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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
NORTH CAROLINA RIGHT TO LIFE,
INCORPORATED; NORTH CAROLINA
RIGHT TO LIFE POLITICAL ACTION
COMMITTEE; NORTH CAROLINA
RIGHT TO LIFE COMMITTEE FUND FOR
INDEPENDENT POLITICAL
EXPENDITURES,
Plaintiffs-Appellees,
v.
LARRY LEAKE, in his official
capacity as Chairman of the North
Carolina State Board of Elections;
GENEVIEVE C. SIMS, in her official
capacity as Secretary of the StateNo. 02-2052
Board of Elections; ROBERT CORDLE,
in his official capacity as a member
of the State Board of Elections;
LORRAINE G. SHINN, in her official
capacity as a member of the State
Board of Elections; CHARLES
WINFREE, in his official capacity as
a member of the State Board of
Elections; ROBERT F. JOHNSON, in his
official capacity as District Attorney
for the North Carolina Prosecutorial
District 15A; ROY COOPER, in his
official capacity as the North
Carolina Attorney General,
Defendants-Appellants.
------------------------------------------------*
------------------------------------------------*
NORTH CAROLINA RIGHT TO LIFE,
INCORPORATED; NORTH CAROLINA
RIGHT TO LIFE POLITICAL ACTION
COMMITTEE; NORTH CAROLINA
RIGHT TO LIFE COMMITTEE FUND FOR
INDEPENDENT POLITICAL
EXPENDITURES,
Plaintiffs-Appellants,
v.
LARRY LEAKE, in his official
capacity as Chairman of the North
Carolina State Board of Elections;
GENEVIEVE C. SIMS, in her official
capacity as Secretary of the StateNo. 02-2053
Board of Elections; ROBERT CORDLE,
in his official capacity as a member
of the State Board of Elections;
LORRAINE G. SHINN, in her official
capacity as a member of the State
Board of Elections; CHARLES
WINFREE, in his official capacity as
a member of the State Board of
Elections; ROBERT F. JOHNSON, in his
official capacity as District Attorney
for the North Carolina Prosecutorial
District 15A; ROY COOPER, in his
official capacity as the North
Carolina Attorney General,
Defendants-Appellees.
------------------------------------------------*
Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (CA-99-798-5-BO)
2
Argued: May 6, 2003
Decided: September 23, 2003
Before WIDENER and MICHAEL, Circuit Judges, and Frank W. BULLOCK, Jr., United States District Judge for the Middle District of North Carolina, sitting by designation.
____________________________________________________________
Affirmed in part and reversed in part by published opinion. Judge
Bullock wrote the opinion, in which Judge Widener joined. Judge
Michael wrote an opinion concurring in part and dissenting in part.
____________________________________________________________
COUNSEL
ARGUED: Alexander McClure Peters, Special Deputy Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants. James Bopp, Jr., BOPP,
COLESON & BOSTROM, Terre Haute, Indiana, for Appellees. ON
BRIEF: Roy Cooper, North Carolina Attorney General, Susan K.
Nichols, Special Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lants. Eric C. Bohnet, BOPP, COLESON & BOSTROM, Terre Haute,
Indiana, for Appellees.
____________________________________________________________
OPINION
BULLOCK, District Judge:
Appellees North Carolina Right to Life, Inc. ("NCRL"), North Car-
olina Right to Life Political Action Committee ("NCRLPAC"), and
North Carolina Right to Life Committee Fund for Independent Politi-
cal Expenditures ("NCRLC-FIPE") filed suit in federal court chal-
lenging the constitutionality of certain provisions of North Carolina's
election and campaign finance laws. In a mixed result for both sides,
3
the district court declared certain of the challenged provisions uncon-
stitutional and permanently enjoined the State of North Carolina from
enforcing those provisions. Both sides now appeal. For the reasons
that follow, we affirm in part and reverse in part.
I.
NCRL is a non-profit, membership corporation, incorporated in
North Carolina, with local chapters throughout the State. According
to NCRL, its major purpose is not the nomination or election of can-
didates, but rather to educate North Carolinians regarding pro-life
issues. NCRLPAC is an internal political committee established by
NCRL to engage in express advocacy consistent with the views of
NCRL. NCRLPAC's primary purpose is to support or oppose specific
candidates and political parties. NCRLC-FIPE is also an internal
political action committee created by NCRL. Its sole purpose is to
make independent expenditures and it may not make monetary or in-
kind contributions to candidates.
This action is the sequel to litigation that was commenced in 1996,
in which NCRL successfully challenged certain provisions of the
North Carolina campaign finance laws. See North Carolina Right to
Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) ("NCRL I").
Responding to this court's decision, the North Carolina General
Assembly adopted legislation that amended, deleted, and added cam-
paign finance statutes. Following these legislative changes, NCRL
filed this suit again challenging as facially unconstitutional certain
provisions of these statutes.
First, NCRL challenged the provision setting forth the method for
determining whether a communication supports or opposes the nomi-
nation or election of a particular candidate. N.C. Gen. Stat. § 163-
278.14A(a)(2) (2001). NCRL argued that the statute unconstitution-
ally regulates issue advocacy. Second, NCRL challenged North Caro-
lina's definition of political committee on the ground that it
unconstitutionally presumes that an entity has as a major purpose to
support or oppose a candidate when an entity contributes or expends
more than $3,000.00 during an election cycle. Id. § 163-278.6(14).
Third, NCRL challenged the $4,000.00 contribution limit to indepen-
dent expenditure political action committees on the ground that such
4
contributions do not present the risk of quid pro quo corruption or its
appearance. Id. § 163-278.13. Fourth, NCRL challenged the provision
requiring that entities making expenditures on printed material or
advertisements that name candidates to report such expenditures. Id.
§ 163-278.12A. Finally, NCRL challenged the requirement that a
sponsor must provide a disclaimer of support or opposition for a can-
didate in its advertisements. Id. § 163-278.39(a)(3).
NCRL and the State filed cross motions for summary judgment
pursuant to Federal Rule of Civil Procedure 56. On October 24, 2001,
the district court granted summary judgment for NCRL on two of the
three primary statutory provisions at issue and enjoined their enforce-
ment. As to Section 163-278.14A(a)(2), the district court held that the
provision impermissibly broadened the scope of "express advocacy"
as defined by the Supreme Court in Buckley v. Valeo, 424 U.S. 1
(1976). Section 163-278.14A(a)(2), according to the district court, is
unconstitutional because it "does not limit the scope of `express advo-
cacy' to communications that literally include words that, in and of
themselves, advocate the election or defeat of a candidate, as was
required in Buckley." (J.A. at 183-84.) With regard to Section 163-
278.6(14), which incorporates Section 163-278.14A, the district court
held in an amended order that it could be read constitutionally pro-
vided Section 163-278.14A(a)(2) was severed from the rest of the
section. The district court rejected NCRL's position that Section 163-
278.6(14)'s presumption of political committee status based on an
entity's expenditures violated the First Amendment. With regard to
Section 163-278.13, the district court held that a limit on contribu-
tions to political committees that engage solely in making indepen-
dent expenditures was unconstitutional. Finally, the district court held
that NCRL's challenge to Sections 163-278.12A and 163-
278.39(a)(3) was moot.
