ers’ funds, published such an advertise-
ment in the newspaper supporting one can-
didate as against another....” 98 Cong.
Rec. 6436-6437 (1947).

United States v. CIO, 335 U.S. 106, 68
S.Ct. 1349, 92 L.Ed. 1849 (1948), narrowed
the scope of this prohibition, by permitting
the use of union funds to publish a special
edition of the weekly CIO News distributed
to union members and purchasers of the
issue. In Automobile Workers, supra,
however, we held that a union was subject
to indictment for using union dues to spon-
sor political advertisements on commercial
television. Distinguishing C/O, we stated
that the concern of the statute “is the use
of corporation or union funds to influence
the public at large to vote for a particular
candidate or a particular party.” 352 U.S.,
at 589, 77 S.Ct., at 540.

The Federal Election Campaign Act en-
acted the prohibition now found in § 441b.
This portion of the Act simply ratified the
existing understanding of the scope of
§ 610. SeejnsPipefitters, supra, 407 U.S.,
at 410-411, 92 S.Ct. at 2262. Representa-
tive Hansen, the sponsor of the provision,
declared:

“The effect of this language is to carry
out the basic intent of section 610, which
is to prohibit the use of union or corpo-
rate funds for active electioneering di-
rected at the general public on behalf of
a candidate in a Federal election.” 117
Cong.Ree. 43379 (1971).
The Representative concluded:

“The net effect of the amendment, there-
fore, is to tighten and clarify the provi-
sions of section 610 of title 18, United
States Code, and to codify the case law.”
Ibid.4

Rep. Thompson); id, at 43388-43389 (remarks
of Reps. Steiger and Gude).


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct, 616 (1986)

479 U.S. 246
public? The “Special Edition” was not
identified on its masthead as a special edi-
tion of the regular newsletter, although the
MCFL logotype did appear at its top. The
words “Volume 5, No. 3, 1978” were appar-
ently handwritten on the Edition submitted
to the FEC, but the record indicates that
the actual Volume 5, No. 3, was distributed
in May and June 1977. The corporation
spent $9,812.76 to publish and circulate the
“Special Edition,” all of which was taken
from its general treasury funds.

A complaint was filed with the Commis-
sion alleging that the “Special Edition” was
a violation of § 441b. The complaint main-
tained that the Edition represented an ex-
penditure of funds from a corporate trea-
sury to distribute to the general public a
campaign flyer on behalf of certain political
candidates. The FEC found reason to be-
lieve that such a jassviolation had occurred,
initiated an investigation, and determined
that probable cause existed to believe that
MCFL had violated the Act. After concilia-
tion efforts failed, the Commission filed a
complaint in the District Court under
§ 487g(a)(6)(A), seeking a civil penalty and
other appropriate relief.

Both parties moved for summary judg-
ment. The District Court granted MCFL’s
motion, holding that: (1) the election publi-
cations could not be regarded as “expendi-
tures” under § 441b(b)(2); (2) the “Special
Edition” was exempt from the statutory
prohibition by virtue of § 431(9)(B)(i), which
in general exempts news commentary dis-
tributed by a periodical publication unaffili-
ated with any candidate or political party;
and (3) if the statute applied to MCFL, it

2. The FEC submitted an affidavit from a person
who stated that she obtained a copy of the
“Special Edition” at a statewide conference of
the National Organization for Women, where a
stack of about 200 copies were available to the
general public. App. 174.

3. MCBL argues that the definition in the general
definitions section is not as broad as it appears,
for § 431(9)(B)(v) says that nothing shall be
considered an “expenditure” under § 431 that
would not be regarded as such under § 441b(b).
Therefore, MCFL argues, the definition of ex-
penditure under § 431 necessarily incorporates

621

was unconstitutional as a violation of the
First Amendment. 589 F.Supp. 646, 649
(Mass.1984).

On appeal, the Court of Appeals for the
First Circuit held that the statute was ap-
plicable to MCFL, but affirmed the District
Court’s holding that the statute as so ap-
plied was unconstitutional. 769 F.2d 13
(1985). We granted certiorari, 474 U.S.
1049, 106 S.Ct. 788, 88 L.Ed.2d 762 (1986),
and now affirm.

II

[1] We agree with the Court of Appeals
that the “Special Edition” is not outside the
reach of § 441b. First, we find no merit in
appellee’s contention that preparation and
distribution of the “Special Edition” does
not fall within that section’s definition of
“expenditure.” Section 441b(b)(2) defines
“contribution or expenditure” as the provi-
sion of various things of value “to any
candidate, campaign committee, or political
party or organization, in connection with
any election ...” (emphasis added). MCFL
contends that, since it supplied nothing to
any candidate or organization, the publica-
tion is not within § 441b. However, the
general definitions section of the Act con-
tains a broader definition of “expenditure,”
including within that term the provision of
anything of value_jomade “for the pur-
pose of influencing any election for Feder-
al office....” 2 U.S.C. § 481(9)(A)(@) (em-
phasis added). Since the language of the
statute does not alone resolve the issue, we
must look to the legislative history of
§ 441b to determine the scope of the term
“expenditure.” >

§ 441b’s restriction of that term to payments fo
candidate, It is puzzling, however, why § 431
would in one subsection purport to define an
expenditure as a payment made for the purpose
of influencing an election and in another sub-
section eliminate precisely that type of activity
from the ambit of its definition. The answer
may lie in the fact that § 441b(b)(2) says that
expenditures “include” payments to a candidate,
a term that indicates that activities not specifi-
cally enumerated in that section may none-
theless be encompassed by it. In any event, the
need for such speculation signals that the lan-
guage of the statute is not on its face dispositive.


634

We had no difficulty concluding that such
an approach was unnecessary and that the
judgment of Congress to regulate corpo-
rate political activity was entitled to “con-
siderable deference.” Jd., at 209, 108 S.Ct.,
at 560. Most significantly, we declined the
invitation to modify the statute to account
for the characteristics of different corpora-
tions: “While § 441b restricts the solicita-
tion of corporations and labor unions with-
out great resources, as well as those more
fortunately situated, we accept Congress’
judgment that it is the potential for such
influence that demands regulation. Nor
will we second-guess a legislative determi-
nation as to the need for prophylactic mea-
sures where corruption is the evil feared.”
Id., at 210, 103 S.Ct., at 560. We saw no
reason why the governmental interest in
preventing both actual corruption and the
appearance of corruption could not “be ac-
complished by treating unions, corpora-
tions, and similar organizations differently
from individuals.” Jd, at 210-211, 103
S.Ct., at 560-561.

