Opinion concurring in part and concurring in the result filed by Circuit Judge HARRY T. EDWARDS.

OUTLINE OF OPINION
                                                            Page
  I.  INTRODUCTION ........................................ 1094
 II.  HISTORY OF THE CASE ................................. 1095
III.  STANDING ............................................ 1097
 IV.  ANALYSIS ............................................ 1099
      A. Is the asserted imbalance between corporations
         and labor unions under the 1976 FECA amendments
         unconstitutional? ................................ 1099
          1. Background of the 1976
             amendments ................................... 1100
          2. The alleged imbalance ........................ 1103
          3. The standard of review ....................... 1105
          4. The governmental interest .................... 1106
          5. Means scrutiny: to what extent are
             corporations and labor unions similarly
             situated for the purpose at
             hand? ........................................ 1107
      B. Does the statute impair career employees'
         First Amendment right of political
         abstention by permitting the corporate
         PAC solicitation as detailed in the
         record? .......................................... 1109
          1. Is solicitation of career employees
          inherently coercive? ............................ 1110
          2. The considered judgment of Congress
             and the deference due to it .................. 1112
      C. Does the use of general corporate assets
         to establish and support a corporate
         PAC violate the First Amendment rights
         of dissenting shareholders? ...................... 1115
  V.  CONCLUSION .......................................... 1118

Before this en banc court are three questions concerning the constitutionality of two provisions of the Federal Election Campaign Act ("FECA" or the "Act")1 that regulate the solicitation practices of corporations and labor unions. Plaintiffs-a national labor organization and six individuals2-argue that Congress has acted without sufficient regard for their political speech rights and the political speech rights of others in face of the proliferation of corporate political action committees ("PACs") and their concomitant increased influence in federal elections. Specifically, plaintiffs allege that (1) Congress in the 1976 FECA amendments has created an unconstitutional imbalance between corporations and labor unions, in favor of the former, by allowing corporate PACs to solicit their executive and administrative (career) employees; (2) such corporate solicita tion of executive and administrative employees, which occurs under inherently coercive circumstances, violates the First Amendment right of career employees to abstain from political expression; and (3) the provision of the Act that authorizes the financing of operating and administrative costs of a corporate PAC from general corporate assets violates the First Amendment rights of dissenting shareholders.

On June 3, 1981, the district court certified three questions matching these allegations pursuant to section 315(a) of the Act, 2 U.S.C. § 437h(a), the extraordinary judicial review provision of the Act, which provides: "(t)he 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."3 Finding none of plaintiffs' arguments legally persuasive, we rule against them on each of the certified questions, and hold that the congressional product before us does not transgress constitutional limitations.

On October 9, 1979, plaintiffs filed an administrative complaint with the Federal Election Commission ("FEC" or "Commission"), pursuant to 2 U.S.C. § 437g(a)(1), alleging that the solicitation practices of eleven selected corporations,4 in obtaining funds for their political action committees, contravened the prohibitions in section 441b(b).5 Alternatively, plaintiffs argued that if the Commission construed the relevant provisions of the Act to permit the corporate conduct challenged in the complaint, then those provisions of FECA violate the First and Fifth Amendment rights of the plaintiffs. Acting on a recommendation from the Commission's General Counsel that there was no "reason to believe" the Act had been violated, the Commission, on December 13, 1979, unanimously voted to dismiss the complaint without further investigation and without an additional statement of reasons.

On February 4, 1980, plaintiffs filed a four-count complaint for injunctive and declaratory relief in the district court, pursuant to section 437g(a)(9) (A),6 seeking review of the Commission's dismissal of their complaint. The first count alleged that "corporate PAC solicitations of unprotected career employees are yielding donations which are not free and voluntary, and constitute corporate political contributions because they result from the employment relationship." Plaintiffs maintained that because these solicitations violated the Act, the Commission failed to discharge its statutory duty to investigate; thus, the Commission's dismissal was contrary to law.

The second, third and fourth counts all alleged constitutional violations. Plaintiffs made clear in their complaint that they sought relief on their constitutional claims only if they were denied relief on the statutory count. Plaintiffs sought certification of the constitutional issues to this court pursuant to section 437h(a).

On cross-motions for summary judgment on the statutory claim, the district court upheld the Commission's dismissal of plaintiffs' administrative complaint. The Commission had previously filed a motion to dismiss the constitutional counts for failure to state a claim upon which relief can be granted and for the further reason that plaintiffs lacked standing to sue. The district court denied the motion to dismiss and announced it would certify the three constitutional questions for this court's en banc determination. The court found plaintiffs' constitutional claims "neither frivolous nor so insubstantial as to warrant dismissal for failure to state a claim."7 As to standing, the court concluded that each of the plaintiffs had made a threshold showing of injury in fact sufficient to satisfy Article III.8 The court further ruled that, although no corporate executive or administrative employee was party to the litigation, the plaintiffs possessed standing to assert vicariously the First Amendment rights of such employees.9 On January 12, 1981, plaintiffs noticed their appeal from the district court's order upholding the Commission's dismissal, D.C.Cir. Docket No. 81-1044.

Section 437h(a) requires a district court to certify immediately all questions of the constitutionality of the Act. However, as this court recognized in Buckley v. Valeo, 519 F.2d 817 (D.C.Cir.1976) (en banc), it is undesirable to decide a constitutional issue abstracted from its factual context.10 Therefore, on January 8, 1981, the district court entered a consent order providing for discovery of facts concerning the solicitation practices of four of the eleven corporations named in plaintiffs' administrative complaint. On April 27, 1981, the parties signed an agreement stipulating two hundred ten findings of fact. The district court, on June 3, 1981, certified the three constitutional questions11 and submitted as the record the findings of fact agreed to by the parties. This court gave the certified constitutional case a regular docket number, No. 81-1664.

The Commission renewed in this court its motion to dismiss for lack of standing. This court sitting en banc consolidated the statutory appeal in No. 81-1044 with the certification of constitutional questions in No. 81-1664, deferred decision on the motion to dismiss until after argument, and expedited the two cases as contemplated by the Act.12

On October 26, 1981, this court issued a judgment in No. 81-1044 affirming the district court's disposition of the statutory claim, thereby putting squarely in issue plaintiffs' three constitutional challenges. 672 F.2d 894.

The Commission contends initially that none of the plaintiffs possesses the "voter standing" section 437h(a) requires; accordingly, the plaintiffs are not eligible to invoke the expedited procedure. Second, the Commission argues that the plaintiffs have failed to meet the Article III "case or controversy" requirement. We reject both arguments and therefore deny the Commission's motion to dismiss at the threshold.

The text of section 437h states that these categories of plaintiffs may invoke the certification procedure: "(t)he Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President." 2 U.S.C. § 437h(a). In Bread Political Action Committee v. FEC, --- U.S. ----, 102 S. Ct. 1235, 71 L. Ed. 2d 432 (1982), the Supreme Court held that only parties who fit one of these three descriptions have recourse to the expedited, certification procedure. Accordingly, IAMA lacks the requisite statutory standing and must be dismissed as party plaintiff. The Commission maintains further that the "voter standing" Congress granted in section 437h(a) is confined to plaintiffs who put in issue their First Amendment rights qua voters. The individual plaintiffs, under the Commission's analysis, lack standing to utilize section 437h; although each is an eligible voter, no individual plaintiff has raised an issue as to his or her right to vote. Rather, plaintiffs raise issues as union members, as corporate shareholders, and on behalf of corporate employees, not as voters.

