[47] BOWNES, Senior Circuit Judge, dissenting.

I dissent because I disagree with the majority's holding that the FEC's written-contact-only regulation infringes the First Amendment guarantee of freedom of speech. Even where governmental regulations have "the potential for substantially infringing the exercise of First Amendment rights," the Supreme Court has "acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved." Buckley v. Valeo, 424 U.S. 1, 66 (1976) (per curiam) (internal quotation marks omitted).

At this stage of American history, it should be clear to every observer that the disproportionate influence of big money is thwarting our freedom to choose those who govern us. This sad truth becomes more apparent with every election. If preventing this is not a compelling governmental interest, I do not know what is.

The FEC, through its voter guide regulation, has tried to prevent such abuses, consistent with Supreme Court precedent that protects First Amendment interests. I believe the FEC has successfully navigated a safe path between these competing concerns, and has achieved a reasonable prophylactic measure while complying with the Court's teachings. The Court itself has, over the years, grown more and more concerned with "domination of the political process" by corporate wealth. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659 (1990). I believe the written-contact-only requirement in the FEC's voter guide regulation fits comfortably within the Court's guidelines because its burdens on First Amendment freedoms are among those the Court is willing to permit in order to achieve compelling governmental interests like those at issue here, and the requirement is narrowly tailored to achieve that interest.

The majority strikes down the FEC's written-contact-only rule, citing virtually no authority for its position. I recognize that the plaintiff, Maine Right to Life Committee, Inc. (MRTLC), has articulated a First Amendment interest, but in my view that interest is outweighed by the compelling governmental interest in preventing corruption and corporate domination of the political process. The majority, after finding a First Amendment interest, fails altogether in pursuing this next step in the appropriate First Amendment analysis.

I believe that the prophylactic measures contained in the FEC's regulation are narrowly tailored to achieve the permissible end: they do not preclude all oral discussions of issues between groups like MRTLC and electoral candidates, as the majority states, see ante at 12-13 n. 3. The regulation deals only with oral discussions relating to preparation of voter guides. Generally speaking, MRTLC is free to have all the oral discussions that it wishes with candidates, whether motivated by a desire to lobby, to persuade, to debate, or to clarify. The only limitation is that MRTLC not combine its oral "issue advocacy" with a discussion of its plans to spend significant amounts of money to prepare and disseminate voter guides. "[T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other." Austin, 494 U.S. at 678 (Stevens, J., concurring).

The majority has set up a straw man and then shot it down, without reliance on any relevant authority. It has failed to address the real issues involving this regulation, and to come to grips with the evolving Supreme Court precedent relating to campaign finance law. I will turn to that precedent after discussing the appropriate standard of review that we should apply in this case.

Scope of Review

MRTLC has challenged the FEC's regulation on its face, not as applied to MRTLC itself. In attacking the facial validity of a regulation, a plaintiff faces a "heavy burden," to show that the regulation can never be applied constitutionally. Rust v. Sullivan, 500 U.S. 173, 183 (1991); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797-98 (1984). "The fact that [the regulations] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render [them] wholly invalid." Rust, 500 U.S. at 183 (brackets in original) (quotation omitted). For example, in Buckley, the Court recognized that "[t]here could well be a case" where "the Act's [disclosure] requirements cannot be constitutionally applied," but the Court nevertheless upheld the requirements because none of the challengers "tendered record evidence" that such would actually occur; they merely stated their "fears" of what might happen. 424 U.S. at 71. Thus, where a rule is being challenged on its face, it would be "inappropriate" to strike it down merely because the plaintiff can envision "an imagined unlawful application of the rule." Massachusetts v. United States, 856 F.2d 378, 384 (1st Cir. 1988). See also Renne v. Geary, 501 U.S. 312, 324 (1991) (facial challenge should generally not be entertained when an 'as-applied' challenge could resolve the case).

The district court's determination that the FEC's regulation is facially invalid presents a purely legal question, and is therefore reviewable de novo. Duffy v. Sarault, 892 F.2d 139, 145 (1st Cir. 1989).

In reviewing agency action, if Congress has not "directly addressed the precise question at issue," a reviewing court must defer to an agency's interpretation of the statute it is charged with enforcing, if that interpretation is not "manifestly contrary to the statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984); Strickland v. Commissioner, Maine Dep't of Human Servs., 96 F.3d 542, 545-47 (1st Cir. 1996) ("Strickland II"); Strickland v. Commissioner, Maine Dep't of Human Servs., 48 F.3d 12, 16-17 (1st Cir.), cert. denied, 116 S.Ct. 145 (1995) ("Strickland I"). A reviewing court will not "simply impose its own construction" as to the meaning of ambiguous or unclear statutory terms, "as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue," and the agency has furnished its interpretation, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843; Strickland II, 96 F.3d at 546. The FEC "is precisely the type of agency to which [such] deference should presumptively be afforded." FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981).