The distinction between corporate and
noncorporate activity was not diminished in
NCPAC, supra, where we found fatally
overbroad the $1,000 limitation in 26 U.S.C.
§ 9012(f) on independent expenditures by
“political committees.” Our conclusion
rested in part on the fact that § 9012(f)
regulated jp7not only corporations but rath-
er “indiscriminately lump[ed] with corpora-
tions any ‘committee, association or orga-
nization.’” NCPAC, 470 USS., at 500, 105
S.Ct., at 1470. NCPAC accordingly contin-
ued to recognize what had been, until to-
day, an acceptable distinction, grounded in
the judgment of the political branch, be-
tween political activity by corporate actors
2. Only once have we found unconstitutional a

regulation that restricted only corporate politi-

cal activity. First National Bank of Boston v.

Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d

707 (1978). As we noted in FEC v. National

Right to Work Committee, 459 U.S. 197, 210, n.

7, 103 S.Ct. 552, 560, n. 7, 74.L.Ed.2d 364 (1982),

our decision in Bellotti did not consider the

validity of laws, like § 441b, aimed at the threat
of corruption in candidate elections. See Bellot-

107 SUPREME COURT REPORTER

479 U.S. 269

and that by organizations not benefiting
from “the corporate shield which the State
{has] granted to corporations as a form of
quid pro quo”. for various regulations.
Citizens Against Rent Control v. Berke-
ley, 454 U.S. 290, 300, 102 S.Ct. 484, 439, 70
L.Ed.2d 492 (1981) (REHNQUIST, J., con-
curring).?

The Court explains the decisions in
NRWC and NCPAC by reference to anoth-
er distinction found in our decisions—that
between contributions and independent ex-
penditures. See Buckley, supra, 424 US.,
at 19-23, 96 S.Ct, at 634-636. This is
admittedly a distinction between the facts
of NRWC and those of NCPAC, but it does
not warrant a different result in view of
our longstanding approval of limitations on
corporate spending and of the type of regu-
lation involved here. The distinction be-
tween contributions and independent ex-
penditures is not a line separating black
from white. The statute here—though in-
volving independent expenditures—is not
nearly so drastic as the “wholesale restric-
tion of clearly protected conduct” at issue
in NCPAG, supra, 470 US., at 501, 105
S.Ct. at 1470. It regulates instead the
form of otherwise unregulated spending.
A separate segregated fund formed by
MCFL may use contributions it receives,
without limit, on political expenditures.?
As the Court corgectlyar notes, the regula-
tion of § 441b is not without burdens, but
it remains wholly different in character
from that which we condemned in NCPAC.
In these circumstances, I would defer to
the congressional judgment that corpora-
tions are a distinct category with respect to
which this sort of regulation is constitution-
ally permissible.

4, supra, 435 US., at 788, n. 26, 98 S.Ct, at 1422,
n. 26,

3. Because the corporation itself may use its own
treasury money to pay the fund’s administrative
costs and to solicit contributions to the fund, 2
U.S.C. § 441b(b)(4), every dollar of those contri-
butions is available for political purposes.

4. The statutory scheme at issue in this case does
not require us to consider the validity of a direct


624

tion is sparse; the House of Representa-
tives’ Report on this section states merely
that the exemption was designed to

“make it plain that it is not the intent of

Congress in the present legislation to

limit or burden in any way the first

amendment freedoms of the press or of
association. [The exemption] assures the
unfettered right of the newspapers, TV
networks, and other media to cover and

comment on political campaigns.” H.R.

Rep. No. 93-1239, p. 4 (1974).

We need not decide whether the regular
MCFL newsletter is exempt under this pro-
vision, because, even assuming that it is,
the “Special Edition” cannot be considered
comparable to any single issue of the news-
letter. It was not published through the
facilities of the regular newsletter, but by
a staff which prepared no previous or sub-
sequent newsletters. It was not distribut-
ed to the newsletter’s regular audience, but
to a group 20 times the size of that audi-
ence, most of whom were members of the
public who had never received the newslet-
ter. No characteristic of the Edition asso-
ciated it in any way with the normal MCFL
publication. The MCFL_jgs:masthead did
not appear on the flyer, and, despite an
apparent belated attempt to make it appear
otherwise, the Edition contained no volume
and issue number identifying it as one in a
continuing series of issues.

[6] MCFL protests that determining the
scope of the press exemption by reference
to such factors inappropriately focuses on
superficial considerations of form. How-
ever, it is precisely such factors that. in
combination permit the distinction.of cam-
paign flyers from regular publications.
We regard such an inquiry as essential,
since we cannot accept the notion that the
distribution of such flyers by entities that
happen to publish newsletters automatical-
ly entitles such organizations to the press
exemption. A contrary position would
5. Nor do we find the “Special Edition” akin to

the normal business activity of a press entity

deemed by some lower courts to fall within the

exemption, such as the distribution of a letter
soliciting subscriptions, see FEC v. Phillips Pub-

107 SUPREME COURT REPORTER

479 U.S. 250

open the door for those corporations and
unions with in-house publications to engage
in unlimite¢ spending directly from their
treasuries to distribute campaign material
to the general public, thereby eviscerating
§ 441b’s prohibition.>

In sum, we hold that MCFL’s publication
and distribution of the “Special Edition” is
in violation of § 441b. We therefore turn
to the constitutionality of that provision as
applied to appellee.

Tl

A

[7] Independent expenditures constitute
expression “‘at the core of our electoral
process and of the First Amendment free-
doms.’” Buckley, 424 U.S., at 39, 96 S.Ct.,
at 644 (quoting Williams v. Rhodes, 393
US, 28, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24
(1968). See also FEC v. National Con-
servative Political Action Committee, 470
U.S. 480, 498, 105 S.Ct. 1459, 1466, 84
L.Ed.2d 455 (1985) (VCPAC) (independent
expenditures “produce speech at the core
of the First Amendment”). We must
therefore € |z52determine whether the prohibi-
tion of § 441b burdens political speech,
and, if so, whether such a burden ‘is justi-
fied by a compelling state interest. Buck-
ley, supra, 424 U.S., at 44-45, 96 S.Ct, at
646-647.

The FEC minimizes the impact of the
legislation upon MCFL’s First Amendment.
rights by emphasizing that the corporation
remains free to establish a separate segre-
gated fund, composed of contributions ear-
marked for that purpose by the donors,
that may be used for unlimited campaign
spending. However, the corporation is not
free to use its general funds for campaign
advocacy purposes. While that is not an
absolute restriction on speech, it is a sub-
stantial one. Moreover, even to speak

lishing Co., 517 F.Supp. 1308, 1313 (DC 1981), or
the dissemination of publicity, see Reader's Di-
gest Assn. v. FEC, 509 F.Supp. 1210 (SDNY
1981).


616

479 U.S. 238, 93 L.Ed.2d 539
_z3sFEDERAL ELECTION
COMMISSION,
Appellant,

y.

MASSACHUSETTS CITIZENS
FOR LIFE, INC.

