Schwartz v. H. I. Romnes , 495 F.2d 844 ( 1974 )

MANSFIELD, Circuit Judge:

At issue on this appeal is whether the expenditure of $50,000 by the New York Telephone Company (“NYT”) in 1971 for the purpose of publicizing views with respect to a proposed state public transportation bond issue to be submitted to the voters of New York for a referendum vote violated a New York statute (§ 460, N.Y.Election Law, McKinney’s Consol.Laws, c. 17 ¹) prohibiting corporate contributions for political purposes. If so, we are asked to decide whether the statute, as so construed, would deny NYT its First Amendment rights of free speech and petition. Since NYT and its parent, American Telephone and Telegraph Company (“AT&T”), are public utilities, we are also called upon to determine whether the $50,000 contribution was barred by a state statute (§ 107, N.Y.Public Service Law, McKinney’s Consol.Laws, c. 48I. ²) which prohibits public utilities, except with the consent of the state public service commission, from expending funds other than for certain specified purposes. In a derivative suit on behalf of NYT and AT&T against directors who approved the $50,000 expenditure plaintiff, an AT&T shareholder invoking diversity jurisdiction, sued to recover the $50,000 contribution on the ground that it violated the aforementioned state statutes. The district court granted summary judgment in plaintiff’s favor. For reasons stated below, we reverse the grant of summary judgment and remand with instructions that summary judgment be entered in favor of the defendants.

Pursuant to provisions of New York law, a transportation bond issue was submitted to the voters of New York State for their approval or disapproval at a general election in 1971. The bond issue was a bipartisan matter; it garnered support from both sides of the aisle in the State Senate and Assembly which enacted it by a very substantial majority, subject to approval by the voters at the forthcoming 1971 election. Among its active supporters was then-Governor Rockefeller, who urged adoption of the bond issue as a source of jobs and as a catalyst for continued economic growth. New York history, however, has revealed that such bond issues are not something lightly approved by the voters. Indeed the 1971 issue was defeated at the polls, as was a subsequent issue put to a referendum vote in 1973. Suspecting the worst, the proponents of the 1971 bond issue organized Yes for Transportation in New York State, Inc. (“YES”), a not-for-profit corporation, to promote the bond issue. To this end YES reportedly expended some $2.5 million on its campaign. Individual as well as corporate donations sustained YES in its work.

Among the corporate contributors was NYT in the amount of $50,000. As a business matter NYT, according to its directors, had more than a fleeting interest in the transportation bond issue. With over 12,000 vehicles in its motor pool, NYT was probably the largest private enterprise using the State’s highways and roads. As the largest private employer in the state, it likewise had an interest in the quality of mass transportation, upon which many of its employees depend for travel between home and work. The Project on Corporate Responsibility, a shareholder of AT&T, nonetheless demanded that the directors of AT&T and NYT recover the contribution as having been made for a political purpose in violation of § 460 of the New York Election Law. Relying on the opinion of counsel that the contribution did not violate § 460, the directors of NYT denied the request. This action followed.³

In denying defendants’ motion to dismiss or for summary judgment and in granting plaintiff’s motion for summary judgment, the district court concluded that the contribution was barred by that portion of § 460 which prohibits a corporate contribution “for any political purpose whatever.” The court found that this phrase “unambiguously include [d] an effort to influence the outcome of a vote on a question or proposition” and rejected defendants’ argument that as so construed the statute would constitute an impermissible restraint on First Amendment rights. The court further held that § 107 had also been violated, concluding that the required approval of the Public Service Commission had not been obtained.⁴

On appeal the defendant-directors challenge each of the district court’s findings. They maintain that § 460 does not prohibit a contribution in support of a non-partisan referendum; and that if the section did, it would be an unconstitutional restraint on a corporation’s First Amendment rights. They also argue that the contribution did not offend § 107. Finally, they charge that it was error in any event for the district court to imply a cause of action against them after they had acted in reliance upon the advice of counsel that the contribution would violate no provision of New York law and in a good-faith belief that the contribution would benefit the corporation.⁵

I.

Section 460 of the Election Law plainly makes it a penal offense for a corporation to pay money to or in aid of “any political party, committee or organization” or “any candidate for political office”. These terms clearly do not apply to a referendum. The applicability of the section to NYT’s contribution to YES turns on whether the statute’s provision prohibiting corporate payments to any corporation or association organized or maintained “for political purposes” or payments for “any political purpose whatever” should be interpreted as barring a corporate expenditure in support of or in opposition to a public referendum that is essentially non-partisan in nature.