Both parties now appeal. The State appeals on the grounds that the
district court erred in declaring Sections 163-278.14A(a)(2) and 163-
278.13 unconstitutional. NCRL appeals claiming that the district court
erred in dismissing its challenge to Section 163-278.6(14)'s major
purpose presumption. NCRL also assigns as error the district court's
determination that its challenge to Section 163-278.12A was moot.
5
II.
Before addressing the merits of the parties' contentions, an under-
standing of the statutory provisions at issue is necessary. Under Sec-
tion 163-278.6(14), a "political committee" is defined to mean:
a combination of two or more individuals, such as any per-
son, committee, association, organization, or other entity
that makes, or accepts anything of value to make, contribu-
tions or expenditures and has one or more of the following
characteristics:
a. Is controlled by a candidate;
b. Is a political party or executive committee of a political
party or is controlled by a political party or executive com-
mittee of a political party;
c. Is created by a corporation, business entity, insurance
company, labor union, or professional association pursuant
to G.S. 163-278.19(b); or
d. Has as a major purpose to support or oppose the nomi-
nation or election of one or more clearly identified candi-
dates.
. . .
An entity is rebuttably presumed to have as a major purpose
to support or oppose the nomination or election of one or
more clearly identified candidates if it contributes or
expends or both contributes and expends during an election
cycle more than three thousand dollars ($3,000). The pre-
sumption may be rebutted by showing that the contributions
and expenditures giving rise to the presumption were not a
major part of activities of the organization during the elec-
tion cycle . . . .
N.C. Gen. Stat. § 163-278.6(14) (2001). Accordingly, to be regarded
as a political committee, and therefore be subject to the regulations
6
attendant to that status, requires that an entity (1) make contributions
or expenditures and (2) have one or more of the enumerated charac-
teristics.
An expenditure, and similarly a contribution, is defined as "any
purchase, advance, conveyance, deposit, distribution, transfer of
funds, loan, payment, gift, pledge or subscription of money or any-
thing of value whatsoever, . . . to support or oppose the nomination
[or] election . . . of one or more clearly identified candidates." Id.
§ 163-278.6(9); see also id. § 163-278.6(6) (similarly defining the
term "contribution"). To determine whether a purchase or advance is
made to "support or oppose" a candidate, and thus be considered an
expenditure, an "express advocacy" test is employed. Section 163-
278.14A, which sets forth the two alternative prongs of the express
advocacy test, provides:
(a) Either of the following shall be means, but not neces-
sarily the exclusive or conclusive means, of proving
that an individual or other entity acted "to support or
oppose the nomination or election of one or more
clearly identified candidates":
(1) Evidence of financial sponsorship of commu-
nications to the general public that use
phrases such as "vote for", "reelect", "sup-
port", "cast your ballot for", "(name of candi-
date) for (name of office)", "(name of
candidate) in (year)", "vote against", "de-
feat", "reject", "vote pro-(policy position)" or
"vote anti-(policy position)" accompanied by
a list of candidates clearly labeled "pro-
(policy position)" or "anti-(policy position) ",
or communications of campaign words or
slogans, such as posters, bumper stickers,
advertisements, etc., which say "(name of
candidate)'s the One", "(name of candidate)
'98", "(name of candidate)!", or the names of
two candidates joined by a hyphen or slash.
(2) Evidence of financial sponsorship of commu-
nications whose essential nature expresses
7
electoral advocacy to the general public and
goes beyond a mere discussion of public
issues in that they direct voters to take some
action to nominate, elect, or defeat a candi-
date in an election. If the course of action is
unclear, contextual factors such as the lan-
guage of the communication as a whole, the
timing of the communication in relation to
events of the day, the distribution of the com-
munication to a significant number of regis-
tered voters for that candidate's election, and
the cost of the communication may be con-
sidered in determining whether the action
urged could only be interpreted by a reason-
able person as advocating the nomination,
election, or defeat of that candidate in that
election.
Id. § 163-278.14A(a). If a communication supports or opposes a par-
ticular candidate, as determined by application of the two methods
described above, an entity's financial sponsorship of that communica-
tion will be deemed an expenditure, and thus satisfy the first require-
ment of the political committee definition.
The second requirement for designation as a political committee,
in addition to the contribution and expenditure requirement, is that an
entity qualify as one of the following: (1) a candidate-controlled orga-
nization; (2) a political party; (3) an organization created by a corpo-
ration, business entity, insurance company, labor union, or
professional association; or (4) an organization that "[h]as as a major
purpose to support or oppose the nomination or election of one or
more clearly identified candidates." Id. § 163-278.6(14). For purposes
of this appeal, only the "major purpose" characteristic is at issue.
North Carolina's "major purpose" test provides that if an entity makes
more than $3,000.00 in contributions and/or expenditures during an
election cycle, it is presumed to have as a "major purpose" the elec-
tion or defeat of a candidate. Id. An entity may rebut the presumption
by "showing that the contributions and expenditures giving rise to the
presumption were not a major part of activities of the organization
during the election cycle." Id. Ultimately, however, the State bears the
8
burden of proving that an entity's major purpose is to support or
oppose a particular candidate. Id. § 163-278.34A.1
As a consequence of being regarded by the State as a political com-
mittee, an entity is subject to administrative and regulatory require-
ments. A political committee is required to appoint a treasurer, file a
statement of organization, maintain detailed accounts of all contribu-
tions received and expenditures made, and file periodic statements
with the State Board of Elections. Id. §§ 163-278.7, .8, .9, .11. If an
entity fails to comply with these requirements, it may be subject to
prosecution for a class 2 misdemeanor, as well as civil late-filing
fines. Id. §§ 163-278.27, .34.
In addition to the provisions relating to the definition of political
committee, NCRL challenged Section 163-278.13, which defines the
limits on contributions an individual or entity can make. Section 163-
278.13 provides in part: "No individual, political committee, or other
entity shall contribute to any candidate or other political committee
any money or make any other contribution in any election in excess
of four thousand dollars ($4,000) for that election." Id. § 163-
278.13(a). This contribution limit applies equally to contributions
made to "independent expenditure political committees", i.e., political
committees that make only independent expenditures. An independent
expenditure, in turn, is defined to mean "an expenditure to support or
oppose the nomination or election of one or more clearly identified
candidates that is made without consultation or coordination with a
candidate or agent of a candidate." Id. § 163-278.6(9a).
The final statutory provisions challenged merit no discussion of
their terms. We have already declared Section 163-278.12A unconsti-
tutional in Perry v. Bartlett, 231 F.3d 155 (4th Cir. 2000), and Section
163-278.39(a)(3) was repealed by the General Assembly effective
August 10, 2001.