Of course, a court will not defer to an agency's interpretation of a statute that is directly contrary to a prior Supreme Court interpretation of the same statutory provision. See Faucher v. FEC, 928 F.2d 468, 471 (1st Cir. 1991). Nor will a court defer to an interpretation that is unconstitutional. I address the First Amendment question de novo, through the prism of the Court's teaching in this area.

The Applicable Law Governing Campaign Finance Limitations

The Supreme Court has observed that the "integrity of our system of representative democracy is undermined" by corruption. Buckley, 424 U.S. at 26-27. Although the Court decided a number of cases governing campaign finance law prior to Buckley, and although Buckley dealt, only with individuals and unincorporated associations and not with corporations as plaintiff MRTLC is here, Buckley is usually viewed as the starting point in any analysis of election law. Buckley was also the first case to interpret the statute applicable here, the Federal Election Campaign Act, as amended in 1974, which significantly tightened federal election campaign financing in the wake of the Watergate scandals.

The Court began its analysis by noting that money spent on communication was the equivalent of speech itself. Therefore the Court recognized that limitations on contributions impinged upon First Amendment values in the "uninhibited, robust, and wide-open" debate that is necessary to enable people to make informed choices among candidates. Buckley, 424 U.S. at 14 (quotation omitted).

Nevertheless, the Court upheld the FECA's limitations on contributions (by individuals and unincorporated associations) to candidates or their campaign committees. Because our "[d]emocracy depends on a well-informed electorate," id. at 49 n. 55; see id. at 14-15, the Court subjected such impingement to strict scrutiny. The Court found that, with respect to contributions to a candidate, the impingement was justified by the compelling governmental interest in limiting the actuality and appearance of corruption resulting from large financial contributions. Id. at 28-29. Likewise, the Court upheld limits on total contributions by an individual, as a "modest restraint upon protected political activity [that] serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate." Id. at 38.

The Court also upheld the Act's limitations on volunteers' incidental expenses as an acceptable accommodation of Congress's valid interest in encouraging citizen participation while guarding against the "corrupting potential of large financial contributions to candidates." Id. at 36. The Court treated such incidental expenses as an in-kind contribution, with the same ultimate effect as if the money had been contributed directly to the candidate.

The Buckley Court treated limitations on independent expenditures differently than limitations on direct contributions to candidates. The Court realistically recognized that those who contributed to a candidate represented "the interests to which [the] candidate is most likely to be responsive." Id. at 67. Nevertheless, in order to avoid vagueness problems, the Court limited FECA's prohibition on independent expenditures to only those expenditures which involved express advocacy. Id. at 44. It went on to strike down that prohibition, even as so limited, as violative of the First Amendment. Id. at 51. In analyzing the First Amendment considerations, the Court stated that expenditure limitations impose greater burdens on basic freedoms than do contribution limits, and do not accomplish as much to further the goals of eliminating the potential for abuse and quid pro quo corruption. Id. at 44-47.

The Court's more protective approach to independent expenditures, however, applies only to expenditures that are "made totally independently of the candidate[s] and [their] campaign[s]." Id. at 47. It found no constitutional infirmity in FECA's treatment of "coordinated" expenditures as contributions and therefore subject to FECA's limitations. Id. at 47 n. 53. Expenditures that are "coordinated" with a candidate or his/her campaign — which are the functional equivalent of an in-kind contribution to the candidate — are treated as direct contributions to the candidate, rather than as independent expenditures, in order to "prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." Id. at 46-47. This is true regardless of whether the expenditure pays for speech containing express advocacy of a candidate. Thus, limiting such coordinated spending can "foreclose an avenue of abuse." Id. at 37.

In upholding some burdens on First Amendment rights, the Buckley Court recognized a compelling interest in preventing quid pro quo corruption. It noted that, to "the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined." Id. at 26-27. Moreover, "[o]f almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions." Id. at 27.

Since Buckley was decided, more evidence has come to light demonstrating that big money can skew our democratic election process, even without a quid pro quo. Large donations from wealthy individuals, corporations and labor unions have helped candidates accumulate considerable stockpiles of money with which to advertise for votes. In a series of cases beginning with FEC v. National Right to Work Comm., 459 U.S. 197 (1982) ("NRWC"), the Court has dealt with this problem in the context of Section(s) 441b of FECA, which regulates contributions and expenditures made by corporations and labor organizations. In NRWC, FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ("Mass. Citizens" or "MCFL"), and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court has found a compelling governmental interest in preventing corruption even without a direct quid pro quo promise in exchange for money. The Court has recognized that the integrity of our electoral system can also be undermined by a different type of corruption: "vast reservoirs of capital" that "distort the political process" and prevent it from truly reflecting the voters' collective evaluation of the merits of the candidates' ideas. See Austin, 494 U.S. at 661.