Only one decision has embraced this pinched construction of section 437h(a). In Martin Tractor Co. v. FEC, 460 F. Supp. 1017, 1019 (D.D.C.1978), aff'd on other grounds, 627 F.2d 375 (D.C.Cir.), cert. denied, 449 U.S. 954, 101 S. Ct. 360, 66 L. Ed. 2d 218 (1980), the court stated:

(T)he individual plaintiffs do not sue in their individual capacities to protect their individual rights to vote or even to make contributions. They sue to vindicate a claimed right of their corporate employer to influence its employees ... to make voluntary political contributions. While the question is not free from doubt, the Court has concluded that this kind of derivative right was not the constitutional right of "an individual eligible to vote" which Congress considered "appropriate" for vindication in a special declaratory judgment action under § 437h, particularly where, under the statutory scheme there is an alternative process for resolution of the substantive issue in the context of a particular transaction ....

In the case before us, plaintiffs did proceed under the "alternative process for resolution" of their challenges; they pursued a section 437g enforcement action. The district court removed the constitutional issues from the section 437g action and certified them to this court pursuant to section 437h. This is the proper mode of procedure for questions of the Act's constitutionality arising in section 437g proceedings. California Medical Ass'n v. FEC, 453 U.S. 182, 101 S. Ct. 2712, 2717-19, 69 L. Ed. 2d 567 (1981).

Martin Tractor apart, we find no support for the Commission's position that section 437h(a) qualifies voters to raise constitutional issues only in relation to their rights as voters. Neither the language of the statute (any eligible voter, all constitutional questions) nor its legislative history suggests an interpretation so constricted. We note further that the Commission's view is difficult to reconcile with California Medical Ass'n v. FEC, 101 S. Ct. 2712 (1981), in which the Supreme Court adjudicated a section 437h challenge to a provision of the Act regulating trade association activity. In short, we reject the FEC's severely limited voter standing delineation, disapprove Martin Tractor to the extent it adopted the Commission's view, and hold that the plaintiffs who are "individuals eligible to vote" in federal elections have statutory standing to invoke the section 437h certification procedure. See California Medical Ass'n v. FEC, 101 S. Ct. at 2717 n.6 (1981); Buckley v. Valeo, 424 U.S. 1, 12, 96 S. Ct. 612, 631, 46 L. Ed. 2d 659 (1976).

We are also satisfied that the individual plaintiffs have Article III standing to raise the constitutional claims. The union member plaintiffs allege that they suffer a relative diminution in their political voices-their influence in federal elections-as a direct result of the discriminatory imbalance Congress is alleged to have ordered in the 1976 FECA amendments; they further assert that a ruling declaring the amendments unconstitutionally discriminatory would likely redress their injury. Similarly, the stockholder plaintiffs allege that the use of "their" corporate assets to establish and support a PAC impinges upon their political freedoms; a ruling invalidating the authorizing statute would eliminate this asserted harm. These arguments are sufficient to establish the individual plaintiffs' standing under Article III to assert their First and Fifth Amendment rights. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S. Ct. 2620, 2630, 57 L. Ed. 2d 595 (1978); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343 (1975). However, no executive or administrative employees appear among the named plaintiffs.13 Those plaintiffs seek to assert vicariously alleged First Amendment rights of career employees to abstain from political expression.

The Supreme Court has repeatedly cited the prudential limitation on standing that a plaintiff generally may assert only his own legal interests, and may not raise those of third parties. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66 (1979); Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205 (1975). This prudential rule against the assertion of third-party claims is designed "to limit access to the federal courts to those litigants best suited to assert a particular claim," Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. at 1608. Because the rule is not of constitutional dimension, the Court has recognized exceptions to it in a number of cases. See, e.g., Carey v. Population Services, Int'l, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977); Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). Moreover, it is clear that Congress may, by legislation, permit one who satisfies Article III requisites in his own right to assert vicariously the rights of third parties. Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. at 1608 (1979); Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206 (1976). We believe Congress did not wish to truncate the presentations of parties entitled to invoke the section 437h expedited, certification procedure. Therefore, we entertain the individual plaintiffs' arguments with respect to the alleged First Amendment rights of career employees. See California Medical Ass'n, 101 S. Ct. at 2717 n.6 (1981) ("(T)his court has held (the grant of standing under section 437h) to be limited only by the constraints of Art. III of the Constitution ...."); Buckley v. Valeo, 424 U.S. at 12, 96 S.Ct. at 631 (1976) ("It is clear that Congress, in enacting (section 437h), intended to provide judicial review to the extent permitted by Art. III."). But cf. Bread Political Action Committee v. FEC, --- U.S. ----, ----, 102 S. Ct. 1235, 1239, 71 L. Ed. 2d 432 (1982) (In the context of considering who may invoke the expedited procedures of section 437h, the Court stated: "We do not assume the maximum jurisdiction permitted by the Constitution, absent a clearer mandate from Congress than here expressed."). The plaintiffs allege that the infringement of executive and administrative employees' right of political abstention leads to greater contributions to corporate PACs and, hence, to greater corporate PAC expenditures. This allegedly causes a relative diminution of the plaintiffs' political voices, which is one of the asserted injuries they seek to redress in this litigation.

Accordingly, we hold that the individual plaintiffs here are qualified to pursue all three constitutional challenges, including the claim that career employees are unconstitutionally exposed, by reason of the 1976 FECA amendments, to inherently coercive solicitations.

A. Is the asserted imbalance between corporations and labor unions under the 1976 FECA amendments unconstitutional?

The union plaintiffs claim that Congress, in the 1976 FECA amendments, restricted corporate and labor union PAC activity in an unequal and discriminatory manner, upsetting an alleged long-standing balance between corporations and labor unions, in violation of First and Fifth Amendment strictures.

1. Background of the 1976 amendments.

Congressional regulation of corporate political activity began with the Tillman Act of 1907,14 wherein Congress prohibited corporations from making money contributions in connection with any federal election. Congress has strengthened this prohibition several times since in a continuing effort to free the political system of inordinate and improper corporate influence.15 It was not until the War Labor Disputes Act of 1943,16 however, that Congress brought labor unions within the reach of the prohibition.17

In 1971, Congress, in a major undertaking to reform the federal election laws, enacted the Federal Election Campaign Act. Congress dealt with corporate and labor union political activity in section 205 of the Act,18 a section originally offered as an amendment by Representative Hansen. Representative Hansen stated that the purpose of the amendment "is to codify the court decisions interpreting (18 U.S.C. § 610), and to spell out in more detail what a labor union or corporation can or cannot do in connection with a federal election."19 The amendment "draws a distinction between activities directed at the general public, which (the courts have) prohibited, and communications by a corporation to its stockholders and their families, and by a labor organization to its members and their families, on any subject, which the courts have held is permitted."20 As to the latter, to ensure that contributions are voluntary, the amendment prohibited the use of funds obtained by force, threat of force, job reprisal or discrimination, dues or fees, a safeguard now found at 2 U.S.C. § 441b(b)(3)(A). Representative Hansen concluded that the amended "Section 610 strikes a balance between organizational rights (of corporations and labor unions) and the rights of those who wish to retain their shareholding interest or membership status but who disagree with the majority's political views."21

In the debate over the Hansen amendment, Congress focused on the respective interests of organization and individual, not on any balancing of corporate and labor influence. Congress appeared satisfied that existing law conformed to the legislature's wish to treat corporations and labor unions evenhandedly so that no alteration by FECA was required.22 Thus, as amended section 610 read when the Act became law in 1972, corporations were permitted to SOLICIT CONTRIBUTIONS THROUGH THEIR POLITICAl action committees from their shareholders and their families, and labor unions were allowed to solicit contributions through their PACs from their members and their families.

