Preston v. Leake

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SARAH PRESTON, 

Plaintiff-Appellant,

v.

LARRY LEAKE, in his official

capacity as Chairman of the North

Carolina State Board of Elections;

CHARLES WINFREE, in his official

capacity as a Member of the North

Carolina State Board of Elections;

ROBERT CORDLE, in his official  No. 10-2294

capacity as a Member of the North

Carolina State Board of Elections;

ANITA S. EARLS, in her official

capacity as Secretary of the North

Carolina State Board of Elections;

BILL W. PEASLEE, in his official

capacity as a Member of the North

Carolina State Board of Elections,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of North Carolina, at New Bern.

Louise W. Flanagan, Chief District Judge.

(5:08-cv-00397-FL)

Argued: September 21, 2011

Decided: November 7, 2011

2 PRESTON v. LEAKE

Before NIEMEYER and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge King and Senior Judge Hamilton

joined.

COUNSEL

ARGUED: Thomas Hamilton Segars, ELLIS & WINTERS,

LLP, Raleigh, North Carolina, for Appellant. Susan Kelly

Nichols, NORTH CAROLINA DEPARTMENT OF JUS-

TICE, Raleigh, North Carolina, for Appellees. ON BRIEF:

Jonathan D. Sasser, ELLIS & WINTERS, LLP, Raleigh,

North Carolina; Katherine L. Parker, Raleigh, North Carolina,

for Appellant. Roy Cooper, Attorney General, Alexander

McC. Peters, Special Deputy Attorney General, NORTH

CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North

Carolina, for Appellees.

OPINION

NIEMEYER, Circuit Judge:

Sarah Preston, a North Carolina registered lobbyist, com-

menced this action under 42 U.S.C. § 1983 against the North

Carolina State Board of Elections to challenge the

constitutionality—facially and as applied—of North Caroli-

na’s "Campaign Contributions Prohibition," N.C. Gen. Stat.

§ 163-278.13C(a) (2011), which prohibits any registered lob-

byist from contributing to the campaign of any candidate for

the North Carolina General Assembly or the Council of State.

Preston, who asserts that she desires to make small campaign

PRESTON v. LEAKE 3

contributions and to volunteer for candidates, alleges that the

statute violates her rights to freedom of speech and freedom

of association guaranteed by the First and Fourteenth Amend-

ments.

In a thorough opinion, the district court rejected the chal-

lenge, finding that the statute served the important govern-

mental interest of avoiding corruption and the appearance of

corruption while leaving open other sufficient means for polit-

ical expression by lobbyists. The court concluded that the stat-

ute was constitutional both on its face and as applied to

Preston.

We affirm. Applying the "closely drawn" standard of scru-

tiny that we conclude is applicable to such contribution

restrictions, we hold that the statute is constitutional, both

facially and as applied to Preston, as a valid exercise of North

Carolina’s legislative prerogative to address potential corrup-

tion and the appearance of corruption in the State.

I

In 2006, North Carolina enacted the Campaign Contribu-

tions Prohibition, which prohibits registered lobbyists from

making contributions to candidates for the North Carolina

General Assembly and the Council of State. 2006 N.C. Sess.

Laws 201; N.C. Gen. Stat. § 163-278.13C(a). The Campaign

Contributions Prohibition, as well as the other provisions of

the State Government Ethics Act, of which the Campaign

Contributions Prohibition is a part, was enacted "to ensure

that elected and appointed state agency officials exercise their

authority honestly and fairly, free from impropriety, threats,

favoritism, and undue influence." 2006 N.C. Sess. Laws 201.

North Carolina asserts that, in enacting the provision, it was

responding to a "crisis of confidence in State government,"

resulting from corruption and the appearance of corruption

over the last decade. Brief of Appellee at 2. As the State

relates the history:

4 PRESTON v. LEAKE

Former North Carolina Commissioner of Agricul-

ture, Meg Scott Phipps. Former Speaker of the North

Carolina House of Representatives, Jim Black. For-

mer North Carolina Representatives, Michael Decker

and Thomas Wright. These were North Carolina

elected officials embroiled in campaign finance

scandals leading to convictions in federal and state

courts, and, in one instance, expulsion from the

North Carolina House of Representatives. Chiroprac-

tors, optometrists, high-profile registered lobbyist

Don Beason, and others—including most recently

the campaign committees of former governor

Michael F. Easley and current governor Bev Perdue

—have also been part of the corruption or appear-

ance of corruption that has infected North Carolina’s

state government in the last decade.

Id.

The Campaign Contributions Prohibition provides in rele-

vant part:

(a) No lobbyist may make a contribution as defined

in G.S. 163-278.6 to a candidate or candidate cam-

paign committee as defined in GS 163-278.38Z

when that candidate meets any of the following

criteria:

(1) Is a legislator as defined in G.S. 120C-

100.

(2) Is a public servant as defined in G.S.

138A- 3(30)a. and G.S. 120C-104.