The plaintiff in National Right to Work Comm. was an expressly ideological nonprofit association which was incorporated under state law, as is the plaintiff MRTLC in the case at bar. Recognizing that the FECA "reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation," National Right to Work Comm., 459 U.S. at 209-10, the Court upheld Congress's right to restrict from whom such an organization may solicit contributions. The Court held that NRWC's associational rights were overborne by the interests Congress sought to protect in enacting 441b, including:

to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political 'war chests' which could be used to incur political debts from legislators who are aided by the contributions.

Id. at 207. "The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted." National Right to Work Comm., 459 U.S. at 208 (quotations omitted) (emphasis added). As in Buckley, the Court in NRWC recognized that it was just as important to prevent the appearance of such corrosion as the actuality. Id. at 210. "These interests directly implicate the integrity of our electoral process." Id. at 208 (quotation omitted).

Accordingly, the NRWC Court held that "the need for a broad prophylactic rule," to protect against such distortion of the political process, was "sufficient . . . to support a limitation on the ability of a committee to raise money for direct contributions to candidates." Mass. Citizens, 479 U.S. at 260.

In Mass. Citizens, the Court shifted the focus of its examination from Section(s) 441b's regulation of corporate contributions to its regulation of corporate independent expenditures. The Court described the "underlying rationale" for "longstanding regulation" of corporate political activity as:

the need to restrict "the influence of political war chests funneled through the corporate form," [FEC v. National Conservative Political Action Comm., 470 U.S. 480, 501 (1985) ("NCPAC")]; to "eliminate the effect of aggregated wealth on federal elections," Pipefitters [v. United States], 407 U.S. [385,] 416 [(1972)]; to curb the political influence of "those who exercise control over large aggregations of capital," [United States v.] Automobile Workers, 352 U.S. [567,] 585 [(1957)]; and to regulate the "substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization," National Right to Work Committee, 459 U.S. at 207.

Mass. Citizens, 479 U.S. at 257. See also id. at 258-59 (Congress added proscription on expenditures to Federal Corrupt Practices Act "to protect the political process from what it deemed to be the corroding effect of money employed in elections by aggregated power") (quotation omitted).

The Court in Mass. Citizens recognized that "the corrosive influence of concentrated corporate wealth" can corrupt "the integrity of the marketplace of political ideas." 479 U.S. at 257. Regulation of corporate political activity "has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes." Id. at 259. The Court "acknowledge[d] the legitimacy of Congress' concern that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace." Id. at 263. This concern is reflected in 441b's "require[ment] that corporate independent expenditures be financed through a political committee expressly established to engage in campaign spending," in order to "prevent this threat to the political marketplace." Id. at 258. In order to avoid overbreadth, the Court defined independent expenditures governed by Section(s) 441b to include only express advocacy of the election or defeat of a candidate. Id. at 249.

The Court left open the question whether the First Amendment permits it to uphold Section(s) 441b's general rule — that a corporation must utilize a voluntary PAC rather than its general treasury funds for independent campaign expenditures as well as for direct contributions to candidates. Instead, the Court carved a narrow exception out of this general rule, holding its prohibition on use of general treasury funds unconstitutional as applied to the narrow class of corporations exemplified by the plaintiff in MCFL, even though those corporations remained free to speak in unlimited amounts through a separate segregated fund (as opposed to using funds from the corporate treasury).

To fall within the exception, a corporation must have three characteristics, each of which is "essential," MCFL, 479 U.S. at 263: First, it must be formed for the express purpose of promoting political ideas, and cannot engage in business activities. Second, it must have no shareholders or other persons affiliated who would have a claim on its assets or earnings. Third, it must not be established by a business corporation or labor union, nor accept contributions from such entities. Id. at 264. The last requirement — that the corporation does not accept contributions from business corporations or labor unions — is "essential," because it "prevents such [nonprofit ideological] corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace." Id. at 263-64.

In Austin, 494 U.S. at 659, the Court elaborated its "concern about corporate domination of the political process" and decided the question left open in Mass. Citizens. The plaintiff in Austin, the Chamber of Commerce, had challenged a Michigan statute (similar to 2 U.S.C. §(s) 441b) prohibiting corporations from using treasury funds for independent expenditures in support of a candidate. The Court found that the statute burdened political speech at the core, even though the corporation still had the opportunity to speak through PACs. Despite this burden on First Amendment rights, the Court held that the burden was justified by a compelling governmental interest in counteracting the "corrosive and distorting effects" of corporate wealth on the political election process. Id. at 660.

State law grants corporations special privileges that enhance their ability to attract capital and deploy resources advantageously. These privileges include: limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets. Id. at 658-59. These state-created advantages enable corporations "to use 'resources amassed in the economic marketplace' to obtain 'an unfair advantage in the political marketplace.'" Id. at 659 (quoting Mass. Citizens, 479 U.S. at 257). The Court therefore has "recognized that 'the compelling governmental interest in preventing corruption support[s] the restriction of the influence of political war chests funneled through the corporate form.'" Id. at 659 (brackets in Austin) (quoting National Conservative PAC, 470 U.S. at 500-01). This interest reflects a "concern about corporate domination of the political process." Id.