In the 1976 amendments, Congress added a corporation's "executive or administrative personnel and their families" to those whom a corporate PAC may solicit. This alteration was a direct response to SUNPAC, an Advisory Opinion the Commission issued in 1975. In SUNPAC, the Commission ruled, inter alia, that a corporate PAC could, consistent with the Act, solicit all of the corporation's employees as well as its shareholders. The debate in both Houses confirms that the single purpose of the alteration was to reject the sweeping SUNPAC interpretation and restore in large measure the balance thought to exist between corporations and labor unions prior to the Commission's SUNPAC opinion.

The House Bill, H.R. 12406, would have allowed a corporate PAC to solicit only its "executive officers" in addition to the corporation's shareholders. Representative Thompson stated that the House amendment "specifically corrects the FEC's erroneous interpretation" in SUNPAC.23 According to Thompson, SUNPAC "drastically modified the equitable balance which had been the national policy established during the 92d Congress."24 The House Bill would "reestablish( ) the congressionally determined balance between interests of the business community and its stockholders, and the interests of the labor community and its membership."25

The House Report explicitly states that "(t)he Sun Oil (SUNPAC ) opinion destroys the intent of the Congress to establish rules that apply equally to labor unions and corporations."26 The House Bill proposed "three limited clarifications of the law," all of them intended by the Committee to ensure even-handed treatment of corporations and labor unions. In allowing a corporate PAC to communicate with and solicit contributions from its "executive officers," the Committee noted that it viewed "management personnel," like stockholders, "to be among the beneficial owners of a corporation."27 The main purpose of the bill was stated as follows in the House Report:

H.R. 12406 continues the rule that unions may only solicit those they represent-their members-and reaffirms the intent of the 1971 Congress that corporations must also confine their activities to a roughly comparable group-namely, stockholders and executive officers.28

The bill also provided that any method of solicitation or communication which the law permitted corporations must also be permitted labor organizations.29

The Senate Bill, S. 3065, employed the phrase "executive or administrative personnel" instead of "executive officers," but in all other respects relevant here it tracked the House version.30 The Senate's intent to overturn the broad SUNPAC ruling is clear from the treatment accorded two amendments to the bill offered by Senator Packwood on the Senate floor. Senator Packwood first introduced an amendment which "in essence, lets everybody solicit everybody in the corporation ...."31 Specifically, his first amendment would have allowed a union PAC to solicit non-member employees and shareholders and, symmetrically, would have permitted a corporate PAC to solicit all of the corporation's employees including union members. Senator Packwood acknowledged the amendment "pretty much, puts the situation back where the Federal Election Commission had left it with their rulings in the creation of what was known as the SUNPAC decision." But he believed it treated labor unions and corporations "equitably."32 The Senate, without debate, rejected this amendment, 40-45.33

Senator Packwood introduced next "the middle ground amendment," a proposal which would have extended corporate and union solicitation to middle level employees. Conceding that strong labor opposition to the SUNPAC ruling justified some restrictions on corporate solicitation of employees, Packwood nevertheless pointed out that under the Senate Bill "nonsupervisory, nonunionized employees, who are half of the work force of the major corporations in this country, cannot be solicited by the union and cannot be solicited by the employer."34 These middle level employees, Packwood urged, have a stake in what both corporation and labor union do that affects them, therefore both union PACs and corporate PACs should be allowed to solicit them. Other Senators expressed concern over the potential for coercion, actual and perceived, in permitting solicitation of these non-supervisory, non-union employees.35 Although Packwood attempted to assure his colleagues that coercion was illegal under present law and would remain so under his amendment, the Senate rejected this amendment, too, 33-47.36 Senator Dole, speaking of the provision concerning PACs just before the vote on the entire bill, stated, "Although the compromise reached with respect to solicitation of funds from employees may not be totally consistent with the SUNPAC decision, it probably also represents a fair settlement of the issue."37

The substitute bill as reported out of conference employed the Senate language "executive or administrative personnel." The Conference Report defined "executive or administrative personnel" as "employee(s) who (are) paid on a salary, rather than hourly, basis and who ha(ve) policymaking, managerial, professional, or supervisory responsibilities."38 The Report explained further:

The term "executive or administrative personnel" is intended to include the individuals who run the corporation's business, such as officers, other executives, and plant, division, and section managers, as well as individuals following the recognized professions, such as lawyers and engineers, who have not chosen to separate themselves from management by choosing a bargaining representative; but is not intended to include professionals who are members of a labor organization, or foremen who have direct supervision over hourly employees, or other lower level supervisors such as "strawbosses".39

Concerning the balance Congress intended to restore in these amendments, the Conference Report contains only a passing reference to "the general rule inherent in the plan of the entire section-that unions insofar as they are employers, (40 stand in the same shoes as corporations ...."41 Congress was not unaware, however, that the balance struck in 1976 was different from the one that existed prior to the SUNPAC ruling. In presenting the Conference Bill to the House, Representative Hays stated:

The individuals ... whom a corporation may ... solicit( ) for contributions to a political fund was broadened to include professional employees who are not represented by a bargaining agent and supervisory employees other than foremen who directly supervise rank-and-file employees.42

Representative Brademas concluded that Congress has restored the ante-SUNPAC balance "in a manner that is fair and evenhanded .... (I)f the word 'fairness' implies a balancing of rights, this bill represents an equitable balance between the rights of corporations and labor unions. It is the product of deliberation, negotiation and compromise."43

In sum, our review of the relevant legislative history convinces us of two things: (1) Congress intended to overrule the SUNPAC decision in substantial part and re-establish a balance similar, but not identical, to the one Congress codified in 1971; (2) there was a general consensus that the amendments achieved this purpose and did so equitably.44

2. The alleged imbalance.

Plaintiffs, in light of the legislative history just recounted, do not claim that Congress in 1976 intended to tip the balance in favor of corporations. Rather, they accuse Congress of lacking the prescience to comprehend the effect of unleashing corporate PACs to solicit career employees: an "explosive" growth both in the number of corporate PACs and in their influence in federal elections, disproportionate to that of union PACs.

Plaintiffs cite the following figures and invite comparison. In 1975, 139 corporate PACs raised $5.8 million; 226 union PACs raised $18.5 million. By 1980, however, there were 1204 corporate PACs with a combined campaign chest of $34 million. The number of labor PACs increased in the same period only incrementally to 297; they raised $26 million.45 Plaintiffs estimate that 90% of corporate PAC funds are derived from executive and administrative employees.46 Plaintiffs' figures do not inform us how many career employees were open to solicitation pre-1976 as shareholders.47 Nor, taking into account that labor union PACs just a few years ago were more prevalent, wealthier, and more powerful than corporate PACs, do plaintiffs entertain the possibility that the relative strength of corporate and labor PACs may swing pendulum-like in step with the political fortunes of the day. Plaintiffs demonstrate a connection in time (and argue a causal connection) between the SUNPAC ruling, the 1976 amendments, and the proliferation of corporate PACs. It is the statute, they argue-specifically the provision authorizing corporate solicitation of career employees-that "allows and invites a large and growing imbalance between corporate and union PAC funds."48

Although plaintiffs recite a host of figures to dramatize this disparity, the imbalance of which they complain is not purely one of dollars and cents. Instead, the imbalance Congress is said to have created in 1976 is institutional, a matter of capacity, and thus outside the power of labor unions to correct. According to plaintiffs, there simply are many more major corporations (and many more career employees to be solicited) than there are major labor unions (and union employees ).49 Because most major corporations have not yet set up a political action committee,50 plaintiffs' argument continues, the chasm between corporate and labor PAC funds promises to widen even more.