The fundamental issue before us is the meaning of the word “political” as used in this context. Under the construction of § 460 advanced by plaintiff, which was in the main accepted by the district court, any question submitted to the voters as the body politic for a vote would ipso facto become a “political” matter, and any monies expended with respect to such a vote would therefore be spent for a “political purpose.” Were the word being interpreted in vacuo, the district court might well have been justified in adopting the definition advocated by plaintiff, even though narrower meanings have been attributed to the word “political.” ⁶ However, we are not here called upon to determine the meaning of the term in the. abstract but its meaning in the context of a specific statute which, being penal, must be strictly construed, United States v. Wilt-berger, 18 U.S. (5 Wheat.) 76, 5 L.Ed. 37 (1820); United States v. Fruit Growers Express Co., 279 U.S. 363, 49 S.Ct. 374, 73 L.Ed. 739 (1929); United States v. Resnick, 299 U.S. 207, 57 S.Ct. 126, 81 L.Ed. 127 (1936); FCC v. American Broadcasting Co., Inc., 347 U. S. 284, 74 S.Ct. 593, 98 L.Ed. 699 (1954) (applying this rule of construction to a criminal statute in a civil action). This time-honored rule is all the more compelling when First Amendment rights are involved. In such circumstances, where a word or phrase is reasonably capable of more than one meaning, we have repeatedly affirmed the wisdom of looking to the entire text of the statute and to its legislative history in order to ascertain, if possible, the intent of the drafters and the true scope and meaning of the term. See, e. g., Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (L. Hand, J., concurring).

Following this traditional method of analysis, we are initially confronted with the fact that the phrase “for any political purpose whatever,” as used in § 460, does not stand alone. If it were the only qualifying predicate it might evidence an intent expansively to prohibit corporate contributions with respect to every possible type of legislative measure. The term, however, is used in § 460 as a catchall phrase to terminate a list of specifically enumerated prohibitions limited to payments in aid of a “political party” or “candidate for political office.” The partisan flavor of these words is unmistakable. See United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); United States Civil Service Comm. v. National Assn. of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). It is a “familiar canon of statutory construction that such [catchall terminating] clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated.” FMC v. Seatrain Lines, Inc., 411 U.S. 726, 734, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973). Application of that principle calls for an interpretation that would restrict the phrase “for any political purpose whatever” to contributions of the type specifically described in the text immediately preceding it.

The legislative history of § 460, furthermore, reveals that its drafters desired simply to prevent corruption of legislators and other elected officials through corporate contributions to political parties and candidates. No concern was expressed regarding corporate expenditures for expression of views with respect to measures that might be presented to the entire electorate for a vote. The genesis of what is today § 460 can be traced to the efforts of Elihu Root in 1894 to amend the New York State Constitution to prohibit contributions to candidates for political office by large corporate malefactors of wealth. His proposed amendment, which closely resembled the language of § 460 as finally enacted, provided as follows:

“No corporation shall directly or indirectly use any of its money or property for, or in aid of, any candidate for political office, or for nomination for such office, or in any manner use any of its money or property for any political purpose whatever, or for the reimbursement or indemnification of any person for moneys or property so used.” 3 Revised Record of the 1894 New York State Constitutional Convention 885 (1900) (hereafter “1894 Convention Record”).

When fears were expressed by members of the Convention that the proposed amendment would prove too broad, Root distilled the essence and purpose of the amendment as follows:

“The idea of this section, Mr. Chairman, is to prevent the great moneyed corporations of the country from furnishing the money with which to elect members of thé Legislature of this State in order that those members of the Legislature may vote to protect the corporations. It is to prevent the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth, from using their corporate funds, directly or indirectly, to send members of the Legislature to those halls in order to vote for their protection and the advancement of their interests as against those of the public. It strikes, Mr. Chairman, at a constantly growing evil in our political affairs, which has, in my judgment, done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our government. And I believe that the time has come when something ought to be done to put a check to the giving of $50,000 or $100,000 by a great corporation toward political purposes, upon the understanding that a debt is created from a political party to it, a debt to be recognized and repaid with the votes of representatives in the Legislature and in Congress, or by the action of administrative or executive officers who have been elected in a measure through the use of the money so contributed.” 1894 Convention Record 894-95.