No, 85-701.

Argued Oct. 7, 1986.
Decided Dec. 15, 1986.

Federal Election Commission brought
enforcement proceeding seeking to hold
nonprofit corporation liable under Federal
Election Campaign Act for publishing
newsletter urging readers to vote “pro-
life” in upcoming primary election. The
United States District Court for the Dis-
trict of Massachusetts, W. Arthur Garrity,
J., 589 F.Supp. 646, dismissed complaint,
and FEC appealed. The Court of Appeals
for the First Circuit, 769 F.2d 18, affirmed,
and certiorari was granted. The Supreme
Court, Justice Brennan, held that: (1) cor-
poration’s publication and distribution of
newsletter urging readers to vote “pro-
life” in upcoming primary election violated
section of Act prohibiting direct expendi-
ture of corporate funds in connection with
election to public office, but (2) section vio-
lated First Amendment as applied.

Affirmed.

Justice O’Connor filed opinion concur-
ring in part and concurring in judgment.

Chief Justice Rehnquist filed opinion
concurring in part and dissenting in part in
which Justice White, Justice Blackmun and
Justice Stevens joined.

1, Elections 317.2

Nonprofit corporation’s publication and
distribution of newsletter urging readers to
vote “pro-life” in upcoming primary elec-
tion violated section of Federal Election
Campaign Act prohibiting direct expendi-
ture of corporate funds in connection with
election to publie office. Federal Election

107 SUPREME COURT REPORTER

479 U.S. 238

Campaign Act.of 1971, § 316, as amended,
2 US.C.A. § 441b.

2, Elections 317.2

Section of Federal Election Campaign
Act prohibiting direct corporate expendi-
tures in connection with any election was
not meant merely to restrict payments
made directly to candidates or campaign
organizations. Federal Election Campaign
Act of 1971, § 816, as amended, 2 U.S.C.A.
§ 441b.

3. Elections €=317.2

Corporate expenditure must constitute
“express advocacy” in order to be subject
to prohibition of section of Federal Election
Campaign Act prohibiting direct expendi-
ture of corporate funds in connection with
any election. Federal Election Campaign
Act of 1971, § 316, as amended, 2 U.S.C.A.
§ 441b.

4, Elections 317.2

Nonprofit corporation’s publication and
distribution of newsletter urging readers to
vote “pro-life” in upcoming primary elec-
tion was “express advocacy” subject to
Federal Election Campaign Act’s prohibi-
tion of direct expenditure of corporate
funds in connection with any election;
newsletter identified and provided photo-
graphs of specific “pro-life” candidates.
Federal Election Campaign Act of 1971,
§ 316, as amended, 2 U.S.C.A. § 441b.

See publication Words and Phrases

for other judicial constructions and
definitions.

5. Elections 311.1

Nonprofit corporation’s regular publi-
cation of newsletter did not entitle it to
press exemption under Federal Election
Campaign Act for its publication of “spe-
cial edition” which urged readers to vote
“pro-life” in upcoming primary election;
“special edition” was not published through
facilities of regular newsletter, was distrib-
uted to group 20 times size of newsletter’s
normal audience, and did not contain vol-
ume and issue number identifying it as one
in continuing series of issues. Federal
Election Campaign Act of 1971,


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 US, 258
fore, this procedural device must necessar-
ily produce a result which the State could
not command directly. It can only result in
a deterrence of speech which the Constitu-
tion makes free.” Id., at 526, 78 S.Ct., at
1842. The same may be said of § 441b, for
its practical effect on MCFL in this case is
to make engaging in protected speech a
severely demanding task.?

B

[8] When a statutory provision burdens
First Amendment rights, it must be justi-
fied by a compelling state interest.
Williams v. Rhodes, 393 U.S., at 31, 89
S.Ct., at 10; NAACP v. Button, 371 US.
415, 488, 83 S.Ct. 328, 340, 9 L.Ed.2d 405
(1963). The FEC first insists that justifica-
tion for § 441b’s expenditure restriction is
provided by this Court’s acknowledgment
that “the special characteristics of the cor-
porate structure require particularly care-
ful regulation.” National Right to Work
Committee, supra, 459 U.S., at 209-210,
103 S.Ct., at 560. The Commission thus
relies on the long history of regulation of
corporate political activity as support for
the application of § 441b to MCFL. Evalu-
ation of the Commiggion’s2s; argument re-
quires close examination of the underlying
rationale for this longstanding regulation.

We have described that rationale in re-
cent opinions as the need to restrict “the
influence of political war chests funneled
through the corporate form,” NCPAC, 470
USS., at 501, 105 S.Ct., at 1470; to “elimi-

9. The Commission relies on Regan v. Taxation
With Representation, 461 U.S. 540, 103 S.Ct.
1997, 76 L.Ed.2d 129 (1983), in support of its
contention that the requirement that indepen-
dent spending be conducted through a separate
segregated fund does not burden MCFL's First
Amendment rights. Regan, however, involved
the requirement that a nonprofit corporation
establish a separate lobbying entity if contribu-
tions to the corporation for the conduct of other
activities were to be tax deductible. If the cor-
poration chose not to set up such a lobbying
arm, it would not be eligible for tax-deductible
contributions. Such a result, however, would
infringe no protected activity, for there is no
right to have speech subsidized by the Govern-
ment. Id., at 545-546, 103 S.Ct., at 2000-2001.
By contrast, the activity that may be discour-

627

nate the effect of aggregated wealth on
federal elections,” Pipefitters, 407 U.S., at
416, 92 S.Ct., at 2264; to curb the political
influence of “those who exercise control
over large aggregations of capital,” Auto-
mobile Workers, 352 U.S., at 585, 77 S.Ct.,
at 588; and to regulate the “substantial
aggregations of wealth amassed by the
special advantages which go with the cor-
porate form of organization,” National
Right to Work Committee, 459 US., at
207, 103 S.Ct., at 559.

This concern over the corrosive influence
of concentrated corporate wealth reflects
the conviction that it is important to protect
the integrity of the marketplace of political
ideas. It acknowledges the wisdom of Jus-
tice Holmes’ observation that “the ultimate
good desired is better reached by free
trade in ideas—that the best test of truth is
the power of the thought to get itself ac-
cepted in the competition of the mar-
ket....” Abrams v. United States, 250
US. 616, 680, 40 S.Ct. 17, 22, 63 L.Ed. 1173
(1919) (Holmes, J., joined by Brandeis, J.,
dissenting).!°

Direct corporate spending on political ac-
tivity raises the prospect that resources
amassed in the economic marketplace may
be used to provide an unfair advantage in
the political marketplace. Political “free:
trade” does not necessarily require that all
who participate in the political marketplace
do so with exactly equal resources. See
NCPAC, supra (invalidating2ss limits on in-
dependent spending by political commit-

aged in this case, independent spending, is core
political speech under the First Amendment.