Plaintiffs do not object, however, to the proscription on labor PAC solicitation of non-member union employees (or non-member corporate employees). Even if Congress drew the 1976 amendments in a facially equal manner (corporate and labor PACs may solicit their respective career employees; or corporate and labor PACs alike may solicit all corporate employees, regardless of union membership, and all shareholders), plaintiffs would still press their discrimination claim.51 In sum, the union plaintiffs challenge here congressional action that frees corporate PACs to amass funds that labor union PACs allegedly could not attract even if they were permitted to try.

3. The standard of review.

The union plaintiffs argue that the 1976 amendments, which authorize labor PACs to solicit their members but which authorize corporate PACs to solicit their career employees in addition to their shareholders, violate the equal protection component of the Due Process Clause of the Fifth Amendment.52 They argue conjunctively that this disparate treatment violates their First Amendment rights. Urging linked consideration of these two constitutional safeguards, plaintiffs rely on decisions focused on the "intersection" of equal protection and First Amendment guarantees, most notably, Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), and Police Department v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). They maintain that the 1976 amendments must be scrutinized strictly and assert that the Commission has not adequately justified the amendments' disparate impact on corporate and labor PACs.

While heightened scrutiny often attends a legislative classification alleged to impinge on First Amendment interests,53 we reject plaintiffs' argument that the most stringent review standard should apply in this case.54 Decisions in point may lack perfect consistency and crystal clarity, but they do reveal that the nature and quality of the legislative action at issue determine the intensity of judicial review of intertwined equal protection, First Amendment claims.55 We note in that light that the particular congressional action plaintiffs assail does not encroach directly or, on its face, place limits on any individual's speech or participation in the electoral process. In this respect, neither Mosley, involving an ordinance allowing one group, but not others, to picket, nor Buckley v. Valeo, involving limitations on campaign contributions and expenditures, nears plaintiffs' mark. Moreover, we underscore again that plaintiffs do not seek for union PACs the permission Congress granted corporate PACs to solicit career employees. Rather, plaintiffs want to tighten or reinstate a governmental limitation on political activity, i.e., they would preclude corporate PACs from soliciting career employees, in order to maintain a balance between electoral messages spread by corporations and those spread by unions.56

Mosley itself enunciated review standards that were not the most exacting,57 and Buckley v. Valeo drew distinctions bearing on the rigorousness of review based on the character of the several legislative proscriptions the Court scrutinized. See, e.g., 424 U.S. at 95-96, 96 S.Ct. at 671. We are therefore confident that the matter before us does not call for a review standard more demanding than this elevated, but not strictest,58 test: the challenged legislative action must bear a substantial relation to an important governmental interest.59

Plaintiffs phrase their objection to the 1976 amendments in terms of the ends Congress may have sought to achieve by permitting corporate PACs to communicate with and solicit executive and administrative employees.61 But their objection is more appropriately addressed to the means Congress chose to serve an indisputably important governmental interest: impartial FECA treatment of corporations and labor unions.62 It confounds means and ends scrutiny to demand, as plaintiffs do, that Congress explicate a substantial government interest in adding career employees to the pool of permissible corporate solicitees. As developed earlier,63 the 1976 amendments at issue were designed to restore a balance to FECA's treatment of corporations and labor unions, a balance the Commission in its SUNPAC ruling had upset. It is true that the balance Congress struck in 1976 differs from the one arrived at in 1971. But the goal of Congress has remained the same.64 Thus, whether the 1976 amendments survive constitutional review turns on the degree of precision with which Congress has achieved its unquestionably proper purpose: does the legislative scheme of section 441b(b)(2), as amended in 1976, bear a substantial relation to the important governmental interest in applying the federal election laws even-handedly to labor unions and corporations?

5. Means scrutiny: to what extent are corporations and labor unions similarly situated for the purpose at hand?

Congress apparently did not consider the difference in capacity between corporate and labor PACs when it framed the 1976 amendments. But, as we observed earlier, no disparity in favor of corporations existed in 1976.65 Although plaintiffs seem to charge Congress with a duty to prevent such a disparity from developing,66 their more basic complaint poses an obvious question: if Congress in the 1976 amendments intended to restore the balance upset by the Commission in SUNPAC, why did it not simply reaffirm the 1971 scheme, under which unions were permitted to solicit their members, and corporations their shareholders? Why did Congress add career employees to those whom a corporate PAC may solicit? Two related considerations lead us to reject plaintiffs' argument that this discrepancy renders the statute unconstitutional.67

First, Congress found, and plaintiffs do not contest, that executive and administrative employees share with stockholders a stake in the corporation's well-being.68 Recognizing a corporation's "right" to communicate with and solicit those who share an identity of interest with it,69 Congress simply extended the exercise of this right to communications with and solicitation of career employees. Congress thus tendered a sensible response to SUNPAC : it cut back the Commission's decision by excluding from corporate solicitation the bulk of the workforce, but it recognized that upper echelon personnel may identify with the corporation at least as much as shareholders do.

Second, in attempting to treat corporations and labor unions equally, Congress believed it was necessary in 1976-as it was in 1971-to take into account their structural differences. Technically, shareholders own the corporation. While union members do not "own" their union in the same technical sense, there is more than a kernel of truth in describing members as "owners." The union membership resembles a corporation's stockholders in that each group is the source of legitimacy and power for the organization's management and leadership. Thus, it follows that Congress would consider sound the analogy: union members are to their union as shareholders are to their corporation. In theory, directors, officers, and upper management run the corporation pursuant to the wishes of the shareholders. But corporate democracy is in many respects more theoretical than real. It is, if anything, more likely that a corporation's career employees will identify with the corporate direction, purpose, and welfare than will a shareholder who does not own a controlling interest. Congress took note of this likelihood in 1976 and thought it reasonable to allow a corporate PAC to solicit these employees. If there is an appropriate analogy, it might be either: career employees are to their corporation as union leadership is to its union, or union career employees are to their union. To achieve symmetry in 1976, Congress might have authorized union PACs to solicit their leadership or their career employees. However, this would have scant practical effect since it appears that the vast majority of union career employees and union leaders are also union members.70 As has been noted, the House Report indicates Congress believed the 1976 classification was drawn fairly:

H.R. 12406 continues the rule that unions may only solicit those they represent-their members-and reaffirms the intent of the 1971 Congress that corporations must also confine their activities to a roughly comparable group -namely, stockholders and executive officers.71

Our conclusion that differences in organizational structure allow Congress to shape the election laws to reflect those differences is supported by two recent decisions involving equal protection challenges to FECA. In Bread Political Action Committee v. FEC, 635 F.2d 621 (7th Cir. 1980) (en banc), rev'd on other grounds, --- U.S. ----, 102 S. Ct. 1235, 71 L. Ed. 2d 432 (1982), a trade association PAC argued that section 441b(b)(4)(D) deprived it of equal protection because under the statute, a trade PAC must obtain prior approval of a member corporation before soliciting that corporation's permissible solicitees. In rejecting that claim, the court pointed out that

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 regulations to curb abuses the Act was intended to halt.

