BREAD POLITICAL ACTION COMMITTEE et al., Plaintiffs, v. The FEDERAL ELECTION COMMISSION et al., Defendants, 635 F.2d 621

CUMMINGS, Circuit Judge. In this action, we are presented with four questions concerning the constitutionality of 2 U.S.C. § 441b(b)(4)(D), a provision of the Federal Election Campaign Act (“Act”) (2 U.S.C. §§ 431 et seq.). The questions come to us on certification from the district court pursuant to 2 U.S.C. § 437h. j Introduction In March 1977, plaintiffs brought this suit under 2 U.S.C. § 437h seeking a declaration that

Section 441b(b)(4)(

D) is unconstitutional and asking the district court to grant a permanent injunction against enforcement thereof. Plaintiffs are the National Restaurant Association and the National Lumber and Building Material Dealers Association, both incorporated trade associations, and the Bread Political Action Committee, the Restaurateurs Politicál Action Committee and the Lumber Dealers Political Action Committee.

The three plaintiff political action committees were organized respectively by the American Bakers Association, the National Restaurant Association and the National Lumber and Building Material Dealers as separate segregated political action funds and were registered with the Federal Election Commission pursuant to 2 U.S.C. § 433. Plaintiffs named as defendants the Federal Election Commission (“Commission”), its eight members and, because he is empowered to take appropriate action on the Commission’s referrals of apparent statutory violations, the Attorney General of the United States (Plaintiffs’ App. 17).

The challenged provision is one of the 1976 permissive exceptions to

Section 441b(

a) of the Act, which prohibits contributions or expenditures by “any corporation whatever” or “any labor organization” in connection with a federal election. But an exclusion, added by the amendment to the Act in 1972 and now contained in

Section 441b(b)(2)(C), allows corporations and labor organizations to use general treasury funds for “the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes” by the parent organization. These segregated funds may be used to make contributions to candidates in federal elections subject only to restrictions imposed elsewhere in the Act and not in issue here. A segregated political fund and its parent organization are restricted, however, as to whom they may solicit for fund contributions.

Section 441b(b)(4)(A)(

i) makes it unlawful for a corporation or its segregated political fund to solicit contributions from anyone other than its stockholders and their families or its executive or administrative personnel and their families, while

Section 441b(b)(4)(A)(ii) makes it unlawful for a labor organization or its segregated political fund to solicit contributions from any person other than its members and their families. These prohibitions are in turn subject to three exceptions added in 1976. Paragraph (

B) of

Section 441b(b)(4) permits corporations to make two annual written solicitations of their rank-and-file employees and their families. See 11 C.F.R. § 111.6(a). Paragraph (

B) also permits labor organizations representing corporate unit employees to make two annual written solicitations of the corporate shareholders and all corporate employees, whether members of the union or not. See 11 C.F.R. § 114.6(b). Paragraph (

C) permits membership organizations, cooperatives and corporations without capital stock or their segregated political funds to solicit contributions from their members. The last exception, paragraph (

D) of

Section 441b(b)(4), is the focus of the present litigation. This provision permits a trade association or its segregated political fund to solicit contributions from the stockholders and executive and administrative personnel of its member corporations and their families provided that such solicitation has been approved by the member corporation and the member corporation has not approved a solicitation by any other trade association for the same calendar year. The full text of

Section 441b(b)(4)(

D) is as follows: “This paragraph [Paragraph (

A) of

Section 441b(b)(4)] shall not prevent a trade association or a separate segregated fund established by a trade association from soliciting contributions from the stockholders and executive or administrative personnel of the member corporations of such trade association and the families of such stockholders or personnel to the extent that such solicitation of such stockholders and personnel, and their families, has been separately and specifically approved by the member corporation involved, and such member corporation does not approve any such solicitation by more than one such trade association in any calendar year.” All of

Section 441b is set out in the Appendix hereto. In September 1977, pursuant to 2 U.S.C. § 437h, plaintiffs filed a motion below for immediate district court certification to us of certain questions they had submitted to that court pertaining to the constitutionality of the foregoing provision. This motion was denied two days thereafter, and on October 7 the district court denied plaintiffs’ motion for a preliminary injunction. We granted leave to appeal on December 21, 1977.

On appeal, the principal question before us was whether the five plaintiffs had standing to invoke 2 U.S.C. § 437h (set out in note 2 supra). On January 12, 1979, this Court decided that plaintiffs do have standing to invoke

Section 437h and thus have all their constitutional challenges certified by the district court for initial review by this Court sitting en banc. Bread Political Action Committee v. Federal Election Commission, 7 Cir., 591 F.2d 29. Therefore, the cause was remanded to the district court, which at plaintiffs’ request subsequently certified the following four questions to us: “1. Whether 2 U.S.C. § 441b(b)(4)(D), ' both facially and as applied, infringes plaintiffs’ right of assembly guaranteed by the First Amendment to the Constitution of the United States of America? “2.