The Court made clear that it was not talking merely about "financial quid pro quo" corruption. Id. at 659. It recognized that the government has a compelling interest in eliminating from the political process a "different type of corruption" as well: "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Id. at 660; see id. at 666. It is because the state confers on corporations legal advantages enabling them to amass abundant "war chests" that it is not unconstitutional for the government to limit independent expenditures by corporations. Id. at 666.

The Court's holding was not limited merely to direct contributions to candidates. "Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions." Id. at 660. The Austin Court therefore held "that the State ha[d] articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations." Id.

Nor was this rule specifically limited to for-profit corporations engaged in a commercial business enterprise. As stated, the rule applied also to nonprofit corporations, which, after all, were the context of the case before the Court as well as the context of National Right to Work Comm. and of Mass. Citizens which relied on the NRWC analysis.

Our circuit has also had occasion to weigh in on this subject. Our opinion in FEC v. Massachusetts Citizens for Life, Inc., 769 F.2d 13 (1st Cir. 1985), aff'd, 479 U.S. 238 (1986), was affirmed by the Supreme Court, as described supra, but was essentially consistent with the Court's opinion. More recently, this court considered a prior version of the FEC's regulation governing voter guides. Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991). The regulation itself was substantially different from the current regulation, containing provisions restricting the content of any voter guides. The prior regulation had required guides to be "nonpartisan," and listed among the factors the FEC would consider in determining whether a guide was nonpartisan the following: "(C) The wording of the questions presented does not suggest or favor any position on the issues covered; (D) The voter guide expresses no editorial opinion concerning the issues presented nor does it indicate any support for or opposition to any candidate or political party." Id. at 470 (emphasis added in Faucher).

We struck down these content-oriented provisions; the speech they inhibited was protected by the First Amendment because it was an independent expenditure that contained no "express advocacy" of a particular candidate. We relied on language in Buckley that had held the FECA's limits on independent expenditures to be unconstitutional unless they involved "express advocacy." Id. (citing Buckley, 424 U.S. at 42-43). We also relied on a similar holding in Mass. Citizens, 479 U.S. at 249, which likewise dealt with independent expenditures. We declined the FEC's invitation to defer to its interpretation of the statute, on the ground that the Supreme Court had already spoken directly on the precise issue that was in dispute. Faucher, 928 F.2d at 471. It is worth noting that our decision in Faucher did not address the claim made by the FEC in the instant case, namely, that the spending of money to publish a voter guide after consultation or coordination with a candidate regarding the preparation of the guide constitutes the kind of coordinated expenditure that may be treated as a contribution, not as an independent expenditure, and therefore may be subjected to regulation.

The latest chapter in the continuing saga was written just last Term. In Colorado Republican Campaign Comm. v. FEC, 116 S.Ct. 2309, 2312 (1996) ("Colorado Republican"), the Court struck down the FECA's limits on a political party's expenditures in connection with a campaign, holding them unconstitutional as applied to independent expenditures that were made "without coordination with any candidate." It reiterated that the government may constitutionally set limits on contributions, including "limits that apply both when an individual or political committee contributes money directly to a candidate and also when they indirectly contribute by making expenditures that they coordinate with the candidate." Id. at 2313 (citing Section(s) 441a). The "constitutionally significant fact" in that case was "the lack of coordination between the candidate and the source of the expenditure." Id. at 2317 (citing Buckley, 424 U.S. at 45-46). (Justice Breyer's plurality opinion mentions "coordination" or "coordinated" expenditures on nearly every page.)

The Court reversed the lower court's ruling that, as a matter of law, a party's expenditures should be "conclusive[ly] presum[ed]" to have been coordinated with the eventual candidate, even though "the record show[ed] no actual coordination as a matter of fact" (and in fact there had been evidence to the contrary). Id. at 2317-18. The three-Justice plurality stated that the determination of coordination with a candidate is a factual matter, and cannot be presumed as a matter of law. Two dissenting Justices would have upheld the FEC's presumption and found it constitutional.

On the other hand, four Justices agreed with the Colorado Republican Party that, due to the special role of political parties in our electoral system, the First Amendment forbids congressional efforts to limit a party's coordinated expenditures as well as independent expenditures. Those Justices would have stricken such limitations on their face. This position was rejected by the majority of the Court. The three-Justice plurality reached its conclusion on an as-applied basis, explicitly refusing to entertain the facial challenge. While recognizing that restrictions on coordinated expenditures might in some circumstances unduly infringe on constitutional rights, the plurality indicated that it would uphold such restrictions in other circumstances, depending on the facts of the case at hand. Id. at 2320. The two dissenting Justices would have rejected both the facial and the as-applied challenges.