____________________________________________________________
1 Section 163-278.34A provides: "In any proceeding brought pursuant
to this Article in which a presumption arises from the proof of certain
facts, the defendant may offer some evidence to rebut the presumption,
but the State bears the ultimate burden of proving the essential elements
of its case."
9
We now turn to the merits which we review under the "exacting
scrutiny applicable to limitations on core First Amendment rights of
political expression." Buckley v. Valeo, 424 U.S. 1, 44-45 (1976);
FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252
(1986) ("MCFL") (stating that a statutory provision that burdens polit-
ical speech must be justified by a compelling state interest).
III.
The Supreme Court adopted in Buckley a bright-line test for deter-
mining whether communications may constitutionally be regulated as
electoral advocacy. Under the Court's "express advocacy" test, only
expenditures for "communications that include explicit words of
advocacy of election or defeat of a candidate" are subject to regula-
tion. Buckley, 424 U.S. at 43. The rationale for the Court's bright-line
rule was that "the distinction between discussion of issues and candi-
dates and advocacy of election or defeat of candidates may often dis-
solve in practical application. Candidates, especially incumbents, are
intimately tied to public issues involving legislative proposals and
governmental actions." Id. at 42. Accordingly, the Court "refused to
adopt a standard allowing regulation of any advertisement that men-
tions a candidate's stand on an issue." Perry, 231 F.3d at 160 (citing
Buckley, 424 U.S. at 42-43). The Court provided, in a now famous
footnote, a list of illustrative words and phrases that qualify as "ex-
press words of advocacy." Buckley, 424 U.S. at 44 n.52.
The first prong of North Carolina's "express advocacy" test mirrors
the "express advocacy" test adopted in Buckley and reaffirmed in
MCFL. Section 163-278.14A(a)(1) provides that an entity acts to sup-
port or oppose a particular candidate when it uses words or phrases
such as "vote for", "reelect", "support", "defeat", "reject", "vote pro-
(policy position)" accompanied by a list of candidates clearly labeled
"pro-(policy position)", etc. N.C. Gen. Stat. § 163-278.14A(a)(1)
(2001). NCRL does not challenge the validity of this provision.
Rather, its challenge is directed to the second prong of North Caroli-
na's express advocacy test.
If an entity does not satisfy the first prong of the North Carolina
express advocacy test, the second prong, or "context prong," provides
an additional means of determining whether an entity acts to support
10
or oppose a candidate. Under the context prong, the following is a
means of proving that an entity acted to support or oppose a candi-
date:
Evidence of financial sponsorship of communications whose
essential nature expresses electoral advocacy to the general
public and goes beyond a mere discussion of public issues
in that they direct voters to take some action to nominate,
elect, or defeat a candidate in an election. If the course of
action is unclear, contextual factors such as the language of
the communication as a whole, the timing of the communi-
cation in relation to events of the day, the distribution of the
communication to a significant number of registered voters
for that candidate's election, and the cost of the communica-
tion may be considered in determining whether the action
urged could only be interpreted by a reasonable person as
advocating the nomination, election, or defeat of that candi-
date in that election.
Id. § 163-278.14A(a)(2).
The district court held that the context prong of Section 163-
278.14A impermissibly regulates issue advocacy. This test, the dis-
trict court held, violates the express advocacy test adopted by the
Supreme Court in that it "does not limit the scope of `express advo-
cacy' to include only `clear words that "directly fit the term [`express
advocacy'],"'" but instead allows consideration of various contextual
factors. (J.A. at 186.) We agree, and thus Section 163-278.14A(a)(2)
is unconstitutionally vague and overbroad.2
____________________________________________________________
2 Our dissenting colleague would uphold the first sentence of Section
163-278.14A(a)(2) as focusing only on express advocacy and faithful to
the Supreme Court's analysis in MCFL. The dissent correctly notes that
the Court in MCFL looked to the "essential nature" of the communication
in determining whether it communicated electoral advocacy of a particu-
lar candidate. Yet while the Court considered the communication's
essential nature, the focus of the Court's inquiry, as dictated by Buckley,
remained on the actual words of advocacy. No such limitation is pro-
vided for under the "essential nature" standard of the first sentence. This
circuit, however, has consistently interpreted Buckley as allowing regula-
11
The ability to consider a communication's context, the State con-
tends, was expressly approved by this court in FEC v. Christian
Action Network, Inc., 110 F.3d 1049, 1052-55 (4th Cir. 1997) ("CAN
II"). In CAN II, we cited the Ninth Circuit decision in FEC v. Fur-
gatch, 807 F.2d 857 (9th Cir. 1987), summarizing its holding as per-
mitting, in those instances where political communications do include
an explicit directive to voters to take some course of action but that
course of action is unclear, consideration of "context" in determining
whether the action urged is the election or defeat of a particular candi-
date. CAN II, 110 F.3d at 1054. The State's reliance on our acknowl-
edgment of Furgatch, however, is misplaced.
Our statement in CAN II regarding the Ninth Circuit's express
advocacy test was not a statement of the law in this circuit. The court
in CAN II was not tasked with determining the constitutionality of a
particular regulation; that determination had already been made in an
earlier decision. FEC v. Christian Action Network, 894 F. Supp. 946
(W.D. Va. 1995), aff'd, 92 F.3d 1178, 1996 WL 431996 (4th Cir.
1996) (per curiam) (adopting district court opinion). Instead, the issue
before the court was whether the FEC's litigation position in the ear-
lier decision lacked substantial justification, and if so whether it was
liable for attorney's fees under the Equal Access to Justice Act. CAN
II, 110 F.3d at 1050. Consequently, this court analyzed Furgatch as
the broadest judicial description of the Buckley express advocacy test
in order to determine whether the FEC was justified in arguing that
"no words of advocacy are necessary to expressly advocate the elec-
tion of a candidate." Id. at 1064. Therefore, as a pronouncement of
this circuit's express advocacy test, CAN II's reference to the Fur-
gatch holding is not applicable.
____________________________________________________________
tion "only if it [is] limited to expenditures for communications that liter-
ally include words which in and of themselves advocate the election or
defeat of a candidate." Virginia Soc'y for Human Life, Inc. v. FEC, 263
F.3d 379, 391 (4th Cir. 2001) (quoting FEC v. Christian Action Network,
Inc., 110 F.3d 1049, 1051 (4th Cir. 1997)). We believe, therefore, that
the first sentence of Section 163-278.14A(a)(2) impermissibly dilutes the
Buckley standard by allowing regulation of communications which do
not contain explicit words of advocacy.
12
Furthermore, the holding in Furgatch is contrary to the precedent
of this court. This circuit, along with many of our sister circuits, has
rejected the expanded view of express advocacy adopted by the Ninth
Circuit. See, e.g., Chamber of Commerce of the United States v.