Whether 2 U.S.C. § 441b(b)(4)(D), both facially and as applied, deprives plaintiffs of liberty without due process of law in violation of the Fifth Amendment of the Constitution of the United States? “3. Whether the failure of the Federal Election Campaign Act, as amended, 2 U.S.C. § 431 et seq., to define the term ‘solicitation’ infringes plaintiffs’ right of assembly guaranteed by the First Amendment to the Constitution of the United States, or deprives plaintiffs of liberty without due process of law in violation of the Fifth Amendment to the Constitution of the United States? “4.

Whether the failure of the Federal Election Campaign Act, as amended, 2 U.S.C. § 431 et seq., to define the term ‘trade association,’ as used in 2 U.S.C. § 441b(b)(4)(D), violates the due process clause of the Fifth Amendment to the Constitution of the United States?” At the same time, the court handed down 215 findings of fact drawn from a joint stipulation of facts and the parties’ proposed findings (Com’n App. 47a-111a). Their correctness is not before us. Before answering the questions posed, three jurisdictional arguments of the Commission must be addressed. II.

Standing, Case or Controversy, and Breadth of Certified Questions The Commission has reargued that the plaintiffs have no standing under

Section 437h. This question was decided adversely to the Commission by a panel of this Court in January 1979 (591 F.2d 29). We decline to overrule that decision and note that the Ninth Circuit has agreed with us by holding that the California Medical Association and its political action committee had sufficient standing to obtain a judicial ruling on constitutional questions certified under

Section 437h. California Medical Association et al. v. Federal Election Commission et al. (9th Cir. No. 79-4426, decided May 23, 1980) appeal-Supreme Court jurisdiction reserved until hearing on merits, -U.S.-, 101 S.Ct. 67, 66 L.Ed.2d 19. The Commission also contends, although more obliquely than it did in the district court, that in answering the four certified questions we would be rendering an advisory opinion rather than deciding a case or controversy as required by

Article III of the Constitution (Br. 53, 67-68). The district court’s exhaustive findings of fact (Com’n App. 47a-111a), uncontroverted by the Commission, are clear proof why this is a live controversy and in no way mooted. The plaintiffs and defendants remain poles apart as to the meaning and constitutionality of

Section 441b(b)(4)(D). Until that controversy is resolved, plaintiffs will continue to be threatened by defendants as to the legality of their present and proposed activities. Accordingly, any argument based on a lack of case or controversy required by

Article III of the Constitution is frivolous. This same argument was made in the Commission’s 1978 brief (at p. 5) and therefore must have been decided (at least sub silentio) against the Commission in our previous Bread Political Action Committee case; otherwise the panel would not have remanded the cause so that the district court could certify the constitutional questions (591 F.2d at 36). In any event, the question was decided adversely to the Commission in Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 613, 46 L.Ed.2d 659, and in California Medical Association, supra. The Commission has also submitted that

Section 437h must be read narrowly and may only be used to challenge facially unconstitutional provisions of the Act (Br. 9-11). We again disagree.

Section 437h empowers federal appellate courts “to construe the constitutionality of any provision of this Act” by declaratory judgment. This provision does not limit certified questions to “appropriate questions” of constitutionality as the Commission urged in 1978 (Br. 9, 10, 13) and again now (Br. 11-12). Rather,

Section 437h requires the district courts to certify “all questions of constitutionality of this Act” to the various circuit courts of appeals. The term “appropriate” as used in

Section 437h modifies “actions” and not “questions of constitutionality” as the Commission would have it. Bread Political Action Committee v. Federal Election Commission, 591 F.2d 29 (7th Cir. 1979). Therefore, we adhere to our previous decision and the majority opinion in California Medical Association, supra, at -, in refusing to limit our review to the facial constitutionality of provisions of the Federal Election Campaign Act or, as Judge Wallace would hold (at pp.-----of his concurring and slip op.), to questions of exceptional importance as to its constitutionality. III.

Plaintiffs’ Right of Assembly Has Not Been Impermissibly Infringed The first question certified to us is “[wjhether 2 U.S.C. § 441b(b)(4)(D), both facially and as applied, infringes plaintiffs’ right of assembly guaranteed by the First Amendment to the Constitution of the United States of America.” In support of an affirmative answer to this question, plaintiffs first argue that

Section 441b(b)(4)(

D) is an impermissible prior restraint (an issue not specifically certified) or, in the alternative, an unjustifiable infringement on their associational freedoms. We are unpersuaded by these arguments and answer the first question in the negative. It is, of course, well established that association and solicitation are forms of political expression protected under the First Amendment. N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73.

