[42] CHOY, Circuit Judge, concurring and dissenting:

I concur with the majority's position regarding the procedure by which we took this case en banc. On the merits, I concur with the analysis made in Judge Wallace's dissent. He, however, would declare § 441a(a)(1)(C) unconstitutional in its entirety; I would hold that it is unconstitutional only as to unincorporated associations.

Since Judge Wallace's analysis relies heavily upon freedom of association, I am not certain that the statute is unconstitutional as to all persons — in particular, as to individuals. Therefore, my opinion is that we should leave for another day the question whether § 441a(a)(1)(C) also is unconstitutional as to individuals and other "persons." We should not, in a Presidential election year, tinker unnecessarily with the elaborate electoral machinery Congress has erected. We would be guilty of such needless tinkering if for no substantial reason we struck down on a constitutional ground, without the benefit of briefing or argument by directly interested parties, portions of the statutory scheme that might well be constitutional.

Judge Wallace argues that Congress limited our review under § 437h to questions of facial constitutionality, and that therefore the only way to grant CMA relief is to strike down § 441a(a)(1)(C) in its entirety — or, which is to say the same thing, to strike the word "person" out of § 441a(a)(1)(C), leaving nothing of meaning or effect. Since CMA is entitled to relief, Judge Wallace feels obligated to strike down § 411a(a)(1)(C) not only as to CMA and other unincorporated associations, but also as to individuals, partnerships, etc.

Whether we are confined to questions of facial constitutionality when a district court enters an order pursuant to § 437h but we decide to take the case en banc pursuant to 28 U.S.C. § 46(c) and Federal Rule of Appellate Procedure 35(a), is a question that I need not reach. My analysis of this case, like Judge Wallace's, is "facial," and falls within the boundaries of any limitation that might be contained in § 437h.

"Facial" analysis tests the constitutionality of the work of the legislative branch by considering the statutory rule in the abstract, without regard to any particular factual situation. "As applied" analysis, on the hand, tests the constitutionality of the work of the executive branch by considering the statutory rule as it has been applied in a specific factual situation. Since Judge Wallace's and my analysis of the merits applies to all unincorporated associations and does not depend on any specific factual circumstance concerning CMA, it is "facial."

Section 441a(a)(1)(C) says, "No person shall make contributions . . . to any other political committee in any calendar year which, in the aggregate, exceed $5,000." Section 431(h) defines "person" to include "an individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons." If § 441a(a)(1)(C) actually read, "No individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons shall make contributions . . . to any other political committee in any calendar year which, in the aggregate, exceed $5,000," and if the statute were unconstitutional only as to "associations," everyone would agree that even a court limited to "facial" review could easily sever the offending word and leave the rest of the statute intact. But § 431(h) tells us that the word "person" is the absolute equivalent of the underlined words in my hypothetical statute. Is § 441a(a)(1)(C) not then the equivalent of my hypothetical one?

In conclusion, if Judge Wallace's position on the merits prevailed, it would be desirable to limit to unincorporated associations the holding that § 441a(a)(1)(C) was unconstitutional. This limitation would not be forbidden by § 437h's restriction of our deliberations to questions of facial validity, even if such a restriction was applicable in this case.

[50] WALLACE, Circuit Judge, concurring and dissenting:

This case arises from the district court's order, entered pursuant to 2 U.S.C. § 437h, certifying questions as to the constitutionality of certain provisions of the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. § 431-455. Plaintiffs are the California Medical Association (CMA), an unincorporated association; California Medical Political Action Committee (CALPAC), its political action committee; and two members of both organizations, Sidney Foster, and E. Kash Rose. Defendants are the Federal Election Commission (FEC) and its members. After the FEC commenced an investigation of CMA and CALPAC, plaintiffs sued in district court for a declaration that FECA sections 441a(a)(1)(C), 441b(b)(2)(C), 431(e)(5)(F), and 431(f)(4)(H), which prevent a person, including an unincorporated association, from contributing more than $5,000 per year to a political committee, but permit unlimited administrative support of such committees by labor organizations and corporations, are unconstitutional.

The certified questions, in summary, are (1) whether on the face of the statute, and as applied to CMA and CALPAC, the $5,000 per year restriction on support of a political action committee by an unincorporated association violates the plaintiffs' First Amendment rights to speech and association; and (2) whether on its face, and as applied to CMA and CALPAC, this $5,000 restriction, which applies to unincorporated associations but not to corporations or labor organizations, constitutes invidious discrimination in violation of the Fifth Amendment In addition, we asked the parties to brief and argue the constitutionality of the portion of 2 U.S.C. § 437h which requires the United States Court of Appeals to hear this matter sitting en banc.

I believe the majority errs both on the merits and in its failure to come to grips with important and difficult jurisdictional issues which this case presents. I treat first the important questions raised by the majority's use of section 437h(a) to supply our interlocutory jurisdiction to decide the questions certified to us by the district court. Although I agree with the majority that we do have jurisdiction to answer the certified questions, my analysis leads me to confront and to discuss the difficult constitutional issues posed by Congress' requirement in 2 U.S.C. § 437h(a) that we hear this case while sitting en banc. I next address the question of standing and agree with the majority, for the reasons stated, that at least two plaintiffs have standing. I then explain why I cannot agree with the majority's decision on the merits.

I.

The majority, without substantial reasoning, decides not to resolve a critical question pertaining to our jurisdiction. This issue is so fundamental to our authority to act that it must be faced squarely.

It is true that a majority of our court concluded, after this case was heard en banc, to dispose of this matter pursuant to 28 U.S.C. § 46(c) and Fed.R.App.P. 35(a). Once the question of the constitutionality of the en banc mandate embodied in section 437h(a) is removed, however, I doubt that enough remains in this case to present "a question of exceptional importance" to satisfy Rule 35(a). Nor does this case present special needs for uniformity.