N.C. Gen. Stat. § 163-278.13C(a). The statute defines "contri-

bution," which lies at the center of this appeal, as follows:

[A]ny advance, conveyance, deposit, distribution,

transfer of funds, loan, payment, gift, pledge or sub-

PRESTON v. LEAKE 5

scription of money or anything of value whatsoever,

made to, or in coordination with, a candidate to sup-

port or oppose the nomination or election of one or

more clearly identified candidates, to a political

committee, to a political party, or to a referendum

committee, whether or not made in an election year,

and any contract, agreement, or other obligation to

make a contribution. An expenditure forgiven by a

person or entity to whom it is owed shall be reported

as a contribution from that person or entity. These

terms include, without limitation, such contributions

as labor or personal services, postage, publication of

campaign literature or materials, in-kind transfers,

loans or use of any supplies, office machinery, vehi-

cles, aircraft, office space, or similar or related ser-

vices, goods, or personal or real property. These

terms also include, without limitation, the proceeds

of sale of services, campaign literature and materials,

wearing apparel, tickets or admission prices to cam-

paign events such as rallies or dinners, and the pro-

ceeds of sale of any campaign-related services or

goods. Notwithstanding the foregoing meanings of

"contribution," the word shall not be construed to

include services provided without compensation by

individuals volunteering a portion or all of their time

on behalf of a candidate, political committee, or ref-

erendum committee. The term "contribution" does

not include an "independent expenditure." If:

a. Any individual, person, committee,

association, or any other organization or

group of individuals, including but not lim-

ited to, a political organization (as defined

in section 527(e)(1) of the Internal Revenue

Code of 1986) makes, or contracts to make,

any disbursement for any electioneering

communication, as defined in this section;

and

6 PRESTON v. LEAKE

b. That disbursement is coordinated with

a candidate, an authorized political commit-

tee of that candidate, a State or local politi-

cal party or committee of that party, or an

agent or official of any such candidate,

party, or committee

that disbursement or contracting shall be treated as

a contribution to the candidate supported by the elec-

tioneering communication or that candidate’s party

and as an expenditure by that candidate or that can-

didate’s party.

N.C. Gen. Stat. § 163-278.6.

The statute thus considers "anything of value whatsoever"

to be a contribution, excluding specifically volunteer services

and independent expenditures. But an individual may not

claim to be making an independent expenditure if it is "coor-

dinated with a candidate" or other campaign entity. If the indi-

vidual does coordinate expenditures, they become

contributions. See id. Under the Campaign Contributions Pro-

hibition, a lobbyist may also make recommendations to third

parties regarding contributions to specific candidates as long

as the lobbyist does not act as the collection agent or "bun-

dler" for those contributions. N.C. Gen. Stat. § 163-

278.13C(b).

The North Carolina State Board of Elections ("the Board")

enforces the Campaign Contributions Prohibition by conduct-

ing investigations of alleged violations, id. § 163-278.22(7);

assessing and collecting civil penalties of up to three times the

amount of an unlawful contribution, id. §§ 163-278.22(14),

163-278.34(b); and reporting violations of the Campaign Con-

tributions Prohibition to the district attorney for possible crim-

inal prosecution, id. § 163-278.27(b). The Board is also

authorized to issue advisory opinions to candidates or other

entities seeking an interpretation of the statute, id. § 163-

PRESTON v. LEAKE 7

278.22(15), and the candidates’ or other entities’ compliance

with any such opinion will absolve them of any potential civil

or criminal liability, id. § 163-278.23. To date, the Board has

issued a number of advisory opinions in order to clarify con-

duct not explicitly covered by the law, determining, e.g., that

a lobbyist may lawfully (1) contribute to a political action

committee ("PAC"), even PACs that in turn contribute to can-

didates; (2) make recommendations to a PAC about which

candidates to support, so long as the lobbyist is not the "deci-

sionmaker" as to which candidate receives contributions by

exercising unilateral discretion or casting the determinative

vote; and (3) attend or host fundraising events in the lobby-

ist’s home so long as the lobbyist does not pay for anything

or is reimbursed for any expenditures.

The Board also polices the boundary between what consti-

tutes a "contribution" and what constitutes an "independent

expenditure," as defined by the statute, determining on a case-

by-case basis the extent to which there is "coordination"

between the lobbyist’s expenditures and a candidate or cam-

paign. To assist it in this effort, the Board sought "clear

instruction" from the General Assembly regarding the proper

definition of "coordination," and, in response, the General

Assembly enacted an amendment to the Campaign Contribu-

tions Prohibition defining "coordination" as "in concert or

cooperation with, or at the request or suggestion of." 2010

N.C. Sess. Laws 170, codified at N.C. Gen. Stat. § 163-

278.6(6h) (2011).

Sarah Preston in her role as a registered lobbyist com-

menced this action against the Board, asserting in her com-

plaint "that North Carolina General Statutes § 163-278.13C(a)

(the ‘Campaign Contribution[s] Prohibition’) is unconstitu-

tional, both facially and as applied to [her], in that it infringes

on rights to freedom of speech and freedom of association

guaranteed by the First and Fourteenth Amendments to the

United States Constitution." She claims that she wishes to

make nominal campaign contributions of not more than $25

8 PRESTON v. LEAKE

to express her support for legislative candidates of her choice

but has refrained from doing so because of the Campaign

Contributions Prohibition. She also claims that she wishes to

volunteer for local campaigns and to put out a yard sign indi-

cating her support for a particular candidate but is confused

about which of her desired actions would constitute campaign

contributions, in violation of the Campaign Contributions

Prohibition. Preston seeks declaratory and injunctive relief.

After preliminarily determining that "closely drawn" scru-

tiny was to apply to its evaluation of the statute, Preston v.