635 F.2d at 630.72 And in California Medical Ass'n v. FEC, 453 U.S. 182, 101 S. Ct. 2712, 69 L. Ed. 2d 567 (1981), the Supreme Court rejected an equal protection claim that section 441a(a)(1)(C) imposed a greater burden on unincorporated associations and individuals than on corporations and labor unions.73 The Court commented:

The differing restrictions placed on individuals and unincorporated associations, on the one hand, and on unions and corporations, on the other, reflect a judgment by Congress that these entities have differing structures and purposes, and that they therefore may require different forms of regulation in order to protect the integrity of the electoral process.

101 S.Ct. at 2724.

Congress might have established a different scheme. Indeed, it might simply have directed a return to the 1971 "balance." We are not convinced, however, that the 1971 balance would be any more "equal" than the one struck in 1976.74

It is unlikely Congress will ever be able to achieve a perfect balance between the relative influence of corporations and labor unions in federal elections. In any event, the Constitution, as historically and currently interpreted, does not afford any guarantee against one person's or group's ability to fund more speech than can another. In fact, far from imposing on Congress an obligation to equalize the voices of corporate and labor PACs, the Constitution, as the Supreme Court now reads it, may forbid Congress to act in such a manner. See Buckley v. Valeo, 424 U.S. at 48-49, 96 S.Ct. at 648-649, quoted in Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, --- U.S. ----, 102 S. Ct. 434, 437, 70 L. Ed. 2d 492 (1981). Congress, in 1971 and 1976, attempted to treat corporations and labor unions in a relatively comparable manner. We hold that the 1976 amendments the plaintiffs challenge are substantially related to this important objective, and therefore do not deprive plaintiffs of equal protection.

B. Does the statute impair career employees' First Amendment right of political abstention by permitting the corporate PAC solicitation as detailed in the record?75

In their second constitutional claim plaintiffs champion the First Amendment right of career employees to political abstention. Plaintiffs allege that corporate PACs solicit their executive and administrative personnel under circumstances that are inherently coercive even though statutorily unobjectionable.76 They argue that because the nature of the employment relationship renders these solicitations "pregnant with coercion," career employees often must surrender or compromise their rights of political association and expression so as to avoid incurring the displeasure of their corporate superiors. Plaintiffs conclude that because Congress in the 1976 amendments explicitly authorized corporate solicitation of executive and administrative employees, this corporate PAC activity bears the imprimatur of the state and therefore contravenes the First Amendment.

Essential to plaintiffs' claim of a constitutional violation is a "governmental (state) action" foothold. The Commission maintains that a decision by Congress simply to permit corporate PACs to solicit career employees does not stamp as "state action" otherwise private corporate conduct. In its most recent statement on point, the Supreme Court rejected expansive application of the concept that state action may be indicated by state authorization of private sector activity. The Court summarized: "Our cases state 'that a State is responsible for (the) act of a private party when the State, by its law, has compelled the act.' This Court, however, has never held that a State's mere acquiescence in a private action converts that action into that of the State." Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164, 98 S. Ct. 1729, 1737, 56 L. Ed. 2d 185 (1978) (UCC-authorized sale of bailed goods to satisfy warehouseman's lien is not state action and therefore need not be attended by constitutional guarantees regarding minimal hearings). We pretermit a decision on the state action question, however, in view of the not altogether settled state of the law, cf. Abood v. Detroit Board of Education, 431 U.S. 209, 218 n.12, 97 S. Ct. 1782, 1790 n.12, 52 L. Ed. 2d 261 (1977); Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967), and because we conclude that even if the requisite state action were present, plaintiffs' challenge would not succeed.

In the discussion that follows we explain why we reject plaintiffs' argument that allowing corporate PACs to solicit executive and administrative personnel sanctions solicitation that is "inherently coercive." On the record before us, and in view of the safeguards against coercion with which Congress has brigaded corporate PAC solicitation,77 we cannot conclude that such solicitation inevitably forces career employees to compromise their political beliefs in order to avoid jeopardizing their corporate positions.

1. Is solicitation of career employees inherently coercive?

Plaintiffs complain that "employees are donating to the corporate political fund because of the employment relationship and its pressures-pressures which the company solicitations consciously and effectively exploit."78 They add that because there is an "inherently sensitive and unequal relationship between an employer and his employees(,) ... these solicitations are 'pregnant with coercion.' "79 In particular, plaintiffs argue that the supervisor solicitation, in-person solicitation, and group solicitation methods corporate PACs employ80 are inherently coercive, notwithstanding literal observance of the solicitation restrictions in section 441b(b)(3)(A)-(C).81

To demonstrate that these methods of solicitation are per se coercive, plaintiffs lean heavily on statistics assembled in the record. Plaintiffs point out that executive and administrative employees "give to the corporate political fund at rates (82 and in amounts (83 far beyond those which obtain when donors are not solicited to give to the institution that employs them."84 We demur to this statement. Plaintiffs infer from the figures they cite that career employees contribute at such rates and in such amounts because of the "employment relationship" and its inherent pressures. But this inference is not the only or even the plainest one the statistics suggest. From the very same figures one could argue with equal force that career employees contribute to their corporate PACs out of a desire to further what they perceive to be their own best interests or the best interests of the corporation, and because they have the wherewithal to do so, not because they are coerced or intimidated. Congress considered executive and administrative personnel, like shareholders, to have a beneficial stake in the welfare of the corporation; it therefore expressly permitted corporate PAC communications with and solicitation of these higher level employees.85 As noted earlier, it may be that, in general, executive and administrative employees are more likely to identify with their employer (and therefore the employer's political interests as expressed through its PAC) than is a non-employee shareholder with the corporation whose shares he has purchased in the market.86 On the record before us, it suffices to say that the proof plaintiffs offer falls woefully short.

Plaintiffs' attempt to extract support from case law fares no better. They rely on two Supreme Court decisions rejecting constitutional challenges to restrictions Congress placed on the political activities of public employees: Ex Parte Curtis, 106 U.S. 371, 1 S. Ct. 381, 27 L. Ed. 232 (1882); Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973), reaffirming United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947). In Curtis the Court upheld against constitutional assault a statute prohibiting certain federal employees from "requesting, giving to, or receiving from, any other officer or employee of the government, any money or property or other thing of value for political purposes." 106 U.S. at 371, 1 S. Ct. at 382. In Letter Carriers, the Court upheld against a second major First Amendment challenge (the first was in Mitchell ) the Hatch Act's ban on federal employee political activity.

We note a certain irony in plaintiffs' resort to these cases. In both, the challengers raised constitutional objections to restrictions on political activity imposed by Congress. The Court rejected those objections. Plaintiffs serve up these cases in an effort to persuade us that Congress not only may but must restrict because the First Amendment so commands. In Letter Carriers as in Curtis, the Court deferred to the congressional judgment that "partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences." 413 U.S. at 564, 93 S.Ct. at 563. While the Court recognized the legitimacy of congressional action to secure federal employees from "pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out of their own beliefs," 413 U.S. at 566, 93 S.Ct. at 2891, the Court never suggested that Congress was obliged by the Constitution to impose such protection.87

In short, we find scant instruction for the problem at hand in cases deferring to a legislative decision alleged to invade First Amendment rights to associate and to participate in political activities. With regard to the issue we confront, the Court's firm rejection of the First Amendment challenges in Letter Carriers suggests to us only that the area is one in which the considered decision of Congress should attract the judiciary's attention and respect. We therefore turn to the views expressed in Congress relevant to the coercion potential in corporate PAC solicitation of career employees.