10. While this market metaphor has guided con-

gressional regulation in the area of campaign
activity, First Amendment speech is not neces-
sarily limited to such an instrumental role. As
Justice Brandeis stated in his discussion of polit-
ical speech in his concurrence in’ Whitney v.
California, 274 U.S. 357, 375, 47 S.Ct. 641, 648,
71 L.Ed. 1095 (1927):
“Those who won our independence believed
that the final end of the State was to make men
free to develop their faculties; and that in its
government the deliberative forces should pre-
vail over the arbitrary. They valued liberty
both:as an end and as a means.”


626

repayments or refunds have been made;
the total sum of all contributions, operating
expenses, outstanding debts and obli-
gations, and the settlement terms of the
retirement of any debt or obligation.
§ 484(b). In addition, MCFL may solicit
contributions for its separate segregated
fund only from its “members,”
§§ 441b(b)(4)(A), (C), which does not include
those persons who have merely contributed
to or indicated support for the organization
in the past. See FEC v. National Right to
Work Committee, 459 U.S. 197, 204, 108
S.Ct. 552, 557, 74 L.Ed.2d 364 (1982).

It is evident from this survey that MCFL
is subject to more extensive requirements
and more stringent restrictions than it
would be if it were not incorporated.
These additional regulations may create a
disincentive for such organizations to en-
gage in political speech. Detailed record-
keeping and disclosure obligations, along
with the duty to appoint a treasurer and
custodian of the records, impose adminis-
trative costs that many small entities may
be unable to bear.7 Furthermore, such
duties require a far more complexes; and
formalized organization than many small
groups could manage. Restriction of solici-
tation of contributions to “members” vast-
ly reduces the sources of funding for orga-
nizations with either few or no formal
members, directly limiting the ability of
such organizations to engage in core politi-
cal speech. It is not unreasonable to sup-
pose that, as in this case, an incorporated
group of like-minded persons might seek
donations to support the dissemination of
their political ideas and their occasional en-
dorsement of political candidates, by means

7. It is true that we acknowledged in Buckley,
supra, that, although the reporting and disclo.
sure requirements of the Act “will deter some
individuals who otherwise might contribute,”
id, 424 US., at 68, 96 S.Ct, at 658, this is a
burden that is justified by substantial Govern-
ment interests. Jd. at 66-68, 96 S.Ct., at 657-
658. However, while the effect of additional
reporting and disclosure obligations on an orga-
nization’s contributors may not necessarily con-
stitute an additional burden on speech, the ad-
ministrative costs of complying with such in-

107 SUPREME COURT REPORTER

479 U.S. 254

of garage sales, bake sales, and raffles.
Such persons might well be turned away by
the prospect of complying with all the re-
quirements imposed by the Act. Faced
with the need to assume a more sophis-
ticated organizational form, to adopt specif-
ie 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.8

Thus, while § 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 stat-
ute’s practical effect may be to discourage
protected speech is sufficient to character-
ize § 441b as an infringement on First
Amendment activities. In Freedman v.
Maryland, 380 U.S. 51, 85 S.Ct. 734, 18
L.Ed.2d 649 (1965), for instance, we held
that the absence of certain procedural safe-
guards rendered unconstitutional a State’s
film censorship program. Such procedures
were necessary, we said, because, as a
practical matter, without them “it may
prove too burdensome to seek review of the
censor’s determination.” Jd. at 59, 85
S.Ct., at 739. _LaseSpeiser v. Randall, 357
US. 518, 78 S.Ct. 18382, 2 L.Ed.2d 1460
(1958), reviewed a state program under
which taxpayers applying for a certain tax
exemption bore the burden of proving that
they did not advocate the overthrow of the
United States and would not support a
foreign government against this country.
We noted: “In practical operation, there-

creased responsibilities may create a disincen-
tive for the organization itself to speak.

8. The fact that MCFL established a political
committee in 1980 does not change this conclu-
sion, for the corporation’s speech may well have
been inhibited due to its inability to form such
an entity before that date. Furthermore, other
organizations comparable to MCFL may not
find it feasible to establish such a committee,
and may therefore decide to forgo engaging in
independent political speech.


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 U.S. 250
Thus, the fact. that § 441b uses the phrase
“to any candidate ... in connection with
any election,” while § 610 provided “in con-
nection with any primary election,” is not
evidence that Congress abandoned its re-
striction, in force since 1947, on expendi-
tures on behalf of candidates. We there-
fore find no merit in MCFL’s argument
that only payments to a candidate or orga-
nization fall within the scope of § 441b.

Appellee next argues that the definition
of an expenditure under § 441b necessarily
incorporates the requirement that a com-
munication “expressly advocate” the elec-
tion of candidates, and that its “Special
Edition” does not constitute express advo-
cacy. The argument relies on the portion
of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct.
612, 46 L.Ed.2d 659 (1976), that upheld the
disclosure requirement for expenditures by
individuals other than candidates and by
groups other than political committees.
See 2 U.S.C. § 484(c). There, in order to
avoid problems of overbreadth, the Court
held that the term “expenditure” encom-
passed “only funds ‘used for communica-
tions that expressly advocate the election
or defeat of a clearly identified _jacandi-
date.” 424 U.S., at 80, 96 S.Ct. at 663
(footnote omitted). The rationale for this
holding ‘was:

“{T]he distinction between discussion of
issues and candidates and advocacy of
election or defeat of candidates may of-
ten dissolve in practical application.
Candidates, especially incumbents, are in-
timately tied to public issues involving
legislative proposals and governmental
actions. Not only do candidates cam-
paign on the basis of their positions on
various issues, but campaigns them-
selves generate issues of public inter-
est.” Id., at 42, 96 S.Ct., at 645 (footnote
omitted).

[3,4] We agree with appellee that this
rationale requires a similar construction of
the more intrusive provision that directly
regulates independent spending. We
therefore hold that an expenditure must
constitute “express advocacy” in order to
be subject to the prohibition of § 441b.

623

We also hold, however, that the publication
of the “Special Edition” constitutes “ex-
press advocacy.”

Buckley adopted the “express advocacy”
requirement to distinguish discussion of is-
sues and candidates from more’ pointed
exhortations to vote for particular persons.
We therefore concluded in that case that a
finding of “express advocacy” depended
upon the use of language such as “vote
for,” “elect,” “support,” etc., Buckley, su-
pra, at 44, n. 52, 96 S.Ct., at 646, n. 52.
Just such an exhortation appears in the
“Special Edition.” The publication not only
urges voters to vote for “pro-life” candi-
dates, but also identifies and provides pho-
tographs of specific candidates fitting that
description. The Edition cannot be regard-
ed as a mere discussion of public issues
that by their nature raise the names of
certain politicians. Rather, it provides in
effect an explicit directive: vote for these
(named) candidates. The fact that this
message is marginally less direct than
“Vote for Smith” does not change its es-
sential nature. The Edition goes beyond
issue discussion to express electoral advo-
cacy. The disclaimer of endorsement can-
not negate this fact. The “Special Edition”
thus falls {gssquarely within § 441b, for it
represents express advocacy of the election
of particular candidates distributed to
members of the general public.