Leake, 629 F. Supp. 2d 517 (E.D.N.C. 2009) ("Preston I"),

the district court entered summary judgment in favor of the

Board, upholding the constitutionality of the Campaign Con-

tributions Prohibition, Preston v. Leake, 743 F. Supp. 2d 501

(E.D.N.C. 2010) ("Preston II"). In its opinion, the court con-

cluded:

In light of the sufficiently important interest in

avoiding corruption and the appearance of corruption

caused by campaign contributions by lobbyists to

candidates for statewide office, and with sufficient

means for political expression left open to these lob-

byists, the Campaign Contributions Prohibition is

closely drawn to match a sufficiently important

interest.

Id. at 511. From the district court’s judgment, dated October

19, 2010, Preston filed this appeal.

II

Preston acknowledges that it is appropriate to apply

"closely drawn" scrutiny when evaluating laws imposing con-

tribution limits, but she contends that a complete ban on cam-

paign contributions "restricts direct speech rights of would-be

contributors that lie at the core of political expression" and

thus "demand[s] strict scrutiny," citing Citizens United v. Fed-

PRESTON v. LEAKE 9

eral Election Commission, 130 S. Ct. 876 (2010). She

explains that in considering contribution limits, courts have

typically been focused on speech by someone other than the

contributor, namely the recipient who will use the contribu-

tion to further debate. The contributor still retains the means

of symbolic expression through a contribution within the stat-

utory limit. But an outright ban, she argues, disallows "the

symbolic and expressive act of contributing in the first place,"

so that the ban is a "direct restraint on political communica-

tion," which is therefore subject to strict scrutiny.

The Board contends that contribution bans are subject to

"closely drawn" scrutiny, as first identified in Buckley v.

Valeo, 424 U.S. 1 (1976), and explicitly applied to a cam-

paign contribution ban in Federal Election Commission v.

Beaumont, 539 U.S. 146 (2003). It argues that the application

of this level of scrutiny to campaign contribution bans

remains good law, even after Citizens United, decided in

2010.*

In its most recent discussion of campaign finance and the

First Amendment, the Supreme Court reaffirmed the existence

of the two levels of scrutiny by which it has measured cam-

paign finance restrictions. Although the Court reiterated the

general principle that "‘[l]aws that burden political speech

are’ . . . ‘subject to strict scrutiny,’" Ariz. Free Enterprise

Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817

(2011) (quoting Citizens United, 130 S. Ct. at 898), it also

recognized that "[a]t the same time, we have subjected stric-

tures on campaign-related speech that we have found less

onerous to a lower level of scrutiny and upheld those restric-

tions . . . after finding that the restriction at issue was ‘closely

*Both parties make alternative arguments. Preston argues alternatively

that even when the statute is considered under "closely drawn" scrutiny,

it is unconstitutional, and the Board argues alternatively that even apply-

ing a level of strict scrutiny, the statute is nonetheless constitutional. Of

course, the parties’ alternative arguments do not resolve the question.

10 PRESTON v. LEAKE

drawn’ to serve a ‘sufficiently important interest,’" id. (quot-

ing Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-88

(2000), and McConnell v. Fed. Election Comm’n, 540 U.S.

93, 136 (2003), overruled on other grounds by Citizens

United, 130 S. Ct. at 913). One of the strictures that fell into

the "closely drawn" standard was a "government-imposed

limit[ ] on contributions to candidates." Id. (citing Buckley v.

Valeo, 424 U.S. 1, 23-25 (1976)).

Despite the fact that "[p]recision about the relative rigor of

the standard to review contribution limits was not a pretense

of the Buckley per curiam opinion," Nixon, 528 U.S. at 386,

Buckley nonetheless laid the foundation for what has been

termed "closely drawn scrutiny," N.C. Right to Life, Inc. v.

Leake, 525 F.3d 274, 291 (4th Cir. 2008) ("NCRL II"). The

Buckley Court explained why a limit on contributions should

be subject to this lower standard:

A limitation on the amount of money a person may

give to a candidate or campaign organization thus

involves little direct restraint on his political commu-

nication, for it permits the symbolic expression of

support evidenced by a contribution but does not in

any way infringe the contributor’s freedom to dis-

cuss candidates and issues. While contributions may

result in political expression if spent by a candidate

or an association to present views to the voters, the

transformation of contributions into political debate

involves speech by someone other than the contribu-

tor.

Buckley, 424 U.S. at 21. The Court later emphasized the dis-

tinction between limitations on contributions and limitations

on independent expenditures, when, in Nixon, it summarized

Buckley as standing for the proposition that a lower level of

scrutiny is applicable to contribution limits because "limiting

contributions le[aves] communication significantly unim-

paired." Nixon, 528 U.S. at 387. The Nixon Court also

PRESTON v. LEAKE 11

addressed specifically the impact of contribution limits on the

First Amendment right to associate freely:

While an expenditure limit ‘precludes most associa-

tions from effectively amplifying the voice of their

adherents,’ (thus interfering with the freedom of the

adherents as well as the association), the contribution

limits ‘leave the contributor free to become a mem-

ber of any political association and to assist person-

ally in the association’s efforts on behalf of

candidates.’

Id. (quoting Buckley, 424 U.S. at 22) (internal citation omit-

ted).

As it now stands, the level of scrutiny applicable to any

restriction on political financial activity that implicates the

First Amendment is "based on the importance of the ‘political

activity at issue’ to effective speech or political association."

Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 161

(2003) (quoting Fed. Election Comm’n v. Mass. Citizens for

Life, Inc., 479 U.S. 238, 259 (1986)). And because contribu-

tion limits are "merely ‘marginal’ speech restrictions" and "lie

closer to the edges than to the core of political expression,"

they are "subject to relatively complaisant review under the

First Amendment." Beaumont, 539 U.S. at 161.

Preston takes no issue with this jurisprudence generally.

Rather, she contends that the Campaign Contributions Prohi-

bition, because it is an absolute ban, infringes not "marginal"

speech but core political speech and association. She points

out that the only contribution ban to which the Supreme Court

has applied closely drawn scrutiny was the ban on corporate

contributions upheld in Beaumont. But she argues that Beau-

mont is distinguishable from this case because the Court in

Beaumont determined that closely drawn scrutiny should

apply, in part, because that case involved "[a] ban on direct

corporate contributions leav[ing] individual members of cor-

12 PRESTON v. LEAKE

porations free to make their own contributions." 539 U.S. at

162 n.8. The North Carolina Campaign Contributions Prohibi-

tion, by contrast, directly forbids individual lobbyists from

making any contributions.

Preston also argues that Buckley recognized an individual’s

continued ability to make a "symbolic contribution" as one

reason that a contribution limit was a marginal restriction on

speech. See Buckley, 424 U.S. at 21. It follows, Preston rea-

sons, that a law that forbids even such a symbolic contribution

should be subject to a higher level of scrutiny. She argues that

contribution limits "b[ear] more heavily on the associational

right than on freedom to speak," Nixon, 528 U.S. at 388, and

that the Campaign Contributions Prohibition at issue here

appears to impact directly an individual lobbyist’s ability to

exercise that right.

Although Preston’s arguments have some initial appeal,

upon closer review, we find them unpersuasive. The Supreme

Court has made clear that the level of scrutiny to be applied

in these cases depends on the political activity at issue. In

articulating her position, Preston essentially argues that the

examination of the political activity in this case should lead

us to reject the expenditure/contribution dichotomy where a

ban is concerned. The Supreme Court, however, adopted this

dichotomy precisely because these categories of political

expression represent two distinct types of political activity.

See Nixon, 528 U.S. at 386-89. While a symbolic contribution

to a candidate’s campaign is undoubtedly political expression

protected by the First Amendment, the prohibition of this par-

ticular expressive activity is "less onerous," see Ariz. Free

Enterprise, 131 S. Ct. at 2817, because of the numerous other

ways in which would-be contributors can associate with par-

ticular candidates and express their political viewpoints,

Nixon, 528 U.S. at 386-89. The imposition of a restriction,

whether a limit or a ban, on contributions by a specific group

of individuals serves only as a channeling device, cutting off

the avenue of association and expression that is most likely to

PRESTON v. LEAKE 13

lead to corruption but allowing numerous other avenues of

association and expression. In contrast to these narrow restric-

tions, a generally applicable expenditure limit serves as a

muzzling device, cutting off altogether political speech above

a certain level.

Although a ban ends association rights to a greater degree

than does a limit by foreclosing the ability to make even a

small donation, this amounts to a difference in the scope of a

particular law, not a difference in the type of activity regu-

lated by the law. Thus, the Supreme Court rejected a version

of Preston’s argument in Beaumont with regard to a complete

ban on corporate contributions, saying that the argument

"overlooks the basic premise" that the level of scrutiny

depends on the activity regulated. Beaumont, 539 U.S. at 161.

This is not to say that the difference in scope between a ban

and a limit should be ignored. But it does mean that "the time

to consider it is when applying scrutiny at the level selected,

not in selecting the standard of review itself." Id. at 162

(emphasis added); see also Green Party of Conn. v. Garfield,

616 F.3d 189, 199 (2d Cir. 2010) (rejecting the argument that

a ban on lobbyists contributions should be subjected to strict

scrutiny); Thalheimer v. City of San Diego, 645 F.3d 1109,

1124 n.4 (9th Cir. 2011) (rejecting the argument that a ban

deserves higher scrutiny than a limit).

Preston argues further that Citizens United, decided in

2010, eliminated "closely drawn" scrutiny with its unqualified

statement that "law[s] that burden political speech are ‘subject

to strict scrutiny.’" 130 S. Ct. at 898 (quoting Fed. Election

Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007)

(opinion of Roberts, C.J.)). But the Citizens United Court also

recognized explicitly that the plaintiff in that case "ha[d] not

made direct contributions to candidates [and] ha[d] not sug-

gested that the Court should reconsider whether contribution

limits should be subjected to rigorous First Amendment scru-

tiny." Id. at 909. In addition, the Court in Arizona Free Enter-

prise, decided after Citizens United, reaffirmed the continuing

14 PRESTON v. LEAKE

existence of the dual levels of scrutiny. Ariz. Free Enterprise,

131 S. Ct. at 2816-17.

We thus conclude that the Supreme Court has not overruled

Buckley, Nixon, Beaumont, or other cases applying "closely

drawn" scrutiny to contribution restrictions, and in doing so,

we join the other circuits that have concluded similarly. See

Garfield, 616 F.3d at 199; Siefert v. Alexander, 608 F.3d 978,

988 (7th Cir. 2010); In re Cao, 619 F.3d 410, 422-23 (5th Cir.