But these activities are not protected absolutely and may be subject to governmental regulation where there is an overriding state interest in such regulation. Buckley v. Valeo, 424 U.S. 1 (per curiam). The transcendent legislative objective served by the Federal Election Campaign Act is the elimination of corruption and the appearance of corruption in the federal election process. Id. The restrictions imposed by

Section 441b of the Act on labor organizations and corporations, including incorporated trade associations, are designed to serve both this objective and the additional objective of protecting individuals from economic coercion. United States v. United Automobile Workers, 352 U.S. 567, 570-584, 77 S.Ct. 529, 530, 1 L.Ed.2d 563; United States v. Congress of Industrial Organizations, 335 U.S. 106, 113, 68 S.Ct. 1349, 1353, 92 L.Ed. 1849. The challenged provision is, as noted, one of the exceptions to the broad prohibition of

Section 441b(

a) against contributions and expenditures by corporations and labor organizations in connection with federal elections.

Section 441b(

a) clearly withstands First Amendment attack. United States v. Boyle, 482 F.2d 755, 763-765 (D.C.Cir.1973), certiorari denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483; United States v. Chestnut, 533 F.2d 40, 50-51 (2d Cir. 1976). The 1972 exclusion in

Section 441b(b)(2)(

C) permits the limited use of corporate and union general treasury funds to establish political action committees denominated “separate segregated funds” in the Act. See note 3 supra. This exclusion is clearly intended to strike a balance between the objectives served by banning the use of corporate and union funds in federal elections and permitting wholly unrestricted association between the regulated groups and those individuals in a direct relationship with them. 117 Cong.Rec. 43, 379-381 (1971). The 1976 exceptions set forth in paragraphs (A), (B), (

C) and (

D) of

Section 441b(b)(4) simply define that balance. Corporations, including incorporated trade associations, are allowed unlimited solicitation of their stockholders, if any, and their families and their administrative or executive personnel and their families. (2 U.S.C. § 441b(b)(4)(A); 11 C.F.R. § 114.-5(g)(1).) Labor organizations, membership organizations, co-operatives and corporations without capital stock, including trade associations, are permitted unlimited solicitation of their members and, in the case of unions, their families (2 U.S.C. § 441b(b)(4)(

A) and (C); 11 C.F.R. §§ 114.-5(g)(2) and 114.7(a).) In short, there is no restriction on the number of times a regulated group may solicit contributions to its political action committee from those in direct relationship to it.

In addition, corporations, including incorporated trade associations, are permitted to make two annual written solicitations of their rank-and-file employees. (2 U.S.C. § 441b(b)(4)(B); see also 11 C.F.R. § 114.6(a).) Unions are permitted analogous contacts with employees of a corporation in which the union represents members working for the corporation. (2 U.S.C. § 441b(b)(4)(B); see also 11 C.F.R. § 114.6(b)). Solicitations beyond those just described are, with one further exception, prohibited altogether by paragraph (

A) of

Section 441b(b)(4). That exception is the challenged provision, paragraph (

D) of

Section 441b(b)(4), which permits trade associations to solicit any number of times the shareholders and executive or administrative personnel (and families thereof) of their member corporations if the member corporation has approved the solicitations and has not approved any other trade association’s solicitation for the same calendar year. See 11 C.F.R. § 114.8(

c) and (e). It is obvious that paragraph (

D) is intended to provide trade associations with a potential pool of solici-tees otherwise forbidden them under paragraphs (A), (B), and (C). Plaintiffs do not challenge the validity of paragraph (A), (B), or (C), and we note that paragraphs (

C) and (A)(

i) were recently upheld against First Amendment challenges similar to those brought here against paragraph (D). Federal Election Commission v. National Right to Work Committee, 501 F.Supp. 422 (D.D.C.1980). There Judge Parker concluded that “to the extent the statute restricted plaintiffs’ ability to solicit, it represents a marginal infringement on these rights and is fully justified by the need to protect the electoral process.” At 438. Plaintiffs’ complaint is that the additional avenue of solicitation allowed them under paragraph (

D) is too limited to withstand constitutional scrutiny. We disagree. Nothing in

Section 441b(b)(4)(

D) limits the expression or dissemination of political ideas and information either to the individuals described in the

Section or to any other individual. Indeed, there has been no showing that this provision has had or could have any prior restraining effect whatsoever on the free flow of political information and opinion by trade associations or their political action committees. To the contrary, Judge Marshall’s uncontested findings of fact (Com’n App. 47a-111a) establish that plaintiffs are engaged on a daily basis and unimpeded by paragraph (

D) in a broad range of First Amendment activities. Nor does

Section 441b(b)(4)(

D) prohibit, as plaintiffs suggest, trade associations from joining the shareholders and executive or administrative employees of its member corporations to it in common cause. They are free to solicit any individual, including those just described, to join their trade associations. Once an individual joins a trade association, he or she may be solicited for contributions without limitation under

Section 441b(b)(4)(C). The political committees are of course free to accept contributions made to them by shareholders and employees of member corporations without solicitation on the trade associations’ or their political committees’ part. Finally, trade associations and their political committees are free to urge any individual to support or oppose a particular candidate and even to contribute directly to a candidate’s campaign fund. What plaintiffs cannot do is freely solicit contributions from the shareholders and employees of their member corporations for the use of their own political committees.