In addition, I question the court's curious technique of invoking section 437h(a) to confer jurisdiction over this interlocutory appeal and yet ignoring that section's simultaneous and clear command that we shall hear this appeal while sitting en banc. Once section 437h(a) is invoked, I think we must apply it in its entirety. The court's midstream switch from section 437h(a)'s explicit en banc mandate to the convenient, but irrelevant, en banc discretion provided in 28 U.S.C. § 46(c) and Rule 35(a), ignores an integral and inseparable aspect of the very basis for our jurisdiction.

Accordingly, I believe we must act pursuant to section 437h(a), and address the problems raised by Congress' imposition in that section of the en banc requirement. I would hold that section 437h(a) limits our review to the facial constitutionality of FECA provisions. I confess my difficulty in understanding the majority's criticism of a facial/as applied analysis. I find it neither an "unstable judicial category" nor "metaphysical," nor do I find in the majority opinion any analysis or authority to support such naked assertions. My reasons for my position emanate from my interpretation of section 437h(a). The statute does not contemplate an expedited, en banc consideration of the constitutionality of FECA provisions as applied to particular defendants. So limited, I would find section 437h(a) constitutional: Congress may constitutionally requires this circuit to hear such facial challenges en banc, provided that, as here, we would not be required to exceed Article III's limitation on federal judicial power.

A

Section 437h(a) states: "The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc." I first consider whether this provision permits expedited review of "as applied" challenges, in addition to facial challenges. The wording itself, which speaks only of the "constitutionality of this Act," is inconclusive. Thus, it is necessary to resort to legislative history to interpret the statute. See United States v. Rone, 598 F.2d 564, 569 (9th Cir. 1979).

Section 437h was part of the 1974 amendments to the Federal Election Campaign Act of 1971. As originally introduced in Congress, as S. 3044 and H.R. 16090, the 1974 amendments did not contain the expedited review mechanism now set forth in section 437h. That provision was introduced by Senator Buckley as a floor amendment to S. 3044 during the Senate debates. Upon presenting the amendment, Senator Buckley stated that it

merely provides for the expeditious review of the constitutional questions I have raised. I am sure we will all agree that if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time.

120 Cong.Rec. 10562 (1974) (remarks of Sen. Buckley) reprinted in FEC, Legislative History of Federal Election Campaign Act Amendments of 1974, 499 (1977) [hereinafter cited as 1974 Legislative History (emphasis added). Apparently Senator Buckley was chiefly concerned with the First Amendment problems associated with the bill's expenditure limitations. See 120 Cong.Rec. 10558-64 (1974), reprinted in 1974 Legislative History at 494-99. Cf. Buckley v. Valeo, 424 U.S. 1, 39-59, 96 S.Ct. 612, 644-54, 46 L.Ed.2d 659 (1976) (per curiam) (FECA's independent expenditure limitations violate First Amendment). His stated purpose was to enable expeditious review of this "serious" constitutional question — the constitutionality, on their face, of the expenditure limitations.

The Buckley Amendment (which was inserted in both S. 3044 and H.R. 16090) was subsequently modified. As originally worded, the amendment authorized actions in the district court, reviewable on certification to the court of appeals en banc, "to implement or construe any provision of the Act. . ." 120 Cong.Rec. 10562 (1974), reprinted in 1974 Legislative History at 499. The Conference Committee limited the scope of the provisions by eliminating actions merely "to implement" the Act. The Committee stated:

The conference substitute generally follows the House amendment and makes it clear that these special judicial review provisions are available only for actions directed at determining the constitutionality of provisions of the Act and of provisions of title 18, United States Code, related to the activities regulated by the Act.

S.Conf.Rep. No. 1237, 93d Cong., 2d Sess. 96 (1974), reprinted in 1974 Legislative History at 499.

Senator Buckley's concern with the serious First Amendment issues raised by the legislation, and the Conference Committee's apparent intent to limit the scope of section 437h(a) to "actions directed at determining the constitutionality of provisions of the Act," indicate that Congress intended to limit judicial review pursuant to section 437h(a) to questions of FECA's constitutionality on its face. This conclusion regarding Congress' intent is apparently shared by the District of Columbia Circuit. In Buckley v. Valeo, 519 F.2d 821, 850-51 (D.C. Cir. 1975) (en banc) (per curiam), aff'd in part, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), the court stated:

Congress was concerned with the inhibitory effect of a massive rearrangement of regulations operating upon federal campaigns and elections, and wanted election participants to be permitted expeditiously to test the facial validity of limitations and requirements imposed by the challenged Acts.

(Footnote omitted; emphasis added.)

Congress' intent to limit section 437h(a) to facial challenges is further evidenced by the alternative avenue of judicial review contained in FECA's civil enforcement procedures. Section 437g(a) ( as amended by Federal Election Campaign Act Amendments of 1979, Pub.L. No. 96-187, § 309, 93 Stat. 1358) creates a civil complaint mechanism administered by the FEC and enforceable, if necessary, in the district court. Section 437g(a)(9) also provides for relief in the district court for those parties aggrieved by FEC enforcement orders. As to both enforcement of or relief from FEC actions, section 437g(a)(10)-(12) provides for expedited district court review (ahead of all actions save those brought pursuant to section 437h), and for appellate review. In the case before us, a section 437g(a) enforcement proceeding is presently pending.