2010). Accordingly, we affirm the district court’s conclusion

that in reviewing the Campaign Contributions Prohibition, we

must determine whether it is closely drawn to a sufficiently

important government interest.

III

In support of her challenge to the constitutionality of the

Campaign Contributions Prohibition as applied to her, Pres-

ton states that she seeks to make campaign contributions of

"no more than $25," to volunteer for local campaigns without

having to account for small expenses, and to put out a yard

sign expressing support for a candidate. She maintains that

her engaging in these activities would result in no actual cor-

ruption but that prohibiting them "extinguishes her right to

make a symbolic expression of support for her candidate of

choice." In addition, she argues that she cannot volunteer

"without fear that some unaccounted for expense will gener-

ate a [damaging] headline" about her or the candidate she sup-

ports. See Randall v. Sorrell, 548 U.S. 230, 260 (2006)

(plurality opinion).

The Board claims that the record in this case shows "abso-

lutely no application" of the Campaign Contributions Prohibi-

tion to Preston and that Preston has not offered any authority

for the proposition that her "inchoate desire, without any gov-

ernment action, constitutes application of the statute to her."

In addition, the Board argues that the activities prohibited by

the statute are clear and that Preston has no reason to refrain

PRESTON v. LEAKE 15

from her desired activities out of confusion regarding the stat-

ute’s application.

The government does not, however, take issue with the fact

that Preston faces a "credible threat of prosecution" should

she donate money or otherwise violate the Campaign Contri-

butions Prohibition, thus giving her standing to mount an as-

applied challenge to the statute. See N.C. Right to Life, Inc. v.

Bartlett, 168 F.3d 705, 710 (4th Cir. 1999) ("NCRL I") (quot-

ing N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 15 (1st Cir.

1996)). In addition, we have held a law that "‘facially restric-

t[s] expressive activity by the class to which the plaintiff

belongs’ presents such a credible threat [of prosecution]." Id.;

see also Milavetz, Gallop & Milavetz, P.A. v. United States,

130 S. Ct. 1324, 1339 n.7 (2010) (hearing an as-applied pre-

enforcement challenge based only on the status of the plain-

tiffs, despite the absence of exhibits or other evidence to

"ground [the] analysis"). As we noted, such a presumption "is

particularly appropriate when the presence of a statute tends

to chill the exercise of First Amendment rights." NCRL I, 168

F.3d at 710.

That brings us to the question whether the restrictions on

Preston’s political activities and the potential chilling effect

on her expressive activities are closely drawn to serve a suffi-

ciently important state interest.

North Carolina asserts, and Preston agrees, that the Cam-

paign Contributions Prohibition serves a sufficiently impor-

tant state interest in preventing both actual corruption and the

appearance of corruption. See Buckley, 424 U.S. at 25; Citi-

zens United, 130 S. Ct. at 908-09; NCRL II, 525 F.3d at 281;

see also McConnell, 540 U.S. at 143 ("Our cases have made

clear that the prevention of corruption or its appearance con-

stitutes a sufficiently important interest to justify political

contribution limits"). Rather, Preston’s challenge to the statute

centers on her assertion that it is not closely drawn to serve

that important state interest because the North Carolina legis-

16 PRESTON v. LEAKE

lature could have allowed for the small donations that she

would like to make without undermining its interest in pre-

venting actual and perceived corruption.

To be sure, the Campaign Contributions Prohibition extin-

guishes "one aspect of the contributor’s freedom of political

association," Randall, 548 U.S. at 246 (quoting Buckley, 424

U.S. at 24), whereas a limit would allow Preston to make a

symbolic expression of support "through a small contribu-

tion." But we do not find this difference, in the circumstances

presented, to be sufficiently great as to render the contribution

ban unconstitutional. This is especially so in light of the

strong state interest served by the ban.

Responding to its recent scandals, the North Carolina legis-

lature enacted the ban, explaining that "elected and appointed

officials must maintain and exercise the highest standards of

duty to the public in carrying out the responsibilities and func-

tions of their positions." 2006 N.C. Sess. Laws 201 (emphasis

added). The legislature thus made the rational judgment that

a complete ban was necessary as a prophylactic to prevent not

only actual corruption but also the appearance of corruption

in future state political campaigns. This is both an important

and a legitimate legislative judgment that "[c]ourts simply are

not in the position to second-guess," especially "where cor-

ruption is the evil feared." NCRL I, 168 F.3d at 716 (quoting

Fed. Election Comm’n v. Nat’l Right to Work Comm., 459

U.S. 197, 210 (1982)). As we have explained:

Unsurprisingly, the strength of the state’s interest in

preventing corruption is highly correlated to the

nature of the contribution’s recipient. Thus, the

state’s interest in the prevention of corruption—and,

therefore, its power to impose contribution limits—is

strongest when the state limits contributions made

directly to political candidates.

NCRL II, 525 F.3d at 291. And this formulation has been cited

with approval. See Long Beach Area Chamber of Commerce

PRESTON v. LEAKE 17

v. City of Long Beach, 603 F.3d 684, 696 (9th Cir. 2010). One

can hardly imagine another interest more important to protect-

ing the legitimacy of democratic government.