Thus the avowed objective was not to bar all corporate expenditures with respect to legislative matters generally but to prohibit corporate contributions to candidates or parties, since such contributions might tend to create political debts, obligating the legislators and public officers to reciprocate by favoring the special interest of the contributor rather than representing the will of the entire electorate. Root’s concern was more than amply justified by the conduct of various corporate behemoths (including “great telephone companies”) in his own day, not unlike that currently the subject of national attention with respect to the financing of political parties and elections nationally. By 1906 the New York Legislature acted to curb the abuse by enacting the predecessor of § 460.⁷

In all this legislative history we find no indication that the framers envisioned the application of § 460 to referenda. The omission of any reference to referenda in the statute or in the legislative history is a pregnant one, for the Legislature elsewhere gave express consideration to referenda as a possible object of regulation and with obvious discrimination regulated disclosure of contributions with respect to referenda but rejected a proposed all-inclusive prohibition of contributions to referenda. In the same Session that saw the predecessor of § 460 enacted, the Legislature passed Article 13 of the Election Law, § 320 of which subjects to reporting requirements “any committee or combination of three or more persons co-operating to aid or to promote the success or defeat of a political party or principle, or of any proposition submitted to vote at a public election. . . . ” (emphasis added). ⁸ The effect of this law was to make available to the public information as to all contributions in aid of referenda, which would be relevant to the voters’ decision, but not to prohibit the financing of publicly-expressed views. Even more in point is the fact that the Assembly had before it in 1906 a proposal that would have explicitly prohibited contributions for “any question to be voted on at an election” (emphasis added). Assembly Int. No. 84, Printed No. 77, 1906 New York State Assembly Journal, Yol. 1, p. 333. The Legislature rejected that proposal, choosing instead to enact a statute that tracked the 1894 proposal with the restrictive gloss given to it by Elihu Root.⁹

Thus the rubric of New York’s Election Law as it emerged and has since developed confirms that when the Legislature desired to regulate contributions with respect to referenda, as it did in certain very limited respects, it did so by express reference. See in addition to § 320 supra, N.Y.Election Law §§ 440 and 441. Indeed if § 460 were expansively construed, as plaintiff here urges, to bar corporate contributions with respect to referenda, any further regulation of the corporate financing of lobbying activities would be unnecessary, since such expenditures would be unlawful. Yet we find that § 66 of the New York Legislative Law, McKinney’s Con-sol.Laws, c. 32, which was enacted in 1906, a few days after the Legislature’s adoption of § 460, provides:

“[e] very person retained or employed for compensation as counsel or agent by any person, firm, corporation or association to promote or oppose directly or indirectly the passage of bills or resolutions by either house or to promote or oppose executive approval of such bills or resolutions. . . . ” (emphasis added).

The New York Legislature thus implicitly recognized that corporations might lawfully pay compensation to others for the purpose of promoting the adoption of legislation, subject to public disclosure of the amounts so paid. Payments to promote the adoption of referenda by the voters are but one form of expenditure to encourage the adoption of legislation.

The reasons for this selective and limited regulation of referenda are not difficult to understand. By their very nature referenda, which have dealt principally with constitutional amendments and matters of governmental finance (see Manual of the Legislature of the State of New York, 1971-72, pp. 315-50), do not lend themselves to those corrupting influences which prompted the enactment of § 460. Corporate funds paid to a candidate or political party have the potential of creating debts that must be paid in the form of special interest legislation or administrative action. In contrast, when the issue is one to be resolved by the public electorate monies paid by a corporation for public expression of its views create no debt or obligation on the part of the voters to favor the corporate contributor’s special interest." Although large private companies have undoubtedly been tempted to “buy” the election of political candidates in the expectation of receiving favors if their candidates should be elected, it is difficult to see how such motivation would play any substantial role in an attempt to influence votes for or against a referendum. The public remains completely free to reject the views of the corporate contributor, just as it did in the present case, without fear of retribution or non-support by the corporate contributor. The requirement of § 320 that the corporation publicly disclose such expenditures minimizes the risk that the public will be misled as to the source or inspiration of the corporately-financed views.