Because there is no limit on the number of trade associations to which a corporation may belong, the restrictions in

Section 441b(b)(4)(

D) serve to prevent a proliferation of trade associations and solicitations which would in turn undermine the very purpose of the Act’s restrictions on the use of corporate treasuries in federal elections. The effect of the dissent’s disposition invalidating

Section 441b(b)(4)(

D) would be, of course, to make any solicitation of its corporate members’ shareholders and administrative/executive personnel unlawful because such solicitations are prohibited under

Section 441b(b)(4)(

A) except as provided in

Section 441b(b)(4)(D). To the extent that the corporate approval requirement has a “prior restraining” effect on the solicitations only allowed by virtue of

Section 441b(b)(4)(

D) itself, we think it both tenuous and amply justified by the necessity of providing a mechanism to prevent the exception from swallowing the whole. Plaintiffs’ reliance on Village of Schaum-burg, supra, is misplaced. There an ordinance restricting door-to-door and on-street solicitations for charitable contributions was struck down for overbreadth.

The Supreme Court explicitly recognized that “[sjoliciting financial support is undoubtedly subject to reasonable regulation,” but found the ordinance in question too broadly framed because it prohibited legitimate political advocacy as well as the fraudulent solicitation it was intended to prevent. 444 U.S. at 632, 100 S.Ct. at 833. In the instant case, the governmental objective of protecting the electoral process is, to begin with, much weightier than guarding against fraudulent solicitations for charity. More importantly, however, the provision here is not overbroad.

To the contrary, it is a very narrowly drawn aspect of a statutory scheme carefully designed to balance a compelling governmental interest and jealously guarded First Amendment freedoms. Cf. California Medical Association v. Federal Election Commission, supra, note 5; Federal Election Commission v. National Right to Work Committee, supra. Consolidated Edison Co. v. Public Service Commission,-U.S.-, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980), and First National Bank v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707, are also unsupportive of plaintiffs’ cause.

The former did not deal with money solicitations for elections and is inapt. In the latter, the Supreme Court invalidated a Massachusetts criminal statute prohibiting certain business corporations from making contributions or expenditures to influence referenda. Here we are concerned with Congressional opposition to excessive spending in connection with candidate elections. The Supreme Court noted the distinction: “Referenda are held on issues, not candidates for public office.

The risk of corruption perceived in cases involving candidate elections * * * simply is not present in a popular vote on a public issue.” 435 U.S. at 790, 98 S.Ct. at 1423. The cases dealing with the Federal Election Campaign Act are the cases in point. The leading case is, of course, Buckley v. Valeo, supra. In Buckley, the Supreme Court upheld, inter alia, ceilings on campaign contributions which clearly have far greater impact on plaintiffs’ fund-raising ability than the minor restriction in issue here. Thus in accord with Buckley and the cases noted upholding other provisions of

Section 441b, we conclude that

Section 441b(b)(4)(

D) does not impermissibly infringe plaintiffs’ right of assembly. Realistically Congress cannot be expected to draw the perfect law envisioned by the dissent (at p. 639 infra), but adequate procedural safeguards against improper sanctions are available through the established Advisory Opinion machinery contained in

Section 437f which immunize those persons who obtain favorable opinions from the Commission and also those activity is materially indistinguishable. IV. Plaintiffs’ Right to Liberty Under the Due Process Clause of the Fifth Amendment Has Not Been Violated The second question certified to us is “[wjhether 2 U.S.C. § 441b(b)(4)(D), both facially and as applied, deprives plaintiffs of liberty without due process of law in violation of the Fifth Amendment to the Constitution of the United States.” We again answer in the negative.

Plaintiffs’ argument on this issue is that the equal protection guarantee subsumed in the Fifth Amendment has been violated because corporations and labor unions may under paragraphs (

A) and (

B) of

Section 441b(b)(4) solicit the permissible solicitees without prior approval of anyone while paragraph (

D) requires trade associations to obtain prior approval from a member corporation before soliciting the shareholders or executive or administrative employees of that member corporation. This argument is largely premised, however, on a misreading of the statute. It is simply not correct that plaintiffs are prohibited by paragraph (D), as they claim, from soliciting anyone other than the shareholders or executive or administrative employees of their membership corporations (Plaintiffs’ Br. at 88). Both the literal statutory language and the Commission’s regulations interpreting the statute indicate clearly that paragraphs (A), (B), (

C) and (

D) are not parallel provisions, each addressed to a different regulated group. Incorporated trade associations, because they are corporations, have precisely the same solicitation rights under paragraphs (

A) and (

B) as do other corporations. 11 C.F.R. § 114.-8(i)(2). Moreover, trade associations are also membership organizations or corporations without capital stock and are therefore provided precisely the same solicitation rights as they have under paragraph (C). 11 C.F.R. § 114.7(c). Finally, trade associations are provided under paragraph (

D) with an additional group of potential solici-tees. 11 C.F.R. § 114.8(c). Federated trade associations also have broad solicitation rights. A federation of trade associations may solicit its own shareholders (if any), employees and members in accordance with the rules just described.