We also conclude that in aiming the ban at only lobbyists,

who, experience has taught, are especially susceptible to polit-

ical corruption, North Carolina closely drew its enactment to

serve the state interests it identified. The role of a lobbyist is

both legitimate and important to legislation and government

decisionmaking, but by its very nature, it is prone to corrup-

tion and therefore especially susceptible to public suspicion of

corruption. Any payment made by a lobbyist to a public offi-

cial, whether a campaign contribution or simply a gift, calls

into question the propriety of the relationship, and therefore

North Carolina could rationally adjudge that it should ban all

payments. Indeed, it is for these very reasons that we upheld

North Carolina’s prior statute imposing a total ban on lobby-

ists’ contributions, albeit only during campaigns while the

General Assembly was in session. See NCRL I, 168 F.3d at

716 (holding that a restriction on contributions by lobbyists

survived strict scrutiny, in part, because it was "limited to lob-

byists and the political committees that employ them"); cf.

Garfield, 616 F.3d at 205 ("Thus, although the CFRA’s ban

on contractor contributions is a drastic measure, it is an appro-

priate response to a specific series of incidents that have cre-

ated a strong appearance of corruption with respect to all

contractor contributions").

In support of her argument that a limitation, as distinct

from an outright ban, should have been imposed, Preston

relies on the Second Circuit’s decision in Garfield. While

Garfield did make the observation that a ban should not be

imposed if a limitation would suffice, see Garfield, 616 F.3d

at 206, the court nonetheless upheld a ban on contributions by

contractors and their families as a closely drawn exercise of

legislative power because Connecticut had demonstrated that

its recent corruption scandals "created an appearance of cor-

ruption with respect to all exchanges of money between state

18 PRESTON v. LEAKE

contractors and candidates for state office." Id. With respect

to Connecticut’s ban on lobbyist contributions, however, the

Garfield court concluded that Connecticut had presented

insufficient evidence to support the ban, especially a ban so

broad, prohibiting (1) contributions from lobbyists, (2) contri-

butions from lobbyists’ spouses and dependent children, (3)

solicitations of contributions by lobbyists, and (4) attendance

at campaign fund raisers. Id. at 195-96, 207.

But with North Carolina’s stated experience with corrup-

tion and its decision to impose the "highest standards," we

find no reason to second-guess the legislative judgment that

a ban on all contributions from lobbyists was the best

response. For the purposes identified by North Carolina, we

conclude that the Campaign Contributions Prohibition is

closely drawn to meet the perceived problem.

With respect to Preston’s wish to display a yard sign in

support of a candidate and to volunteer for a candidate’s cam-

paign, the Campaign Contributions Prohibition does not pro-

hibit either activity. In addition, with respect to Preston’s wish

to be a campaign volunteer, she has offered no details about

her specific activities to which the Campaign Contributions

Prohibition would apply. Her stated fears about overlooking

small expenses while volunteering are "phrased at such a high

level of generality that they cannot prevail in this preenforce-

ment challenge." Holder v. Humanitarian Law Project, 130 S.

Ct. 2705, 2729 (2010).

Because we conclude that, based on the record before us,

the Campaign Contributions Prohibition is constitutional as

applied to Preston, we will next consider whether the statute

is facially overbroad. See United States v. Stevens, 130 S. Ct.

1577, 1593-94 (2010) (Alito, J., dissenting) ("[I]t is not the

usual judicial practice . . . nor do we consider it generally

desirable, to proceed to an overbreadth issue unnecessarily—

that is, before it is determined that the statute would be valid

as applied" (quoting Bd. of Trustees of State Univ. of N.Y. v.

PRESTON v. LEAKE 19

Fox, 492 U.S. 469, 484-85 (1989))); see also NCRL II, 525

F.3d at 286.

IV

Preston contends that the Campaign Contributions Prohibi-

tion is facially unconstitutional as overly broad because it

"provides no limiting exceptions"; it "does not leave open

alternative means for lobbyists to participate in First Amend-

ment activities"; and it is not "tailored in any degree to serve

its stated government interest of avoiding corruption or the

appearance of corruption."

Any facial challenge to a legislative enactment that tests the

enactment not only as applied to the plaintiff but also as

applied to other unidentified persons, must be treated cau-

tiously by Article III courts because "slipping into the

embrace of a facial challenge can tend to leave behind the

limitations imposed by Article III and . . . to trample on legis-

lative prerogatives, in violation of separation of powers prin-

ciples." Richmond Med. Ctr. for Women v. Herring, 570 F.3d

165, 173 (4th Cir. 2009). Despite the fact that "passing on the

validity of a law wholesale may be efficient in the abstract,"

the broad resolution of a facial challenge denies the judicial

system the "lessons taught by the particular, to which com-

mon law method normally looks." Id. (quoting Sabri v. United

States, 541 U.S. 600, 608-09 (2004)).

Outside of the First Amendment context, a facial challenger

can only succeed by "establish[ing] that no set of circum-

stances exists under which the Act would be valid," United

States v. Salerno, 481 U.S. 739, 745 (1987), or by demonstrat-

ing that a statute has no "plainly legitimate sweep," Washing-

ton v. Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997)

(Stevens, J., concurring in the judgments).

