North Carolina Right to Life, Inc. v. Leake

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.