I do not think Congress intended section 437h(a) to preempt the section 437g(a) enforcement and relief procedures, in which "as applied" constitutional issues can be resolved on the complete factual record of particular transactions. Section 437g(a)(10) provides that section 437h(a) actions are docketed ahead of section 437g(a) enforcement and relief actions. This, of course, avoids the unnecessary expense and delay involved in factual determinations, as well as wasted judicial effort, whenever the charging provisions are found to be facially unconstitutional on certification to the court of appeals. But nothing in the legislative history even hints that Congress intended section 437h to supplant the FECA civil enforcement and relief procedures for specific violations.

An additional reason for concluding that Congress intended to limit this court's section 437h(a) review to the constitutionality of FECA provisions on their face is Congress' requirement that we must hear such challenges en banc. The significance of this requirement can best be demonstrated by a brief review of the development and implementation of the en banc procedure. Hearings en banc were implemented sua sponte by some circuit courts in the late 1930's in response to increases in the number of judges per circuit and the concomitant potential for intra-circuit conflicts. See Textile Mills See. Corp. v. Comm'r of Internal Revenue, 314 U.S. 326, 327-35, 62 S.Ct. 272, 274-77, 86 L.Ed. 249 (1941). In the Textile Mills case, the Supreme Court approved this use of en banc proceedings. Id. Thereafter, Congress enacted 28 U.S.C. § 46, which codified the Textile Mills decision by authorizing a majority of the active judges on a circuit to order an en banc hearing.

Guidelines for en banc procedures are now set forth in rule 35(a) of the Federal Rules of Appellate Procedure:

(a) When Hearing or Rehearing in Banc Will be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or rehear by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

Thus, en banc proceedings pursuant to the authority of 28 U.S.C. § 46 are afforded only to promote or secure uniformity within a circuit or in cases of exceptional importance. Moody v. Albemarle Paper Co., 417 U.S. 622, 626, 94 S.Ct. 2513, 2515, 41 L.Ed.2d 358 (1974); United States v. American Foreign SS. Corp., 363 U.S. 685, 689, 80 S.Ct. 1336, 1339, 4 L.Ed.2d 1491 (1960).

In enacting 2 U.S.C. § 437h(a), Congress legislated against this en banc background. Although I would not hold, as an original matter, that the questions posed by this case are of such "exceptional importance" as to warrant ad hoc en banc treatment pursuant to 28 U.S.C. § 46(c) and Rule 35(a), Congress could find that, in general, challenges to the facial constitutionality of FECA provisions are sufficiently important to require en banc treatment. Judgments as to facial constitutionality necessarily have wide-ranging impact. In contrast, individual enforcement proceedings, while perhaps of transcendent importance to the particular parties involved, do not present issues of such national significance. Senator Buckley's concern was to expedite judicial resolution of the "serious question" of the constitutionality of certain FECA provisions. See 120 Cong.Rec. 10562 (1974), reprinted in 1974 Legislative History at 499. The use in section 437h(a) of the en banc procedure to entertain such "serious questions" of facial constitutionality is not inconsistent with the "exceptional importance" limitations historically placed upon the en banc procedure. There is no evidence of congressional intent to abrogate these limitations, which are based on sound principles of judicial administration. I would interpret section 437h(a), in light of the legislative history already reviewed, as expressive of congressional intent that we limit our review to FECA's facial constitutionality. It is therefore necessary to consider whether Congress constitutionally can require this court to decide questions of FECA's facial constitutionality while sitting en banc.

B

Article III of the Constitution empowers Congress to ordain and establish inferior courts of appellate jurisdiction and to limit and regulate the Supreme Court's appellate jurisdiction. U.S.Const. art. III, §§ 1, 2 cl. 2; Ex parte McCardle, 74 U.S. (7 Wall.) 506, 513, 19 L.Ed. 264 (1869); see Palmore v. United States, 441 U.S. 389, 400-01, 93 S.Ct. 1670, 1678 (1973). Although Congress has generally delegated to the judiciary the power to make rules governing judicial practice and procedure, the final authority for rulemaking rests ultimately with Congress. Hanna v. Plumer, 380 U.S. 460, 472, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965); Sibbach v. Wilson Co., 312 U.S. 1, 9-10, 61 S.Ct. 422, 424, 85 L.Ed. 479 (1941).

There are, however, some limits on congressional authority over the judiciary; for example, Congress may not undermine the courts' capacity to make independent determinations of questions of law or fact in particular cases. Crowell v. Benson, 285 U.S. 22, 60, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). See also United States v. Klein, 80 U.S. (13 Wall.) 128, 147, 20 L.Ed. 519 (1872) (statute compelling court to ignore certain evidence which court believed to be relevant "passed the limit which separates the legislative from the judicial power"). Commentators have suggested that Congress' power to limit and regulate federal appellate jurisdiction is circumscribed by the doctrine of separation of powers and the Fifth Amendment's due process clause. It has been urged, for example, that Congress may not make such exceptions to appellate jurisdiction "as will destroy the essential role of the Supreme Court in the constitutional plan." Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362, 1365 (1953). See generally Ratner, Congressional Power of the Appellate Jurisdiction over the Supreme Court, 109 U.Pa. L.Rev. 157 (1960). Others believe that in cases where "due process is . . . judicial process," Crowell v. Benson, supra, 285 U.S. at 87, 52 S.Ct. at 306 (Brandeis, J., dissenting), the Fifth Amendment prevents Congress from closing off all avenues of judicial relief. See generally Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 Yale L.J. 498 (1974); Redish Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U.Pa.L.Rev. 45 (1975). Were Congress to require en banc facial review in many additional categories of cases, or, under FECA, in "as applied" cases, the workload of the courts of appeals might become so burdensome, and our backlog so overwhelming to litigants, that our capacity to provide adequate judicial process would be unconstitutionally threatened. But the present mandate commands us only to decide facial questions, once and for all, in a single en banc proceeding. The line beyond which congressional regulation of judicial procedure and jurisdiction unconstitutionally constrains the judicial function remains very hazy. I think it is clear, however, that Congress can require us to sit en banc to hear and decide questions of FECA's facial constitutionality without undermining the separation of powers contemplated by Article III or our capacity to afford the due process required by the Fifth Amendment. The wisdom of this en banc mandate is debatable, but it is not unconstitutional.