[5] Finally, MCFL argues that it is enti-
tled to the press exemption under 2 U.S.C.
§ 481(9)(B)(i) reserved for

“any news story, commentary, or editori-
al distributed through the facilities of
any ... newspaper, magazine, or other
periodical publication, unless such facili-
ties are owned or controlled by any politi-
cal party, political committee, or candi-
date.”

MCFL maintains that its regular news-
letter is a “periodical publication” within
this definition, and that the “Special Edi-
tion” should be regarded as just another
issue in the continuing newsletter series.
The legislative history on the press exemp-


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 US. 242
additional organizational restraints im-
posed upon it by the statute. These re-

straints do not further the Government’s
informational interest in campaign disclo-
sure and cannot be justified by any of the
other interests identified by the FEC. Pp.
631-632. .

BRENNAN, J., announced the judg-
ment of the Court and delivered the opinion
for a unanimous Court with respect to
Parts I and IJ, an opinion of the Court with
respect to Parts III-B and III-C, in which
MARSHALL, POWELL, O’CONNOR, and
SCALIA, JJ., joined, and an opinion with
respect to Part III-A, in which MAR-
SHALL, POWELL, and SCALIA, JJ.,
joined. O'CONNOR, J., filed an opinion
concurring in part and concurring in the
judgment, post, p. 631. REHNQUIST,
C.J., filed an opinion concurring in part and
dissenting in part, in which WHITE,
BLACKMUN, and STEVENS, JJ., joined,
post, p. 632. WHITE, J., filed a separate
statement, post, p. 635.

Charles N. Steele, Washington, D.C., for
appellant.

Francis H. Fox,
lee.

Boston, Mass., for appel-

_lgnJustice BRENNAN announced the
judgment of the Court and delivered the
opinion of the Court with respect to Parts
I, IL, III-B, and III-C, and an opinion with
respect to Part III-A, in which Justice
MARSHALL, Justice POWELL, and Jus-
tice SCALIA join.

‘The questions for decision here arise un-
der § 316 of the Federal Election Cam-
paign Act (FECA or Act), 90 Stat. 490, as
renumbered and amended, 2 U.S.C. § 441b.
The first question is whether appellee Mas-
sachusetts Citizens for Life, Inc. (MCFL), a
nonprofit, nonstock corporation, by finane-
ing certain activity with its treasury funds,
1, MCBL concedes that under this Court's deci-

sion in FEC v. National Right to Work Commit.

tee, 459 US. 197, 103 S.Ct. 552, 74 L.Ed.2d 364

(1982), such a definition does not permit it to

solicit contributions from such persons for use
by a separate segregated fund established under

619

has violated the restriction on independent
spending contained in § 441b. That section
prohibits corporations from using treasury
funds to make an expenditure “in connec-
tion with” any federal election, and re-
quires that any expenditure for such pur-
pose be financed by voluntary contribu-
tions to a separate segregated fund. If
appellee has violated § 441b, the next ques-
tion is ‘whether application of that section
to MCFL’s conduct is constitutional. We
hold that the appellee’s use of its treasury
funds is prohibited by § 441b, but that
§ 441b is unconstitutional as applied to the
activity of which the Federal Election Com-
mission (FEC or Commission) complains.

I

A
MCFL was incorporated in January 1973
as a nonprofit, nonstock corporation under
Massachusetts law. Its corporate purpose
as stated in its articles of incorporation is:
“To foster respect for human life and to
defend the right to life of all human
beings, born and unborn, through edu-
cational, political and other forms of ac-
tivities and in_jyaddition to engage in
any other lawful act-or-activity for which
corporations may be organized....”
App. 84.
MCFL does not accept contributions from
business corporations or unions. Its re-
sources come from voluntary donations
from “members,” and from various fund-
raising activities such as garage sales,
bake sales, dances, raffles, and picnics.
The corporation considers its “members”
those persons who have either contributed
to the organization in the past or indicated
support for its activities.’
Appellee has engaged in diverse edu-
cational and legislative activities designed
to further its agenda. It has organized an

the Act: That case held that in order to be
considered a “member” of a nonstock corpora-
tion under the Act, one must have “some rela-
tively enduring and independently significant
financial or organizational attachment” to the
corporation. Id., at 204, 103 S.Ct. at 557.


630

ing that contributors be informed that their
money may be used for such a purpose.

It is true that National Right to Work
Committee, supra, held that the goal of
protecting minority interests justified solic-
itation restrictions on a nonprofit corpora-
tion operating a political committee estab-
lished to make direct contributions to candi-
dates. As we have noted above, however,
the Government enjoys greater latitude in
limiting contributions j than in regulating
independent expenditures. Supra, at 628-
629. Given a contributor’s awareness of the
political activity of appellee, as well as the
readily available remedy of refusing further
donations, the interest protecting contribu-
tors is simply insufficient to support
§ 441b’s restriction on the independent
spending of MCFL.

Finally, the FEC maintains that the inap-
plicability of § 441b to MCFL would open
the door to massive undisclosed political
spending by similar entities, and to their
use as conduits for undisclosed spending by
business corporations and unions. We see
no such danger. Even if § 441b is inappli-
cable, an independent expenditure of as
little as $250 by MCFL will trigger the
disclosure provisions of § 484(c). As a re-
sult, MCFL will be required to identify all
contributors who annually provide in the
aggregate $200 in funds intended to influ-
ence elections, will have to specify all recip-
ients of independent spending amounting
to more than $200, and will be bound to
identify all persons making contributions
over $200 who request that the money be
used for independent expenditures. These
reporting obligations provide precisely the
information necessary to monitor MCFL’s
independent spending activity and its re-
ceipt of contributions. The state interest in
disclosure therefore can be met in a man-
ner less restrictive than imposing the full
panoply of regulations that accompany sta-
tus as a political committee under the Act.