A trade association may also delegate its own solicitation rights to a federation (11 C.F.R. § 114.8(g)(1)(i)) or conduct a joint solicitation with the federation (11 C.F.R. § 114.8(g)(1)(ii)), thereby allowing the federation to solicit the non-corporate business and individual members of the individual trade association; the shareholders, executive or administrative personnel and their families of the individual trade association; and the shareholders and executive or administrative personnel and their families of the corporate members (with approval) of the individual trade association.

In addition, a federated trade association may, subject to the same rules as those applied to international unions and their constituent locals, solicit the individual and noncorporate members of their regional, state and local affiliates (11 C.F.R. § 114.8(g)(1)) and the shareholders and executive and administrative personnel and their families of corporate members of such affiliates. 11 C.F.R. § 114.8(g)(2).

Thus to the extent that trade associations are treated differently from other corporations and other membership organizations, the difference lies in the fact that trade associations are not limited as are the others to soliciting their own shareholders, employees or members. Furthermore, the somewhat dissimilar treatment of corporations, labor organizations, membership organizations and trade associations under

Section 441b(b)(4) follows from the rather obvious facts that each of the different groups has a different structure and a different kind of constituency and that each requires somewhat different regulation to curb abuses the Act was intended to halt. Regulatory distinctions and exceptions tailored to serve a substantial governmental interest, as here, do not violate the Fifth Amendment’s equal protection provision. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98-99, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212.

It is important to keep in mind that the restrictions in issue here apply only where a trade association employs corporate funds to undertake its solicitations.

The same individuals who organize these political committees are free to establish a political committee independent of, rather than merely segregated from, the corporate treasury and corporate funds and thereby be free to solicit “the world.” The reason Congress chose to allow trade associations to solicit the stockholders and executive or administrative employees (and their families) of member corporations (with their approval) is undoubtedly because the member corporations themselves cannot make political contributions per se to the trade association’s political committee. 2 U.S.C. § 441b(a).

At the same time, the restrictions placed on this potential pool of solicitees serves, as we have said earlier, to prevent the exception from swallowing the whole. Finally, the relationship that obtains between a trade association and the employees of its member corporations differs significantly from that existing between union members and their unions. Individuals join with other individuals in common cause as members of their union, and the union thus becomes their representative organization.

A trade association is also a representative, membership organization, but it exists to promote the interests of its corporate and individual members, not the interests of the employees of its corporate members.

Because the corporate employees are neither employed by nor represented by the trade associations, any equal protection comparison between the activities available to trade associations with respect to the employees of their corporate members with those available to labor organizations with respect to their membership or the employers of their membership runs afoul of plaintiffs’ failure to demonstrate how trade associations and labor organizations are “similarly situated” parties. Accordingly, we conclude that

Section 441b(b)(4)(

D) does not deprive plaintiffs of liberty without due process in violation of the Fifth Amendment. V. It Is Unnecessary for

Section 441b(b)(4)(

D) to Define “soliciting contributions” The third question certified to us is as follows: “Whether the failure of the Federal Election Campaign Act, as amended, 2 U.S.C. § 431 et seq., to define the term ‘solicitation’ infringes plaintiffs’ right of assembly guaranteed by the First Amendment to the Constitution of the United States or deprives plaintiffs of liberty without due process of law in violation of the Fifth Amendment to the Constitution of the United States?” The phrase “soliciting contributions” is not unconstitutionally vague since people “of common intelligence” need not “necessarily guess at its meaning and differ as to its application * * *.” Baggett v.

Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377. Statutes and rules using the term “solicit” have been uniformly upheld. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 462, 464, 98 S.Ct. 1912, 1921, 1922, 56 L.Ed.2d 444; In re Primus, 436 U.S. 412, 438, 98 S.Ct. 1893, 1908, 56 L.Ed.2d 417; Republic Aviation Corporation v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; Securities and Exchange Commission v. May, 229 F.2d 123 (2d Cir. 1956); Sargent v. Genesco, Inc., 492 F.2d 750 (5th Cir. 1974); Federal Election Commission v.