II

Having concluded that we have power to hear this appeal, I turn next to the question of whether the plaintiffs have standing to bring this controversy before us. Without analysis, the majority summarily states a naked conclusion. The issue deserves more.

In Buckley v. Valeo, 424 U.S. 1, 11-12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976) (per curiam), the Supreme Court held that "Congress, in enacting 2 U.S.C. § 437h . . . intended to provide judicial review to the extent permitted by Art. III." (Footnote omitted.) Our jurisdiction under section 437h(a) is thus constrained only by Article III's "cases and controversies" limitation. Prudential limitations are not applicable. Accordingly, it is necessary to ascertain whether any of the plaintiffs

have a sufficient "personal stake" in a determination of the constitutional validity of each of the challenged provisions to present "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, [ 300 U.S. 227] 241 [57 S.Ct. 461, 464, 81 L.Ed.2d 617 (1937)].

Id. (footnotes omitted).

Two of the plaintiffs, Foster and Rose, are "individual[s] eligible to vote in any election for the office of President of the United States," 2 U.S.C. § 437h(a), and are thus granted a statutory right to sue pursuant to section 437h(a). Whether either individual has a sufficient personal stake in the outcome of this controversy to meet the Article III requirement must be determined.

Foster and Rose allege that FECA's restriction on CMA's support of CALPAC abridges their First Amendment rights, as members of these organizations, to communicate political ideas and to associate for the purpose of participating in federal elections. The First Amendment freedom of association protects an association's ability to amplify effectively the voices of its adherents. Buckley v. Valeo, supra, 424 U.S. at 22, 96 S.Ct. at 636; see NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). Foster and Rose essentially allege that their political voices are unconstitutionally weakened by the FECA restrictions on CMA and CALPAC.

In Buckley, the Court invalidated FECA's restrictions on independent (of the candidate) campaign expenditures made in behalf of clearly identified candidates. The Court stated:

The Act's constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression " is simultaneously an interference with the freedom of [their] adherents,"Sweezy v. New Hampshire, 354 U.S. 234, 250 [,77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311] (1957) (plurality opinion).

Buckley v. Valeo, supra, 424 U.S. at 22, 96 S.Ct. at 636 (emphasis added). See also id. at 75, 96 S.Ct. at 661. Thus, FECA's restrictions of CMA and CALPAC, if unconstitutional, interfere directly and simultaneously with their members' First Amendment rights. As such, Foster and Rose have a sufficient personal stake in a judicial ruling on the certified questions to create Article III standing.

Because Foster and Rose have standing, I need not consider the standing of CMA and CALPAC. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 n.9, 97 S.Ct. 555, 562 n.9, 50 L.Ed.2d 450 (1977). I therefore do not reach the question, on which courts have divided, whether the grant of standing in section 437h(a) is limited to the plaintiffs enumerated therein. Compare Martin Tractor v. FEC, 460 F. Supp. 1017, 1019 (D.D.C. 1978) (limited), with Bread Political Action Committee v. FEC, 591 F.2d 29, 30-36 (7th Cir. 1979) (not limited).

III

I turn now to the merits. On its face, FECA section 441a(a)(1)(C) prohibits a "person," which includes unincorporated associations, corporations, and labor organizations, 2 U.S.C. § 431(h), from contributing more than $5,000 to any type of political committee other than that of a national political party. Section 441b(b)(2)(C), however, provides corporations and labor organizations with a limited exemption to this prohibition. For all FECA purposes, a contribution or expenditure does not include:

the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation, labor organization, membership organization, cooperative, or corporation without capital stock.

2 U.S.C. § 441b(b)(2)(C).

Foster and Rose first contend that any constitutional question can be avoided by construing section 441b(b)(2)(C) to allow unlimited administrative support by an unincorporated association to its political action committee. The Supreme Court has held that when the validity of an act of Congress is drawn into question and a serious doubt is raised as to its constitutionality, it is a "cardinal principle" that a court should "first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided." United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971); Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Crowell v. Benson, supra, 285 U.S. at 62, 52 S.Ct. at 296. Unfortunately, the majority does not fully analyze the legislative history underlying this key issue. I have concluded, however, that the majority's ultimate conclusion on this issue is correct. A fair construction of the statute in this case does not permit avoidance of the constitutional issues.

Foster and Rose argue that an unincorporated association, like CMA, is a "membership organization," as referred to in section 441b(b)(2)(C), and therefore is entitled to provide unlimited administrative support in the same manner as a corporation or labor organization. Although the term "membership organization" is nowhere defined in the Act, the term literally describes an unincorporated organization such as CMA. Because corporations are already specifically included within the exception, the addition of the term "membership organization" would, at first blush, seem to encompass unincorporated associations. Despite this facial clarity, the meaning of "membership organization" in section 441b(b)(2)(C) is ambiguous because the subsection applies only for the purposes of section 441b, and section 441b imposes prohibitions only on corporations and labor organizations. Because of this ambiguity, it is necessary to resort to legislative history. See United States v. Rone, 598 F.2d 564, 569 (9th Cir. 1979).