But in the First Amendment context, the fear of chilling

expressive rights has led courts to entertain facial challenges

20 PRESTON v. LEAKE

based merely on hypothetical applications of the law to non-

parties, even though such an approach is "contrary to the fun-

damental principle of judicial restraint that courts should nei-

ther ‘anticipate a question of constitutional law in advance of

the necessity of deciding it’ nor ‘formulate a rule of constitu-

tional law broader than is required by the precise facts to

which it is to be applied.’" Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 450 (2008) (quoting Ash-

wander v. TVA, 297 U.S. 288, 346-47 (1936) (Brandeis, J.,

concurring) (internal quotation marks omitted)). Thus, in the

First Amendment context, the Supreme Court has "recog-

nize[d] ‘a second type of facial challenge,’" which is evalu-

ated under a standard that inquires whether a "‘substantial

number of [a statute’s] applications are unconstitutional,

judged in relation to the statute’s plainly legitimate sweep.’"

Stevens, 130 S. Ct. at 1587 (2010) (quoting Wash. State

Grange, 552 U.S. at 449 n.6). This overbreadth doctrine thus

allows a party to challenge a law facially under the First

Amendment by "describ[ing] [a substantial number of]

instances of arguable overbreadth of the contested law" even

if the law is constitutional as applied to the plaintiff. Wash.

State Grange, 552 U.S. at 449 n.6; see also Stevens, 130 S.

Ct. at 1593 (Alito, J., dissenting) ("Because an overly broad

law may deter constitutionally protected speech, the over-

breadth doctrine allows a party to whom the law may consti-

tutionally be applied to challenge the statute on the ground

that it violates the First Amendment rights of others"); Bd. of

Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483

(1989) ("Ordinarily, the principal advantage of the over-

breadth doctrine for a litigant is that it enables him to benefit

from the statute’s unlawful application to someone else").

In sum, when assessing an overbreadth challenge, we must

construe the statute and determine whether "a substantial

number of its applications are unconstitutional, judged in rela-

tion to the statute’s plainly legitimate sweep." Stevens, 130 S.

Ct. at 1587 (quoting Wash. State Grange, 552 U.S. at 449

PRESTON v. LEAKE 21

n.6). And in construing the statute, we give deference to the

State’s interpretation of the statute. Cf. id. at 1587-88.

The Campaign Contributions Prohibition in this case pro-

vides simply that "[n]o lobbyist may make a contribution . . .

to a candidate or candidate campaign . . . when that candidate

. . . [i]s a legislator . . . [or] a public servant." N.C. Gen. Stat.

§ 163-278.13C(a). While almost all of the terms in the Prohi-

bition are defined by the statute, the critical term, which gives

the statute its purportedly unconstitutional breadth, is the term

"contribution." A contribution includes "anything of value

whatsoever," and the ban is not temporally limited, nor is

there a de minimis exception. Id. § 163-278.6(6). While there

is an exception for volunteered services, the term contribution

includes expenses incurred even while volunteering if the

expenditures are "coordinated" with the campaign. The statute

defines "coordination" to mean "in concert or cooperation

with, or at the request or suggestion of" the campaign. Id.

§ 163-278.6(6h). If the expenses are not incurred in coopera-

tion with the campaign, they are excluded from the definition

of contribution.

Preston focuses on the fact that the Campaign Contribu-

tions Prohibition prohibits all contributions, regardless of

their monetary value, and also, for this reason, creates confu-

sion in determining what expenditures, however small, she

may make in coordination with a campaign. She argues that

de minimis contributions do not corrupt and North Carolina

has not provided evidence to suggest that they do. She relies

heavily on Randall, 548 U.S. 230, which found broadly appli-

cable limits to campaign contributions unconstitutional.

To be sure, in Randall, the Supreme Court pointed out that

the failure to exclude expenses of volunteers incurred for

travel and other minimal expenses from the definition of

"contribution" could burden volunteers’ efforts on behalf of a

campaign. 548 U.S. at 259. The Court also found suspect the

broad definition of prohibited contributions, which included

22 PRESTON v. LEAKE

all expenditures "intentionally facilitated by, solicited by, or

approved by" the candidate. Id. at 238. Thus, the Court

observed, the combination of prohibiting a broad range of

expenses incurred by volunteers and defining "contribution"

to include all coordinated expenditures would burden a cam-

paign and make it "difficult for individuals to associate" with

their chosen candidate. See id. at 260.

These observations made by the Randall Court, however,

were in a context that applied much more broadly and directly

to volunteers’ efforts to support campaigns, potentially "im-

ped[ing] a campaign’s ability effectively to use volunteers."

Id. at 260. But the Court’s concern over the statute’s impact

on volunteers arose because the low contribution limit applied

to all contributions by all individuals, political organizations,

and political parties.

The meaningful distinction for purposes of this case is that

the Campaign Contributions Prohibition here is limited to lob-

byists, a small class of people who might also be volunteers.

See Garfield, 616 F.3d at 201 (rejecting the applicability of

Randall to a ban limited to contractors because "Randall

addressed general contribution limits that applied to all citi-

zens"). And even with respect to lobbyists, the Campaign

Contributions Prohibition allows volunteering, as it only pro-

hibits volunteer expenses made in coordination with the can-

didate or the campaign.