Furthermore, should MCFL’s indepen-
dent spending become so extensive that the
organization’s major purpose may be re-
garded as campaign activity, the corpora-

107 SUPREME COURT REPORTER

479 U.S. 261

tion would be classified as.a political com-
mittee. See Buckley, 424 U.S., at 79, 96
S.Ct., at 663. As such, it would automati-
cally be subject to the obligations and re-
strictions applicable to those groups whose
primary objective is to influence political
campaigns. In sum, there is no need for
the sake of disclosure to treat MCFL any
differently than other organizations that
only occasionally engage in independent
spending on behalf of candidates.
_LssThus, the concerns underlying the reg-
ulation of corporate political activity are
simply absent with regard to MCFL. The
dissent is surely correct in maintaining that
we should not second-guess a decision to
sweep within a broad prohibition activities
that differ in degree, but not kind. Post,
at 633. It is not the case, however, 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. Voluntary political associations do not
suddenly present the specter of corruption
merely by assuming the corporate form.
Given this fact, the rationale for restricting
core political speech in this case is simply
the desire for a bright-line rule. This hard-
ly constitutes the compelling state interest
necessary to justify any infringement on
First Amendment freedom. While the bur-
den on MCFL’s speech is not insurmounta-
ble, we cannot permit it to be imposed
without a constitutionally adequate justifi-
cation. In so holding, we do not assume a
legislative role, but fulfill our judicial
duty—to enforce the demands of the Con-
stitution.

Cc

[9] Our conclusion is that § 441b’s re-
striction of independent spending is uncon-
stitutional as applied to MCFL, for it in-
fringes protected speech without a compel-
ling justification for such infringement.
We acknowledge the legitimacy of Con-
gress’ concern that organizations that
amass great wealth in the economic mar-
ketplace not gain unfair advantage in the
political marketplace.


632

requirements on a group’s own speech.
Id., at 74-82, 96 S.Ct. at 661-664. The
Buckley Court concluded that disclosure of
@ group’s independent campaign expendi-
tures serves the important governmental
interest of “shed{ding] the light of publici-
ty” on campaign financing, thereby helping
voters to evaluate the constituencies of
those who seek federal office. Jd., at 81,
96 S.Ct., at 664. As a result, the burden of
disclosing independent expenditures gener-
ally is “a reasonable and minimally restric-
tive method of furthering First Amend-
ment values by opening the basic processes
of our federal election system to public
view.” Id., at 82, 96 S.Ct., at 664.

_lzssIn my view, the significant burden on
MCFL in this case comes not from the
disclosure requirements that it must satis-
fy, but from the additional organizational
restraints imposed upon it by the Act. As
the Court has described ante, at 625-626,
engaging in campaign speech requires
MCFL to assume a more formalized orga-
nizational form and significantly reduces or
eliminates the sources of funding for
groups such as MCFL with few or no
“members.” These additional require-
ments do not further the Government’s in-
formational interest in campaign disclo-
sure, and, for the reasons given by the
Court, cannot be justified by any of the
other interests identified by the Federal
Election Commission. Although the orga-
nizational and solicitation restrictions are
not invariably an insurmountable burden
on speech, see, ¢.g., FEC v. National Right.
to Work Committee, 459 U.S. 197, 103
S.Ct. 552, 74 L.Ed.2d 364 (1982), in this
case the Government has failed to show
that groups such as MCFL pose any dan-
ger that would justify infringement of its
core political expression. On that basis, I
join in the Court’s judgment that § 441b is
unconstitutional as applied to MCFL.

Chief Justice REHNQUIST, with whom
Justice WHITE, Justice BLACKMUN, and
Justice STEVENS join, concurring in part
and dissenting in part.

In FEC v. National Right to Work Com-
mittee, 459 U.S. 197, 209-210, 103 S.Ct.

107 SUPREME COURT REPORTER

479 U.S. 265

552, 560, 74 L.Ed.2d 364 (1982) (NRWC),
the Court unanimously endorsed the “legis-
lative judgment that the special character-
istics of the corporate structure require
particularly careful regulation.” I contin-
ue to believe that this judgment, as re-
flected in 2 U.S.C. § 441b, is constitutional-
ly sound and entitled to substantial defer-
ence, and therefore dissent from the
Court’s decision to “second-guess a legisla-
tive determination as to the need for pro-
phylactic measures where corruption is the
evil feared.” Id., at 210, 108 S.Ct., at 560.
Though I agree that the expenditures in
this case violated the terms of § 441b, and
accordingly join Parts I and II of the
Court's opinion, I cannot accept the conclu-
sion that the statutory provisions are un-
congtitutionalys; as applied to appellee Mas-
sachusetts Citizens for Life (MCFL).

As the Court recognizes, the segregated
fund requirements of § 441b are simply a
contemporary chapter in the “long history
of regulation of corporate political activi-
ty.” Ante, at 627. See NRWC, supra, at
208-209, 108 S.Ct., at 559-560; United
States v. Automobile Workers, 352 U.S.
567, 570-584, 77 S.Ct. 529, 580-587, 1
L.Ed.2d 563 (1957). In approving this sort
of regulation, our decisions have found at
least two legitimate concerns arising from
corporate campaign spending. First,
§ 441b and its predecessors were enacted
to rid the political process of the corruption
and appearance of corruption that accom-
pany contributions to and expenditures for
candidates from corporate funds. See
NRWC, supra, 459 U.S., at 207-208, 103
8.Ct., at 559; First National Bank of Bos-
ton v. Bellotti, 435 U.S. 765, 788, n. 26, 98
S.Ct. 1407, 1422, n. 26, 55 L.Ed.2d 707
(1978); Automobile Workers, supra, 352
US., at 570-575, 77 S.Ct., at 530-533. Sec-
ond, such regulation serves to protect the
interests of individuals who pay money into
@ corporation or union for purposes other
than the support of candidates for public
office. See NRWC, supra, 459 US., at
208, 103 S.Ct., at 559; Pipefitters v. Unit-


618

statute, the FEC filed a complaint in Feder-
al District Court, seeking a civil penalty
and other relief. The District Court grant-
ed appellee’s motion for summary judg-
ment, holding that § 316 did not apply to
appellee but that if it did it was unconstitu-
tional as a violation of the First Amend-
ment. The Court of Appeals held that the
statute applied to appellee and as so ap-
plied was unconstitutional.
_lsHeld: The judgment is affirmed.

769 F.2d 13, affirmed.

Justice BRENNAN delivered the opin-
ion of the Court as to Parts I, II, III-B, and
IlI-C, concluding that:

1. Appellee’s publication and distribu-
tion of the “Special Edition” violated § 316.
Pp. 621-624.

(a) There is no merit to appellee’s con-
tention that preparation and distribution of
the “Special Edition” does not fall within
§ 316’s definition of “expenditure” as the
provision of various things of value “to any
candidate, campaign committee, or political
party or organization, in connection with
any election,” especially since the general
definitions section of the FECA broadly
defines “expenditure” as including provi-
sion of anything of value made “for the
purpose of influencing any election for Fed-
eral office.” Moreover, the legislative his-
tory clearly confirms that § 316 was meant
to proscribe expenditures in connection
with an election. That history makes clear
that Congress has long regarded it as in-
sufficient merely to restrict payments
made directly to candidates or campaign
organizations. Pp. 621-623.