National Right to Work Committee, supra, at 430. Consequently, plaintiffs do not contend that the absence of a definition of “soliciting contributions” in

Section 441b(b)(4)(

D) renders

Section 441b(b)(4)(

D) unconstitutionally vague (Br. 79). Instead, they claim only that the “overbreadth” of this phrase permits the issuance of inconsistent opinions by the Federal Election Commission. Plaintiffs are particularly critical (Br. 71-75) of Advisory Opinion 1979-13, in which the Commission concluded that a proposed

article for inclusion in a separate segregated fund’s publication going to employees and retirees was a solicitation within the meaning of the Act “since it describes RAYPAC’s activities and encourages employees to participate in RAYPAC by commending the enthusiasm of these employees whose participation in RAYPAC has indicated awareness of the connection between their welfare and government policies toward business.” (Plaintiffs’ App. at 330.) Since the

article could in all fairness be considered by a reasonable person to be a request for a contribution, the Commission cannot be faulted even if we would decide differently. See note 9 supra. Moreover, the Commission stated the newsletter

article would not be an improper contribution solicitation if it were sent only to persons that may be solicited under the statute or regulations and told the recipients that their contributions would have to be returned if coming from impermissible sources. Finally, the Commission’s opinions are only advisory in nature and not binding upon the party requesting them. 2 U.S.C. § 437f. In contrast, in Advisory Opinion 1979-66, the Commission determined that publication of certain financial information by a separate segregated fund was not a “solicitation” within the meaning of the Act.

The information in question merely reported the total sum collected by the Associated General Contractors Political Action Committee and did not commend the enthusiasm of PAC contributors or encourage readers to support that separate segregated fund’s activities. Since it was permissible for the Commission to come out differently in these and other cases, the Commission’s Advisory Opinions do not demonstrate that the phrase “soliciting contributions” in

Section 441b(b)(4)(

D) is over-broad and unconstitutionally vague under the First and Fifth Amendments. That being the sole reason given for plaintiffs’ attack, the third question must be answered “No.” VI. It Is Unnecessary to Define “trade association” in

Section 441b(b)(4)(

D) The final constitutional question certified to us is as follows: “Whether the failure of the Federal Election Campaign Act, as amended, 2 U.S.C. § 431 et seq., to define the term ‘trade association,’ as used in 2 U.S.C. § 441b(b)(4)(D), violates the due process clause of the Fifth Amendment to the Constitution of the United States?” The only plaintiffs challenging the absence of a statutory definition of “trade association” are plaintiffs National Lumber and Building Material Dealers Association and its political action committee.

They claim that they are unable to ascertain whether they may solicit only the executive and administrative personnel of its 27 incorporated trade association members or also the executive and administrative personnel of the corporate members of its member trade associations.

The Commission has ruled that a federation of trade associations like National Lumber and Building Material Dealers Association may also solicit contributions from the executive and administrative employees of its members’ corporate members provided that the trade association and federation are “affiliated”; that is, that they are considered one political action committee for the purpose of contribution ceilings. See 11 C.F.R. § 114.8(g)(1) and (2); see also 2 U.S.C. § 441a(a)(5) and Commission Informational Letter, Fed.Elec. Camp.Fin. Guide, CCH K 6031.

If these two plaintiffs are still worried about the propriety of their proposal, an advisory opinion can of course be obtained from the Commission under

Section 437f. In any event, this alleged confusion arises because of these plaintiffs’ status as a federation of trade associations and a political committee of a federation of trade associations respectively, not from the absence of a statutory definition of “trade association.” “Trade association” like “solicitation,” is a frequently used and well understood term. The Commission’s regulations reflect the commonly understood meaning of the term.

For example, 11 C.F.R. § 114.8(a), promulgated on April 13, 1976, provides: “A trade association is generally a membership organization of persons engaged in a similar or related line of commerce, organized to promote and improve business conditions in that line of commerce and not to engage in a regular business of a kind ordinarily carried on for profit, and no part of the net earnings of which enures to the benefit of any member.” Similarly, 11 C.F.R. § 114.8(g)(1) provides: “A federation of trade associations is an organization representing trade associations involved in the same or allied line of commerce.” In view of the plain and ordinary meaning of “trade association” and the Commission’s adherence to that meaning, we conclude that the absence of a statutory definition of the term as it is used in

Section 441b(b)(4)(

D) does not violate the due process clause of the Fifth Amendment. The cause is remanded for further proceedings consistent with the four answers given herein. APPENDIX 2 U.S.C. § 441b provides: § 441b. Contributions or expenditures by national banks, corporations, or labor organizations (

a) It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section. (b)

(1) For the purposes of this

section the term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

(2) For purposes of this

section and

section 797(

h) of title 15, the term “contribution or expenditure” shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section, but shall not include (

A) communications by a corporation to its stockholders and executive or administrative personnel and their families or by a labor organization to its members and their families on any subject; (

B) nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive or administrative personnel and their families, or by a labor organization aimed at its members and their families; and (

C) 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.