The legislative history of section 441b(b)(2)(C) suggests that Congress did not intend to apply the contribution exclusion to unincorporated associations. When first proposed in 1976 as part of the amendments to the 1971 Act, section 441b made it unlawful for a corporation to solicit contributions from anyone other than a stockholder or from administrative personnel and permitted corporations and labor organizations to provide administrative support to separate political committees. S. 3065, 94th Cong., 2d Sess. § 321 (1976), reprinted in FEC, The Legislative History of the Federal Election Campaign Amendments of 1976, 253-54 [hereinafter 1976 Legislative History].

During the 1976 debate on section 441b, Senator Allen proposed an amendment on the Senate floor. 122 Cong.Rec. 7197-98 (1976), reprinted in 1976 Legislative History at 463-64. The amendment provided: first, that membership organizations, cooperatives, or corporations without capital stock could solicit contributions from their members (codified in 2 U.S.C. § 441b(b)(4)(C)), and second, that these same groups could provide unlimited administrative support to their separate segregated funds (codified in 2 U.S.C. § 441b(b)(2)(C)). The amendment was passed virtually without discussion, but Senator Allen's own comments suggest that the purpose of his amendment was to allow corporations with a nonstockholding membership to solicit contributions from their members and to establish segregated funds in the same manner as capital stock corporations. 122 Cong.Rec. 7197-98 (1976), reprinted in 1976 Legislative History at 463-64. Senator Allen apparently believed that without this amendment such corporations would be unable to solicit on an equal basis with more conventional corporations.

I recognize the persuasiveness of the argument that an unincorporated association such as CMA should be considered a "membership organization." However, the legislative history makes it clear that section 441b(b)(2)(C) was not designed to allow unincorporated associations to provide unlimited administrative support to their political committees. Unincorporated associations were not covered by the prohibitions contained in section 441b. It is evident that Congress, in adopting the Allen amendment, was only interested in assuring that all types of corporations, including those with members rather than stockholders, would come within the administrative assistance exception to the 441b prohibition. Consequently, even though an unincorporated association like CMA is arguably a membership organization, it does not fall within the scope of the administrative support exception contained in section 441b(b)(2)(C).

IV

Given this reading of section 441b(b)(2)(C), Foster and Rose claim that the $5,000 restriction on contributions by a "person" to a political committee, 2 U.S.C. § 441a(a)(1)(C), when read in light of the administrative support exemption for corporations and labor organizations, is unconstitutional on its face, in that the constitutional infirmity is revealed by examining solely the language of FECA's various provisions. They contend that the restriction abridges the speech and associational freedoms of members of an unincorporated association and its political committee, and does so discriminatory, in that members of unincorporated associations are restrained as to providing administrative support while members of labor organizations and corporations may freely give administrative support to their political committees.

Although Foster and Rose urge separate First Amendment and equal protection claims, each claim attack the $5,000 limitation on donations of administrative support to political committees in section 441a(a)(1)(C), a restriction that allegedly impacts directly on fundamental speech and associational interests. The paramount evil inherent in discriminatory speech restrictions is that such dissimilar treatment skews the marketplace of ideas and raises the specter of governmental allocation of speech rights. A hallmark of First Amendment doctrine is the vigorous scrutiny of government actions which, as here, differentiate for purposes of regulation among particular persons' communications. E. g., Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 327, 95 L.Ed. 267 (1951). I choose, therefore, to analyze section 441a(a)(1)(C)'s different treatment of unincorporated associations on one hand, and labor organizations and corporations on the other, in First Amendment terms. The First Amendment has generated a comprehensive and sensitive jurisprudence concerned exclusively with regulations of speech and association. Although it is hard to describe the rights of speech and association as other than "fundamental," I think that the careful scrutiny dictated by the First Amendment is more appropriate to review of regulations of speech and association than the "fundamental rights" branch of equal protection analysis. Many of the rights in the Bill of Rights are likely fundamental, but as each is specifically protected by an amendment to the Constitution, the wealth of judicial experience in interpreting these specific amendments, and the strict scrutiny they require, should be applied whenever possible.

A

Both parties rely largely upon the Supreme Court's per curiam opinion in Buckley v. Valeo, supra, In Buckley, the Court struck down FECA's ceilings on campaign expenditures by candidates and by third parties on behalf of candidates, but upheld the limitations imposed on "persons" making contributions directly to candidates and political parties. The $5,000 limit on "persons'" contributions to political committees was enacted after the Buckley decision, and thus was not considered by the Court.

The Court in Buckley analyzed both the contribution and expenditure limitations solely in First Amendment terms. No explicit discrimination considerations were present, because the challenged regulations applied in blanket fashion. The absence of an analogous discrimination issue in the Court's First Amendment analysis distinguishes Buckley from the case before us; nevertheless, the Supreme Court's method of analyzing such similar issues should generally govern our analysis.

The Court in Buckley first isolated the speech and associational interests affected by the challenged regulations. The Court stated:

Although the Act does not focus on the ideas expressed by persons or groups subject to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. . . . [I]t is beyond dispute that the interest in regulating the alleged "conduct" of giving or spending money "arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful."

Buckley v. Valeo, supra, 424 U.S. at 17, 96 S.Ct. at 634, quoting United States v. O'Brien, 391 U.S. 367, 382, 88 S.Ct. 1673, 1681, 20 L.Ed.2d 672 (1968). Furthermore, the Court stated that FECA's "constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression `is simultaneously an interference with the freedom of [their] adherents.'" Id. at 22, 96 S.Ct. at 636, quoting Sweezy v. New Hampshire, supra, 354 U.S. at 250, 77 S.Ct. at 1212 (plurality opinion). Because of FECA's direct regulation of the communicative impact of both speech and association, the Court stated that the challenged regulations would be tested by "the exacting scrutiny required by the First Amendment." Id. at 16, 96 S.Ct. at 633.