As the foregoing history makes clear, the Court's jurisprudence on campaign finance is evolving, especially with respect to the use of corporate wealth in candidate elections. The Court now recognizes that the corrosive and distorting effect of big money to influence elections is a legitimate governmental concern. I turn now to the application of this evolving law to the issue in contention.

Analysis

I would hold that the FEC may constitutionally require communications between corporations and candidates regarding voter guides to be in writing. While there may be circumstances in which such a restriction might be unconstitutional as applied, it surely survives the current facial challenge. The question is whether we should uphold the FEC's characterization of MRTLC's contact with candidates as a coordinated expenditure which, under the FECA, is treated as a contribution and therefore may be regulated. Even with respect to individuals, Buckley created two categories of campaign spending which are to be treated differently. For the most part, limits on contributions made to candidates or their campaigns are constitutional; limits on totally independent expenditures are not (i.e., expenditures "not coordinated with the candidate or candidate's campaign"). Colorado Republican, 116 S.Ct. at 2313 (citing Buckley, 424 U.S. at 39-51).

Expenditures that are coordinated with the candidate or candidate's campaign, even if not contributed directly to the candidate, are "treated as contributions," and they can be regulated just as if they were direct contributions. Buckley, 424 U.S. at 46 n. 53; Colorado Republican, 116 S.Ct. at 2313. That is, to be treated as independent, rather than as a contribution, an expenditure must be "totally independent." Buckley, 424 U.S. at 47. Since this is true for individuals and unincorporated organizations like political parties, it should be at least as true for corporations whose "vast reservoirs of capital," Austin, 494 U.S. at 661, pose more of a threat to "the integrity of our electoral process," National Right to Work Comm., 459 U.S. at 208 (quotation omitted), and therefore "require particularly careful regulation," id. at 209-10.

The expenditure in this case occupies a middle ground: MRTLC's spending on voter guides is not contributed directly to candidates but is not totally independent either. It is coordinated with the candidate to some degree. MRTLC may be correct that this is not exactly identical to the coordination that exists when an organization buys $20,000 worth of food for a campaign rally, but it does entail some aspects of what is ordinarily thought of as coordination. See Random House Dictionary of the English Language 447 (2d ed. 1987) ("act[ing] in harmonious combination"). And, as I will discuss shortly, it poses some of the same kinds of danger of corruption and distortion of the election process. With this in-between level of coordination, the question here is whether the degree of coordination between MRTLC and the candidates in preparing the voter guides is sufficient to treat the money spent to produce and distribute the guides as a contribution and therefore regulable, taking into account constitutional requirements. See Colorado Republican, 116 S.Ct. at 2320.

I agree with the majority that the constitutional issue cannot be avoided by resort to statutory interpretation. The district court was mistaken to conclude that the FEC has no authority to interpret Section(s) 441b as it has, simply because the statute does not contain a provision specifically authorizing this particular interpretation. The Act generally empowers (indeed, requires) the FEC to promulgate rules and regulations "to carry out the provisions of [the] Act," 2 U.S.C. §(s) 438(a)(8); see also 2 U.S.C. §(s) 437d (a)(8), including "formulat[ing] policy with respect to" the Act. 2 U.S.C. Section(s) 437c(b)(1). It is entirely appropriate for an agency to fill in the interstices in an ambiguous or incomplete statute. See Chevron, 467 U.S. at 843-44; Strickland I, 48 F.3d at 21 (when statute is subject to more than one possible interpretation, "it is up to the [agency], not the courts, to balance the relevant policy considerations and formulate a rule"). Neither Congress nor the Court has specifically addressed the question of what degree of coordination is required before an expenditure may be treated as a contribution under the FECA.

Therefore a reviewing court should defer to the agency's interpretation as long as it is not "manifestly contrary to the statute," which cannot be said of the regulation at issue here. See id. at 844; Strickland II, 96 F.3d at 547 ("court must avoid inserting its own policy considerations into the mix"). Looking to other parts of the FECA for guidance, according to the general definitions section of the Act, 2 U.S.C. §(s) 431(17), an expenditure by a corporation that is made in "cooperation or consultation" with a candidate does not qualify as an "independent expenditure." It would therefore be treated as an indirect contribution under Section(s) 441b, as interpreted in Buckley, 424 U.S. at 46 n. 53, and Colorado Republican, 116 S. Ct. at 2313. In addition, another provision of the Act explicitly states that, for purposes of subsection 441a(a), "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate." 2 U.S.C. Section(s) 441a(a)(7)(B)(i) (emphasis added). This provision makes explicit Congress's intention that coordinated expenditures like those here — spending on voter guides that were prepared after consultation and cooperation with candidates — be considered contributions, at least for purposes of 441a.