(b) An expenditure must constitute
“express advocacy” in order to be subject
to § 316’s prohibition. Here, the publica-
tion of the “Special Edition”. constituted
“express advocacy,” since it represented
express advocacy of the election of particu-
lar candidates distributed to members of
the general public. Pp. 623-624.

(c) Appellee is not entitled to the press
exemption under the FECA reserved for
any news story, commentary, or editorial
distributed through any “periodical publica-

107 SUPREME COURT REPORTER

479 U.S, 238

tion,” since even assuming that appellee’s
regular newsletter is exempt under this
provision, the “Special Edition” cannot be
considered comparable to any single issue
of the newsletter in view of the method by
which it was prepared and distributed. Pp.
623-624,

2. Section 316’s restriction of indepen-
dent spending is unconstitutional as applied
to appellee, for it infringes protected
speech without a compelling justification
for such infringement. The concern under-
lying the regulation of corporate political
activity—that organizations that amass
great wealth in the economic marketplace
not gain unfair advantage in the political
marketplace—is absent with regard to ap-
pellee. Appellee was formed to dissemi-
nate political ideas, not to amass capital.
It has no shareholders or other persons
having a claim on its assets or earnings,
but obtains its funds from persons who
make contributions to further the organiza-
tion’s political purposes. It was not estab-
lished by a business corporation or a labor
union, and its policy is not to accept contri-
butions from such entities. Pp. 627-631.

_tzoJustice BRENNAN, joined by Jus-
tice MARSHALL, Justice POWELL, and
Justice SCALIA, concluded in Part III-A
that the practical effect of applying § 316
to appellee of discouraging protected
speech is sufficient to characterize § 316 as
an infringement on First Amendment activ-
ities. As a corporation, appellee is subject
to more extensive requirements and more
stringent restrictions under the FECA than
it would be if was not incorporated. These
include detailed recordkeeping and disclo-
sure obligations, the requirement of a com-
plex and formalized organization, and a
limitation on whom can be solicited for
contributions, all of which create a disin-
centive for such an organization to engage
in political speech. Pp. 624-627.

Justice O’CONNOR, agreeing that
§ 816 is unconstitutional as applied to ap-
pellee’s conduct at issue, concluded that the
significant burden on appellee comes not
from the statute’s disclosure requirements
that appellee must satisfy, but from the


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 U.S. 238
§§ 301(9)(B)(), 316, as amended, 2 U.S.C.A.
§§ 481(9)(B)(), 441b.

6. Elections 311.1

Distribution of campaign flyers by en-
tities that happen to publish newsletters
does not automatically entitle such orga-
nizations to press exemption of Federal
Election Campaign Act. Federal Election
Campaign Act of 1971, §§ 301(9)(B)(i), 316,
as amended, 2 US.C.A. §§ 431(9)(B)(i),
4A4lb.

7. Constitutional Law =90.1(1.2)
Elections 311

Section of Federal Election Campaign
Act prohibiting direct expenditure of corpo-
rate funds in connection with any election
burdens political speech by subjecting cor-
poration to more stringent restrictions un-
der the Act than if it were not incorporat-
ed. (Per opinion of Justice Brennan with
three Justices concurring.) Federal Election
Campaign Act of 1971, § 316, as amended,
2 US.C.A. § 441b; U.S.C.A. Const.Amend.
1.

8. Constitutional Law ¢=82(3)

When ‘statutory provision. burdens
First Amendment rights, it must be justi-
fied by a compelling state interest. U.S.
C.A. Const.Amend. 1.

9.. Constitutional Law ¢=90.1(1.2)
Elections 311

Section of Federal Election Campaign
Act prohibiting direct expenditure of corpo-
rate funds in connection with any election
violated First Amendment as applied to
nonprofit corporation which . published
newsletter urging readers to vote “pro-
life” in upcoming primary election; corpo-
ration was formed for express purpose of
promoting political ideas, had no sharehold-
ers or other persons with claim on its as-
sets or earnings, and was not established
by business corporation or labor union and
did not accept contributions from such enti-
ties. Federal Election Campaign Act of
* The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Re-
porter of Decisions for the convenience of the

617

1971, § 316, as amended, 2 U.S.C.A.
§ 441b; U.S.C.A. Const.Amend. 1.

Syllabus *

Section 816 of the Federal Election
Campaign Act (FECA) prohibits corpora-
tions from using treasury funds to make
an expenditure “in connection with” any
federal election, and requires that. any ex-
penditure for such purpose be financed by
voluntary contributions to a separate seg-
regated fund. Appellee is a nonprofit, non-
stock corporation, whose purpose is to fos-
ter respect for human life and to defend
the right to life of all human beings, born
and unborn, through educational, political,
and other forms of activities. To further
this purpose, it has published a newsletter
that has been distributed to contributors
and to noncontributors who have expressed
support for the organization. In Septem-
ber 1978, appellee prepared and distributed
a “Special Election Edition” exhorting read-
ers to vote “pro-life” in the upcoming pri-
mary elections in Massachusetts, listing the
candidates for each state and federal office
in every voting district in the State, and
identifying each one as either supporting or
opposing appellee’s views. While some 400
candidates were listed, the photographs of
only 18 were featured, all of whom were
identified as favoring appellee’s views.
The publication was prepared by a staff
that had prepared no’ regular newsletter,
was distributed to a much larger audience
than that of the regular newsletter, most
of whom were members of the general
public, and was financed by money taken
from appellee’s general treasury funds. A
complaint was filed with appellant Federal
Election Commission (FEC) alleging that
the “Special Edition” violated § 316 as rep-
resenting an expenditure of funds from a
corporate treasury to distribute to the gen-
eral public a campaign flyer on behalf of:
certain political candidates. After the FEC
determined that there was probable cause
to believe that appellee had violated the

reader. See United States v. Detroit Lumber Co.,

200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.
499,


628

tees); Buckley, 424 U.S., at 39-51, 96 S.Ct.,
at 644-650 (striking down expenditure lim-
its in 1971 Campaign Act). Relative avail-
ability of funds is after all a rough barome-
ter of public support. The resources in the
treasury of.a business corporation, how-
ever, are not an indication of popular sup-
port for the corporation’s political ideas.
They reflect instead the economically moti-
vated decisions of investors and customers.
The availability of these resources may
make a corporation a formidable political
presence, even though the power of the
corporation may be no reflection of the
power of its ideas.