Thus every sign from the legislative history and the statutory pattern of New York’s Education Law persuades us that the Legislature did not intend the prohibition of § 460 to extend to referenda, or at least not to referenda of a non-partisan nature as was the bond issue in question here. This belief is reinforced by the interpretation that the Attorney General of the State of New York has given to § 460. While this court has been directed to no written opinion of the Attorney General on this matter, written opinions being limited to advice to governmental departments, the Attorney General as intervenor on this appeal informs us that he has consistently advised parties on an informal basis that § 460 does not apply to referen-da. We would be remiss were we not to accord this view of an agency charged with the responsibility for applying the law some weight in our deliberations. See Broadrick v. Oklahoma, 413 U.S. 601, 617-618, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 163, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971).

Lastly it is incumbent upon us to construe § 460, to the extent possible, in a manner that will not transgress constitutional rights, United States v. CIO, 335 U.S. 106, 121, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948); United States v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909), including those of corporate contributors which, like individuals, are guaranteed freedom of speech and petition. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-138, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United States v. CIO, 335 U.S. 106, 154-155, 68 S.Ct. 1349 (Rutledge, J., concurring) (1948); Grosjean v. American Press Co., Inc., 297 U.S. 233, 244, 56 S.Ct. 444, 80 L.Ed. 660 (1936). It is difficult to imagine a setting where a narrow interpretation would be more appropriate than when a criminal statute might otherwise impinge on First Amendment rights. See United States v. Robel, 389 U.S. 258, 262, 265, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); United States v. Rumely, 345 U.S. 41, 45-47, 73 S.Ct. 543, 97 L.Ed. 770 (1953) ; United States v. National Committee for Impeachment, 469 F.2d 1135, 1140-1141 (2d Cir. 1972). In adopting a narrow interpretation of § 460 we are but following the example set by the Supreme Court in its encounters with the Corrupt Practices Act, the federal analog of § 460.¹⁰ Concerned with the serious constitutional doubts that would afflict a broad interpretation of the federal statute’s prohibition of contributions or expenditures in support of a political candidate, the court has consciously opted for a restrictive reading of the statute’s words.¹¹ There is even greater cause for constitutional concern in the present case, for the plaintiff’s broad construction of § 460 would proscribe corporate contributions or expenditures for the purpose of communicating its views to the public with respect to an important issue to be decided by the voters and furnishing information that might be of assistance in arriving at that decision. “Since corporations must usually expend moneys to communicate their views,” First Natl. Bank of Boston v. Attorney General, Mass., 290 N.E.2d 526, 534 (1972), the effect of the district court’s interpretation would be to inhibit such expression.

Whatever the justification for prohibiting contributions that are prone to create political debts,¹² it largely evaporates when the object of prohibition is not contributions to a candidate or party, but contributions to a public referendum. The spectre of a political debt created by a contribution to a referendum campaign is too distant to warrant this further encroachment on First Amendment rights. Against a background on such attenuated danger we decline here, as we did in United States v. National Committee for Impeachment, 469 F.2d 1135, 1142 (1972), to ascribe to the legislators an intention to regulate, perchance prohibit, the expression of opinion on fundamental issues of the day.¹³

Accordingly, we conclude that NYT’s contribution to YES in support of a non-partisan referendum does not come within the proscription of § 460.

II.

The district court in deciding that NYT violated § 107 of the New York Public Service Law (which prohibits a public utility “except with the consent and approval of the public service commission” from using revenues from public service for purposes other than operating expenses) did not have the benefit of the Public Service Commission’s decision handed down a few days later on April 5, 1973, which held that NYT’s $50,000 contribution to YES did not violate § 107. In reaching its conclusion the Commission noted that the principal purpose of § 107, as revealed in the Commission’s 1934 Annual Report and in the Governor’s contemporaneous messages to the Legislature urging pas-, sage of the law, is to prevent utilities from diverting funds to recoup losses of affiliated companies. It acknowledged that over the years it had implicitly consented to and approved expenditures of the type here at issue, at least where they represented a minor portion of a utility’s total expenditures, and had dispensed with the necessity of issuing a specific consent in each instance, since to interpret § 107 as requiring a detailed piecemeal scrutiny might inhibit utilities in the exercise of their constitutional right of free expression with respect to matters of public interest, including proposed legislation, constitutional amendments, or other causes. The Commission further took note of NYT’s statement, apparently not disputed, that since NYT had non-utility operating revenues in excess of $50,000 in 1971, the contribution to YES did not in any event violate § 107, since it did not involve use “[of] revenues received from the rendition of public service within the state.” This authoritative pronouncement of the Commission on the interpretation of § 107 in what is obviously a carefully considered opinion is entitled to our “respectful consideration.” Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U. S. 154, 163, 91 S.Ct. 720 (1971) (quoting from Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935)); Broadrick v. Oklahoma, 413 U.S. 601, 617-618, 93 S.Ct. 2908 (1973).