2. The considered judgment of Congress and the deference due it.

Congress was aware of the potential for coercion of career employees when it permitted their solicitation by corporate PACs subject to specified safeguards. Legislative concern that unrestricted solicitation by corporations and labor unions would trench on an individual's political beliefs was a major force behind the restrictions Congress enacted in the Hansen amendment of 1971. Representative Hansen, speaking of corporate PAC solicitation of shareholders and labor PAC solicitation of union members, stated:

This (amendment) is intended to insure that a solicitor for COPE or BIPAC cannot abuse his organizational authority in seeking political contributions. Of course, nothing can completely erase some residual effects on this score, any more than the law can control the mental reaction of a businessman asked for a contribution by an individual who happens to be his banker, or of a farmer approached by the head of his local farm organization. The proper approach and the one adopted here, is to provide the strong assurance that a refusal to contribute will not lead to reprisals and to leave the rest to the independence and good sense of each individual.88

During the floor debate on the 1976 amendments, similar concerns were expressed. In the House, Representative Thompson spoke of "the coercion inherent in the solicitation of employees by employers":89

(W)ith respect to employee coercion, it is simply a fact that solicitations by an employer, no matter for what purpose, and no matter how well-intentioned, are psychologically coercive. The employee is going to be intimidated and coerced, because the entity soliciting the funds is, for all practical purposes, the same as, or closely related to the one which also gives the salary raises and promotions. This fundamental principle was a major reason for the particular balance established by section 610 in 1971, which the SUNPAC advisory opinion so drastically altered in 1975.

This bill corrects th(is) Commission-created problem( ).90

In the Senate, Senator Bumpers spoke out against the second amendment Senator Packwood offered that would have authorized corporate and labor PACs to solicit non-union, non-supervisory employees.91

MR. BUMPERS. The last amendment which was just defeated, I think, troubled most of the Members in this body for a very simple reason: Everybody is concerned about the possibilities of a gentle, nevertheless overt, pressure when employees are solicited by their employer.

... The thing that troubles me about that is that it occurs to me that the pressure is really more stark in the instance where the employee is not unionized and does not have anyone as a bulwark between him and the employer. He has no organization; he has no one to protect him if he decides to say no to the employer. Does the Senator not see that as a problem?

MR. PACKWOOD. It is a problem. It is illegal under existing law to coerce or pressure anyone into making contributions, but the Senator from Arkansas is correct; I will admit it is a problem....

MR. BUMPERS. I thank the Senator. That answers my question. I see the Senator is cognizant of the problem. I am not talking about the question of where there is overt pressure to either give or you will not have a job next week, but I think the pressure is there, and that troubles me.92

Senator Brock, although he spoke for the second Packwood amendment, sounded a similar theme:

MR. BROCK. Mr. President, I want to be very sure we understand what we are doing here.... I would like to be very honest: any of these pacts (sic), they all bother me. There is implicit in a pact (sic), if not the fact at least the opportunity for pressure. That bothers me greatly. It occurs just as much in a union shop as it does with a corporation soliciting its lower management group, and I think it is something we ought to be troubled about, and we ought to be extremely careful what we do.

I do not know how to resolve that because I do know how to limit voluntary associations for public purposes. I think they are very good, but, boy, it does trouble me to have a law setting these things up with full understanding, in a posture whereby people can be abused, or at least be concerned about being abused. That is the real danger. They do not know what is going to happen. They do not know if they are going to have their union card pulled or if they are going to lose that opportunity for promotion.93

These statements, read in isolation, might be thought to reflect an undifferentiated, across-the-board concern about solicitation of all employees, regardless of their place in the employment hierarchy. But read in the context of the entire legislative history, the statements confirm a dominant concern in Congress about the risk of coercion and intimidation of hourly employees.94 The statutory language plainly demonstrates that concern: solicitation of hourly employees is severely restricted; solicitation of career employees is generally permitted, but is brigaded with protections designed to prevent overreaching. We recall here the evil Congress perceived in the SUNPAC ruling (allowing corporate PACs to solicit all employees) and the method Congress chose to overrule it (section 441b(b)(4)). In 1971, Congress, in an effort to protect union members and corporate shareholders against arm-twisting solicitation, enacted several safeguards-now codified at section 441b(b)(3)(A)-(C). Congress believed these measures would eliminate, or at least substantially deter, coercive tactics. When Congress extended corporate solicitation to reach executive and administrative personnel in 1976, it extended as well the protections earlier afforded union members and shareholders. There is no indication that Congress believed or had cause to believe its safeguards ineffective in the interim between the enactment of FECA and the 1976 amendments. Nor is there any evident reason to believe that protections Congress relied upon to secure union members against union pressure would be less adequate in securing career employees against corporate pressure.95

The judgment of Congress in this domain, as Letter Carriers suggests, is entitled to particular respect. See also CBS, Inc. v. Democratic National Committee, 412 U.S. 94, 102-03, 93 S. Ct. 2080, 2086-87, 36 L. Ed. 2d 772 (1973). Congress took into account competing interests "in the context of the political arena where the expertise of legislators is at its peak and that of judges is at its very lowest." First National Bank of Boston v. Bellotti, 435 U.S. 765, 804, 98 S. Ct. 1407, 1430, 55 L. Ed. 2d 707 (1978) (White, J., dissenting). The legislative history demonstrates congressional attention to the multi-faceted speech and political participation concerns at stake.96 Plaintiffs have offered no convincing argument in support of their plea that we upset the decision Congress made.

Plaintiffs recite a host of cases97 alleged to stand for the principle that "in areas within the reach of the First Amendment government can neither inhibit individual freedom nor compel activism of the individual."98 But this is desperate argument. In each of the cases plaintiffs cite, the Court struck down government requirements or actions that compelled an individual to speak or associate against personal political or religious beliefs. Here, the government neither requires career employees to contribute to their PAC against their will nor requires corporations to set up a PAC and solicit their career employees; government merely permits such solicitation, and enforces restrictions designed to check attempts to coerce contributions. Whatever the scope of an individual's First Amendment right of political abstention, we hold that the statutory authorization of corporate PAC solicitation of executive and administrative employees does not curtail that right. We thus conclude that the in-person, group, and supervisor solicitation of career employees that the statute allows, subject to controls against abuse, does not unconstitutionally encroach upon individual rights of political association and expression.

C. Does the use of general corporate assets to establish and support a corporate PAC violate the First Amendment rights of dissenting shareholders?

The third certified constitutional question also concerns an alleged right of political abstention: Has Congress, by authorizing a corporation to use its assets to finance the administrative costs of its PAC,99 impermissibly impinged upon the First Amendment rights of shareholders who object to such use of corporate assets?100 Plaintiffs reason that Congress has forced them to forfeit their right to be free of "compulsory political exactions by sanction of law" because FECA permits their corporation to spend money in aid of political action they disapprove.101

Again we encounter at the threshold a formidable "governmental (state) action" issue but, for the reasons indicated earlier,102 we pretermit the question. We reject plaintiffs' third claim because it stretches beyond reasonable proportion the doctrine plaintiffs would press into service.

Plaintiffs rely on International Association of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961), and Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), decisions concerning the use of compulsory union dues103 by a labor PAC to fund and promote the election of certain candidates.

In Street, the Court made no constitutional determination. Rather, it construed Section 2, Eleventh of the Railway Labor Act104 to "deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes." 367 U.S. at 768-69, 81 S.Ct. at 1799-1800.