"[T]here is a presumption that a given term is used to mean the same thing throughout a statute." Brown v. Gardner, 513 U.S. 115, 118 (1994). In light of this canon of statutory construction, and because nothing in Section(s) 441b specifies a different view of the term "contribution," I see no reason to second-guess the FEC's interpretation that expenditures on voter guides, the preparation of which is coordinated with candidates, should be treated as contributions under Section(s) 441b as well as under Section(s) 441a. See Chevron, 467 U.S. at 844. I turn now to the question whether the statute is constitutional as so interpreted.

As already noted, plaintiff MRTLC challenges the FEC's interpretation on its face, not as-applied. With an exception not applicable here, in order to prevail on such a challenge, the plaintiff must show that the regulation can never be applied constitutionally. Rust, 500 U.S. at 183. This the plaintiff cannot do: MRTLC itself exemplifies an organization to which the written-contact-only regulation, 11 CFR 114.4(c)(5)(ii)(A), may constitutionally be applied. MRTLC's expenditure on voter guides is not totally independent of the candidates, which would be necessary to be entitled to the full protection of Buckley and its progeny. It is a coordinated expenditure that is legitimately treated as if it were a contribution and, as such, may be regulated by the FEC under FECA, at least by means of this limited prophylactic measure requiring that MRTLC's contacts with candidates be only in writing.

"When deciding whether a[n] . . . election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the . . . rule imposes on those rights against the interests the [government] contends justify that burden, and consider the extent to which the [government's] concerns make the burden necessary." Timmons v. Twin Cities Area New Party, 117 S.Ct. 1364, 1370 (1997) (internal quotation marks omitted).

As in Buckley and Austin, when an expenditure is coordinated with a candidate, it may be treated as a contribution, in part because in both situations the burden on constitutional rights is less than would be the case for a totally independent expenditure. Buckley found contribution limits to be "only a marginal restriction upon the contributor's ability to engage in free communication," because "the transformation of contributions into political debate involves speech by someone other than the contributor." 424 U.S. at 20 (emphasis added).

Similarly in the case at bar, to the extent MRTLC is seeking merely to distribute a purportedly accurate reflection of the candidates' views on the issues, distributing the voter guides is more like helping certain candidates to express their views through a contribution, as distinguished from the organization's expressing its views. The burden on MRTLC's First Amendment rights is therefore less id.

In addition, as Justice Brennan, one of the Supreme Court's great champions of First Amendment rights to free speech and association, noted in his concurrence in Austin, even the greater restrictions approved by the Court there would not impose an excessive burden on a corporation because it was allowed to speak through PACs, even if not through general treasury funds. Austin, 494 U.S. at 669 n. 1, 671 n. 2. He listed "many avenues of communication" still open to the plaintiff there (the Chamber of Commerce), which showed that "the segregated fund requirement in practice has not burdened significantly the Chamber's speech." Id. at 676 n. 7; see Timmons, 117 S.Ct. at 1371. "[T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other." Austin, 494 U.S. at 678 (Stevens, J., concurring).

The burden on MRTLC's constitutional rights here is even less intrusive. The regulation's requirement that any contact with candidates be in writing is itself a relatively minor restriction, more analogous to the disclosure requirements upheld in Buckley than to Austin's limitation on independent expenditures which the Court nevertheless upheld, although acknowledging that it would impose a heavy burden on First Amendment rights. The written-contact-only rule does not impose even as much burden on First Amendment rights as the limitations on contributions upheld in Buckley. In contrast to the limitations upheld in Buckley and Austin on the absolute amount of money spent, in the case at bar the type of restriction imposed by the FEC's written-contact-only regulation does not limit the quantity of speech in any way; it simply specifies the manner in which the corporation consults with candidates in preparing its voter guides. Thus, the regulation is significantly less intrusive on MRTLC's First Amendment rights than those absolute limits on the quantity of speech.

The writing requirement is also content-neutral (in both purpose and effect): it does not prefer any one message over another in MRTLC's voter guides, as long as the guides were prepared without any oral contact with the candidates. The rule is completely indifferent to the issues the corporation wishes to address in its voter guides and to the positions the corporation itself takes on those issues. In addition, MRTLC may say anything it wants to a candidate (or ask any questions it wants) during the preparation of the guides, as long as it does so in writing. The regulation does not limit the content of the communication between MRTLC and the candidates, only the manner (written or non-written) in which such communication is effectuated.

Moreover, as in Austin, the written-contact-only regulation applies only to the organization's use of general treasury funds; it does not apply at all to PAC money from a separate segregated fund. If MRTLC were willing to comply with the reporting and other requirements by which the FEC monitors ordinary corporate PACs, then it would not have to comply with the challenged restriction. In addition, the written-contact-only rule does not apply at all to totally independent issue advocacy to the public, upon which Austin permitted restrictions. If MRTLC engaged in no consultation with the candidates at all, it could publish voter guides, even pay for them out of its general corporate treasury, advocating whatever position it wanted to, on any issue, as long as it did not expressly advocate the election or defeat of a clearly identified candidate. Thus, the burden on First Amendment rights posed by the challenged regulation is relatively small.