The Court then judged the contribution and expenditure limitations by balancing the particular speech and associational interests affected thereby against the government's interest in having such limitations. The Court found that FECA's expenditure ceilings "impose[d] direct and substantial restraints on the quantity of political speech," id. at 39, 96 S.Ct. at 644 and "preclude[d] most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association," id. at 22, 96 S.Ct. at 636. In contrast, the Court found the contribution limitations to impinge less on speech and associational interests. The Court said:

[A] limitation upon the amount that any one person or group may contribute to a candidate or political campaign entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. . . . 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 communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues.

Id. at 20-21, 96 S.Ct. at 635-36. Moreover, although the contribution limitations restricted the ability of "like-minded persons to pool their resources in furtherance of common political goals," id. at 22, 96 S.Ct. at 636, they did "leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates." Id.

The Court found that the "primary purpose" of FECA — "to limit the actuality and appearance of corruption resulting from large individual financial contributions," id. at 26, 96 S.Ct. at 638 — was better served by the contribution restrictions than by the limits on expenditures. The Court believed that the $1,000 contribution restriction "focuse[d] precisely," id. at 28, 96 S.Ct. at 639, on the evils of political quid pro quo arrangements, whose actual or perceived presence threatened to undermine the integrity of our system of representative democracy. The expenditure limitations, on the other hand, did not "serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process." Id. at 47-48, 96 S.Ct. at 648. Limitations on a candidate's personal campaign expenditures were clearly unrelated to the elimination of quid pro quo arrangements. To the extent that independent expenditures, by third parties unaffiliated with the candidate, posed quid pro quo concerns, such expenditures would be treated as "contributions" under the Act and thus separately regulated. Id. at 46-47, 96 S.Ct. at 647.

Because the Court found that the speech and associational interests abridged by the contribution limitations were only marginal, and that these limitations were closely tailored to the achievement of the government's strong interest in preventing quid pro quo arrangements, the contribution limitations were sustained. But the expenditure limitations, which implicated more substantial speech and associational interests, while furthering insubstantial government interests, were invalidated.

It is important to recognize that the Court in Buckley applied a single standard of review to both the expenditure and the contribution limitations, and that this standard of review demands careful analysis of asserted governmental objectives. In discussing the governmental interests that would be necessary to sustain the contribution limitations, despite the relatively modest impact of these restrictions on the freedoms of speech and association, the Court stated:

In view of the fundamental nature of the right to associate, governmental "action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama, supra, [357 U.S.] at 460-461 [, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488]. Yet, it is clear that "[n]either the right to associate nor the right to participate in political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 [, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796] (1973). Even a "`significant interference' with protected rights of political association" may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.

Id. at 25, 96 S.Ct. at 637-38 (emphasis supplied).

The Court's requirement that the government employ means closely tailored to the achievement of its asserted objectives is consistent with the approach taken in numerous First Amendment cases. See, e. g., Village of Schaumburg v. Citizens For a Better Environment, 444 U.S. 620, 636, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980); Lehman v. City of Shaker Heights, 418 U.S. 298, 316-17, 94 S.Ct. 2714, 2724, 41 L.Ed.2d 770 (1974) (Brennan, J., dissenting); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). I conclude that there are at least two reasons for this requirement. First, the transcendent importance of unfettered speech and association in sustaining a free society requires that governmental speech or associational restrictions not be excessive or overbroad. Second, when the government uses restrictions which are not closely fitted to its asserted legitimate objectives, and those restrictions involve discrimination among speakers, it may appropriately be questioned whether the asserted legitimate (non-censorship) objectives were the government's actual reason for enacting the restriction. In this case, examination of the asserted purposes reveals governmental objectives that cannot withstand First Amendment scrutiny.

B

The above analysis of Buckley makes it clear that the $5,000 restriction on contributions to a political committee challenged herein may be sustained under the First Amendment only if (1) the government's interest outweigh the impact on group/individual speech and associational freedoms; and (2) the restriction of unincorporated associations, but not corporations or labor organizations, is closely tailored to achieve the government's asserted interests. I would hold that section 441a(a)(1)(C), particularly when read in light of section 441b(b)(2)(C), cannot survive this especially stringent standard of review.

The speech and associational interests abridged by section 441a(a)(1)(C) are more substantial than the interests affected by the contribution limitations sustained in Buckley. In Buckley the contribution limitations governed contributions from a supporter to a candidate. The communication inhering in such contributions is simply that the contributor "supports" the candidate and his views. The Court found that this "symbolic expression of support," 424 U.S. at 21, 96 S.Ct. at 635, is adequately communicated by the act of contribution: the contribution's size is of "marginal" importance. Id. Regulating the amount of the contribution thus involves "little direct restraint on [the contributor's] political communication." Id.

In contrast, section 441a(a)(1)(C) limits donations from an unincorporated association to its own political mouthpiece as well as to other committees that share its views The object of an unincorporated association's donations to a political committee is not merely to indicate "support" for the committee's views, but to use the instrument of a political action committee to voice its own ideas. Whereas in Buckley "the transformation of contributions into political debate involve[d] speech by someone other than the contributor," id., here this transformation is accomplished by the committee donors themselves, through a committee which, in large or small measure, they control. A limitation on donations to committees restricts not only funds available for contributions by the committees to candidates, but also the funds available for independent expenditures through the committee framework. It is by repeatedly forgetting this incontestable fact that the majority erroneously likens the section 441a(a)(1)(C) donation restriction to the contribution limitations upheld in Buckley. Section 441a(a)(1)(C) imposes "direct and substantial restraints on the quantity" of an unincorporated association's, and its members', "political speech." Id. at 39, 96 S.Ct. at 644. The individual speech interests are therefore comparable to those affected by the expenditure limitations invalidated in Buckley.