In Abood, the Court held that the First Amendment prohibited a public employee union from requiring any employee "to contribute to the support of an ideological cause he may oppose as a condition of holding a job":

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative. Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

431 U.S. at 235-36, 97 S. Ct. at 1799-1800 (footnote omitted). We acknowledge, as plaintiffs point out, that the Abood majority did not declare a principle applicable only to public employee unions. Rather, the offending "governmental action" stemmed from a state statute that sanctioned the agency-shop agreement, which made the payment of all union fees and dues a condi tion of job retention. 431 U.S. at 226-27, 97 S.Ct. at 1794-95. The Court quoted an earlier opinion:

(T)he federal statute is the source of the power and authority by which any private rights are lost or sacrificed.... The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates....

431 U.S. at 218 n.12, 97 S. Ct. at 1791 n.12 (quoting Railway Employees Department v. Hanson, 351 U.S. 225, 232, 76 S. Ct. 714, 718, 100 L. Ed. 1112 (1956)) (emphasis added).

But plaintiffs reach too far in equating the situation of a worker who is compelled to join a union, or to pay union dues on pain of losing his employment, with that of a shareholder in a publicly-held company whose livelihood does not depend on retaining stock in a corporation involved in political activity he opposes and whose investment is tenuously linked to the establishment and operation of the corporation's PAC. The worker's situation is often instinct with coercion, the shareholder's, at least when the corporation is publicly held, generally will not bear the same characterization. As the Supreme Court noted in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978): "(T)he shareholder invests in a corporation of his own volition and is free to withdraw his investment at any time and for any reason." 435 U.S. at 794 n.34, 98 S. Ct. at 1425 n.34.105

Bellotti further explained the "critical distinction" that leads us to regard plaintiffs' argument as insubstantial:

In (Street and Abood ) employees were required, either by state law or by agreement between the employer and the union, to pay dues for a "service fee" to the exclusive bargaining representative. To the extent that these funds were used by the union in furtherance of political goals, unrelated to collective bargaining, they were held to be unconstitutional because they compelled the dissenting union member " 'to furnish contributions of money for the propagation of opinions which he disbelieves ....' "( )

The critical distinction here is that no shareholder has been "compelled" to contribute anything.... A more relevant analogy, therefore, is the situation where an employee voluntarily joins a union, or an individual voluntarily joins an association, and later finds himself in disagreement with its stance on a political issue.

435 U.S. at 794-95 n.34, 98 S. Ct. at 1425 n.34 (emphasis added) (citation omitted).106 Justice Black, writing in dissent in Street-he would have found a constitutional violation-similarly identified the infirmity in the reasoning plaintiffs urge upon us:

There is, of course, no constitutional reason why a union or other private group may not spend its funds for political or ideological causes if its members voluntarily join it and can voluntarily get out of it. Labor unions made up of voluntary members free to get in or out of the unions when they please have played important and useful roles in politics and economic affairs. How to spend its money is a question for each voluntary group to decide for itself in the absence of some valid law forbidding activities for which the money is spent. But a different situation arises when a federal law steps in and authorizes such a group to carry on activities at the expense of persons who do not choose to be members of the group as well as those who do. Such a law, even though validly passed by Congress, cannot be used in a way that abridges the specifically defined freedoms of the First Amendment.

367 U.S. at 788-89, 81 S. Ct. at 1809 (Black, J., dissenting) (emphasis added) (footnotes omitted). In sum, the Supreme Court's analyses relevant to plaintiffs' claim point securely to this conclusion: a dissenting shareholder in a publicly-held company who does not allege any legal or practical obligation to continue his investment, is not compelled to speak, in violation of his First Amendment right to remain silent, by a statute authorizing a corporation to use a portion of its assets to establish and maintain the corporation's political action committee. We therefore inquire no further and rule against plaintiffs on their third and final constitutional challenge.

For the foregoing reasons, we hold that the 1976 amendments to FECA do not violate the constitutional rights asserted by plaintiffs. Accordingly, we answer in the negative each certified constitutional question.107

I concur in Parts I, II, III, IV.A. and IV.B. of the court's per curiam opinion. I also concur in the result reached with respect to the question posed in Part IV.C. of the majority opinion.1 I am, however, troubled by the sharp distinction that the court draws in Part IV.C. between the interests of dissenting union members and those of dissenting corporate stockholders in political abstention. Because the analysis in the majority opinion may be read to suggest that dissenting stockholders have no legitimate interest in the use of their investments for partisan political or ideological purposes, and because in my view the court's conclusion is not compelled by Su preme Court precedent, I write separately to concur on grounds different from those relied upon by the majority. In particular, I would hold that plaintiffs cannot prevail on the political abstention issue due to a lack of "state (governmental) action" in this case.

Plaintiffs contend that, "(i)n approving the use of the general corporate assets for the operating costs of its PAC (2 U.S.C. § 441b(b)(2)(C)), the statute requires stockholders to bear the costs of political operations which frequently do not meet their own political interests and desires.... Thus, when Congress approved the use of the stockholders' assets to meet the operating costs of corporate PAC's, it authorized the involuntary use of a citizen's assets for the support of political candidates whom he may not wish to support or may actively oppose." Plaintiffs' brief at 41-42 (footnote omitted). Relying primarily on Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), plaintiffs argue that "(e) stablished constitutional principles bar ... compulsory political exaction under sanction of law." Plaintiffs' brief at 42.

In Abood, the State of Michigan had enacted legislation authorizing a system for union representation of local government employees, including a statutory provision allowing for "agency shop" agreements. Under the authorized agency shop agreement, a public employee represented by a union could be required to pay to the union-as a condition of employment-a service fee equal in amount to union dues. The issue before the Court was "whether (the agency shop) arrangement violate(d) the constitutional rights of government employees who object to public-sector unions as such or to various union activities financed by the compulsory service fees." 431 U.S. at 211, 97 S.Ct. at 1787. The Court held that mandatory agency shop fees could not be spent, over an employee's objection, "for the expression of political views, on behalf of political candidates, or towards the advancement of other ideological causes not germane to (a union's) duties as collective-bargaining representative." 431 U.S. at 235, 97 S.Ct. at 1799 (footnote omitted). In reaching this conclusion, the Court acknowledged that "(t)here will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited." 431 U.S. at 236, 97 S.Ct. at 1800 (footnote omitted).

Although the majority opinion in the instant case recognizes that "union members are to their union as shareholders are to their corporation," majority opinion at 1108, the court nevertheless finds Abood inapposite. According to the majority, corporate stockholders-the legal owners of the corporation-have less right to control the political use of their funds than union members. Relying on a footnote in First National Bank v. Bellotti, 435 U.S. 765, 794 n.34, 98 S. Ct. 1407, 1425 n.34, 55 L. Ed. 2d 707 (1978), the court reasons that the political use of a stockholder's share of corporate assets is never coercive because the stockholder has no "legal or practical obligation to continue his investment." Majority opinion at 1118.2 In contrast, the majority posits that the dues obligation under a union or agency shop agreement makes "(t)he worker's situation ... instinct with coercion." Id. at 1117.