Even where governmental regulations have "the potential for substantially infringing the exercise of First Amendment rights," the Court has "acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved." Buckley, 424 U.S. at 66 (internal quotation marks omitted); see Timmons, 117 S.Ct. at 1369 ("'[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.'") (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)). The Court has repeatedly held that burdens on First Amendment rights more significant than those involved in the instant case were outweighed by the potential for corruption, Buckley, and by the corrosive and distorting effects of corporate wealth, Austin. Cf. Burdick, 504 U.S. at 434 ("[T]he rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights."); Werme v. Merrill, 84 F.3d 479, 483-84 (1st Cir. 1996).

Moreover, as the Court said in Mass. Citizens, "restrictions on contributions require less compelling justification than restrictions on independent spending." MCFL, 479 U.S. at 259-60 (emphasis added). Because less of a justification was required, "the need for a broad prophylactic rule was thus sufficient . . . to support a limitation on the ability of a committee to raise money for direct contributions to candidates." Id. at 260.

In Austin, the Court went further; it upheld a rule restricting a nonprofit corporation's independent expenditures as well as contributions, justified by the fact that all corporations both "receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process." 494 U.S. at 661; see id. at 663 n. 2 (recognizing "the possible distortion of the political process inherent in independent expenditures from general corporate funds") (emphasis added). Because the Court found that "[c]orporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions," id. at 660, the Court concluded that preventing "corporate domination of the political process" was a sufficiently compelling interest to justify the burdens on a nonprofit corporation's First Amendment rights, even in the context of totally independent expenditures. Id. at 659.

Surely, then, the same concerns are sufficiently compelling where, as here, corporate wealth is deployed in an in-between form, i.e., spending that is not totally independent but rather entails some degree of coordination with the candidates. The majority protects the freedom of corporations to meet face-to-face with a candidate, in order to secretly plan the content and presentation of voter guides that the corporation will distribute to the public. I believe this concern should be secondary to protecting the integrity of our electoral process. See Buckley, 424 U.S. at 66. The government has a compelling interest in taking prophylactic measures to prevent the coercion and corruption that would arise if a corporation like MRTLC offered to provide valuable in-kind assistance (providing expensive advertising for free) to a candidate on the condition that the candidate take the position the corporation demands, and to prevent the appearance of such coercion or corruption.

The FEC is legitimately concerned about the danger. The FEC regulation prohibiting unwritten contact with candidates was designed to foreclose the abuse that could potentially arise from a corporation like MRTLC pressuring a candidate to amend his or her position on an issue, on pain of losing this kind of substantial in-kind contribution. According to the FEC, a prophylactic rule is needed so corporations do not induce candidates to change positions merely because they need the money to finance their campaigns, even if they do not actually agree with the change. If the question were the FEC's authority to regulate an organization offering a $20,000 cash contribution to a candidate if she would agree to change her position to one of support for the organization's position on a particular piece of legislation, there would be no question of the FEC's authority to regulate the organization. I see no reason why the result should not be the same if the organization offers instead $20,000 worth of pamphlets presenting the candidate's view on this issue in a favorable, rather than an unfavorable, light.

Consider the following scenario. An organization consults with a candidate regarding his or her plans or needs in the campaign, and then says to the candidate: "You have stated the position you believe in, but we disagree with it in certain respects. We plan to spend $20,000 to print voter guides and distribute them largely to persons in sympathy with our views. If you modify your position to be more like ours, our voter guides will tell people that you support our position and your opponent does not. If you don't modify your stand as we suggest, we will spend the money on voter guides which paint you in an unfavorable light." The prophylactic measure required by the FEC rule is simply that discussions with candidates about the preparation of voter guides be in writing, and not oral. Non-written communications with candidates about voter guides present an opportunity for the kind of dangerous quid pro quo at the heart of the compelling justification that the Supreme Court has repeatedly relied upon in upholding the Act's restrictions on contributions and coordinated expenditures. "[I]n-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection." Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 457 (1978). Unlike a written communication, an oral discussion "is not visible or otherwise open to public scrutiny. Often there is no witness other than the [parties to the conversation], rendering it difficult or impossible to obtain reliable proof of what actually took place." Id. at 466. Under the majority's position sustaining MRTLC's view, corporate voter guides "would be virtually immune to effective oversight and regulation." Id. I agree with the FEC that the written-contact-only requirement "eliminates the possibility of unrecorded conversations that could entice or coerce a candidate to alter his or her positions in exchange for favorable treatment in a voting guide." FEC Brief at 31. Such coercion exemplifies the kind of distortion of our political process with "immense aggregations of wealth" of which Austin, 494 U.S. at 660, and Mass. Citizens, 479 U.S. at 263, would disapprove, and which the FEC may regulate with prophylactic measures like its written-contact-only requirement. I conclude that "[i]t therefore is not unreasonable, or violative of the Constitution, for [the FEC] to respond with what in effect is a prophylactic rule." Ohralik, 436 U.S. at 467.