The impact upon associational freedoms is even more substantial. Although it is true that section 441a(a)(1)(C), like the contribution limitations in Buckley, permits "like-minded persons to pool their resources in furtherance of common political goals," id. at 22, 96 S.Ct. at 636, unincorporated associations may annually donate no more than $5,000 in money or administrative support to political committees, while corporations and labor organizations may annually give such committees unlimited administrative support. Donors band together in economic support of a political committee so that the committee can compete effectively for attention in the marketplace of ideas, thereby "amplifying" the committee members' political views. See Buckley v. Valeo, supra, 424 U.S. at 22, 96 S.Ct. at 636; Note, The Unconstitutionality of Limitations on Contributions to Political Committees in the 1976 Federal Election Campaign Act Amendments, 86 Yale L.J. 953, 957-61 (1977). Indeed, this "amplifying" ability of organizations and associations was "the original basis for the recognition of First Amendment protection of freedom of association." Buckley v. Valeo, supra, 424 U.S. at 22, 96 S.Ct. at 636. Although some unincorporated associations may be capable of amplifying their political views without the aid of a political action committee, not all unincorporated associations have the political and economic clout of a large organization like CMA. On its face, section 441a(a)(1)(C) prevents even a small unincorporated association from providing unlimited support to a separate political committee. Establishment and administration of such a committee, often a costly undertaking, may be essential to attract the financial support of outside donors. Only in conjunction with outside donors will some unincorporated associations be able to aggregate sufficient funds and expertise to compete effectively in the political marketplace with other more affluent "persons" capable of huge personal expenditures. The unrestricted right to engage in a favored type of political activity — association in a political committee form — is at issue. The restriction on an unincorporated association's right to participate unrestrained in this form of political activity goes to the heart of the associational right. See Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975). I would find, therefore, that the associational interest abridged by section 441a(a)(1)(C) is on a par with the associational interests unconstitutionally infringed by the expenditure limitations in Buckley.

In contrast to these strong individual speech and associational interest, the government interest served by section 441a(a)(1)(C) is weak. Before its passage, the only limitation on the amount that a "person," including an unincorporated association, could contribute to a political committee was the $25,000 limitation on aggregate contributions by a single "individual." See 2 U.S.C. § 441a(a)(3). The purposes of the $5,000 limitation in section 441a(a)(1)(C) were discussed in the conference report accompanying S. 3065.

The conferees' decision to impose more precisely defined limitations on the amount an individual may contribute to a political committee, other than a candidate's committees, . . . is predicated on the following considerations: first, these limits restrict the opportunity to circumvent the $1,000 and $5,000 limits on contributions to a candidate; second, these limits serve to assure that candidates' reports reveal the root source of the contributions the candidate has received; and third, these limitations minimize the adverse impact on the statutory scheme caused by political committees that appear to be separate entities pursuing their own ends, but are actually a means for advancing a candidate's campaign.

H.R.Rep. No. 1057, 94th Cong., 2d Sess. 56-57 (1976), reprinted in 1976 Legislative History at 1051-52. These asserted reasons for section 441a(a)(1)(C) are just as insubstantial as those advanced in support of the expenditure limitations in Buckley. The purposes set forth in the conference report all involve preventing "persons" from using supposedly independent (of candidates) political action committees to funnel hidden contributions directly to candidates. But such misuse is reached elsewhere in FECA's statutory scheme. Section 441a(a)(7)(B)(i) states that expenditures "by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate." Section 441a(a)(8) states that "all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate." Together, these sections ensure that all reported contributions to candidates, whether direct or indirect, are counted against the donor's permissible contribution under section 441a(a)(1). Congress thus already has implemented a method for controlling circumvention of the contribution regulations which is less intrusive upon free speech than that challenged here.

In addition to the anti-circumvention purpose set forth in the legislative history and argued to us by the FEC, the majority asserts that Congress may have wished, by enacting section 441a(a)(1)(C), to curb the generalized corruptive threat posed by committees. The majority speculates that Congress may have intended, by restricting "persons'" donations to political committees to $5,000, to prevent not only "funnelling" of illegal contributions through committees to candidates, but also the accumulation of huge sums in these "vast, unaccountable, and low visibility centers of electoral influence that effectively detach candidates from their nominal geographic constituencies." See ante, p. 625.

One obvious objection to the majority's hypothesized congressional purpose for section 441a(a)(1)(C) is that this and similar statements about Congress' perception of the evils of committees are fabricated out of thin air. They find no support in the record, or in the legislative history. The 1979 study prepared at Harvard to look into the impact of FECA is no evidence of a congressional purpose in 1976, when section 441a(a)(1)(C) was enacted.

Beyond this, the majority's speculation violates the general rule that when performing strict scrutiny a court does not hypothesize conceivable governmental purposes in support of challenged legislation. Johnson v. Robison, 415 U.S. 361, 376-77, 94 S.Ct. 1160, 1170, 39 L.Ed.2d 389 (1974). See also, e.g., Schlesinger v. Ballard, 419 U.S. 498, 511, 95 S.Ct. 572, 579, 42 L.Ed.2d 610 (1975) (Brennan, J., dissenting). We are limited to evaluation of the purposes actually set forth by Congress. E.g., Johnson v. Robison, supra, 415 U.S. at 376, 94 S.Ct. at 1170; Cleveland Bd. of Educ. v. Lafleur, 414 U.S. 632, 641 n. 9, 94 S.Ct. 791, 797, n.9, 39 L.Ed.2d 52 (1974). See generally, Gunther, Foreword: In Search of Enduring Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). As the Supreme Court stated in Buckley, for example, a "`significant interference with protected rights of political association' may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of constitutional freedoms." 424 U.S. at 25, 96 S.Ct. at 638. (Emphasis supplied.) The majority's speculation about why Congress might have desired to regulate committees violates the rule against hypothesizing objectives.