With all due respect, I believe that the distinctions drawn by the majority between union members and stockholders are founded on generalized characterizations lacking any substantial basis in the record before us. One simply cannot conclude that corporate stockholders are never coerced when the money they have invested in the hope of pecuniary return is spent for political purposes. For example, while stockholders often have a ready market for their corporate shares, that may not be true for the minority owner of shares in a closely held corporation. If such a minority owner's principal source of income is the dividend distributions from his corporate holdings, who is to say that he is not coerced if the corporation establishes and finances a PAC that supports candidates who are antithetical to his political views? How is this minority stockholder different from the union member whose livelihood depends on her job and who complains if her union contributes a portion of her mandatory dues to a political candidate whom she opposes?3 The majority opinion, in my view, errs when it ignores such situations that run counter to its generalized analysis. As Justice Frankfurter noted: "Generalizations are treacherous in the application of large constitutional concepts." Hughes v. Superior Court, 339 U.S. 460, 469, 70 S. Ct. 718, 723, 94 L. Ed. 985 (1950).4

While I cannot embrace the rationale in Part IV.C. of the majority opinion, I nevertheless concur in the result. Rather than holding that corporate financing of PACs never coerces dissenting stockholders (and that union support of political causes and candidates always coerces dissenting union members), I would hold that the plaintiffs cannot prevail on the political abstention issue for want of "state (governmental) action."5 See First National Bank v. Bellotti, 435 U.S. 765, 814, 98 S. Ct. 1407, 1435, 55 L. Ed. 2d 707 (1978) (White, J., dissenting).

In finding no governmental action here, I start with certain critical assumptions. First, it is my understanding that, absent some lawfully enacted congressional or state prohibition, a private company may freely expend or contribute corporate funds for partisan political purposes. Second, possibly as a corollary to the first proposition, I assume that the Federal Election Campaign Act (FECA), as a legislative enactment, is not constitutionally compelled. Therefore, although I recognize that FECA regulates the creation of corporate PACs and imposes certain limitations on political contributions, I do not view the Act as authorizing activity that would otherwise be unlawful. See note 6 infra.

Furthermore, I am unwilling to assume that "(c)orporate use of stockholder assets to operate employee PACs results from Congressional action." Plaintiffs' brief at 43 n.14 (emphasis added). There is no concrete evidence to support this suggestion and it appears to me to be counter-intuitive. In other words, I assume that it is highly likely that corporate funds would be contributed to political campaigns, at levels at least comparable to present levels of contribution, absent any legislative regulation or prohibition. I therefore do not view the enactment of FECA, or any like statute, as encouraging corporate political donations.6

With these assumptions in mind, I have great difficulty in comprehending how FECA can be perceived as satisfying the "state action" requirement. The corporate political activity in this case-without more-is purely private action. Although it is true that the "state action" standard is rarely susceptible to a simple definition, at the least we know that the conversion of private action into governmental action for purposes of constitutional adjudication requires some governmental involvement in, or encouragement of, the private action in question. See, e.g., Peterson v. City of Greenville, 373 U.S. 244, 247-48, 83 S. Ct. 1119, 1120-21, 10 L. Ed. 2d 323 (1963); Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961). I can find no such governmental involvement or encouragement in this case.

The fact that a corporation is a legal entity created pursuant to a state's laws does not imbue all of its actions with the state's authority for constitutional purposes. Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-51, 95 S. Ct. 449, 450, 42 L. Ed. 2d 477 (1974) (action of regulated public utility not state action); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972) (action of private club granted state liquor license not state action). Nor does mere governmental "acquiescence in a private action convert( ) that action into that of the State." Flagg Brothers v. Brooks, 436 U.S. 149, 164, 98 S. Ct. 1729, 1737, 56 L. Ed. 2d 185 (1978). In this case no more than acquiescence is involved. Congress has neither required, encouraged, nor coerced the creation of corporate PACs. Neither has it required corporations to fund the operating expenses of PACs or to solicit stockholders and executive employees. These corporate actions are entirely voluntary.

It would seem to me that, but for the confused state of the law reflected in the agency and union shop cases,7 the "state action" question in this case would be relatively simple. The principal source of confusion is the Supreme Court's majority opinion in Abood, supra. Although Abood involved public employers and public employees, the majority opinion there, relying heavily on Railway Employees' Department v. Hanson, 351 U.S. 225, 76 S. Ct. 714, 100 L. Ed. 1112 (1956), assumed that "(t)he differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights." 431 U.S. at 232, 97 S.Ct. at 1798. The majority opinion in Abood also cited Justice Douglas' concurring opinion in International Association of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961), to show that

Hanson nowhere suggested that the constitutional scrutiny of the agency-shop agreement was watered down because the governmental action operated less directly than is true in a case (involving public employers and employees). Indeed, Mr. Justice Douglas, the author of Hanson, expressly repudiated that suggestion:

"Since neither Congress nor the state legislatures can abridge (First Amendment) rights, they cannot grant the power to private groups to abridge them. As I read the First Amendment, it forbids any abridgement by government whether directly or indirectly." Street, 367 U.S., at 777 (81 S.Ct. at 1804) (concurring opinion).

431 U.S. at 227 n.23, 97 S. Ct. at 1795 n.23.

At first blush, it might appear that Abood and Hanson are dispositive of the "state action" question in this case. Logically extended, the holdings in these two cases seem to support plaintiffs' contention that "(w)hen corporate action is authorized by and derives from Congressional action, constitutional limitations clearly apply." Plaintiffs' brief at 43 n.14. Unfortunately, the issue is not so simple. For one thing, the decision in Hanson (which provides the underpinning for the "state action" holdings in Abood ) is hardly free from ambiguity. For another thing, I do not believe that the alleged governmental action here can be equated with the governmental action found in the agency or union shop cases.

In Hanson, a group of railroad employees brought a suit in a Nebraska court to enjoin enforcement of a union shop agreement. The challenged union shop clause was authorized by the Railway Labor Act, 45 U.S.C. § 152, Eleventh. That section of the Railway Labor Act also shielded a union shop clause from the otherwise prohibitory "right to work" provision in the Nebraska Constitution. The Nebraska Supreme Court upheld an injunction against the enforcement of the union shop clause on the grounds that it deprived employees of the right of freedom of association protected by the First Amendment. The Supreme Court agreed that the case presented justiciable questions under the First and Fifth Amendments. However, as was noted in Abood, the Court in Hanson found that

the Railway Labor Act pre-empts any attempt by a State to prohibit a union-shop agreement. Had it not been for that federal statute, the union-shop provision at issue in Hanson would have been invalidated under Nebraska law. The Hanson Court accordingly reasoned that government action was present: "(T) he federal statute is the source of the power and authority by which any private rights are lost or sacrificed.... The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates ...." 351 U.S., at 232 (76 S.Ct., at 718).

431 U.S. at 218 n.12, 97 S. Ct. at 1791 n.12. Unlike the situation in Hanson, this case does not involve action authorized by a federal statute that, by its terms, preempts contrary state law. Absent FECA, or some like statute, corporate contributions to federal election campaigns would be plainly lawful.

Additionally, even if Hanson cannot be distinguished because, unlike the Railway Labor Act, FECA does not here preempt state law, there is an equally compelling reason to reject a finding of "state action" in this case. In Hanson, in finding "state action," the Court obviously was persuaded that precedents such as Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), were controlling. Thus, the opinion in Hanson stresses that,

(i)f private rights are being invaded, it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded.... In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

351 U.S. at 232, 76 S. Ct. at 718. The Court then added that, in this context, "(o)nce courts enforce the agreement the sanction of government is, of course, put behind them." Id. at n.4.

The instant case, however, in no way resembles the circumstances presented in Hanson. Here, plaintiffs have lost no rights by virtue of federal law.8 Moreover, unlike Hanson and Shelley, there is no issue here involving the "sanction of government" attributable to judicial enforcement of constitutionally suspect private agreements.

Admittedly, the "state action" question is not an easy one, and no answer is free from doubt. Nevertheless, on the facts of this case, I simply cannot find the requisite governmental action to warrant a consideration of plaintiffs' constitutional claims with respect to political abstention. On this basis, I concur.