Preston freely chose to become a registered lobbyist, and in

doing so agreed to abide by a high level of regulatory and eth-

ical requirements focusing on the relationship of lobbyist and

public official. In making her choice, she or any other lobbyist

covered by the Campaign Contributions Prohibition surely

must recognize the potential in such a relationship for corrup-

tion and the difficulty of defining any level of contribution

that would not tend to corrupt or at least provide the appear-

ance of corruption. The nature of the lobbyists’ role in its fin-

est tradition exists in tension with any idea that a lobbyist can

PRESTON v. LEAKE 23

make payments of any kind or in any amount to a public offi-

cial. The small campaign contribution, just as the small gift,

suffers from a legitimate suspicion of corruption, which North

Carolina reasonably sought to eliminate, particularly in light

of North Carolina’s prior scandals.

Preston does not take issue with the need to zealously guard

the lobbyist-public official relationship. She argues simply

that a small contribution is not so offensive as a larger one

and that the small contribution should be permitted because it

allows her to show symbolic support for a candidate. But this

argument is no more than a judgment call with which the

North Carolina legislature disagrees. In reviewing the State’s

legislation, we surely must defer on this issue so long as Pres-

ton and other lobbyists have other means of showing their

symbolic support for a candidate. Indeed, Preston’s argument

depends on her claim that the Campaign Contributions Prohi-

bition "does not leave open alternative means for lobbyists to

participate in First Amendment activities." But her assertion

simply overlooks numerous exceptions provided by the Cam-

paign Contributions Prohibition.

Under the Campaign Contributions Prohibition, lobbyists

can still volunteer with campaigns, including displaying signs

or literature and erecting a yard sign in favor of a particular

candidate. A lobbyist may contribute to PACs and even sug-

gest to a PAC the candidate to whom the PAC should donate.

A lobbyist may still engage in door-to-door canvassing and

contribute other time to get the vote out. A lobbyist may

attend a fund raiser on behalf of a candidate, so long as the

lobbyist does not make a contribution to the candidate.

Indeed, the lobbyist may host a fund raiser at the lobbyist’s

own home, so long as the costs are paid for by others or reim-

bursed. A lobbyist may, on behalf of a candidate, make

speeches, telephone calls, and arrange meetings between the

candidate and third parties for purposes of fundraising. These

exceptions further narrow the scope of the statute.

24 PRESTON v. LEAKE

Moreover, we should note that North Carolina’s statute

authorizes the Board to issue binding advisory opinions on the

activities that are permissible under the law, and lobbyists

who desire to engage in a marginal activity under the Cam-

paign Contributions Prohibition can seek clarity by requesting

an advisory opinion, compliance with which will absolve the

lobbyist of any potential civil or criminal liability. N.C. Gen.

Stat. § 163-278.23.

Preston has suggested that the Campaign Contributions

Prohibition is unconstitutionally broad because it lacks key

elements of other contribution bans that have been upheld by

the courts. For example, she points to the fact that the Cam-

paign Contributions Prohibition is not temporally limited, in

contrast to North Carolina’s previous contribution restriction,

upheld by this court in NCRL I, which prohibited contribu-

tions by lobbyists only when the legislature was in session.

NCRL I, 168 F.3d at 716. A temporal limitation, however,

was not found to be essential to constitutionality, and mandat-

ing a temporal limitation would force legislatures to allow

lobbyists to simply give a "wink or nod" while the legislature

is in session and to donate as soon as it recesses. See McCon-

nell, 540 U.S. at 137 (noting that closely drawn scrutiny "pro-

vides Congress with sufficient room to anticipate and respond

to concerns about circumvention of regulations designed to

protect the integrity of the political process"). Preston also

points out that the Campaign Contributions Prohibition does

not depend on the identity of the recipient of a campaign con-

tribution, in contrast to a similar California ban upheld by a

California court, where the statute only prohibited contribu-

tions "by lobbyists, if the lobbyist is registered to lobby the

office for which the candidate seeks election." Inst. of Gov-

ernmental Advocates v. Fair Political Practices Comm’n, 164

F. Supp. 2d 1183, 1190 (E.D. Cal. 2001). But unlike Califor-

nia law, North Carolina law does not require lobbyists to

specify the politicians whom they will be lobbying. Thus,

Preston’s argument can only be suggesting that we impose a

requirement on the Campaign Contributions Prohibition that

PRESTON v. LEAKE 25

would be virtually impossible to fulfill because of the nature

of North Carolina’s lobbyist-registration scheme.

At bottom, North Carolina’s Campaign Contributions Pro-

hibition is designed to prohibit only contributions having

monetary value and then only when made by a lobbyist to a

candidate. The lobbyist is left free to pursue any other First

Amendment activity to express actual or symbolic support of

a candidate, so long as that activity does not involve making

a contribution having monetary value to the candidate or the

candidate’s campaign. We conclude that this Prohibition is

appropriately tailored to address North Carolina’s recent

problems with corruption and to reassure its citizens that its

politicians are acting on their behalf and not on behalf of the

highest bidder. Rather than presenting a "risk[ ] to the demo-

cratic electoral process," see Randall, 548 U.S. at 248, prohib-

iting a financial relationship between lobbyists and candidates

protects that process from actual corruption or the appearance

of corruption—precisely the interests North Carolina has

sought to protect.

Although difficult questions might arise at the margins of

the Campaign Contributions Prohibition’s scope, we conclude

that the statute does not prohibit a substantial amount of pro-

tected conduct in relation to its plainly legitimate sweep and

therefore is closely drawn to North Carolina’s expressed inter-

est of preventing corruption and the appearance of corruption

from lobbyists’ contributions.

Accordingly, the judgment of the district court is

AFFIRMED.