(3) It shall be unlawful • (

A) for such a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other moneys required as a condition of membership in a labor organization or as a condition of employment, or by moneys obtained in any commercial transaction; (

B) for any person soliciting an employee for a contribution to such a fund to fail to inform such employee of the political purposes of such fund at the time of such solicitation; and (

C) for any person soliciting an employee for a contribution to such a fund to fail to inform such employee, at the time of such solicitation, of his right to refuse to so contribute without any reprisal. (4) (

A) Except as provided in subparagraphs (B), (C), and (D), it shall be unlawful (

i) for a corporation, or a separate segregated fund established by a corporation to solicit contributions to such a fund from any person other than its stockholders and their families and its executive or administrative personnel and their families, and (ii) for a labor organization, or a separate segregated fund established by a labor organization, to solicit contributions to such a fund from any person other than its members and their families. (

B) It shall not be unlawful under this

section for a corporation, a labor organization, or a separate segregated fund established by such corporation or such labor organization, to make 2 written solicitations for contributions during the calendar year from any stockholder, executive or administrative personnel, or employee of a corporation or the families of such persons.

A solicitation under this subparagraph may be made only by mail addressed to stockholders, executive or administrative personnel, or employees at their residence and shall be so designed that the corporation, labor organization, or separate segregated fund conducting such solicitation cannot determine who makes a contribution of $50 or less as a result of such solicitation and who does not make such a contribution. (

C) This paragraph shall not prevent a membership organization, cooperative, or corporation without capital stock, or a separate segregated fund established by a membership organization, cooperative, or corporation without capital stock, from soliciting contributions to such a fund from members of such organization, cooperative, or corporation without capital stock. (

D) This paragraph shall not prevent a trade association or a separate segregated fund established by a trade association from soliciting contributions from the stockholders and executive or administrative personnel of the member corporations of such trade association and the families of such stockholders or personnel to the extent that such solicitation of such stockholders and personnel, and their families, has been separately and specifically approved by the member corporation involved, and such member corporation does not approve any such solicitation by more than one such trade association in any calendar year.

(5) Notwithstanding any other law, any method of soliciting voluntary contributions or of facilitating the making of voluntary contributions to a separate segregated fund established by a corporation, permitted by law to corporations with regard to stockholders and executive or administrative personnel, shall also be permitted to labor organizations with regard to their members.

(6) Any corporation, including its subsidiaries, branches, divisions, and affiliates, that utilizes a method of soliciting voluntary contributions or facilitating the making of voluntary contributions, shall make available such method, on written request and at a cost sufficient only to reimburse the corporation for the expenses incurred thereby, to a labor organization representing any members working for such corporation, its subsidiaries, branches, divisions, and affiliates.

(7) For purposes of this section, the term “executive or administrative personnel” means individuals employed by a corporation who are paid on a salary, rather than hourly, basis and who have policymaking, managerial, professional, or supervisory responsibilities. . Throughout this opinion we will refer to various sections of the Act by their numbers in Title 2 U.S.C. rather than by their statutory numbers. .

Section 437h provides: “(

a) The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. 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. “(

b) Notwithstanding any other provision of law, any decision on a matter certified under subsection (

a) of this

section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals. “(

c) It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (

a) of this section.” . The Act now provides that separate segregated funds are “political committees.” 2 U.S.C. § 431 as amended by Pub.L.No.96-187 (93 Stat. 1339). As the Supreme Court noted in Pipefit-ters v. United States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11, the separate segregated funds are not “meaningfully ‘separate’ from the sponsoring union [or trade association] in any way other than ‘segregated’ ”. 407 U.S. at 426, 92 S.Ct. at 2270. The separation required by the Act is a separate bank account and a separate ledger. 407 U.S. at 413-417, 92 S.Ct. at 2263.

In short, the separate segregated funds are simply political arms of the parent organizations. . The district court polished plaintiffs’ draft questions into their present form (Com’n App. 45a -46a). . Even the concurring and dissenting opinion of Judge Wallace in California Medical Association, supra, did not accept the Commission’s case or controversy argument. See pp.-- -. Moreover, he expressly disavowed the D.C. Circuit opinions taking that tack, noting that they ignored Buckley v. Valeo, 424 U.S. 1 at 11-12, 96 S.Ct. 613 at 630. See note 11 of his opinion.

The panel of this Court that decided the earlier Bread Political Action Committee case was also critical of the D.C. Circuit’s reasoning in related cases. 591 F.2d at 35 n. 11. The Commission relies here on Martin Tractor Co. v. Federal Election Commission, 627 F.2d 375 (D.C.Cir.1980), certiorari denied sub nom. National Chamber Alliance for Politics v. Federal Election Commission, - U.S. -, 101 S.Ct. 360, 66 L.Ed.2d 218, which was decided a fortnight before the California Medical Association case but not brought to the Ninth Circuit’s attention.