Even if it were permissible to consider an unarticulated congressional purpose to restrict generally the growth and power of political committees, the majority commits a serious category mistake by equating Congress' supposed effectuation of this purpose in section 441a(a)(1)(C) with the anti-corruption purpose that sustained the contribution limitations in Buckley. It is crucial to remember that Congress enacted the $1,000 limit on a "person's" contributions to candidates in order to thwart the corruptive quid pro quo of a direct gift to a candidate. The $5,000 limit on a political committee's contributions to candidates in section 441a(a)(2)(A) is the equivalent restriction on a committee's quid pro quo arrangements with candidates. Section 441a(a)(1)(C), in contrast, regulates an entirely different relationship: that of donor ("person") to committee. The purposes behind the contribution limits approved in Buckley and the donation restriction in section 441a(a)(1)(C) are necessarily distinguishable because a different relationship is being regulated. The majority simply ignores these differences which distinguish our case from Buckley. This leads in turn to the following error. The majority finds that Congress might desire to limit the growth of committees, so that they will not corrupt politicians. But the $5,000 limit on contributions to candidates already performs this anti-corruption function. Regulating the amounts that "persons" can donate to committees simply stifles the economic growth of a certain type of political association, a political committee, which is already subject to a $5,000 restriction on gifts to candidates.

Thus, no significant government anti-corruption objectives support the substantial infringement on speech and associational rights represented by section 441a(a)(1)(C). A "person's" contributions to its political action committee in no way implicate the quid pro quo concerns which supported the contribution limitations in Buckley. Such donations are not made to a candidate, and any contributions which the committee in turn makes to candidates are governed by the other contribution limitations set forth in section 441a. I would hold, therefore, using the method of analysis employed in Buckley, that no governmental interest outweighs the impact of section 441a(a)(1)(C) on group and individual speech and associational freedoms.

Furthermore, even if there were substantial anti-corruption reasons in favor of section 441a(a)(1)(C), the application of this limitation, in light of the administrative support restriction placed upon unincorporated associations but not upon corporations and labor organizations, is not carefully tailored to achieve the government's interests. There is no reason to think that support of a political action committee by an unincorporated association poses greater dangers of corruption than such support by a corporation or labor organization. It is true that corporations and labor organizations are totally disabled from making contributions directly to candidates while unincorporated associations are not. Yet this does not make corporations and labor organizations less likely to use administrative support to circumvent the especially stringent restrictions applicable to them. The corruption potential of administrative support of a political action committee is the same, whether the corruptor is incorporated or not. The majority offers no reasons why labor organizations and corporations are unlikely to misuse political committees. There are none. In such circumstances, the application of section 441a(a)(1)(C) to unincorporated associations but not to corporations and labor organizations is unconstitutionally under inclusive.

As mentioned earlier, the use of loosely fitted means to accomplish asserted governmental objectives may imply illegitimate governmental purposes. In this case, the application of restrictions to unincorporated associations, but not to corporations and labor organizations, in no way furthers a governmental objective of preventing corruption. Indeed, the majority and the FEC argue that this disparate treatment of unincorporated associations vis-a-vis labor organizations and corporations is justified by FECA's overall regulatory scheme. Because labor organizations and corporations are totally disabled from making direct contributions while unincorporated associations are not, it is argued that Congress simply equalized the various entities' respective speech opportunities by not including unincorporated associations in the administrative support exemption. That is, Congress muffled the unincorporated association voice in fairness to the already (though differently) muffled voice of corporations and labor organizations. The First Amendment, however, does not permit Congress to restrict differentially the speech of particular persons in an effort to achieve a harmonious balance. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 784-86, 98 S.Ct. 1407, 1420-21, 55 L.Ed.2d 707 (1978); Buckley v. Valeo, supra, 424 U.S. at 48-49, 96 S.Ct. at 649; Baldwin v. Redwood City, 540 F.2d 1360, 1369-70 (9th Cir. 1976), cert. denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). "[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." Buckley v. Valeo, supra, 424 U.S. at 48-49, 96 S.Ct. at 649. The statutory distinction between unincorporated associations and corporations or labor organizations is therefore not "tailored" to achievement of the government's only legitimate objectives, which are to reduce corruption and increase confidence in our electoral processes.

C

I would find that the restriction in section 441a(a)(1)(C), when read in light of the administrative support exemptions for corporations and labor organizations, imposes an inadequately justified burden on the speech and associational rights of members of an unincorporated association. I would thus hold that this section of FECA is unconstitutional on its face.

I am well aware that if my opinion were adopted, it would, until appropriate statutory modification, result in granting associations a special privilege to make unlimited donations to political committees, a privilege not extended to individual persons. I acknowledge that striking a portion of FECA would produce a consequence that is somewhat inconsistent with the remaining statutory scheme. This unwelcome and ironic result is forced upon me by the conflict between the First Amendment and Congress' drafting of the statute. That the result is distasteful to the majority does not constitute a valid reason for declining to enforce the First Amendment. Were the consequences of my reasoning to be deemed unfortunate, it would be up to the Congress to draft a statute which is both fair and in harmony with the First Amendment.

J. BLAINE ANDERSON, Circuit Judge, concurs in Part I of this opinion.

CHOY, J. BLAINE ANDERSON and HUG, Circuit Judges, concur in Parts II and III.

J. BLAINE ANDERSON and HUG, Circuit Judges, concur in Part IV.