In its opinion the district court implied that since NYT’s contribution to YES would be disallowed as an operating expense for rate-making purposes, it cannot satisfy the requirements of § 107. We believe that this approach confuses two distinct concepts: (1) rate-making and (2) contributions by utilities. Although an expenditure is not allowable for purposes of establishing rates, as was the case here, it may still be approved by the Commission pursuant to § 107. Indeed some contributions are allowed for rate-making purposes. See New York State Elec. & Gas Corp., 20 P.U.R. (n.s.) 388, 397 (1937) (expenditures to oppose certain legislation); N. Y. Tel. Co., 84 P.U.R.2d 321, 349-50 (1970) (charitable contributions).

There is nothing ip the history of § 107 or in the past practice of the Commission to suggest that its construction of the section is other than correct ¹⁴ We conclude that the district court erred in holding that the NYT contribution violated § 107.

III.

Since we conclude that neither § 460 of the Election Law nor § 107 of the Public Service Law were violated, it becomes unnecessary to decide whether, assuming a violation, a private derivative right of action may be implied in favor of plaintiff. There remains the suggestion that the contribution might nonetheless be ultra vires as an unauthorized act. For this proposition plaintiff relies upon People ex rel. Perkins v. Moss, 187 N.Y. 410, 80 N.E. 383 (1907). While the court there did say that a corporation did not have the right to make a contribution to a political campaign, it had before it a contribution to a party, not a referendum. In any event, statutory enactments have overtaken this holding insofar as it might apply to support for a non-partisan referendum. To the extent that NYT’s contribution was prompted by a concern for the state of transportation and its multiplier effects on the economy as a whole, it is protected now by the words of N.Y.Business Corporation Law § 202(a) (12), McKinney’s Consol.Laws, c. 4 which authorize a corporation “[t]o make donations, irrespective of corporate benefit, for the public welfare [and for] civic or similar purposes. . . . ” To the extent that the contribution was prompted by an appreciation of the business benefits for NYT to be derived from better roadways and transporation, it comes within the traditional corporate benefit rule. See N.Y.General Corporation Law § 34, McKinney’s Consol.Laws, c. 23. In short, we see no basis for an ultra vires argument on the facts of this case.

The decision of the district court is reversed with directions to enter judgment in favor of the defendants.

1 . § 460 of the N.Y. Election Law reads :

“§ 460. Political contributions prohibited; penalty; witnesses’ privilege.

“No corporation or joint-stock association doing business in this state, except a corporation or association organized or maintained for political purposes only, shall directly or indirectly pay or use or offer, consent or agree to pay or use any money or property' for or in aid of any political party, committee or organization, or for, or in aid of, any corporation, joint-stock or other association organized or maintained for political purposes, or for, or in aid of, any candidate for political office or for nomination for such office, or for any political purpose whatever, or for the reimbursement or indemnification of any person for moneys or property so used. Any officer, director, stock-holder, attorney or agent of any corporation or joint-stock association which violates any of the provisions of this section, who participates in, aids, abets or advises or consents to any such violation, and any person who solicits or knowingly receives any money or property in violation of this section, shall be guilty of a misdemeanor.”

2 . § 107 of the N.Y. Public Service Law reads:

Ҥ 107. Approval of the use of revenues.

“Except with the consent and approval of the public service commission first had and obtained, no public utility shall use revenues received from the rendition of public service within the state for any purpose other than its operating, maintenance and depreciation expenses, the construction, extension, improvement or main-tenanee of its facilities and service, the payment of its indebtedness and interest thereon, and the payment of dividends to its stockholders.”

3 . The present named plaintiff reinstituted the suit in the place of the Project after it was pointed out that the Project was not a shareholder of AT&T at the time of the act in question. See FJEt.Civ.P. 23.1(1).

4 . Following the district court’s grant of summary judgment on March 26, 1973, the New York State Public Service Commission on April 5, 1973, concluded that the NYT contribution did not violate § 107. See infra.