We are not convinced that Martin Tractor is contrary to the position we have taken here in that the court there appears to have based its dismissal for lack of case or controversy largely on the easy availability of advisory opinions from the Commission to eliminate or at least focus the questions presented for review while in this case the questions are already clearly focused. But to the extent that Martin Tractor is not distinguishable we are, like the Ninth Circuit, in disagreement with the D.C. Circuit.

On October 6, 1980, the Supreme Court ruled that further consideration of the question of its jurisdiction over the California Medical Association case is postponed until the hearing of the appeal on the merits (1980),-U.S.-, 101 S.Ct. 67, 66 L.Ed.2d 19. . Mott v. Federal Election Commission, 494 F.Supp. 131 (D.D.C.1980) is distinguishable. In that case, the district court dismissed the complaint of one plaintiff on ripeness grounds and the complaint of the other plaintiffs on the merits because the questions raised were answered by Buckley v. Valeo, supra. In so doing, it took the position that

Section 437h requires certification only of “substantial” constitutional questions, holding that unripe constitutional questions and constitutional questions that had already been decided can be dismissed without certification. Because the questions presented here are “substantial,” we need not decide whether

Section 437h requires certification of all constitutional questions regardless of their substantiality. . We agree with the dissent herein (p. 635 infra and n. 2 of dissent) that we should address the prior restraint issue since plaintiffs raised it below and Judge Marshall at least referred to the First Amendment in his first question addressed to us. . See also California Medical Association v. Federal Election Commission, (9th Cir. No. 79 4426, decided May 23, 1980), appeal-Supreme Court jurisdiction reserved until hearing on merits, 49 LW 3245, in which it was held that

Section 441b(b)(2)(

C) does not contravene the First or Fifth Amendments. . The dissent takes the view that this activity is effectively precluded because of the Commission’s broad construction of the term “solicitation.” (pp. 636-637, infra). The Act, however, clearly prohibits the solicitation of contributions to the separate segregated funds, not solicitation of membership in the trade associations themselves. The Commission’s Advisory Opinion 1979-13 prohibits neither solicitation of memberships nor solicitation of contributions to separate segregated funds by trade association members.

To the contrary, it permits solicitation of members. Plaintiffs’ App. 330; CCH Federal Election Campaign Financing Guide '' 5403 at 10,419. Moreover, it seems to us that the thrust of the dissent’s position is that the vagueness or overbreadth of the term “solicitation” has a “chilling effect” on plaintiffs’ efforts to gather like-minded individuals into its fold. Yet the dissent concurs in

Part V, which holds that the term is neither vague nor overbroad. . We of course do not hold that subsection (

D) does not have any restraining effect as the dissent infers (at p. 636 infra). . Both certified questions one and two refer to the constitutionality of

Section 441b(b)(4)(D) “facially and as applied.” The only “application” we have discovered comes from the Commission’s statutory construction expressed in its brief and at oral argument. Since the parties have not separately treated the “as applied” facet, we will refrain from discussing it in any vein except to state that we find no First or Fifth Amendment unconstitutionality in the Commission’s construction of the statute, which will presumably be followed when the Commission applies this Section. . Labor organizations are permitted one solicitation contact outside their membership.

This is the rather limited right to solicit by mail twice annually the shareholders and nonmember employees of corporations some of whose employees they represent. . The record does not show that such approval “is generally refused” as the dissent would speculate (at p. 642 infra) or that plaintiffs do not seek to solicit all corporate employees because of lack of commonality of interest (n.10 at p. 642 infra). .

Plaintiffs attempt to circumvent this difficulty by suggesting that the appropriate test here is whether all the regulated groups are afforded the same solicitation rights with respect to those sharing a “commonality of interest” with them. Leaving aside the considerable definitional and linedrawing problems that such a test would involve, plaintiffs have failed to demonstrate why a commonality of political interest between shareholders and employees of member corporations and trade association political committees should be assumed simply because the corporations belong to the trade association. .

See note 11 supra. . The

article quoted the chairman of the corporate political action committee as follows: “I was glad to see that Raymond has so many employees who realize that the welfare of us all is tied very closely to government policies and attitudes toward business. RAYPAC is one way we can make the voice of business people in our industry heard in this country. I hope we continued [sic] to have such an enthusiastic group.” (Plaintiffs’ App. at 329-331.) . Certain corporate retail dealers comprise the members of this Association’s 27 corporate trade association members (Plaintiffs’ Br. 102). .

Plaintiffs have recently called our attention to the statement in Federal Election Commission v. Lance, 617 F.2d 365, 367 (5th Cir. 1980) that “there is a serious question whether the Federal Corrupt Practices Act is constitutional.” Since note 1 of the opinion shows that the court was referring only to Sections 441b(

a) and (b)(2) which are not before us, the statement is inapplicable here.