The plaintiff relies heavily on Mass. Citizens ("MCFL"), 479 U.S. at 263-64, which emphasized the difference between the type of corporation before the Court there and an ordinary, business-oriented corporation whose independent expenditures (even if not coordinated with a candidate to the extent these voter guides are) may be restricted without violating the First Amendment. Austin, 494 U.S. at 660. It is true that MCFL exempts from FECA's general rule a "small" group of corporations that do not pose the same kind of threat to the electoral process, MCFL, 479 U.S. at 263-64, because they do not have access to "vast reservoirs" of corporate wealth (among other factors), Austin, 494 U.S. at 661, 664. But the significant fact in MCFL was not that the plaintiff was a nonprofit ideological corporation: indeed, in Austin, the Court upheld the constitutionality of regulations restricting independent expenditures by a nonprofit ideological corporation. Id. at 659-60.

Just as in Austin, the instant case is distinguishable from MCFL. In Austin, "the Constitution [did] not require that [the plaintiff] be exempted from the generally applicable provisions" of the campaign finance law, because it "[did] not share [the three] crucial features" that justified the narrow MCFL exception. Austin, 494 U.S. at 662. In the instant case, MRTLC accepts contributions from for-profit business corporations and intends to continue doing so. MRTLC does not eschew those "vast reservoirs of capital." Austin, 494 U.S. at 661. This is the point on which the Chamber of Commerce in Austin differed "most greatly" from the plaintiff in Mass. Citizens. Austin, 494 U.S. at 664. The source of MRTLC's funds creates the potential that MRTLC will "serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." Id. at 664 (quoting Mass. Citizens, 479 U.S. at 264) (brackets in Austin). This would enable for-profit business corporations — themselves "barred from making independent expenditures directly," Austin, 494 U.S. at 673-74 (Brennan, J., concurring) — to "circumvent the Act's restriction [on corporate financing of election campaigns] by funneling money through [MRTLC's] general treasury." Austin, 494 U.S. at 664. Cf. California Medical Ass'n v. FEC, 453 U.S. 182, 197-99 (1981) (plurality opinion) (danger of evasion of limits on contribution to candidates justified prophylactic limitation on contributions to PACs).

Finally, the FEC's written-contact-only rule for preparing voter guides is narrowly tailored to address the governmental interest here. It does not stop corporations like MRTLC from communicating their views about abortion or about particular candidates to the public; nor does it stop them from communicating with candidates to lobby them to change their positions, as long as the lobbying is not done in the context of offering what could be the functional equivalent of an extremely valuable in-kind contribution; it does not even stop them from communicating with candidates to gain information about candidate positions to include in the corporation's voter guide. All it does is require the latter type of communication directly with candidates to be done in writing, for prophylactic reasons. I agree with the FEC that, in the context of this case, "oral conversations, unlike written questions, inherently provide an opportunity for prearrangement and coordination, while adding little or no additional information necessary to produce a voting guide." FEC Brief at 33.

In Austin, the Court found that a statute was "precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views," where the statute permitted independent political expenditures through PACs but forbade such expenditures from general corporate treasury funds. 494 U.S. at 660. The Court concluded that the statute was not overinclusive merely because it imposed the same restrictions on small companies that did not "possess vast reservoirs of capital." Id. at 661. The Court noted that National Right to Work Comm. had rejected a similar overinclusion argument, because "it is the potential for such influence that demands regulation." Id. (quotation omitted). The written-contact-only regulation is likewise sufficiently narrowly tailored.

I conclude that the FEC may construe a corporation's contact with candidates in the preparation of a voter guide as "coordination" with the candidates. Therefore the FEC may treat the expenditure of money on those voter guides as an in-kind contribution to the candidates. In this context, the need for a prophylactic rule is sufficient to justify the limited restriction imposed by the written-contact-only regulation.

I am mindful that MRTLC's challenge here is facial, not as-applied. MRTLC is not asking us to consider whether the written-contact-only rule is unconstitutional as applied to it. Therefore, I do not consider whether, if a full factual record were before us, MRTLC might be able to show that it is not in fact a conduit for corporate wealth. Thus, even if the regulation would be unconstitutional as applied to someone, a facial challenge like the present one must fail where even the plaintiff appears to exemplify a situation where the written-contact-only regulation may constitutionally be applied. Cf. Austin, 494 U.S. at 674 n. 4 (Brennan, J., concurring).

Conclusion

I believe that the majority has misstated the thrust of the FEC's written-contact-only regulation. The issue is not as simple nor as amenable to broad-brushed analysis as the majority thinks. It cannot be resolved without examining the evolution of Supreme Court case law, which the majority has ignored. Because, as I read the case law, we should uphold this prophylactic regulation, I respectfully dissent.