Moore, 288 F.3d 187, 194 (5th Cir. 2002); Virginia Soc'y for Human
Life, Inc. v. FEC, 263 F.3d 379, 391 (4th Cir. 2001) ("VSHL II"); Citi-
zens for Responsible Gov't State Political Action Comm. v. Davidson,
236 F.3d 1174, 1187 (10th Cir. 2000); Vermont Right to Life Comm.,
Inc. v. Sorrell, 221 F.3d 376, 386-87 (2d Cir. 2000); Iowa Right to
Life Comm., Inc. v. Williams, 187 F.3d 963, 969-70 (8th Cir. 1999);
Faucher v. FEC, 928 F.2d 468, 471 (1st Cir. 1991). Admittedly, the
Ninth Circuit's test does not stray far from other articulations of the
express advocacy standard. The primary focus of the Ninth Circuit's
standard is on the words themselves and in this regard it is consistent
with our view of express advocacy. Furgatch, 807 F.2d at 864. The
Ninth Circuit's view of express advocacy, however, is inconsistent
with our view to the extent that it permits consideration of the com-
munication's context in determining whether a communication advo-
cates the election or defeat of a particular candidate for public office.
Id. at 863-64 ("We conclude that context is relevant to a determina-
tion of express advocacy. A consideration of the context in which
speech is uttered may clarify ideas that are not perfectly articulated,
or supply necessary premises that are unexpressed but widely under-
stood by readers or viewers."). In this regard, the Ninth Circuit's for-
mulation of the express advocacy standard is broader than the bright-
line rule adopted in this circuit and we reject it as insufficiently pro-
tective of the First Amendment.
This court has "steadfastly adhered to the bright-line `express advo-
cacy' test from Buckley," Perry, 231 F.3d at 160, and has ruled
repeatedly that communications cannot be subject to campaign
finance restrictions unless they use "explicit words of candidate advo-
cacy." CAN II, 110 F.3d at 1051. We have described this circuit's
reading of the express advocacy limitation of Buckley and MCFL as
narrow and strict and limited to "`communications that literally
include words which in and of themselves advocate the election or
defeat of a candidate.'" VSHL II, 263 F.3d at 391 (quoting CAN II,
110 F.3d at 1051). To be faithful to the bright-line standard articu-
lated by the Supreme Court, any inquiry into whether a communica-
13
tion supports or opposes the election of a particular candidate must
focus only on the actual words of advocacy.
The State argues that limiting the definition of express advocacy to
include speech that includes only "magic words" such as those
described in Buckley's famous footnote 52 misinterprets the meaning
and intent of Buckley. To the contrary, this was exactly the meaning
and intent of the Buckley Court.
The Court opted for the clear, categorical limitation, that
only expenditures for communications using explicit words
of candidate advocacy are prohibited, so that citizen partici-
pants in the political processes would not have their core
First Amendment rights to political speech burdened by
apprehensions that their advocacy of issues might later be
interpreted by the government as, instead, advocacy of elec-
tion results.
CAN II, 110 F.3d at 1051. The Supreme Court recognized that appli-
cation of a bright-line approach would "undoubtedly allow[ ] individ-
uals and organizations to circumvent electoral regulations simply by
omitting from their communications the genre of words and phrases
that convey the same meaning as the words listed in Buckley." Cham-
ber of Commerce, 288 F.3d at 195; Furgatch, 807 F.2d at 863. An
unequivocal bright-line standard, the Buckley Court acknowledged,
will "undermine[ ] [any] limitation's effectiveness as a loophole-
closing provision by facilitating circumvention by those seeking to
exert improper influence upon a candidate or officeholder." Buckley,
424 U.S. at 45. Such an approach was nevertheless adopted because
"absent the bright-line limitation, the distinction between issue discus-
sion (in the context of electoral politics) and candidate advocacy
would be sufficiently indistinct that the right of citizens to engage in
the vigorous discussion of issues of public interest without fear of
official reprisal would be intolerably chilled." CAN II, 110 F.3d at
1051. Thus, while certain entities may be able to skirt just outside of
the law's coverage, such a result has already been considered in the
Supreme Court's calculus and the Court decided to draw a bright line
that would "err on the side of permitting things that affect the election
process, but at all costs avoids restricting, in any way, discussion of
14
public issues." VSHL II, 263 F.3d at 392 (quoting Maine Right to Life
Comm., Inc. v. FEC, 914 F. Supp. 8, 12 (D. Me. 1996)).
The context prong of North Carolina's express advocacy test
extends the bright-line rule of Buckley and this court beyond a strict
and limited analysis of the actual words. Consideration of contextual
factors such as "the timing of the communication in relation to events
of the day, the distribution of the communication to a significant num-
ber of registered voters for that candidate's election, and the cost of
the communication" bear no relation to the words themselves. N.C.
Gen. Stat. § 163-278.14A(a)(2) (2001). Furthermore, the context
prong evaluates communications based upon how they would be
interpreted by "a reasonable person." Id. This inquiry "shifts the focus
of the express advocacy determination away from the words them-
selves to the overall impression of the hypothetical, reasonable lis-
tener or viewer," which is precisely what Buckley and its progeny
were designed to prohibit. VSHL II, 263 F.3d at 391-92. In no event
can the distinction between "express advocacy" and "issue advocacy"
depend on the understanding of the audience.
"[W]hether words intended and designed to fall short of
invitation would miss that mark is a question both of intent
and of effect. No speaker, in such circumstances, safely
could assume that anything he might say upon the general
subject would not be understood by some as an invitation.
In short, the supposedly clear-cut distinction between dis-
cussion, laudation, general advocacy, and solicitation puts
the speaker in these circumstances wholly at the mercy of
the varied understanding of his hearers and consequently of
whatever inference may be drawn as to his intent and mean-
ing.
Such a distinction offers no security for free discussion. In
these conditions it blankets with uncertainty whatever may
be said. It compels the speaker to hedge and trim."
Buckley, 424 U.S. at 43 (quoting Thomas v. Collins, 323 U.S. 516,
535 (1945)).
"Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of government
15
established by our Constitution." Id. at 14. The "unfettered inter-
change of ideas" guaranteed by the First Amendment would be
chilled by a regulatory scheme that allowed consideration of anything
other than the actual words of advocacy. Because the context prong
of the North Carolina express advocacy test permits consideration of
a communication's context and a reasonable person's interpretation,
it unconstitutionally "shifts the determination of what is `express
advocacy' away from the words `in and of themselves' to `the unpre-
dictability of audience interpretation.'" VSHL II, 263 F.3d at 392
(quoting CAN II, 110 F.3d at 1051, 1057).
The State argues that, even if the context prong impermissibly
extends the express advocacy test declared in Buckley, the district
court erred by failing to apply a limiting construction. It is well-
settled that a federal court must uphold a statute if it is "`readily sus-
ceptible' to a narrowing construction that would make it constitu-
tional . . . . The key to application of this principle is that the statute
must be `readily susceptible' to the limitation; we will not rewrite a
state law to conform it to constitutional requirements." Virginia v.
American Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988). The
State proposes that a limiting construction might be that the context
prong can be applied only to communications with explicit, verbal
directives to voters to take some electoral action and the context fac-
tors can be utilized only when the directive to take action is unambig-
uous but the specific action urged is not clear. It is difficult to discern
how this proposed instruction is materially different from what is
already provided for in the statute. Reference to criteria outside of the
actual words would still be required. Furthermore, this limiting con-
struction does not remove the vagaries inherent in a test dependent on
the understanding of the reasonable person under the circumstances.
Accordingly, the district did not err in failing to apply a limiting con-
struction.
IV.
As set forth in Section II, supra, to be regarded as a political com-
mittee requires that an entity (1) make contributions or expenditures
and (2) have one or more enumerated characteristics. Among the enu-
merated characteristics is the requirement that an entity "[have] as a
major purpose to support or oppose the nomination or election of one
16
or more clearly identified candidates." N.C. Gen. Stat. § 163-
278.6(14)(d) (2001). An entity is presumed to have as a major pur-
pose to support or oppose a candidate if it contributes and/or expends
more than $3,000.00 during an election cycle. Id. This presumption
may be rebutted by showing that the "contributions and expenditures
giving rise to the presumption were not a major part of activities of
the organization during the election cycle." Id.
NCRL challenged the rebuttable presumption created in the statute
arguing that it was both vague and overbroad. The district court
rejected NCRL's arguments, holding that the presumption was not
violative of the First Amendment. While a close question, we disagree
with the district court.
The genesis of the Supreme Court's major purpose test stems from
the Court's effort at giving a narrowing construction to the Federal
Election Campaign Act's provision requiring that entities falling
within the definition of "political committee" make certain financial
disclosures. Absent a narrowing construction, the Court noted, the
requirement that political committees "disclose their expenditures
could raise . . . vagueness problems, for `political committee' is
defined only in terms of amount of annual `contributions' and `expen-
ditures,' and could be interpreted to reach groups engaged purely in
issue discussion." Buckley, 424 U.S. at 79. Accordingly, the Court
held:
To fulfill the purposes of the Act [the term "political com-
mittee"] need only encompass organizations that are under
the control of a candidate or the major purpose of which is
the nomination or election of a candidate. Expenditures of
candidates and of "political committees" so construed can be
assumed to fall within the core area sought to be addressed
by Congress. They are, by definition, campaign related.
Id. The Court reiterated this construction of political committee in
MCFL. 479 U.S. at 252 n.6 (stating that "an entity subject to regula-
tion 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 candidate'").
17
NCRL argues that an entity can have only one major purpose and
that the major purpose test should be predicated on an entity spending
more than half of its budget on contributions and expenditures that
promote or oppose a candidate's election. Use of a flat monetary trig-
ger, NCRL asserts, is unconstitutional because it looks only to the
potential impact of an entity's activities on political debate, rather
than an entity's overall activities. Thus, it violates the fundamental
principle of the major purpose test in that it fails to identify entities
for which express support or opposition of a candidate is so central
to their purpose that all their activities can be presumed to advance
that purpose.
The district court rejected the proposition that an entity can have
but one major purpose and that the only constitutional standard for
determining major purpose is one that requires that an entity allocate
fifty percent of its disbursements for candidate advocacy. (J.A. at 240
n.1). Whether an entity can have multiple major purposes and whether
a certain percentage is constitutionally mandated are issues we need
not decide at this time.3 The constitutionality of North Carolina's
major purpose presumption can instead be decided on a more funda-
mental principle.
In order to frame the issue properly, it is helpful to understand what
the major purpose presumption is not. It is not, as the State correctly
points out, conclusive proof of an entity's major purpose. The fact
that an entity spends over $3,000.00 is only evidence of major pur-
pose. The burden of proving that an organization has as its major pur-
pose the support or defeat of a candidate remains with the State. N.C.
Gen. Stat. § 163-278.34A (2001). The presumption merely shifts the
burden of production to an entity to offer evidence that its contribu-
tions and expenditures were not a major part of its overall activities.
Nevertheless, the constitutional defect of the major purpose pre-
sumption is not so much the use of any presumption, but the fact that
____________________________________________________________
3 Adopting the narrow construction of the major purpose test advanced
by NCRL could lead to curious results however. As the district court
noted, an entity with a $3 million budget that expends as much as $1.4
million advocating the election or defeat of a particular candidate would
not qualify as a political committee under NCRL's interpretation.
18
instead of basing the major purpose standard on the nature of the
entity and its overall activities, the standard is based on an arbitrary
level of spending that bears no relation to the idiosyncracies of the
entity. This shifts the focus from the entity itself, where it belongs, to
the effect expenditures generally have on an election. The State pre-
sented evidence demonstrating that contributions or expenditures in
the amount of $3,000.00 are sufficient to have a "significant impact"
on a campaign in North Carolina. Whether this is true, and we accept
that it is, is immaterial to the determination of whether an entity has
as a major purpose to support or oppose a particular candidate.
For example, a $4,000,000.00 organization that spends $3,001.00
and a $4,000.00 organization that spends $3,001.00 would both have
the same "significant impact" on an election. Yet while the impact of
these entities' spending may be the same, their major purpose is not.
Any attempt to define statutorily the major purpose test cannot define
the test according to the effect some arbitrary level of spending has
on a given election. Such a standard poses the threat of subsuming
within its presumption entities that have as their "central organiza-
tional purpose . . . issue advocacy, although [they] occasionally
engage[ ] in activities on behalf of political candidates." MCFL, 479
U.S. at 252 n.6. Rather, the test must be based on the nature and over-
all activities of the entity itself. The test must examine whether an
entity's spending in support of or opposition to a candidate has "be-
come so extensive that [its] major purpose may be regarded as cam-
paign activity." Id. at 262 (citing Buckley, 424 U.S. at 79). This is
accomplished not by simply tabulating an entity's contributions and
expenditures, although that is an important factor, but by examining
an entity's stated purpose, which is typically reflected in its articles
of incorporation, and the extent of an entity's activities and funding
devoted to pure issue advocacy versus electoral advocacy. Id. at 241-
44.4
____________________________________________________________
4 The Court in MCFL considered MCFL's statement of purpose in its
articles of incorporation, its legislative and public demonstration activi-
ties, how it raised its finances, and its publications before determining
that "[i]ts central organizational purpose is issue advocacy, although it
occasionally engages in activities on behalf of political candidates."
MCFL, 479 U.S. at 241-43, 252 n.6.
19
The State nevertheless argues that the major purpose presumption
is in full accord with Buckley and MCFL because an entity is afforded
the opportunity to rebut the presumption by showing that its election-
eering activities were not a major part of its overall activities.
