NC Right to Life Inc v. Leake , 344 F.3d 418 ( 2003 )


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  • Vacated by Supreme Court, April 26, 2004
    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 State
    Board of Elections; ROBERT CORDLE,          No. 02-2052
    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.
    
    2                N. CAROLINA RIGHT   TO   LIFE v. LEAKE
    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 State
    Board of Elections; ROBERT CORDLE,                 No. 02-2053
    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)
    N. CAROLINA RIGHT   TO   LIFE v. LEAKE              3
    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,
    4                N. CAROLINA RIGHT     TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT   TO   LIFE v. LEAKE               5
    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.
    6               N. CAROLINA RIGHT      TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT   TO   LIFE v. LEAKE               7
    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
    8                N. CAROLINA RIGHT   TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT    TO   LIFE v. LEAKE               9
    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."
    10               N. CAROLINA RIGHT       TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT    TO   LIFE v. LEAKE                11
    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-
    12                N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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.
    N. CAROLINA RIGHT    TO   LIFE v. LEAKE              13
    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-
    14               N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT   TO   LIFE v. LEAKE              15
    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
    16                N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT   TO   LIFE v. LEAKE             17
    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’").
    18               N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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.
    N. CAROLINA RIGHT    TO   LIFE v. LEAKE               19
    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.
    20               N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT    TO   LIFE v. LEAKE              21
    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
    22               N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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
    .
    N. CAROLINA RIGHT      TO   LIFE v. LEAKE              23
    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."
    24               N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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
    .
    N. CAROLINA RIGHT   TO   LIFE v. LEAKE              25
    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
    26               N. CAROLINA RIGHT    TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT       TO   LIFE v. LEAKE            27
    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
    28               N. CAROLINA RIGHT   TO   LIFE v. LEAKE
    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
    N. CAROLINA RIGHT      TO   LIFE v. LEAKE           29
    "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-
    30              N. CAROLINA RIGHT   TO   LIFE v. LEAKE
    ceded the unconstitutionality of the statute"). I therefore agree with
    the majority’s conclusion that NCRL’s challenge to § 163-278.12A is
    moot.
    

Document Info

Docket Number: 02-2052

Citation Numbers: 344 F.3d 418

Filed Date: 9/23/2003

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (24)

Sandra Faucher and Maine Right to Life Committee, Inc. v. ... , 928 F.2d 468 ( 1991 )

citizens-for-responsible-government-state-political-action-committee-steve , 236 F.3d 1174 ( 2000 )

telco-communications-inc-v-s-mason-carbaugh-as-he-is-commissioner-of , 885 F.2d 1225 ( 1989 )

william-bryant-perry-farmers-for-fairness-incorporated-v-gary-o , 231 F.3d 155 ( 2000 )

federal-election-commission-v-christian-action-network-incorporated , 110 F.3d 1049 ( 1997 )

vermont-right-to-life-committee-inc-v-william-h-sorrell-in-his , 221 F.3d 376 ( 2000 )

Buckley v. Valeo , 96 S. Ct. 612 ( 1976 )

chamber-of-commerce-of-the-united-states-of-america-v-mike-moore-attorney , 288 F.3d 187 ( 2002 )

Thomas v. Collins , 65 S. Ct. 315 ( 1945 )

Federal Election Commission v. Harvey Furgatch , 807 F.2d 857 ( 1987 )

iowa-right-to-life-committee-inc-iowa-right-to-life-state-political , 187 F.3d 963 ( 1999 )

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California Medical Ass'n v. Federal Election Commission , 101 S. Ct. 2712 ( 1981 )

Federal Election Commission v. Massachusetts Citizens for ... , 107 S. Ct. 616 ( 1986 )

Virginia v. American Booksellers Assn., Inc. , 108 S. Ct. 636 ( 1988 )

Colorado Republican Federal Campaign Committee v. Federal ... , 116 S. Ct. 2309 ( 1996 )

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