By requiring that corporate independent
expenditures be financed through a politi-
cal committee expressly established to en-
gage in campaign spending, § 441b seeks
to prevent this threat to the political mar-
ketplace. The resources available to this
fund, as opposed to the corporate treasury,
in fact reflect popular support for the polit-
ical positions of the committee. Pipefit-
ters, supra, acknowledged this objective of
§ 441b in noting the statement of Repre-
sentative Hansen, its sponsor, that the
“‘anderlying theory’” of this regulation
“4s that substantial general purpose treas-
uries should not be diverted to political
purposes,’” and that requiring funding by
voluntary contributions would ensure that
“the money collected is that intended by
those who contribute to be used for politi-
cal purposes and not money diverted from
another source.” 407 U.S., at 423-424, 92
S.Ct. at 2268-2269 (quoting 117 Cong.Rec.
43381 (1971). See also Automobile
Workers, supra, 352 U.S., at 582, 77 S.Ct.,
at 536_j250(Congress added proscription on
11. While business corporations may not repre-

sent the only organizations that pose this dan-

ger, they are by far the most prominent example
of entities that enjoy legal advantages enhancing
their ability to accumulate wealth. That Con-
gress does not at present seek to regulate every
possible type of firm fitting this description does
not undermine its justification for regulating
corporations. Rather, Congress’ decision repre-
sents the “careful legislative adjustment of the
federal electoral laws, in a ‘cautious advance,

step by step,’” to which we have said we owe
considerable deference. FEC v. National Right

107 SUPREME COURT REPORTER

479 U.S. 258

expenditures to Corrupt Practices Act “to
protect the political process from: what it
deemed to be the corroding effect of money
employed in elections by aggregated pow-
er’). The expenditure restrictions of
§ 441b are thus meant to ensure that com-
petition among actors in the political arena
is truly competition among ideas.

Regulation of corporate political activity
thus has reflected concern not about use of
the corporate form per se, but about the
potential for unfair deployment of wealth
for political purposes.!2 Groups such as
MCFL, however, do not pose.that danger of
corruption. MCFL was formed to dissemi-
nate political ideas, not to amass capital.
The resources it has available are not a
function of its success in the economic mar-
ketplace, but its popularity in the political
marketplace. While MCFL may derive
some advantages from its corporate form,
those are advantages that redound to its
benefit as a political organization, not as a
profit-making enterprise. In short, MCFL
is not the type of “traditional corporatio[n]
organized for economic gain,” NCPAC, su-
pra, 470 US., at 500, 105 S.Ct, at 1470,
that has been the focus of regulation of
corporate political activity.

National Right to Work Committee
does not support the inclusion of MCFL
within § 441b’s restriction on direct inde-
pendent spending. That case upheld the
application to a nonprofit corporation of a
different provision of § 441b: the limita-
tion on who can be solicited for contribu-
tions to a political committee. However,
the political activity at issue in that case
was contributions, as the committee had

to Work Committee, 459 US. 197, 209, 103 S.Ct.
552, 560, 74 L.Ed.2d 364 (1982) (quoting NLRB
v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46,
57 S.Ct. 615, 628, 81 L.Ed. 893 (1937)).

12, The regulation imposed as a result of this
concern is of course distinguishable from the
complete foreclosure of any opportunity for po-
litical speech that we invalidated in the state
referendum context in First National Bank of
Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55
L.Ed.2d 707 (1978).


FEDERAL ELECTION COM’N v. MASS. CITIZENS FOR LIFE
Cite as 107 S.Ct. 616 (1986)

479 U.S. 265

Regardless of whether that concern is
adequate to support application of § 441b
to commercial enterprises, a question not
before us, that justification does not extend
uniformly to all corporations. Some corpo-
rations have features more akin to volun-
tary political associations than business
firms, and therefore should not have to
bear burdens on independent spending sole-
ly because of their incorporated status.

In particular, MCFL has three features
essential to our holding that it may not
constitutionally be bound by § 441b’s

_lgurestriction on independent spending.
First, it was formed for the express pur-
pose of promoting political ideas, and can-
not engage in business activities. If politi-
cal fundraising events are expressly de-
nominated as requests for contributions
that will be used for political purposes,
including direct expenditures, these events
cannot be considered business activities.
This ensures that political resources reflect
political support. Second, it has no share-
holders or other persons affiliated so as to
have a claim on its assets or earnings.
This ensures that persons connected with
the organization will have no economic di-
sincentive for disassociating with it if they
disagree with its political activity.5 Third,
MCFL was not established by a business
corporation or a labor union, and it is its
policy not to accept contributions from
such entities. This prevents such corpora-
tions from serving as conduits for the type
of direct spending that creates a threat to
the political marketplace.

It may be that the class of organizations
affected by our holding today will be small.
That prospect, however, does not diminish
the significance of the rights at stake.
Freedom of speech plays a fundamental
role in a democracy; as this Court has said,

13. This restriction does not deprive such orga-
nizations of “members” that can be solicited for
donations to a separate segregated fund that
makes contributions to candidates, a fund that,
under our decision in National Right to Work
Committee, must be established by all corpora-
tions wishing to make such candidate contribu-
tions. National Right to Work Committee re-
quires that “members” have either a “financial

631

freedom of thought and speech “is the ma-
trix, the indispensable condition, of nearly
every other form of freedom.” Palko v.
Connecticut, 302 U.S. 319, 327, 58 S.Ct.
149, 152, 82 L.Ed. 288 (1937). Our pursuit
of other governmental ends, however, may
tempt us to accept in small increments a
loss that would jgssbe unthinkable if inflict-
ed all at once. For this reason, we must be
as vigilant against the modest diminution
of speech as we are against its sweeping
restriction. Where at all possible, govern-
ment must curtail speech only to the de-
gree necessary to meet the particular prob-
lem at hand, and must avoid infringing on
speech that does not pose the danger that
has prompted regulation. In enacting the
provision at issue in this case, Congress
has chosen too blunt an instrument for
such a delicate task.

The judgment of the Court of Appeals is

Affirmed.

Justice O'CONNOR, concurring in part
and concurring in the judgment.

I join Parts I, II, II-B, and III-C, and I
concur in the Court’s judgment that § 316
of the Federal Election Campaign Act
(Act), 2 U.S.C. § 441b, is unconstitutional
as applied to the conduct of appellee Mas-
sachusetts Citizens for Life, Inc. (MCFL),
at issue in this case. I write separately,
however, because I am concerned that the
Court’s discussion of the Act’s disclosure
requirements may be read as moving away
from the teaching of Buckley v. Valeo, 424
US. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976);
see ante, at 626. In Buckley, the Court
was concerned not only with the chilling
effect of reporting and disclosure require-
ments on an organization’s contributors,
424 US., at 66-68, 96 S.Ct., at 657-658, but
also with the potential burden of disclosure

or organizational attachment” to the corpora-
tion, 459 U.S., at 204, 103 S.Ct., at 557 (emphasis
added), Our decision today merely states that a
corporation that does not have persons affil-
iated financially must fall outside § 441b’s pro-
hibition on direct expenditures if it also has the
other two characteristics possessed by MCFL
that we discuss in text.