Although the statute provides that the major purpose presumption
may be rebutted, the ability to rebut the presumption does nothing to
ameliorate the unconstitutionality of a fixed monetary threshold that
bears no relation to the Buckley and MCFL major purpose standard.
The Supreme Court has on two occasions considered the constitu-
tionality of somewhat similar statutory presumptions, and on both
occasions the Court declared the presumptions unconstitutional. In
Riley v. National Federation of the Blind, 487 U.S. 781 (1988), the
Court considered the propriety of a North Carolina statute that prohib-
ited professional fundraisers from retaining an "unreasonable" or "ex-
cessive fee." A fee was defined as prima facie unreasonable or
excessive according to the percentage of total revenues collected. Id.
at 793. A fee exceeding thirty-five percent was "presumed unreason-
able," but the fundraiser was provided the opportunity to rebut the
presumption by proving either that the solicitation involved the dis-
semination of information or advocacy or that the charity's "ability to
raise money or communicate would be significantly diminished." Id.
at 785-86.
The Court held that this percentage-based test failed to pass consti-
tutional muster. The Court reasoned that because the "solicitation of
charitable contributions is protected speech, . . . using percentages to
decide the legality of the fundraiser's fee is not narrowly tailored to
the State's interest in preventing fraud." Id. at 789. The Court rejected
the proposition that the opportunity to rebut the presumption of unrea-
sonableness saved the statute. The Court stated that "even where a
prima facie showing of unreasonableness has been rebutted, the fact-
finder must still make an ultimate determination, on a case-by-case
basis, as to whether the fee was reasonable . . . ." Id. at 786. "Proof
that the solicitation involved the advocacy or dissemination of infor-
mation is not alone sufficient [to rebut the presumption]; it is merely
a factor that is added to the calculus submitted to the factfinder, who
may still decide that the costs incurred or the fundraiser's profit were
excessive." Id. at 793. Under this statute, "every campaign incurring
fees in excess of 35% . . . will be subject . . . to potential litigation
20
over the `reasonableness' of the fee." Id. at 794. Fundraisers exposed
to this litigation "must bear the costs of litigation and the risk of a
mistaken adverse finding by the factfinder." Id. The Court concluded,
therefore, that the uncertainty and risk created by"[t]his scheme must
necessarily chill speech in direct contravention of the First Amend-
ment's dictates." Id.
Similarly, in Virginia v. Black, a plurality of the Court declared
unconstitutional a Virginia cross-burning statute which provided that
"`[a]ny such burning of a cross shall be prima facie evidence of an
intent to intimidate a person or group of persons.'" 123 S. Ct. 1536,
1550 (2003) (quoting Va. Code Ann. § 18.2-423 (1996)). The plural-
ity reasoned that the prima facie evidence provision "permits a jury
to convict in every cross-burning case in which defendants exercise
their constitutional right not to put on a defense," or at a minimum
"makes it more likely that the jury will find an intent to intimidate
regardless of the particular facts of the case." Id. Furthermore,
because the "prima facie provision makes no effort to distinguish
among . . . different types of cross burnings," it potentially can "`skew
jury deliberations toward conviction in cases where the evidence of
intent to intimidate is relatively weak.'" Id. at 1551 (quoting infra at
1561 (Souter, J., concurring in the judgment in part and dissenting in
part)). Accordingly, the plurality concluded that the prima facie provi-
sion "`create[s] an unacceptable risk of the suppression of ideas,'" id.
(quoting Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 965 n.13 (1984)), and "chills constitutionally protected political
speech because of the possibility that a State will prosecute-and
potentially convict-somebody engaged only in lawful political
speech at the core of what the First Amendment is designed to pro-
tect." Id.
The presumption at issue here presents the same problems identi-
fied by the Court in Riley and Black. Although arguably less egre-
gious because the burden of proof remains on the State, the chilling
effect recognized by the Court in Riley and Black is nevertheless pres-
ent. Spending over $3,000.00 in contributions and expenditures may
be evidence of major purpose for some entities, but it is not evidence
of major purpose for all. Yet the presumption poses the potential of
skewing the factfinder's deliberation toward a finding of major pur-
pose for every entity that spends more than $3,000.00 on electoral
21
advocacy. Even in cases where an entity proffers evidence demon-
strating that its major purpose is not to support or oppose a particular
candidate, the presumption may encourage a factfinder to err on the
side of a finding of major purpose. See Black, 123 S. Ct. at 1561
(Souter, J., concurring in the judgment in part and dissenting in part).
Furthermore, entities that exceed the monetary threshold will be
subject to litigation and must bear the cost of that litigation. In addi-
tion to the costs of litigation, an entity must consider the appreciable
risk of a mistaken adverse determination. A determination of major
purpose will consequently lead to regulation as a political committee
and thereby subject an entity to costly disclosure and reporting
requirements. Moreover, an entity subsequently determined to be a
political committee that fails to comply with these requirements may
be subject to prosecution for a class 2 misdemeanor and imposition of
civil fines. The only alternative available to entities unwilling to
expose themselves to these costs, therefore, is to not engage in politi-
cal speech above the level proscribed by the State. But as the
Supreme Court concluded in Riley and Black, such an alternative
unacceptably leads to the suppression and chilling of protected politi-
cal speech.
The State certainly has an interest in regulating an entity's spend-
ing aimed at supporting or opposing a particular candidate's election.
The State's interest in regulating the level of spending on electoral
advocacy, however, is protected by disclosure and reporting require-
ments applicable to individuals and entities not otherwise subject to
reporting requirements. See N.C. Gen. Stat. § 163-278.12 (2001).
NCRL is required to file with the appropriate board of elections a
statement of all independent expenditures and contributions in excess
of $100.00. Id. § 163-278.12(a)-(b). Similarly, NCRL is required to
disclose to the State Board of Elections the identification of each
entity making a donation of more than $100.00 to NCRL if the dona-
tion was made for the purpose of furthering NCRL's reported inde-
pendent expenditures or contributions. Id. § 163-278.12(c). "The state
interest in disclosure therefore can be met in a manner less restrictive
than imposing the full panoply of regulations that accompany status
as a political committee . . . ." MCFL, 479 U.S. at 262.
22
The State's desire to establish a bright-line rule for when the pro-
cess of determining an entity's major purpose should commence is
understandable.5 The presumption is easily applied. Administrative
convenience, however, does not present a sufficient justification for
infringing First Amendment freedoms. Riley, 487 U.S. at 795 (stating
that "the First Amendment does not permit the State to sacrifice
speech for efficiency"). Therefore, because the monetary trigger con-
tained in Section 163-278.6(14) fails to account for the overall activi-
ties of an entity and may be used as evidence of an entity's major
purpose, we hold that it is unconstitutionally overbroad. We do not
suggest, however, that any presumption in this context is per se
unconstitutional. Our holding is limited to the major purpose pre-
sumption before us which is based entirely on a monetary standard
completely untethered from the other factors identified by the
Supreme Court in determining major purposes. The portion of Section
163-278.6(14) relating to the major purpose presumption is therefore
substantially overbroad and invalid, and we disagree with the district
court in this respect. However, the remaining portions of Section 163-
278.6(14) can be severed and given effect without the invalid portion.