5 . The facts surrounding these allegations are not fully developed in the affidavits supporting the motions below. The motion papers nonetheless put in issue the general question of the reasonableness of the contribution and the business judgment of the directors in making the contribution. Were it not for the fact that we find no violation of the statutes as alleged, we would at a minimum be constrained to remand the case for trial on the issues of the reasonableness of the directors’ actions, see Simon v. Socony-Vacu-um Oil Co., Inc., 179 Misc. 202, 38 N.Y.S.2d 270 (Sup.Ct.1942), affd. without opin., 267 App.Div. 890, 47 N.Y.S.2d 589 (1st Dept. 1944), and their reliance on the advice of counsel, see Spirt v. Bechtel, 232 F.2d 241 (2d Cir. 1956).

6 . See Webster’s Third New International Dictionary (1961) definitions of “political” and “politics.”

“political . . . la: of or relating to government, a government, or the conduct of governmental affairs; b: of or relating to matters of government as distinguished from matters of law . . . c: engaged in civil as distinguished from military functions . . . d: of, relating to, or concerned with the making as distinguished from the administration of governmental policy . . 3a; of, relating to, or concerned with politics; b: of, relating to, or involved in party politics. ...” “politics . . . la: the art or science of government: a science dealing with the regulation and control of men living in society : a science concerned with the organization, direction, and administration of political units (as nations or states) in both internal and external affairs: the art of adjusting and ordering relationships between individuals and groups in a political community; b(l) : the art or science'concerned with guiding or influencing governmental policy . . . 4a (1) : political affairs or business; specif: competition between competing interest groups or individuals for power and leadership (2) : activities concerned with governing or with influencing or winning and holding control of a government ... (3) : activities concerned with achieving control, advancement, or some other goal in a nongovernmental group (as a club or office)

7 . The 1906 enactment was prompted by a Report of the Joint Committee of the Senate and Assembly of the State of New York Appointed to Investigate the Affairs of Life Insurance Companies (1906), which detailed instances of corporate contributions for political purposes. Each contribution cited by the Report was to a political candidate or party, not to a referendum or similar issue.

The forebear of § 460 was enacted as part of the General Corporation Law. In 1928 it was transferred from the Corporation Law to the Penal Law. In 1965 it came to rest in the Election Law as § 460.

8 . The definition of “political committee” in § 320. applies only “under the provisions of this article [13]” and not to the term as used'in § 460.

9 . Plaintiff-shareholder suggests that the legislature simply rejected the specific but' limiting formulation of “any question to be voted on” in favor of the even broader language, “for any political purpose whatever.” The shareholder forgets that the Root 1894 proposal contained the same “broad” language relating to “any political purpose whatever.” The legislature may well have preferred the Root formulation precisely because Root had successfully answered the charges that his prohibition would he too broad.

10 . 18 U.S.C. § 610.

11 . See United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349 (1948) (to avoid gravest doubt as to its constitutionality, statute held not to prohibit union from endorsing candidate in its regularly published newsletter) ; see also Pipefitters v. United States, 407 U. S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972) (“despite its broad language” statute held not to prohibit union from making political expenditure if the monies have been volunteered by its members). But see United States v. UAW-CIO, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957) (statute held to prohibit use of union dues to sponsor commercial television broadcasts endorsing political candidates). In each of these cases the Court studiously avoided any ruling on the constitutionality of the statute as construed.

12 . gee Justice Frankfurter’s apologia for the Corrupt Practices Act in United States v. UAW-OIO, 352 U.g. 567, 571-573, 77 S.Ct. 529 (1957), where he surveys the legislative history of § 460 and the concern with political debts.

13 . Section 460 provides that no corporation “shall directly or indirectly pay or use or offer . . . any money or property . . . for any political purpose whatever. . . . ” (emphasis added). If the statute were interpreted to cover referenda, a corporation would apparently be prohibited from using its funds even indirectly to express its views on a referendum. To avoid this constitutional dilemma, even the plaintiff-shareholder would construe the words of the statute narrowly to permit a corporation in the course of its regular communications with its shareholders or customers to espouse a position on a proposed election issue. Our interpretation would permit direct expenditures for the same purpose.

14 . It has long been the practice of the Commission not to require approval of contributions directed toward bettering social and economic conditions in the service areas of the utilities. Buffalo General Elec. Co., 6 P.U.R. (n.s.) 345, 354-57 (1934).