See N.C. Gen. Stat. § 163-278.5 (2001).6
V.
In addition to the challenges relating to the definition of political
committee, NCRL challenged North Carolina's contribution limit to
the extent that it applies to "independent expenditure political action
committees" ("IEPAC"). Section 163-278.13 provides that no individ-
ual may contribute to any political committee in excess of $4,000.00
during any single election cycle. Id. § 163-278.13. This contribution
____________________________________________________________
5 The State contends that the presumption serves as an alert to an entity
that is considering undertaking electioneering-type activities to monitor
its spending because expenditures in excess of $3,000.00 might provoke
a complaint to the Board of Elections. A complaint, in turn, might trigger
an inquiry into whether the entity's major purpose was to support or
oppose a candidate.
6 Section 163-278.5 provides in relevant part: "The provisions of this
Article are severable. If any provision is held invalid by a court of com-
petent jurisdiction, the invalidity does not affect other provisions of the
Article that can be given effect without the invalid provision."
23
limit applies with equal force to contributions made to IEPACs, i.e.,
committees that make only independent expenditures. An independent
expenditure is defined as an expenditure "that is made without consul-
tation or coordination with a candidate or agent of a candidate." Id.
§ 163-278.6(9a).
The Supreme Court has "`consistently held that restrictions on con-
tributions require less compelling justification than restrictions on
independent spending.'" Nixon v. Shrink Missouri Gov't PAC, 528
U.S. 377, 387 (2000) (quoting MCFL, 479 U.S. at 259-60). "[A] con-
tribution limit involving `significant interference' with associational
rights [can] survive if the Government demonstrate[s] that contribu-
tion regulation [is] `closely drawn' to match a `sufficiently important
interest.'" Id. at 387-88 (quoting Buckley, 424 U.S. at 25) (citation
omitted) (internal quotation marks omitted). The State has a "suffi-
ciently important interest" in regulating contributions in order to pre-
vent quid pro quo corruption of and undue influence upon candidates.
The State's interest in preventing corruption, however, is "not con-
fined to bribery of public officials, but extend [s] to the broader threat
from politicians too compliant with the wishes of large contributors."
Id. at 389.
In addressing limitations on independent expenditures, the
Supreme Court stated that the absence of coordination or control
between the candidate and the IEPAC making the independent expen-
diture "not only undermines the value of the expenditure to the candi-
date, but also alleviates the danger that expenditures will be given as
a quid pro quo for improper commitments from the candidate." Buck-
ley, 424 U.S. at 47; see also FEC v. National Conservative Political
Action Comm., 470 U.S. 480, 498 (1985) ("NCPAC"); Colorado
Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 617-18
(1996) (stating that the fact that independent expenditures are not
coordinated with a candidate prevents the "assum [ption], absent con-
vincing evidence to the contrary, that a limitation on political parties'
independent expenditures is necessary to combat a substantial danger
of corruption of the electoral system"). "The fact that candidates and
elected officials may alter or reaffirm their own positions on issues in
response to political messages paid for by [political action commit-
tees] can hardly be called corruption . . . ." NCPAC, 470 U.S. at 498.
24
While the Supreme Court has not addressed the constitutionality of
limits on contributions to IEPACs, the Court has considered the con-
stitutionality of limits on contributions to political action committees
that contribute to candidates. California Med. Ass'n v. FEC, 453 U.S.
182 (1981) ("Cal-Med"). In Cal-Med, the Court upheld a limitation
on contributions to multi-candidate political committees, which by
definition make contributions directly to candidates. Justice Black-
mun in his concurrence stressed, however, that a different result
would follow if a contribution limit "were applied to contributions to
a political committee established for the purpose of making indepen-
dent expenditures." Id. at 203. Justice Blackmun further explained
that multi-candidate political committees are "essentially conduits for
contributions to candidates, and as such they pose a perceived threat
of actual or potential corruption. In contrast, contributions to a com-
mittee that makes only independent expenditures pose no such
threat." Id.
The State argues that it proffered sufficient evidence to demon-
strate the corruptive danger posed by independent expenditures and
therefore the need to limit contributions to IEPACs. "The quantum of
empirical evidence needed to satisfy heightened judicial scrutiny of
legislative judgments will vary up or down with the novelty and plau-
sibility of the justification raised." Shrink Missouri, 528 U.S. at 391.
If NCRL's challenge was to the limitation on contributions made to
a candidate, either directly or through a political committee, the evi-
dence presented by the State would be sufficient. However, because
the corruptive influence of contributions for independent expenditures
is more novel and implausible than that posed by contributions to can-
didates, convincing evidence of corruption is required. Colorado
Republican, 518 U.S. at 618. The State, however, failed to proffer
sufficiently convincing evidence which demonstrates that there is a
danger of corruption due to the presence of unchecked contributions
to IEPACs. We agree with the district court that the $4,000.00 limita-
tion on contributions to IEPACS is substantially overbroad and
unconstitutional.
VI.
The final issue for our consideration is whether the district court
erred in holding that NCRL's challenge to Section 163-278.12A was
25
moot under our holding in Perry. NCRL contends the issue is not
moot because the district court's injunction in Perry prohibited the
State from enforcing Section 163-278.12A only against the plaintiff
in that action. The district court in Perry, however, did not reach the
constitutionality of the statute, finding that the issue was moot under
NCRL I. On appeal in Perry, we held that the district court erred in
failing to reach the constitutionality of the statute. Nevertheless,
because the question was purely a legal one, we determined that a
remand was unnecessary and reached the constitutional question.
Perry, 231 F.3d at 160. We concluded that "[b]ecause Section 12A
would allow the regulation of issue advocacy . . . it is unconstitution-
ally overbroad and the State is permanently enjoined from enforcing
it." Id. at 162 (emphasis added). No limitation as to the application
of the injunction was indicated. Accordingly, because the injunction
prohibits the State from enforcing Section 163-278.12A, a determina-
tion by the district court in this action was unnecessary and the district
court was correct in declaring NCRL's challenge moot.
VII.
In sum, we conclude that the district court did not err in holding
the context prong of North Carolina's express advocacy test unconsti-
tutional. Nor did the district court err in declaring the limit on contri-
butions unconstitutional to the extent that it applies to IEPACs. We
conclude, however, that the district court erred in failing to hold that
the major purpose presumption was unconstitutional. Finally, we
reject NCRL's claim that the district court erred in finding its chal-
lenge to Section 163-278.12A moot. Thus, for the reasons stated, the
judgment of the district court is hereby
AFFIRMED IN PART AND REVERSED IN PART.
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
I concur in parts I, II, IV, and V of the majority's opinion. I concur
in part III insofar as it discusses and strikes down the second sentence
of N.C. Gen. Stat. § 163-278.14A(a)(2), a statute that describes evi-
dence that is sufficient to prove "that communications are `to support
or oppose the nomination or election of one or more clearly identified
candidates.'" Id. § 163-278.14A (2002). I respectfully dissent from
26
the majority's decision in part III to strike down the first sentence of
§ 163-278.14A(a)(2). The first sentence is an explicative definition of
express advocacy that passes muster under Federal Election Commis-
sion v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)
(MCFL), and Buckley v. Valeo, 424 U.S. 1 (1976). I also concur in
the result reached by the majority in part VI, but I would reach that
result by slightly different reasoning.
I.
Again, § 163-278.14A describes the type of evidence necessary to
prove that an individual's or organization's communications
expressly advocate the election or defeat of a candidate. The first sen-
tence of the provision at issue in this case, § 163-278.14A(a)(2), states
that such evidence may include "[e]vidence of financial sponsorship
of communications whose essential nature expresses electoral advo-
cacy to the general public and goes beyond a mere discussion of pub-
lic issues in that they direct voters to take some action to nominate,
elect, or defeat a candidate in an election." N.C. Gen. Stat. § 163-
278.14A(a)(2) (2002). The second sentence of the provision goes on
to explain that "[i]f the course of action is unclear, contextual factors
. . . may be considered in determining whether the action urged could
only be interpreted by a reasonable person as advocating the nomina-
tion, election, or defeat of that candidate in that election." Id. My dis-
agreement with the majority, which strikes down the entire provision,
relates only to the first sentence of § 163-278.14A(a)(2). I agree with
the majority that only express advocacy can be regulated and that we
must look to the language used in the communication, rather than its
context, to determine whether it is express advocacy. See ante at 12-
13. Because the second sentence of § 163-278.14A(a)(2) violates this
standard, I agree that it must be struck down. The first sentence, how-
ever, only applies to communications whose "essential nature . . .
direct[s] voters to take some action to nominate, elect, or defeat a can-
didate in an election." § 163-278.14A(a)(2). Unlike the second sen-
tence, the first does not authorize the regulator to look beyond the text
of the communication; specifically, it does not permit the regulator to
consider what the communication's effect might be on a reasonable
listener.
The first sentence of § 163-278.14A(a)(2) is faithful to the
Supreme Court's analysis in MCFL. There, MCFL published a flier
27
that described individual candidates' voting records on pro-life issues
and urged readers to "VOTE PRO-LIFE," while claiming that the flier
did not "represent an endorsement of any particular candidate."
MCFL, 479 U.S. at 243-44. The Court noted that even though the flier
did not use the same language cited in Buckley, 424 U.S. at 44 n.52,
such as "Vote for Smith," it was "in effect an explicit directive."
MCFL, 479 U.S. at 249 (emphasis added). In other words, the flier's
"essential nature" was not changed just because it avoided using any
of the words in Buckley's examples of express advocacy. Id.
MCFL thus makes clear that a speaker may engage in express
advocacy without using the magic words mentioned in Buckley. I
acknowledge that § 163-278.14A(a)(1), the North Carolina provision
that is not under challenge, would cover the sort of express advocacy
used by MCFL. However, the phrases and constructions described in
§ 163-278.14A(a)(1) are examples and are not meant to be an exhaus-
tive list of exhortations that amount to express advocacy. Just as the
examples in Buckley did not cover the clear message of exhortation
in the flier in MCFL, so too might there be a communication of
express advocacy that does not correspond neatly with the more
expansive list of examples in § 163-278.14A(a)(1). For instance, if an
organization like MCFL published a sample ballot, clearly marking
the boxes next to pro-life candidates and leaving others blank (or
striking through other candidates' names), that should fall within the
category of express advocacy for the election or defeat of particular
candidates. Nevertheless, such an exhortation might not fall within
the scope of § 163-278.14A(a)(1) because the exhortation does not
include any language listed in that provision or any language that is
similar to the examples given. The first sentence of § 163-
278.14A(a)(2), however, would cover the sample ballot situation.
The first sentence of § 163-278.14A(a)(2) focuses only on express
advocacy. However, rather than defining express advocacy by exam-
ple or by the use of magic words, it provides an explicative definition.
The sentence defines express advocacy as a communication that "goes
beyond a mere discussion of public issues in that [it] direct[s] voters
to take some action to nominate, elect, or defeat a candidate in an
election." § 163-278.14A(a)(2). This definition is consistent with
MCFL, 479 U.S. at 249 (noting that the flier was express advocacy
because it went beyond "mere discussion of public issues" and instead
28
"provide[d] in effect an explicit directive" to vote for certain candi-
dates), and Buckley, 424 U.S. at 44 (describing communications "that
in express terms advocate the election or defeat of a clearly identified
candidate"). Unlike the second sentence of the provision, the first sen-
tence avoids the error of relying on the effect on the speaker or of
relying on the broader context in which the communication appears.
See Va. Soc'y for Human Life, Inc. v. Fed. Election Comm'n, 263
F.3d 379, 391-92 (4th Cir. 2001). The first sentence requires, in other
words, that the communication "literally include words which in and
of themselves advocate the election or defeat of a candidate," VSHL,
263 F.3d at 391 (internal quotations and emphasis omitted), without
limiting or detracting from the unchallenged companion provision,
§ 163-278.14A(a)(1), which defines express advocacy by use of
examples. In my opinion, the first sentence of § 163-278.14A(a)(2) is
constitutional.
As the majority notes, North Carolina's election laws include a
severability provision. N.C. Gen. Stat. § 163-278.5 (2002); see also
ante at 26 n.6. I would therefore uphold the first sentence of § 163-
278.14A(a)(2) but join in the majority's opinion striking down the
second sentence of that subsection.
II.
Finally, I concur in the result reached in part VI of the majority's
opinion, which concludes that NCRL's challenge to § 163-278.12A,
relating to the reporting of expenditures, is moot. I would reach that
conclusion by a slightly different path. As the majority notes, our
opinion in Perry v. Bartlett, 231 F.3d 155, 162 (4th Cir. 2000), states
that § 163-278.12A is unconstitutional. Our opinion in Perry, how-
ever, affirmed the district court's injunction order, which only prohib-
its North Carolina from enforcing § 163-278.12A against the Perry
plaintiffs. I do not believe, as does the majority, that the application
of the injunction in Perry is unlimited. Nevertheless, I agree in the
end that NCRL's challenge to § 163-278.12A is moot because North
Carolina's brief in this appeal acknowledges that this section is
unconstitutional and is not enforceable. See Telco Communications,
Inc. v. Carbaugh, 885 F.2d 1225, 1230-31 (4th Cir. 1989) (finding an
issue moot when there was no "reasonable expectation" that the state
would seek to enforce the statute in question because the state "con-
29
ceded the unconstitutionality of the statute"). I therefore agree with
the majority's conclusion that NCRL's challenge to § 163-278.12A is
moot.
30